Nimble Technologies, LLC Terms of Service

Terms of Service Effective Date: May 20, 2025

THIS TERMS OF SERVICE (“TERMS OF SERVICE”) FORMS A BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR”) AND NIMBLE TECHNOLOGIES, LLC (“NIMBLE,” “WE,” “US,” “OUR”). PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY DOWNLOADING, ACCESSING, OR USING ANY NIMBLE PRODUCTS AND/OR SERVICES (COLLECTIVELY, THE “SERVICES”), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT DOWNLOAD, ACCESS, OR USE THE SERVICES.

FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE IN OUR DISCRETION AND WILL POST THE UPDATED TERMS TO https://www.nimblepos.com/tos. WE MAY, BUT ARE NOT OBLIGATED TO, PROVIDE NOTICE TO YOU OF THE UPDATED TERMS OF SERVICE BY EMAIL AND/OR THROUGH THE SERVICES. THE UPDATED TERMS OF SERVICE WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS YOU HAVE ACCEPTED THE UPDATED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS OF SERVICE IS TO CEASE YOUR ACCESS TO AND USE OF THE SERVICES.

1. Use of Services.

1.1 Where you are entering into these Terms of Service on behalf of an organization (“Merchant”), you represent and warrant that you are authorized by Merchant to enter into these Terms of Service and to bind Merchant to these Terms of Service. Subject to your compliance with these Terms of Service, including without limitation your payment obligations hereunder, Nimble grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the applicable Services for the duration of your subscription to the Nimble Services (“Subscription Term”), and solely and exclusively for Merchant’s internal business purposes.

1.2 You agree to use the Services only for the management and operation of Merchant’s business, and that you will not directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair, or otherwise interfere with Nimble's provisioning of the Services; (f) violate or breach any operating procedures, requirements, or guidelines regarding Merchant’s use of the Services that are posted on or through the Services or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare, or otherwise commercially exploit the Services to, or for the benefit of, any third- party, or provide the Services as a service bureau; (h) conduct any penetration or vulnerability testing on the Services or network; or (i) copy any features, functions, text, or graphics of the Services, including without limitation, the structure, sequence, or organization of the user interface ((a)-(h), collectively, the “Restrictions”). In addition to any other rights and remedies available to Nimble, Nimble may immediately suspend your Nimble account and your access to the Nimble Services in the event you engage in any of the Restrictions.

2. Ownership; Use of Trademarks.

2.1 Nimble owns or has licenses to all rights, title, interest, and intellectual property rights in and to the Services (including all derivatives or improvements, modifications, or updates thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. You irrevocably assign all right, title, interest, and intellectual property rights in and to the Feedback to Nimble, and acknowledge that we are free to use, disclose, reproduce, and otherwise exploit any and all Feedback provided by you, in our sole discretion, entirely without any compensation, attribution, or obligation to you. Any rights not expressly granted herein are reserved by Nimble.

2.2 You (or Merchant, if applicable) retain all rights, title, and interest in and to any text, graphics, videos, images or other data (including but not limited to personal data (as defined under applicable laws)) that you upload, submit, or otherwise transfer to or through the Services (“Your Content”). However, you grant us a non-exclusive, royalty-free, fully paid-up, and worldwide right and license to access, disclose, use, copy, modify (including the right to create derivative works of), display, store, and transmit Your Content to provide, monitor, and improve the Services. You are solely responsible for the accuracy, quality, content, and legality (including compliance with all applicable laws) of Your Content, the means by which Your Content is acquired, and any transfer and use of Your Content outside of the Services, whether by you, Merchant, or any third party authorized by you. You represent, warrant, and covenant that you have all rights necessary to upload Your Content to the Services and to otherwise have Your Content used or shared, as applicable, by Nimble in relation to the Services. You will not upload or store any data or materials in violation of this Section 2.2.

