SIGN UP AGREEMENT GENERAL TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS.
The services provided to users (referred to herein as “You” or “Your”) of this website which is owned and operated by Nimbis Services, Inc. (“NIMBIS”) are subject to this Sign Up Agreement (the “Agreement”). By clicking through and accepting this Agreement both You and NIMBIS (together, the “Parties”) shall be subject to the terms and conditions set forth herein applicable to such services.
2. DESCRIPTION OF SERVICE.
NIMBIS currently provides users with access to various third party high performance computing resources, including software tools, high performance hardware, data storage space, and on-demand computer cycles and software (collectively the “Service”). Users must have access to the Internet (at their own expense) to access the Service. Use of any new features that augment or enhance the current Service shall also be subject to this Agreement. Additional services may also be available upon request.
3. REGISTRATION INFORMATION.
In consideration of Your access to and use of the Service, You agree to provide true, accurate, current and complete information about yourself and notify NIMBIS of any changes to previously submitted registration data. If You provide any information that is false, incomplete or otherwise inaccurate, or NIMBIS has a reasonable basis to suspect that such inaccurate information has been provided, NIMBIS has the right to deny, suspend, or terminate Your account and refuse any and all current or future use of the Service (or any portion thereof).
4. USER ACCOUNT AND PASSWORD.
You will be granted a password to access Your account. You are responsible for maintaining the confidentiality of the account password that provides access to Your account’s private information and You are fully responsible for all activities that occur under Your password or account. You agree to (a) immediately notify NIMBIS of any unauthorized use of Your password or account or any other actual or potential breach of security and (b) exit from Your account at the end of each session. NIMBIS shall not be liable for any loss or damage resulting from unauthorized use of the Service in contravention of the Agreement.
5. COST OF SERVICE AND PAYMENT.
You are responsible for payment for use of the Service. Accordingly, NIMBIS requires users to enter valid payment information prior to accessing the Service. The Service is charged to the user based on compute cycle fees, file storage fees, bandwidth fees, software license fees, and job service fees. In some cases, charges may include management node fees, virtual private networking fees, and other related fees. The specific calculation of the total fees will depend on the user’s selection of third party resource providers at the time of use. It is therefore Your responsibility to understand the associated cost provided by NIMBIS in its “pay-as-you-go” processing cart. In all cases, the failure to make timely payment for the Service provided hereunder may result in termination of Your access to the Service.
6. REFUND POLICY.
Each discrete use of the Service (referred to here as a “Job”) is subject to NIMBIS’s refund policy as set forth herein. If You are not satisfied with a particular Job run by the Service for which full payment has already been made, You may, within thirty (30) days of the date of Job completion, request a refund for the amount paid in connection therewith. A statement setting forth in detail the reason(s) for the dissatisfaction with the Job must accompany any such request. Refunds shall be made in the form of a credit to the account holder to appear on the following invoice. All refunds are made at the sole discretion of NIMBIS. The refund policy does not apply to Jobs that cannot be satisfactorily completed due to regularly scheduled system maintenance or in the event that the cost of a Job exceeds the funds available in the user’s account or a Job that fails due to software application errors or problems introduced in Your software and data submission.
7. PROHIBITED USES OF THE SERVICE.
In consideration of the grant by NIMBIS of access to the Service, You agree to NOT do any of the following:
a. Upload, store, execute, calculate, or transmit any Content or any other material that is illegal or otherwise prohibited under the laws of the United States or the Commonwealth of Virginia, or that NIMBIS reasonably deems to be inappropriate or unlawful;
b. Forge headers or otherwise manipulate user identifiers in order to disguise the origin of any Content transmitted through the Service;
c. Upload, store, execute, calculate, or transmit any Content that You do not have lawful access to under any applicable law;
d. Upload, store, execute, calculate, or transmit any Content that infringes any patent, trademark, copyright, trade secret, or other proprietary right of NIMBIS or any third party;
e. Upload or otherwise transmit any material that contains software viruses or any other computer code, file, or program designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or network equipment;
f. Interfere with or disrupt the Service or the servers or networks connected to the Service, or fail to comply with any requirements, procedures, policies or regulations of networks connected to the Service;
g. Engage in any deliberate attack on the system, including, but not limited to, any activity outside the user account or user processes without the express written permission of NIMBIS;
h. Accessing, or attempting to access, NIMBIS’s system, computers, software, or information, or that of any third party service provider in a manner inconsistent with this Agreement without the express written permission of NIMBIS; or
i. Engage in any other conduct relating to the Service that violates any applicable local, state, national, or international law.
