Effective Date: March 6, 2013

These Terms of Service constitute an agreement (this “Agreement”) by and between Nimbus Studios, LLC, a SaaS (“Provider”) and each customer of Provider’s online service (“Recipient”).

  1. Definitions.
    1. “Account” refers to the Service plans and features selected by Recipient through Provider’s customer portal at the time of enrollment and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through such portal.
    2. “AUP” refers to Provider’s acceptable use policy, posted at http://nimbusstudios.com/aup, as such policy may change from time to time.
    3. “Authorized Representative” refers to Provider and/or Recipient legally authorized representatives.
    4. “Data Policy” refers to Provider’s standard data deletion policy, posted at http://nimbusstudios.com/data-policy, as such policy may change from time to time.
    5. “Effective Date” refers to the date of commencement of the Service as listed in Recipient’s Account.
    6. “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
    7. “Recipient Data” refers to data in electronic form input or collected through the Service by or from Recipient.
    8. “Privacy Policy” refers to Provider’s privacy policy, posted at http://nimbusstudios.com/privacy-policy , as such policy may change from time to time.
    9. “Service” and “SLA” refers to Provider’s hosting service levels and SaaS services, such as the WordPress Content Management System. The Service includes such features as are set forth on Provider’s website (http://nimbusstudios.com/service-agreement), as Provider may change such features from time to time, in its sole discretion.
  2. License
    1. Nimbus Studios grants to Recipient a limited, non-exclusive, non-transferable license for the term of this agreement to make use of Nimbus Studios Materials which are incorporated in the Service (such as the WordPress CMS) and are required for the operation of the Product solely to operate the Service on Nimbus Studios server. Nimbus Studios reserves for itself all rights in and to the Nimbus Studios Materials not expressly granted to Recipient in the immediately foregoing sentence. Unless otherwise agreed to in writing by Nimbus Studios, the transfer or attempted transfer of the Service or any portion thereof to any host server other than Nimbus Studios server shall automatically terminate the foregoing license.
  3. Service & Payment.
    1. Service. Provider will provide the Service to Recipient pursuant to its standard policies and procedures then in effect.
    2. Payment. Recipient will pay Provider such monthly Service fees as are required in Recipient’s Account, due on the day before the start of the next calendar month of Service.
  4. Service Level Agreement. In the event of any “Service Failure,” as that term is defined in the SLA, Provider will issue Recipient such credits as are required by the SLA. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued pursuant to the SLA are Recipient’s sole remedy for the Service Failure in question. The SLA is hereby incorporated into this Agreement.
  5. Materials, Software, & IP.
    1. Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service. This covers, for example, the WordPress materials required to run the WordPress CMS.
    2. IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components. This covers, for example, the WordPress materials required to run the WordPress CMS.
  6. Online Policies.
    1. AUP. Recipient will comply with the AUP. In the event of Recipient’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate Recipient’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against Recipient or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.
    2. Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees.
  7. Each Party’s Warranties.
    1. Recipient’s Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
    2. Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
    3. Disclaimers. Except for the express warranties specified in this section 5, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or immaterial interruption.
  8. Limitation of Liability. IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED; AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 8, Provider’s liability will be limited to the maximum extent permissible.
  9. Data Management.
    1. Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.
    2. Recipient’s Rights. Recipient possesses and retains all right, title, and interest in and to Recipient Data, and Provider’s use and possession thereof is solely as Recipient’s agent.
    3. Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to the Data Policy.
    4. Injunction. Provider agrees that violation of the provisions of this Section 9 might cause Recipient irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Recipient will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
  10. Term & Termination.
    1. Term. This Agreement will continue for 30 days (one month) following the Effective Date (a “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of 30 days (one month) unless either party notifies the other of its intent not to renew 30 days (one month) or more days before the beginning of the next Term.
    2. Termination. Either party may terminate this Agreement by written notice, effective in 30 days.
    3. Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 5, 6(b), 7(c), and 8 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
    4. Prepaid hosting fees upon Termination. Any hosting fees that were prepaid are subject to refund upon termination, beginning with the next full month of service until the end of the prepayment period, minus one full month.
  11. Miscellaneous.
    1. Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 14 days after they are sent. Recipient may send notices pursuant to this Agreement to support@nimbusstudios.com or Recipient business address, and such notices will be deemed received 14 days after they are sent.
