End User Licence Agreement (EULA) and Privacy Policy

END USER LICENCE AGREEMENT

PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “I ACCEPT” BUTTON OR LINK, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” BUTTON OR LINK OR EXIT THE SOFTWARE.

BY CLICKING “I ACCEPT,” YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND ANY ADDITIONAL TERMS AND CONDITIONS OR FUTURE MODIFICATIONS.

NOW THEREFORE in consideration of the foregoing and the mutual promises, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:

  1. DEFINITIONS
    1. Definitions. The following terms, wherever used in this Agreement, shall have the respective meanings set forth below:
      1. “Agreement” means this End User Licence Agreement and all of the schedules and appendices attached hereto, and any additional terms, conditions or future modifications as described herein. 
      2. “Canada’s Anti-Spam Legislation” means an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, as amended.
      3. “Confidential Information” means any and all information, whether disclosed in writing, electronically, orally, in machine readable form or otherwise, of any nature and in any form, and whether or not specifically marked as confidential, including but not limited to, the terms and agreements contained in this Agreement, the information gathered by inspection or heard by the Licensee from an inspection of any property, activities or facilities of Nimbus, the Software, the Results, business plans, business strategies, research and development plans, marketing plans, pricing information and any other technical, engineering, manufacturing, product, servicing, personnel, business or financial information, which is provided, developed, made available or disclosed by Nimbus to the Licensee, or that the Licensee prepares that contain or otherwise reflect a review of any of the information referred to in this Section.
      4. “Content Licence” has the meaning assigned to it in Section 4.2(b).
      5. “Defaulting Party” has the meaning assigned to it in Section 10.2(c).
      6. “Disagreement” has the meaning assigned to it in Section 11.2. 
      7. “Fees” has the meaning assigned to it in Section 3.1.
      8. “Intellectual Property” means any and all rights in and in relation to any intellectual and industrial property of every nature, under the laws of any country, whether registered or unregistered, including without limitation, improvements, modifications, developments, trade secrets, proprietary information, know-how, derivative works, copyrights, moral rights, databases, data structures, database designs, screenshots, database indices, modules, objects, classes, packages, in-line comments, user interfaces, design documents, test plans and scripts, computer programs, applications and software (whether in source, object code or executable formats) and related documentation and manuals, literary and/or artistic works, compositions, compilations, diagrams, designs, domain names, patents (including without limitation, divisions, reissues, substitutions, prolongations, continuations, re-examinations, continuations in part, renewals, modifications and extensions thereof), trademarks, trade dress, rights under registered user agreements, trade names, corporate names, business names, social media handles, hashtags, keywords and other trademark and service mark rights and goodwill, industrial designs, models and utility models, prototypes, inventions, ideas, data, suggestions,  conceptions, formulations, compounds, methods, discoveries, processes, compositions, research data and results, project plans, notes, testing materials, logs,  drawings, information, findings, results, technologies, materials, formulae, specifications and architecture, data, techniques, instructions, manuals, records, look and feel, integrated circuit topography, studies, blueprints, packaging, reports, files, samples, photographs, graphs, graphics, text files, websites (including all of the related web pages, content, software, information, photographs, images, illustrations, audio clips, video clips, data, code, graphics, text files, icons, titles, objects, concepts, artwork, animations, text, sounds, audio-visual effects, methods of operation and the look and feel of the content and information), drawings, interfaces, screen display, audio visual display or presentation, algorithms, documentation and media, and procedures, in whatever form or medium, including:
        1. the benefit of all registrations and applications to register as well as all rights to apply for registration of any of the foregoing items and all rights in the nature of any of the foregoing items, each for their full term (including any extensions or renewals thereof); 
        2. any other statutory protection of whatever kind;
        3. all such other rights which may be recognized under law, equity, contract or otherwise, to protect technical or other creative contributions or expressions; 
        4. confidential information, know-how and trade secrets; 
        5. all priority rights derived from any of the foregoing items and all rights in the nature of any of the foregoing items for any and all countries in the world; and
        6. all rights to sue for infringement, misappropriation and/or violation of any of the foregoing items and all rights in the nature of any of the foregoing items, whether arising prior to or subsequent to the date of this Agreement.
      9. “Licence” has the meaning assigned to it in Section 4.2(a).
      10. “Licensee” means a person who uses and accesses the Software and/or the Results in any manner.  Such a person is also referred to in this Agreement as “you”. 
      11. “Licensee Content” means any data and information distributed or submitted electronically or otherwise by you via the Software.
      12. “Non-Defaulting Party” has the meaning assigned to it in Section 10.2(c).
      13. “Nimbus” means Nimbus Learning Inc., a corporation incorporated under the laws of Canada, and includes all of Nimbus’s affiliates, subsidiaries, shareholders, officers, directors, agents, representatives, contractors, suppliers, customers, licensors, licensees, partners, employees, successors and assigns, except for the Licensee.
      14. “Requirements” has the meaning assigned to it in Section 7.3.
      15. “Results” means any and all results, reports and recommendations based on the Licensee Content, user data, analytics and/or user data results that Nimbus provides to the Licensee. The term “Results” shall also include any modification or enhancement to the Licensee Content and any Intellectual Property relating thereto by Nimbus, and any Intellectual Property made, conceived, acquired, suggested, discovered or developed by Nimbus, or under Nimbus’s direction, either solely or jointly with others, which relates to, relies on or uses the Licensee Content and all Intellectual Property relating thereto. 
      16. “Software” means the Nimbus platform, application and software, together with (a) all computer programs, software, website, databases and/or multi-media content in object code form that are embedded in the said platform, application and software or delivered to the Licensee separately by Nimbus and are designed to be used in conjunction with the said platform, application and software; and (b) all documentation relating to the said platform, application and software, including without limitation, manuals, handbooks and any user guides and/or other instructions concerning the access, use and/or operation of the Software.  