8. EXPORT RESTRICTIONS.
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and use of the Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside. The Service shall not be used in any manner to process, store, or transmit any data or software that may violate U.S. Export Administration Regulations , U.S. International Traffic in Arms Regulations, or any other government export control regulations unless an export license agreement setting forth procedures and policies is agreed to by all relevant parties. In this case, additional terms of service conditions will apply. Your obligations pursuant to this Section 8 shall survive any termination or expiration of this Agreement.
NIMBIS uses commercial best practices to provide for the physical security of the Service. Access to the system is limited to a restricted number of NIMBIS employees and/or consultants. NIMBIS will provide for the electronic security of the Service using standard network security practices, including transfers via secured protocol. In order to promote the security of the Service, You acknowledge that NIMBIS may (but is not obligated to) monitor, gather, log, or store user activity information such as, but not limited to, system commands in real time for the purpose of monitoring or analyzing user activity or history. You agree that this activity information is the property of NIMBIS.
10. CONTENT DISCLAIMER.
You understand that all information, data, text, images, media, software, or other materials (together referred to as “Content”) is the sole responsibility of the person from which such Content originated, and that NIMBIS, its management, officers, agents, and employees are not responsible for any Content. This means that You, and not NIMBIS, are entirely responsible for all Content that You upload, download, or otherwise transmit via the Service. Under no circumstances will NIMBIS be responsible in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content stored, calculated, emailed, or transmitted via the Service.
11. DISCLAIMER OF WARRANTIES.
NIMBIS makes no warranty of any kind, express, implied, or statutory, that the Service, including any services provided by third parties, will be uninterrupted or error-free, or that results obtained from the use of the Service will be accurate, reliable, merchantable, or fit for any particular purpose. Further, no advice or information, whether oral or written, provided to You by NIMBIS or otherwise through or from the Service shall be deemed to create any warranty not expressly stated herein. Some jurisdictions do not allow the exclusion of certain warranties, and as such, some of the above limitations may not apply.
You agree to indemnify and hold harmless NIMBIS, its officers, directors, partners, agents, and employees from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: a) the Content You submit, post, or transmit through the Service; b) Your use of the Service; c) Your connection to the Service; d) Your violation of any of the terms of this Agreement; or e) Your violation of any legal right of a third party.
13. LIMITATION OF LIABILITY.
You expressly understand and agree that: a) the Service, including any services provided by third party providers, is provided to You on an “as available” basis and that storage of sensitive data via the Service is at Your sole risk; b) You assume sole responsibility to evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content; c) any material downloaded or otherwise obtained through the use of the Service is undertaken at Your own risk and accordingly You will bear sole responsibility for any damage or loss resulting therefrom, including, but not limited to, damage to computer systems or loss of data; and d) NIMBIS and its third party service providers shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses (even if NIMBIS has been advised of the possibility of such damages) resulting from: (i) the use of or the inability to use the Service; (ii) the cost of procurement of substitute services; (iii) unauthorized access to or alteration of Your transmissions or data; (iv) statements made or conduct of any third party on the Service; or (v) any other matter relating to the Service. Notwithstanding any other provision of this Agreement to the contrary, NIMBIS’s liability shall not in any circumstance exceed the amount You paid to NIMBIS for use of the Service. Certain jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, and as such, some of the above limitations may not apply.