2.3 Through your use of the Services you may be presented with material provided by third parties (“Third Party Content”). You acknowledge and agree that Third Party Content is not owned or controlled by us, and that we will have no liability whatsoever with respect to Third Party Content. To the extent you integrate the Services with the services of any third party providers, as permitted by us, including without limitation with third party payment processing providers (each, a “Third Party Provider”), you are responsible for complying with all applicable terms and conditions of such Third Party Provider.

2.4 Nimble is not responsible for monitoring, pre-screening, or editing Your Content. However, Nimble reserves the right to monitor, read, delete, access, preserve, disclose to others, or take other action with respect to Your Content that Nimble believes in good faith violates these Terms of Service and/or applicable laws. If you violate these Terms of Service, Nimble may, in its sole discretion, remove the offending Your Content, issue you a warning, suspend your access to the Services, and/or terminate your use of the Services.

2.5 You are wholly responsible for maintaining the confidentiality and security of your username and password to the Nimble Services, and you are wholly liable for all activities occurring under your account. Nimble cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.5, including any loss or damage arising from your failure to (a) immediately notify Nimble of any unauthorized use of your password or account or any other breach of security, or (b) exit and close your account at the end of each session. You may not allow any other individual(s) to access your account with your login credentials.

2.6 Nimble’s trademarks, service marks, and logos (the “Nimble Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Nimble. Other Nimble product and service names located in the Services may be trademarks or service marks of Third Party Providers (the “Third-Party Trademarks”, and, collectively with the Nimble Trademarks, the “Trademarks”). Nothing in these Terms of Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the Services or otherwise without the prior written consent of Nimble in each instance. The Trademarks may not be used to disparage Nimble or the applicable Third Party Provider, or in any manner that may damage any goodwill in the Trademarks. Except as described herein, the use of any Trademarks is prohibited without Nimble’s prior written consent. All goodwill generated from the use of any Nimble Trademark or Third-Party Trademark will inure to the benefit of Nimble, or the applicable Third Party Provider, respectively.

3. Hardware.
In the event you purchase, rent, lease, or are otherwise provided with any physical property by us for your use with the Services (“Hardware”), you agree to use the Hardware solely in connection with your permitted use of the Services. You are responsible for maintaining the Hardware in good working order and for any wear and tear that occurs on the Hardware. Where you have purchased the Hardware, title and risk of loss in and to the Hardware transfers to you upon our transfer of the Hardware to the parcel carrier. Where you have rented, leased, or are otherwise provided with Hardware (as opposed to purchasing Hardware), title to the Hardware remains with us, and you may use the Hardware only for the Subscription Term. If you experience any issues with the Hardware, you may contact us and we may, in our sole discretion, repair or replace the Hardware. Fees, if any, for repair or replacement will be mutually agreed upon prior to such repair or replacement.

4. Limitation of Liability and Disclaimer of Warranties.

4.1 TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NIMBLE HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, AND QUALITY. NIMBLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. FURTHER, NIMBLE DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NIMBLE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NIMBLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, NIMBLE DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED, OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY NIMBLE, THE SERVICES ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" BASIS.

4.2 IN NO EVENT WILL NIMBLE BE LIABLE: (A) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN WHERE NIMBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN WHERE ALL AVAILABLE REMEDIES HAVE FAILED OF THEIR ESSENTIAL PURPOSE; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. ADDITIONALLY, NIMBLE’S TOTAL AGGREGATE LIABILITY TO YOU IN ANY CIRCUMSTANCE ARISING UNDER OR RELATING TO THESE TERMS OF SERVICE SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE TOTAL FEES PAID OR PAYABLE BY YOU TO NIMBLE DURING THE SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM(S) FOR LIABILITY INITIALLY AROSE.