    2. Developer Notices. Unless otherwise agreed to in writing by the parties, Nimbus Studios shall have the right to place proprietary notices of Nimbus Studios and its suppliers (including hypertext’s Links related thereto) on the Nimbus Studios Materials and on the Product created hereunder, including Nimbus Studios attribution and hypertext’s Links to the Nimbus Studios Services and to change or update such notices from time to time upon notice to Client. In no event may Client remove or alter any Nimbus Studios proprietary notice from the Nimbus Studios Materials or the Product without Nimbus Studios prior consent.
    3. Amendment. Provider may amend this Agreement (including the SLA and Data Policy) from time to time by posting an amended version at its website and sending Recipient written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 10 above). Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by Authorized Representatives of each party. Notwithstanding the foregoing, Provider may amend the AUP or Privacy Policy at any time by posting a new version at its website and sending Recipient notice thereof, and such amended version will become effective 28 business days after such notice is sent.
    4. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
    5. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
    6. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
    7. Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
    8. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Minnesota, without reference to such State’s principles of conflicts of law.
    9. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    10. Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies Recipient that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
    11. Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.
    12. Additional Expenses. Except for normal commuting mileage to and from the principal site for engagement conductance, the proposed service rates do not include any allowance for additional transportation, lodging, meals, reproduction, etc. It is understood that the Client will reimburse Nimbus Studios for all actual Client-authorized expenses directly related to performing this engagement.
    13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
  12. Video Production –Special Provisions. The following provisions apply only to video production services:
    1. Cancellation Policy. If any field or studio production, edit session or previously reserved session with Nimbus Studios must be cancelled by Client, notice must be received by Nimbus Studios no less than forty-eight (48) hours prior to the scheduled session. If less than forty-eight (48) hours notice is provided, Client will be billed at fifty percent (50%) of the session rate. Nimbus Studios will make every attempt to re-book the reserved time slot. If Nimbus Studios re-books the time slot, no cancellation penalty will be assessed. If special circumstances warrant cancellation to be a possibility, both contracting parties may agree to void this condition.
    2. Overtime. If during any twenty-four hour working period a service provided by Nimbus Studios is performed, which has been agreed to by Client, and this service extends past a ten hour billing period, overtime will be billed at the published hourly rate.
    3. Rights of Ownership. Upon completion and payment for the edited video project, the edited master and its contents become the sole property of Client. Distribution rights will be held by Client. All duplication rights are held by Client. Exhibition rights are mutually held by Nimbus Studios and Client. All raw footage rights are held by Nimbus Studios. All other rights not mentioned above or by other contracts dated prior to this contract are held by Nimbus Studios.
  13. Email Sends –Special Provisions. The following provisions apply only to email marketing services:
    1. General Rules : You agree to the following:
      • You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
      • You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
      • You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
      • You will not share your password.
      • You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
      • You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights.
      • You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content unless you are part of a franchise.
      • You will not import or incorporate into any lists, emails or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.
      • You will not send transactional messages through our services.
    2. Anti-Spam and Abuse Related Rules : You agree to the following:
      • Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html The first line of the Spamhaus definition reads:
      • The word “Spam” as applied to Email means Unsolicited Bulk Email (“UBE”).
    3. Permission Lists Only: You may use Nimbus Studios email services only to send Emails to individuals and entities that either:
      • Possibility 1 – Consent Obtained
        • A. gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
          • Consent Given Recently gave you the permission within the prior 12 months; or
          • Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or
      • Possibility 2 – Sold or Negotiated to Sell Product or Service
        • B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
          • Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
          • Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.
        • If you send Emails to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request that the account originating the emails be shut down. So if you don’t have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don’t import them into a mail send.
    4. Email List Policy. Nimbus Studios will not use purchased, rented, or 3rd party lists. All emails in a client list must have been obtained by the client, and the parties must have “opted-in” to the list.
    5. Prohibited Content and Industries
    6. Don’t use MailChimp to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:
      • Pornography or other sexually explicit Emails
      • Emails offering to sell illegal substances
      • Emails that violate the CAN-SPAM Law
    7. Also, there are some industries that send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability of our entire system. No offense intended, but because we must ensure the highest delivery rates possible for all our customers, we do not allow businesses that offer these types of services, products, or content:
    • Illegal goods or services
    • Escort and dating services
    • Pharmaceutical products
    • Work from home, Internet Lead-gen, Make money on online opportunities, etc.
    • Online trading, day trading tips, or stock market related content
    • Gambling services, products or gambling education
    • Multi-level marketing
    • Affiliate marketers
    • Credit repair, get-out-of-debt content
    • Mortgages and/or Loans
    • Nutritional Supplements, Herbal Supplements or Vitamin Supplements
    • Pornography or nudity in content
    • Adult novelty items or references in content
    • List brokers or List rental services
    • Marketing or sending commercial email without proper permission