      17. “Subscribing Organization” has the meaning assigned to it in Section 2.1.
      18. “Term” has the meaning assigned to it in Section 10.1.
      19. “Territory” means worldwide.
  2. SUBSCRIBING ORGANIZATION
    1. Subscribing Organization. If you are registering or using the Software or the Results on behalf of, or in connection with, your employment or engagement with a company, entity or organization (collectively, the “Subscribing Organization”), you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such Subscribing Organization to the terms and conditions of this Agreement, and you hereby do agree to be bound by the terms and conditions of this Agreement on behalf of such Subscribing Organization. In such a case, references to “you” and/or the “Licensee” in this Agreement shall be construed to mean you, the Subscribing Organization, and any other individual that uses the Software or the Results on the Subscribing Organization’s behalf or in connection with their employment with or engagement by such Subscribing Organization. To the extent your Subscribing Organization has a separate transaction agreement with Nimbus, that agreement will define the order of precedence between the terms of this Agreement and that separate transaction agreement with respect to such Subscribing Organization, provided that you remain individually bound by the terms and conditions of this Agreement with respect to your use of the Software and the Results.
  3. FEES
    1. Fees & Payment.  Nimbus shall charge the Licensee and the Licensee shall pay to Nimbus such fees described on the Software, https://nimbuslearning.com/ or in any transaction agreement between you and Nimbus (the “Fees”). The Fees shall be paid in accordance with this Agreement or any transaction agreement between you and Nimbus, plus any applicable taxes (including any goods and services taxes), during the Term.  Nimbus reserves the right to change at any time the Fees without any notice or liability to you or any other person. Any amounts remaining unpaid after the due date shall have interest charged thereon at a rate of 1.5% per month. If and when applicable, the Licensee shall pay all taxes and any related interest or penalty howsoever designated and imposed as a result of the existence or operation of this Agreement, the Results or the Software, except for taxes on the income or profits of Nimbus.
  4. LICENCES
    1.  Delivery.  Subject to the terms and conditions of this Agreement:
      1. Nimbus will host the Software on its servers for access and reasonable use by the Licensee; and
      2. Nimbus shall, from time to time and at its sole discretion, provide the Results to the Licensee.
    2.  Licences. The parties agree that:
      1. Subject to the terms and conditions of this Agreement, Nimbus hereby grants to the Licensee a personal, revocable, non-exclusive, non-assignable, non-transferable, non-sublicenceable right and licence to access and use the Software and the Results in the Territory for the Term in accordance with this Agreement (collectively, the “Licence”). For clarity, the Licence is personal to the Licensee, and the Licence may not be assigned, transferred or sublicensed to any other person or accessed and used for purposes other than as described in this Agreement. Using the Software and the Results for any other purpose or in any other manner is strictly prohibited. Nimbus retains all rights not expressly granted hereunder.  Any access and use of the Software and the Results, other than as specifically authorized under this Agreement, including sublicensing to any person, without the prior written consent of Nimbus, is strictly prohibited and may, at the discretion of Nimbus, terminate the Licence.
      2. Subject to the terms and conditions of this Agreement, the Licensee hereby grants to Nimbus a royalty-free, fully-paid, perpetual, irrevocable, transferable, sublicenceable, worldwide and non-exclusive right and licence to access, reproduce, copy, distribute, create derivative works of, adapt, translate, transmit, arrange, modify, host, bundle, use and fully exploit the Licensee Content and any Intellectual Property relating thereto (the “Content Licence”). Nimbus can grant sublicences with respect to the Content Licence.
    3. Restrictions.  The parties agree that:
      1. The Licensee agrees and covenants (i) to keep all disclaimers and copyright, trademark and other proprietary notices intact on the Software and the Results; (ii) that access and use of the Software and/or the Results does not transfer to the Licensee any ownership or other rights in the Software or the Results; and (iii) to access and use the Software and the Results only in the manner described expressly in this Agreement and subject to all applicable laws. 
      2. The Licensee may not use, modify, enhance, translate, transfer, transmit, disclose, copy, release, communicate, reproduce, provide or make available to any third party, in any way, the Confidential Information, the Results and/or the Software, and all Intellectual Property relating thereto, in whole or in part, except as expressly provided for in this Agreement.  The Licensee shall not copy, use, analyze, translate, convert, reverse engineer, decompile, disassemble or otherwise reduce the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto,  to a human readable form, nor shall the Licensee permit any operator, employee, agent, outside consultant or other third party to do any of the foregoing. Any modification or enhancement to the Software, the Results and/or the Confidential Information, and any Intellectual Property relating thereto, other than as specifically authorized under this Agreement, without the prior written consent of Nimbus, is strictly prohibited and may, at the discretion of Nimbus, terminate the Licence and any Intellectual Property made, conceived, acquired, suggested, discovered or developed by the Licensee, or under the Licensee’s direction, either solely or jointly with others, which relates to, relies on or uses the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto, shall be treated as Confidential Information of Nimbus and shall be the sole exclusive property of Nimbus. The Licensee agrees and covenants to disclose promptly in writing to Nimbus any such Intellectual Property.  
      3. The Licensee shall not sell, market, rent, lease, transfer, distribute, sublicense or create derivative works of the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto, in whole or in part, to any third party.
      4. This Agreement shall not be construed as granting or conferring any ownership, security right, title, rights or licences to use or modify in any manner the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto, except for the Licence. 
      5. The Licensee agrees and covenants not to assign or grant a sublicence for this Agreement or any rights or licences obtained pursuant to it.  The Licensee has no right to grant sublicences. 
  5. ACKNOWLEDGEMENTS & COVENANTS
    1. Acknowledgements. The parties agree that:
      1. The Licensee agrees and acknowledges the validity of the Software and the Results. The Licensee shall not use or modify the Software or the Results in any manner likely to negate, impair or dilute any of the rights of Nimbus. The Licensee shall not, either during the Term or at any time thereafter, contest or dispute or assist another in contesting or disputing, directly or indirectly, the validity, ownership, control or enforceability of any of Nimbus’s right, title and interest in and to the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto.
      2. The Licensee agrees that it shall not at any time file any Intellectual Property, secure and/or register any Intellectual Property or maintain any Intellectual Property relating to or arising out of the Software, the Results and/or the Confidential Information, or any Intellectual Property relating thereto.
      3. The Licensee shall not, to the extent legally enforceable, file any action to challenge or raise any question or objection, or cause to be filed any such action or cause to be raised any such question or objection, to the validity, enforceability, registration or patentability of the Software, the Results and/or the Confidential Information, or any Intellectual Property relating thereto, on any grounds whatsoever.
      4. The Licensee shall provide to Nimbus all such access, assistance and co-operation as is reasonably requested by Nimbus in order to facilitate the performance by Nimbus of its obligations hereunder.
      5. The Licensee shall access and use the Software and the Results in a careful and prudent manner in accordance with this Agreement.
      6. The Licensee shall (a) comply with all laws and directions of Nimbus regarding the access and use of the Software and the Results; (b) not, nor shall the Licensee permit any person, other than Nimbus’s authorized representatives, to modify, disassemble, perform maintenance on, service or attempt any repair or adjustment to the Software. 
      7. The Licensee agrees to assume the full risk for loss or damage to the Software and/or the Results, however caused, except if caused by the negligent act or omission of Nimbus.
      8. The Licensee shall keep the Software, the Results and the Confidential Information free and clear of any liens or other encumbrances.
    2. Service Level. You shall ensure that your systems include reasonable attacker defences and security measures. Your systems shall be configured with reasonable security measures related to data theft (through SSL encryption) and unauthorized network access from other unlicensed computers within your end users.
    3. Licensee Costs.  The Licensee shall be solely responsible for:
      1. the cost of all necessary servicing, repair or correction of problems caused by viruses or other harmful components, unless such viruses or other harmful components are the direct result of Nimbus’s negligence or wilful conduct; and
      2. the cost of acquiring, installing, operating, servicing, maintaining and updating all equipment, computers, software and communication services not owned or operated by or on behalf of Nimbus that allows the Licensee to access and use the Software and the Results. 
    4. Availability. The Licensee acknowledges and agrees that the operation and availability of the systems used for accessing, using and interacting with the Software, the Results and/or the Licensee Content, including the public telephone, computer networks and the Internet, or to transmit information whether or not supplied by you or Nimbus, can be unpredictable and may, from time to time, interfere with or prevent the access, the use and/or the operation of the Software, the Results and/or the Licensee Content. The Licensee acknowledges and agrees that the bandwidth and servers provided by Nimbus are not guaranteed and the Licensee agrees not to use an unreasonable amount of bandwidth or unreasonably burden Nimbus’s servers. Nimbus is not responsible for any outages at the your premises, including internal network, local infrastructure or facilities, unless directly attributable to Nimbus’s negligence or wilful conduct. In the event viruses are detected in your local client environment managed by Nimbus, Nimbus may be required to secure the systems by denying access to infected users. If the virus infection is traced back to you, you will be invoiced for remedying the virus. The Licensee acknowledges and agrees that the Results may not be available at all times and may contain inaccuracies. 
    5. Licensee Content. The Licensee acknowledges and agrees that Nimbus has the perpetual and irrevocable right to delete any or all of the Licensee Content and the Results, including any Intellectual Property relating thereto, from Nimbus’s servers and from the Software, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to the Licensee or any other party. THE LICENSEE UNDERSTANDS AND AGREES THAT NIMBUS HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE, IN WHOLE OR IN PART, ANY LICENSEE CONTENT, RESULTS OR OTHER CONTENT RELATED TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON NIMBUS’S SERVERS OR SOFTWARE, AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND.
    6. Representations & Warranties. When the Licensee distributes or submits the Licensee Content on or through the Software, the Licensee represents and warrants: (1) that the Licensee owns or otherwise controls all of the rights, including moral rights and Intellectual Property rights, to the Licensee Content; (2) that the Licensee can grant or has obtained all rights and consents that are necessary for the Licensee to grant any rights and licences described in this Agreement and relating to the Licensee Content to Nimbus, including the Content Licence; (3) that the Licensee Content is accurate and is original to the Licensee and that no other party has any rights thereto; (4) that any and all access, use, submission, modification, transmission, creation of derivative works, adaptation, translation, hosting, bundling, arrangement, distribution and full exploitation of the Licensee Content will not infringe the rights of any third party and will not otherwise cause injury to any person or entity; and (5) that the Licensee will immediately notify Nimbus of any Licensee Content that does not comply with this Agreement or may infringe the rights of a third party or third parties.
  6. INTELLECTUAL PROPERTY
    1. Ownership. The parties agree that:
      1. Nimbus is the sole and exclusive owner of and shall own all right, title and interest in the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto. The Licensee shall maintain the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto, in confidence, except as otherwise stated in this Agreement. The Software and the Results, and all Intellectual Property relating thereto, shall be treated as the Confidential Information of Nimbus.  
      2. The Licensee is the sole and exclusive owner of and shall own all right, title and interest in the Licensee Content.
    2. Assignment of IP. The parties agree that:
      1. The Licensee assigns and transfers and/or shall cause the assignment and transfer over to Nimbus of any right, title and interest, worldwide, it may have or may in the future acquire in and to the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto, without any remuneration.  The Licensee agrees, at the request of Nimbus, to do or to cause all lawful acts to secure and protect Nimbus’s rights and interests in the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto, without any compensation, and the Licensee agrees, when requested by Nimbus, to execute, acknowledge and deliver to Nimbus, without compensation, any and all instruments, assignments, waivers and documents relating thereto.  
      2. Nimbus assigns and transfers and/or shall cause the assignment and transfer over to the Licensee of any right, title and interest, worldwide, it may have or may in the future acquire in and to the Licensee Content, without any remuneration.
    3. Waiver. The parties agree that:
      1. The Licensee waives any rights which the Licensee may have in the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto, including moral rights in the Software, the Results and the Confidential Information, and all Intellectual Property relating thereto.  
      2. Nimbus waives any rights which Nimbus may have in the Licensee Content, including moral rights in the Licensee Content.
    4. IP Notices. The Licensee shall mark in the appropriate place on or within each of the items which bear the Software and/or the Results, an appropriate notice of copyright, trademark or otherwise as stipulated by Nimbus from time to time, and a notice that the Licensee is using the same as a “Licensee” or other such designation, as required from time to time by Nimbus.  The Licensee shall ensure that all proprietary notices, trademark notices, copyright notices and disclaimers of Nimbus, its suppliers or its licensors, as the case may be, on the Software and the Results, as provided to the Licensee by Nimbus, are in place and left intact at all times, and are placed in such location or locations as Nimbus may reasonably advise.
  7. CONFIDENTIALITY
    1. Confidentiality.  The parties acknowledge that it shall be necessary for Nimbus to disclose or make available to the Licensee the Confidential Information. The Confidential Information shall remain the sole exclusive property of Nimbus. Both during and after the termination or expiration of this Agreement, the Licensee:
      1. covenants to keep the Confidential Information strictly confidential;
      2. shall make no further use of the Confidential Information upon the return or the destruction of the Confidential Information;
      3. shall not nor will it assist any other person, directly or indirectly, at any time, to (1) use for itself or others, or divulge to others, the Confidential Information; nor (2) use, publish or sell for its own purposes or for any purpose, other than to carry out its obligations under this Agreement, the Confidential Information;
      4. shall take all steps and do all things necessary to preserve the value, confidential nature and proprietary nature of the Confidential Information;
      5. shall immediately notify Nimbus of any use, disclosure, transfer or transmission of the Confidential Information or any part thereof which is not in accordance with the terms of this Agreement;
      6. may make the Confidential Information available to its agents, contractors or employees having a need to know such information solely for the purposes described in this Agreement and only to the extent necessary for such agents, contractors or employees. Prior to making any such disclosure, the Licensee shall provide to Nimbus a listing of all persons receiving the Confidential Information and shall cause all such agents, contractors or employees to execute non-disclosure agreements or other agreements containing substantially similar terms and conditions to those contained in this Agreement;
      7. acknowledges and agrees that, save and except for the purpose of discharging its obligations pursuant to this Agreement and save and except as provided for in this Agreement, it has no right whatsoever to any of the Confidential Information; and
      8. shall take all reasonable steps to prevent the accidental or intentional disclosure of the Confidential Information to third parties and shall comply with any reasonable request of Nimbus with regard to the safeguarding of the Confidential Information.
    2. Exclusions. Information shall not be considered to be Confidential Information if it:
      1. becomes publicly available through no fault of the recipient;
      2. at the time communicated by the disclosing party as Confidential Information, was already in the possession of the recipient;
      3. is lawfully received from a third party having the right to disclose the Confidential Information without restriction; or
      4. has been independently developed without access to or use of any Confidential Information.
    3. Requirements. If the Licensee becomes compelled to disclose any Confidential Information pursuant to law, regulation or a lawful order or process (collectively, the “Requirements”), the Licensee shall provide Nimbus with prompt notice of any such Requirement and shall cooperate with Nimbus in seeking to obtain any protective order or other arrangement pursuant to which the Confidential Information is preserved. If such an order or arrangement is not obtained, the Licensee shall disclose only that portion of the Confidential Information as is required pursuant to such Requirement. Any such required disclosure shall not, in and of itself, change the status of the disclosed information as Confidential Information under the terms of this Agreement.
  8. INFRINGEMENT
    1. Infringement.  The parties agree that:
      1. The Licensee and Nimbus shall promptly notify each other in writing of any conflicting use, act of infringement or appropriation that comes to their attention regarding the Software, the Results, the Confidential Information and/or the Licensee Content, and all Intellectual Property relating thereto, and shall provide any evidence relating to same which is reasonably available. 
      2. In such cases where it is alleged that a third party is infringing the Intellectual Property rights of Nimbus,  Nimbus shall have the sole right, but not the obligation, at Nimbus’s sole cost and expense, (i) to bring an action for infringement against the alleged infringer or to take steps as it may deem necessary in order to terminate such conflict, infringement or appropriation; or (ii) to investigate, defend, litigate and settle any such complaint.  Nimbus may in its sole discretion settle any action or complaint as it sees fit.  Any damages or sums recovered by Nimbus in such action or complaint or any settlement thereof shall be retained by Nimbus. The Licensee shall not at any time settle any such action or complaint without first obtaining the written consent of Nimbus.
      3. The Licensee shall cooperate fully with and assist Nimbus to the fullest extent possible on any such action or step and in the event of any such complaint and execute such documents and do such other acts and things as in the opinion of Nimbus may be necessary, including to testify when requested by Nimbus, and to make available any records, papers, information, specimens, and the like.
  9. LIMITATIONS AND DISCLAIMERS
    1. Disclaimers & Limitation of Liability. The parties agree that:
      1. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE LICENSEE, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MIGHT NOT APPLY TO THE LICENSEE, AND THE LICENSEE MIGHT HAVE ADDITIONAL RIGHTS.
      2. THE LICENSEE AGREES THAT THE SOFTWARE, THE RESULTS AND THE CONFIDENTIAL INFORMATION, AND ALL INTELLECTUAL PROPERTY RELATING THERETO, ARE PROVIDED BY NIMBUS ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE LICENSEE FURTHER AGREES THAT THE LICENSEE’S ACCESS AND USE OF THE SOFTWARE, THE RESULTS AND THE CONFIDENTIAL INFORMATION, AND ALL INTELLECTUAL PROPERTY RELATING THERETO, SHALL BE AT THE LICENSEE’S SOLE RISK.
      3. TO THE FULLEST EXTENT PERMITTED BY LAW, NIMBUS DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTEES AND/OR REPRESENTATIONS, EXPRESS, STATUTORY IMPLIED OR ARISING BY CUSTOM, COURSE OF DEALING OR TRADE USAGE, IN CONNECTION WITH THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND THE CONFIDENTIAL INFORMATION, AND ALL INTELLECTUAL PROPERTY RELATING THERETO, AND THE LICENSEE’S ACCESS TO AND USE THEREOF, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY, CONDITION, GUARANTEE AND/OR REPRESENTATION OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, PERFORMANCE, QUALITY, NON-INFRINGEMENT, SECURITY, ACCURACY, COMPLETENESS, SUITABILITY OR ANY IMPLIED WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
      4. NIMBUS MAKES NO WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS ABOUT THE TRUTHFULNESS, USEFULNESS, ACCURACY OR COMPLETENESS OF THE SOFTWARE, THE RESULTS,  THE LICENSEE CONTENT AND CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO, OR THE AVAILABILITY, QUALITY, CHARACTERISTICS, LEGITIMACY, FUNCTIONALITY, SECURITY OR SAFETY OF ANY OF THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO, AND NIMBUS ASSUMES NO LIABILITY OR RESPONSIBILITY THEREOF.
      5. NIMBUS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE LICENSEE’S ACCESS TO AND USE OF THE SOFTWARE, THE RESULTS AND/OR CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO; (B) ANY UNAUTHORIZED ACCESS TO AND USE OF NIMBUS’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE OR THE RESULTS; (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE AND/OR THE RESULTS BY ANY THIRD PARTY; AND/OR (E) ANY ERRORS OR OMISSIONS CONTAINED IN THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND/OR CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO, AND/OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE ACCESS TO OR USE OF THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND/OR CONFIDENTIAL INFORMATION, AND ALL INTELLECTUAL PROPERTY RELATING THERETO.
      6. IN NO EVENT SHALL NIMBUS BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO (I) THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND/OR CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO, AND (2) THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF DATA, BUSINESS, BUSINESS INTERRUPTION, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, REPUTATION AND/OR GOODWILL, ANTICIPATED OR OTHERWISE, AND/OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OR LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE AND FUNDAMENTAL BREACH) BY NIMBUS OR ANY PERSON FOR WHOM NIMBUS IS RESPONSIBLE, AND EVEN IF NIMBUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE BEING INCURRED.  IN THOSE JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, THE LIABILITY OF NIMBUS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
      7. THE LICENSEE HAS SOLE RESPONSIBILITY FOR ANY DECISIONS THE LICENSEE MAKES BASED ON INFORMATION CONTAINED IN THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND/OR THE CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO.
      8. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSEE ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH NIMBUS IS TO STOP USING THE SOFTWARE AND THE RESULTS.
      9. NIMBUS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THE LICENSEE OR ANY THIRD PARTY MAY SUFFER AS A RESULT OF THE TRANSMISSION, STORAGE OR RECEIPT OF THE RESULTS AND  CONFIDENTIAL OR PROPRIETARY INFORMATION THAT THE LICENSEE MAKES OR THAT THE LICENSEE EXPRESSLY OR IMPLICITLY AUTHORIZES NIMBUS TO MAKE, OR FOR ANY ERRORS OR ANY CHANGES MADE TO ANY TRANSMITTED, STORED OR RECEIVED INFORMATION OR RESULTS.
      10. NIMBUS’S TOTAL AGGREGATE LIABILITY TO THE LICENSEE OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES THE LICENSEE PAID TO NIMBUS; AND (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE LICENSEE.
      11. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY THE LICENSEE FROM NIMBUS SHALL CREATE ANY WARRANTY.
      12. THE LICENSEE AND NIMBUS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOFTWARE, THE RESULTS, THE LICENSEE CONTENT AND/OR CONFIDENTIAL INFORMATION, AND INCLUDING ALL INTELLECTUAL PROPERTY RELATING THERETO, OR THIS AGREEMENT, MUST COMMENCE AND BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
    2. Release. The Licensee releases and forever discharges Nimbus from and against any and all demands, causes of action, liability and claims, at law or in equity, of any nature or kind, including, without limitation, that the Licensee, or its successors or assigns, can, has ever had, now or may hereafter have arising out of or connected in any way with the Software, the Results, the Licensee Content and/or the Confidential Information, and all Intellectual Property relating thereto.
    3. Indemnity. Except if caused by the negligent act or omission of Nimbus, the Licensee shall indemnify and hold harmless Nimbus from and against any and all claims, damages, losses, expenses or liability of any kind whatsoever from third parties relating to:
      1. the Licensee’s breach of any provision, representation, warranty or covenant of this Agreement; or
      2. any loss, injury, death, damage, expense, charge or cost that Nimbus may suffer or incur, whether in respect of injury to persons or damage to its property, end-users, or others in any manner that arises out of, or is attributable to the use or access by the Licensee of the Software, the Results and/or the Confidential Information, and all Intellectual Property relating thereto, or any other item provided by Nimbus hereunder; or
      3. the Licensee Content and the Results, including any claim in respect of infringement of a third party’s Intellectual Property rights. Nimbus takes no responsibility and assumes no liability for any Licensee Content distributed or submitted by the Licensee or any third party.
  10. TERMINATION
    1. Term. The term of this Agreement will commence on the date of your acceptance of this Agreement and shall remain in effect until terminated as provided in this Agreement or in any transaction agreement between you and Nimbus (the “Term”).
    2. Termination.  The parties agree that:
      1. Nimbus shall have the right to terminate this Agreement, at any time and without cause, upon the provision of one (1) month’s written notice to the Licensee.  
      2. In the event the Licensee fails to pay the Fees or other amounts due to Nimbus pursuant to this Agreement or any transaction agreement between Nimbus and you, Nimbus can immediately terminate this Agreement and the rights and licences granted hereunder.