5. Indemnification.

5.1 We will indemnify, defend, hold you harmless from and against any claims, suits, causes of action, demands, or proceedings (collectively, “Claims”) brought by a third party against you, and all resulting losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to allegations that the Services, when used by you as permitted hereunder, infringe, misappropriate, or otherwise violate any U.S. copyright, trademark, patent, or other intellectual property rights. In the event the Services are enjoined, or in Nimble’s reasonable opinion, likely to be enjoined, Nimble shall do one (1) of the following: (i) procure for you the right to continue using the Services; (ii) modify or replace the Services such that they are non-infringing but functionally equivalent; or (iii) terminate the provision of the Services to you and provide you with a prorated refund of any prepaid, unused Fees (defined below) as of the termination date. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY AND OUR SOLE LIABILITY WITH RESPECT TO A CLAIM DESCRIBED IN THIS SECTION 5.1.

5.2 You will indemnify, defend, and hold us harmless from and against any Claims brought by a third party against us, and all resulting Losses arising out of or relating to: (a) Your Content, when used by us as permitted hereunder; or (b) your use of Third Party Content and/or Third Party Providers, in connection with the Services.

5.3 The indemnification obligations in this Section 5 are conditioned on: (a) the party seeking indemnification (“Indemnitee”) providing the party from whom indemnification is sought (“Indemnitor”) with prompt written notice of the Claim, provided its failure to provide such notice will not relieve the Indemnitor of its obligations hereunder unless such failure materially prejudices the Indemnitor with respect to the Claim; (b) reasonable cooperation by the Indemnitee with respect to the Claim, at the Indemnitor’s request and expense; and (c) Indemnitee giving the Indemnitor sole control of the defense and settlement of the Claim, using counsel of its choosing, provided that the Indemnitor does not settle any Claim where such settlement imposes liability upon, or constitutes an admission by, the Indemnitee, without the Indemnitee’s prior written consent. The Indemnitee may participate in the defense and settlement of the Claim using its own counsel and at its own expense.

6. Term and Termination.

6.1 These Terms of Service are effective beginning on the Effective Date and continue for so long as you have an active Subscription Term, unless earlier terminated as permitted hereunder.

6.2 Either party may terminate these Terms of Service where the other Party is in material breach of these Terms of Service and such material breach remains uncured for a period of thirty (30) days following notice of the material breach by the non-breaching party to the breaching party.

6.3 Upon termination of these Terms of Service or expiration of all active Subscription Terms, all rights and licenses granted to you hereunder shall be revoked and you shall immediately cease your access to, and use of, the Services. All sections of these Terms of Service which by their nature are reasonably intended to survive termination or expiration of these Terms of Service shall so survive.

6.4 We reserve the right to modify or replace the Services at any time with or without notice to you, provided that we will not modify the Services in a manner that materially adversely affects the functionality of the Services during a Subscription Term.

7. Fees.

7.1 Fees for the Services are listed in the applicable order document or consent form associated with your purchase, download, or installation of the Services (the “Fees”). Unless otherwise stated in writing or elsewhere in these Terms of Service, all Fees: (a) are in United States dollars, (b) are invoiced on the start of the Subscription Term and payable within thirty (30) days of invoice date; (c) are exclusive of all applicable sales, use, and other taxes (except those on Nimble’s net income and real and personal property), which remain your obligation to pay; and (d) are non-cancelable and non-refundable.

7.2 In the event any Fees that are not the subject of a good faith dispute remain unpaid by the due date, Nimble, in addition to any other rights and remedies available to it, may, upon five (5) business days’ notice to you, suspend your access to the Services.

7.3 Notwithstanding anything to the contrary in this Section 7, where you have purchased the Services through an authorized reseller of Nimble (“Reseller”), payment will be as agreed upon between you and Reseller.

8. Confidential Information.

8.1 In the course of performing its obligations under these Terms of Service, a party (“Receiving Party”) may be provided or otherwise come into contact with certain confidential and/or proprietary information of the other party (“Disclosing Party”), including without limitation financial and other business information, whether marked as ‘confidential’ and/or ‘proprietary’, or where given the nature of the information or the circumstances of the disclosure the Receiving Party should reasonably understand the information to be confidential and/or proprietary (“Confidential Information”). Confidential Information does not include: (a) information that is or becomes publicly available through no fault of Receiving Party; (b) information that was provided to Receiving Party prior to the disclosure by Disclosing Party, by a third party not under a confidentiality obligation to Disclosing Party; or (c) information that is independently developed by the Receiving Party without the use of Confidential Information. Where the Receiving Party becomes legally obligated to disclose Confidential Information in connection with a valid court or other governmental order, the Receiving Party will first, to the extent legally permitted, notify the Disclosing Party and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s request and expense, in challenging such compelled disclosure, and in any event Receiving Party should only disclose that portion of the Disclosing Party’s Confidential Information that is necessary to minimally comply with the compelled disclosure order.