Both You and NIMBIS agree not disclose to any third party the confidential information, proprietary information, business data, trade secrets, formulas, and the like (collectively, “Confidential Information”) of the other, or that of anyone having a business or employment relationship with You or NIMBIS. The Parties further agree that it will not use, remove, transfer, transmit, reproduce, or otherwise make use of the other party’s Confidential Information, except as necessary for the performance of the Service. Accordingly, Your Confidential Information may be processed on NIMBIS’s third party systems using commercial best practices to protect Your information.
15. DISCLOSURE OF CONTENT.
Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that NIMBIS may disclose Content, including any Confidential Information, if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of a third party; or (d) protect the rights, property, or personal safety of NIMBIS, its users, and the public.
16. RELATIONSHIP OF THE PARTIES.
NIMBIS’s relationship with You is strictly that of vendor and vendee. Accordingly, nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employment relationship between the Parties.
17. MODIFICATIONS TO THE SERVICE.
NIMBIS and/or its third party service providers reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any portion thereof) with or without prior notice. You agree that NIMBIS shall not be liable to You or to any third party for any such modification, suspension, or discontinuation of the Service.
18. FORCE MAJEURE.
Neither You nor NIMBIS shall be liable hereunder by reason of any failure or delay in the performance of each party’s respective obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, power outages, material shortages, or any other cause beyond the reasonable control of such party.
The Parties agree that any and all disputes, controversies, or claims (collectively referred to as a “Claim”) arising under or relating to this Agreement shall be subject to binding arbitration to be determined by one arbitrator, in accordance with and pursuant to the then prevailing Code of Procedure of the National Arbitration Forum (“NAF”), to be held and arbitrated in Fairfax County, Virginia. The party asserting the Claim shall file notice of the demand for arbitration with the NAF and serve the other party. Further information concerning the filing and service of an arbitration demand may be obtained online at www.adrforum.com, or by mail at NAF, P.O. Box 50191, Minneapolis, MN 55405. No demand for arbitration shall be made after the date when institution of legal proceedings would be barred by the applicable statute of limitations, and in no event shall either party assert a Claim on behalf of, or as a member of, any group or class. The findings of the arbitrator, and any award, shall be final and binding on all parties to this Agreement and remain confidential between the Parties. Each party shall be responsible for its own fees and costs, unless determined otherwise by the arbitrator. Because the Parties believe arbitration is a faster and more cost-effective means of resolving a Claim, they hereby select arbitration, rather than litigation or some other means of dispute resolution, to address their grievances or alleged grievances with the other. Except as set forth immediately below, by entering into this Agreement, the Parties waive their constitutional right to have the Claim decided in a court of law before a jury, and instead accept the use of arbitration. Notwithstanding anything herein to the contrary, NIMBIS retains the option to use judicial relief, in the form of a lawsuit, to enforce the payment obligations under this Agreement. The institution of such an action shall not constitute a waiver of the right of either party to compel arbitration of any Claim subject to arbitration in this Agreement, including the filing of a counterclaim. In any such case, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
20. APPLICABLE LAW, JURISDICTION AND VENUE.
This Agreement shall be interpreted under the laws of the Commonwealth of Virginia. Any lawsuit contemplated in connection with a claim or dispute not otherwise subject to the arbitration provisions of Section 19, or is so adjudged by a court of competent jurisdiction, may be commenced only in the courts of the Commonwealth of Virginia. Venue shall lie exclusively in Fairfax County, and the Parties consent to the personal jurisdiction of such courts.
If any provision of this Agreement is held to be unenforceable or invalid under applicable law, such unenforceability or invalidity shall not render any other provision, or the Agreement as a whole, unenforceable or invalid.
The section titles in this Agreement are for convenience only and shall not be deemed to have any legal or contractual effect.
23. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement of the Parties regarding its subject matter. It supersedes any and all prior proposals, agreements, or other communications between the Parties, whether oral or written, regarding the subject matter. This Agreement shall not be modified except by a written amendment duly executed by the Parties.