      3. Subject to Section 10.2(a) and Section 10.2(b), in the event that a party (the “Defaulting Party”) shall breach any material provision of this Agreement or fail to observe or perform any covenant or obligation applicable to it under this Agreement, the other party (the “Non-Defaulting Party”) has the right to serve written notice on the Defaulting Party of the Non-Defaulting Party’s intent to terminate this Agreement. The notice of intent to terminate shall specify the alleged breach or failure and if within thirty (30) business days of the date of delivery of such notice to the Defaulting Party, the Defaulting Party has not cured all of the defaults, the Non-Defaulting Party may, at its sole discretion, terminate this Agreement. Such termination shall be without prejudice to any other rights or remedies the Non-Defaulting Party may have in respect of such default.
      4. The Licensee agrees to pay any outstanding amounts owing to Nimbus to the effective date of termination of this Agreement.  Such termination shall not relieve any of the parties from obligations incurred prior to the date of such termination and shall not relieve the Licensee from any of the obligations which survive any termination for any reason of this Agreement.
      5. If any party becomes insolvent or bankrupt, dissolves or winds up, this Agreement terminates immediately.
      6. Where either party is given a right to terminate hereunder and does not exercise the same, such forbearance shall not be deemed to be a waiver of such party’s right to terminate upon any subsequent or future event by which such party has, or is provided with, the right to terminate this Agreement.
    3. Return. Upon the expiration or termination of this Agreement, for any reason whatsoever:
      1. The Licensee shall forthwith deliver to Nimbus, without charge, the Confidential Information, the Software and the Results, and all Intellectual Property relating thereto, including all copies, and the Licensee shall certify to Nimbus that no copies of such material have been retained and have been destroyed.
      2. The Licensee shall immediately cease any and all access and use of the Software, the Results, the Confidential Information and any other item provided by Nimbus hereunder, and any Intellectual Property relating thereto, disclosed or provided by Nimbus to the Licensee in any manner whatsoever.
      3. The Licence will cease and terminate. The Licensee’s access and use to the Software and the Results shall be disabled. The Content Licence shall continue.
      4. The Licensee agrees that Nimbus has the right to notify any persons it deems necessary or appropriate as to the termination or expiry of the rights granted hereunder.
  11. GENERAL
    1. Governing Law. This Agreement will be construed and the legal relationships between the parties determined in accordance with the laws of the Province of Manitoba and the laws of Canada, without regard to conflicts of laws principles, and the parties expressly attorn to the exclusive jurisdiction of the courts of Manitoba for enforcement thereof. Notwithstanding the foregoing, either party may apply to the court to obtain injunctive relief and any other available equitable or legal remedy regarding any matter relating to their confidentiality or proprietary rights. You and Nimbus expressly exclude the UN Convention on Contracts for the International Sale of Goods and The International Sale of Goods Act (Manitoba), as amended, replaced or re-enacted from time to time.  You agree to waive any right that you may have to: (i) a trial by jury; and (ii) commence or participate in any class action against Nimbus related to the Software, the Results, the Licensee Content and this Agreement. You also agree to opt out of any class proceedings against Nimbus. 
    2. Arbitration. In the event of any dispute arising between the parties concerning the subject matter of this Agreement, its enforceability or the interpretation thereof (the “Disagreement”):
      1. the parties shall attempt to amicably resolve the Disagreement;
      2. if the Disagreement is not resolved pursuant to Section 11.2(a) within thirty (30) days (or such longer period as may be agreed upon between the parties), the parties shall refer the Disagreement to their respective Chief Executive Officers for resolution, or their nominees, if applicable;
      3. if the Disagreement is not resolved pursuant to Section 11.2(b) within thirty (30) days (or such longer period as may be agreed upon between the parties), a mediator shall be appointed by the parties who shall assist the parties in resolving the Disagreement;
      4. if the Disagreement is not resolved under Section 11.2(c) within thirty (30) days (or such longer period as may be agreed upon between the parties), any party may refer the Disagreement to be resolved by arbitration conducted as follows:
        1. any party may require arbitration by giving written notice to arbitrate to the other parties, which written notice shall identify the nature of the Disagreement;
        2. if the parties are able to agree upon a single arbitrator, the arbitration shall be conducted before the single arbitrator;
        3. if the parties have been unable to agree upon the selection of a single arbitrator within two (2) weeks after receipt of the notice requiring arbitration, such arbitrator shall be appointed by a Judge of the Court of Queen’s Bench of the Province of Manitoba upon the application of any of the parties, and a Judge of the Court of Queen’s Bench of the Province of Manitoba shall be entitled to act as such arbitrator, if he or she so desires;
        4. the arbitrator shall, as soon as reasonably possible, proceed to hear and determine the Disagreement. The parties agree that it is important that all Disagreements be resolved promptly and the parties, therefore, agree that the arbitration shall be required to be conducted expeditiously and that the final disposition shall be accomplished within three (3) weeks or as soon thereafter as reasonably possible. The parties shall ensure that the arbitrator upon accepting the nomination shall agree that the arbitrator has time available for the timely handling of the arbitration in order to reasonably expect to achieve final disposition within three (3) weeks;
        5. the decision of the arbitrator shall be rendered in writing, with reasons, and shall be promptly served upon all parties. The decision of the arbitrator shall be binding upon the parties;
        6. in the event of the death, resignation, incapacity, neglect or refusal to act of an arbitrator, and if the neglect or refusal continues for a period of five (5) days after notice in writing of such has been given by any party, another arbitrator shall be nominated or appointed, as described above, to replace the arbitrator;
        7. the cost of the arbitration shall be in the discretion of the arbitrator, and shall be borne by each party in accordance with the decision of the arbitrator; and
        8. except as to matters otherwise provided herein, the arbitration shall be conducted in accordance with The Arbitration Act (Manitoba) or any successor legislation then in force. The place of arbitration shall be Winnipeg, Manitoba. The language to be used in the arbitration proceedings shall be English. 