8.2 Receiving Party shall: (a) only use Confidential Information solely as necessary to perform its obligations and exercise its rights under these Terms of Service; (b) provide Disclosing Party’s Confidential Information only to those of its employees, contractors, agents, and representatives: (i) who have a need to know such information and are bound by written obligations substantially similar to those contained in this Section 8, and (ii) for whose acts and omissions the Receiving Party will at all times remain liable; and (c) not disclose Disclosing Party’s Confidential Information to any other third parties without the Disclosing Party’s prior written consent in each instance.

8.3 Receiving Party acknowledges and agrees that a breach of threatened breach of this Section 8 may cause irreparable harm to the Disclosing Party, for which the extent of damages may be difficult to demonstrate. As such, the Disclosing Party, in addition to any and all other remedies available to it, shall be entitled to seek and obtain injunctive and other equitable relief without the need to post a bond or prove actual damages.

9. Arbitration.

9.1 Any dispute, claim, or controversy arising out of or relating in any way to these Terms of Service, or in connection with use of the Services or our websites, shall be determined through confidential binding arbitration in Birmingham, Alabama before one (1) arbitrator. The confidential binding arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules, and the parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action in the state or federal courts in Birmingham, Alabama for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Section 9. In any event, any action or proceeding by Merchant against Nimble relating to any dispute must commence within one (1) year after the cause of action accrues.

9.2 Except where prohibited by applicable laws, you and Nimble agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Nimble agree otherwise, the arbitrator may not consolidate or join more than one (1) person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

9.3 Nimble is always interested in resolving disputes amicably and efficiently, and most participant concerns can be resolved quickly and to the participant’s satisfaction by contacting Nimble’s support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Nimble should be sent to Nimble Technologies, LLC at, PO Box 130057, Birmingham, AL 35213, Attn: Legal. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and Nimble do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Nimble may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Nimble or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Nimble is entitled. 9.4 Severability. If a court or the arbitrator decides that any term or provision of this Section 9 other than Section 9.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 9 shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 9.2 is invalid or unenforceable, then the entirety of this Section 9 shall be null and void. The remainder of these Terms of Service will continue to apply.

10. Compliance with Laws.

10.1 You agree to comply with all applicable laws, rules, and regulations applicable to you and Merchant’s business in relation to your use of the Services, including any applicable privacy and consumer protection laws, tax laws and regulations. 10.2 Canada and the United States control the export of products and information. You expressly agree to comply with any export restrictions imposed by the country/countries in which you use the Services, and not to export or re-export any part of the Services to countries or persons prohibited under the export control laws. By accessing, using, or downloading the Services, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export or re-export of the Services.

11. Miscellaneous.

Any action, claim, or dispute related to these Terms of Service will be governed by the laws of the State of Alabama, excluding its conflicts of law provisions, and controlling U.S. federal law. Except as set forth in Section 9, the parties agree that the federal or state courts in the city of Birmingham shall have exclusive jurisdiction to hear and determine any dispute between them. The Uniform Computer Information Transactions Act will not apply to these Terms of Service. If any provision of these Terms of Service is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms of Service, which will remain in full force and effect. Our failure to act on or enforce any provision of these Terms of Service will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against us unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you, these Terms of Service constitute the entire agreement between you and Nimble with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and Nimble with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import. These Terms of Service will inure to the benefit of our successors and assigns. You may not assign these Terms of Service without our prior written consent. Any information submitted or provided by you to the Services might be publicly accessible. Important and private information should be protected by you.