This Section shall not prevent a party hereto from applying to a court of competent jurisdiction for interim protection such as, by way of example, an interim injunction.

    1. Currency.  All references to dollar amounts in this Agreement shall be lawful money of Canada, unless indicated otherwise.  
    2. General. All rights and remedies of each party under this Agreement are cumulative and may be exercised at any time and from time to time, independently or in combination. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of any other provision of this Agreement. No party shall be bound by any waiver of any provision of this Agreement unless such waiver is consented to in writing by that party.  No waiver of any provision in this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless otherwise provided. Time shall be of the essence herein.  The Licensee and Nimbus are independent contractors.  No agency relationship or partnership exists between them, and neither of them has the right to enter into a contract on behalf of or as an agent or representative of the other.  The parties shall execute and deliver, or cause to be executed and delivered, upon written request, any and all further documents and do all acts and things or cause such acts or things to be performed which may be necessary or desirable to give effect to the terms of this Agreement. The parties acknowledge that this Agreement and any existing transaction agreements between you and Nimbus, together with any schedules and appendices attached thereto, constitutes the entire agreement between the parties and supersedes all previous representations or agreements, written or oral, between the parties hereto. You consent to the exchange of information and documents between us electronically over the internet or by email.  You agree that this electronic agreement shall be equivalent of a written paper agreement between us. 
    3. Notice.  Any notice, request, demand, consent or other communication required or authorized under this Agreement to be given by any party to the other parties shall be in writing and may be delivered in person or by courier, transmitted by facsimile or via email, or sent by prepaid registered mail, and addressed to the addresses described on any transaction agreement between you and Nimbus or such other parties or such other addresses as a party shall notify the other parties in writing.  Any notice, request, demand, consent or other communication sent via email shall be deemed to be received on the date of transmission if confirmation of delivery is obtained and if such notice, request, demand, consent or other communication is also given by courier.
    4. Language of Agreement. The parties hereto confirm that it is their wish that this Agreement, as well as other documents related hereto, including notices, have been and shall be drawn up in the English language only.  Les parties aux présentes confirment leur volonté à cette convention de même que tous les documents, y compris tout avis qui s’y rattache, sont rédigés en anglais seulement.
    5. Other Remedies. Except as expressly provided herein to the contrary, the exercise of a right of termination or any other right or remedy by either party shall be without prejudice to such party’s right, subject to the limitations set forth in this Agreement, to pursue any other right or remedy available hereunder or under applicable law.
    6. Survival. Any indemnity or any obligation of confidence under this Agreement is independent and survives termination or expiration of this Agreement.  All obligations under this Agreement that necessarily extend beyond termination or expiration of this Agreement in order to fully achieve their intended purpose shall survive termination or expiration of this Agreement, including without limiting the generality of the foregoing, all indemnification provisions, intellectual property provisions, confidentiality provisions, licence provisions, representations, warranties, covenants, ownership provisions, disclaimers and limitation of liability provisions.
    7. Assignment & Enurement. The Licensee may not assign, transfer or encumber this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Nimbus. Any attempted assignment, transfer or encumbrance without the required consent shall be void. The consent of Nimbus to any assignment of this Agreement shall not constitute Nimbus’s consent to a further assignment. Notwithstanding this Section, this Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, personal representatives, successors and permitted assigns.
    8. Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, or for any loss or damage resulting therefrom, due to acts of God, the public enemy, terrorist activities, riots, fires, pandemics, epidemics, and similar causes beyond such party’s control.  In the event of such failure or delay, the date of delivery or performance shall be extended for a period not to exceed the time lost by reason of the failure or delay; provided that the party affected by such delay is using commercially reasonable efforts to mitigate or eliminate the cause of such delay or its effects.  
    9. Non-Solicitation.  Both during this Agreement and after the termination or expiration of this Agreement for a period of one (1) year, the Licensee shall not nor attempt to, directly or indirectly, whether for the Licensee’s own benefit or for the benefit of any other entity or individual, solicit, encourage, induce or in any way influence any person employed by, or engaged to render services on behalf of Nimbus, to leave Nimbus or to engage in any activity contrary to or conflicting with the interests of Nimbus.
    10. Injunctive Relief. Notwithstanding this Agreement, any breach of the Articles titled “CONFIDENTIALITY”, “INTELLECTUAL PROPERTY”, “LICENCES”, “ACKNOWLEDGEMENTS & COVENANTS”, or “INFRINGEMENT” is a breach of this Agreement that may cause serious and irreparable harm to Nimbus.  Any such breach will entitle Nimbus to injunctive relief, in addition to all other legal or equitable remedies that may be available.
    11. Anti-Spam Consent. In the event that Canada’s Anti-Spam Legislation applies to the installation of the Software and related upgrades, Nimbus hereby seeks and the Licensee hereby provides consent to Nimbus for such installation and potential future upgrades installation so that the Licensee may use the Software, provided that the Licensee may revoke such consent at any time. The function and purpose of the Software that is to be installed or may have upgrades is described in this Agreement. The mailing address and contact information for Nimbus is noted in this Agreement. 
    12. Changes to EULA. Nimbus reserves the right, at its sole discretion, to change, amend, modify, add or remove terms and conditions contained in this Agreement, at any time, without further notice by posting any changes on the Software.  Any new terms or conditions will be effective as soon as they are posted. It is your responsibility to check this Agreement and the Software periodically and you are deemed to be aware of such changes. Your continued use of the Software and/or the Results following the posting of such changes will mean that you accept and agree to the changes.  If you do not agree to the changes, please stop using the Software and the Results.
    13. Unsolicited Commercial Electronic Messages. The inclusion of any email addresses on the Software, the Results or within this Agreements does not constitute consent to receiving unsolicited commercial electronic messages or SPAM.
    14. Contact Us. If you have any questions, concerns or comments, please contact us at: 

Nimbus Learning Inc.

Mailing Address:  373 Front Street West, Suite 1107, Toronto, ON M5V 3R7

Telephone No.: 204-960-0086

E-mail: support@Nimbus.com.

 

PRIVACY POLICY

The website https://nimbuslearning.com/ (the “Site”) is operated by Nimbus Learning Inc. (also referred to as “Nimbus”, “us”, or “we”). We respect your right to control your personal information. That is why we have developed this privacy policy (the “Privacy Policy”) which describes:

 

  •     the types of personal information we collect about you;
  •     the purposes for which we collect that information;
  •     how we use that information;
  •     with whom we share that information;
  •     how we safeguard that information;
  •     the choices available to you regarding how we use your personal information; and
  •     how you can contact us about our privacy practices.

 

This page contains the Privacy Policy for the Site, as well as for any other websites or microsites operated by Nimbus (collectively and together with the Site, the “Sites”), and for any web applications, mobile applications, tools, forums, or social media pages offered by Nimbus on the Sites, and for any online services offered by Nimbus including, but not limited to, tutoring and mentoring services (together with the Sites, the “Service”).

By accessing or using the Service, you consent to the collection, use and disclosure of personal information by Nimbus in accordance with the Privacy Policy. You may choose not to provide us with personal information.  However, if you make this choice we may not be able to provide you with the application, service or information that you requested.  

We recommend that you read this entire Privacy Policy to ensure that you are fully informed. However, you can access specific sections of the Privacy Policy based on the type of information you are looking for by clicking on the links below.   

  1. What are the key defined terms used throughout the Privacy Policy?
  1. What personal information do we collect?
  1. What is the purpose of the collection and use of your personal information?
  1. To whom do we disclose your personal information?
  1. What if there is a change in the initial purpose of collection of your personal information?
  1. Do we knowingly collect personal information about children?
  1. How do we safeguard your personal information?
  1. Do we transfer your personal information to third parties for storage or processing?
  1. How long do we retain your personal information?
  1. Do we collect, use, and disclose non-personal information about you?
  1. How do we ensure the accuracy of your personal information?
  1. How can you access your personal information?
  1. What types of “cookies” and/or other technologies do we use and how can you manage “cookies”?
  1. Do you have links to other websites on the Sites? If so, which Privacy Policy governs?
  1. Do you use third party advertising partners? If so, how can I opt out of targeted advertising?
  1. What type of analytics services do we use and for what purpose? How can you disable analytics?
  1. Who do you contact if you have an inquiry, complaint, or want to request a review of your personal information?
  1. How do we handle complaints?
  1. How do you withdraw your consent to the collection, use or disclosure of your personal information? 
  1. How can you unsubscribe from our commercial electronic messages such as messages regarding new products or services?
  1. If changes are made to the Privacy Policy, will you be notified? If so, how will you be notified?

 

  1.         Definitions

For the purposes of the Privacy Policy, the following words have the following meanings:

collection” means the act of gathering, acquiring, recording or obtaining personal information from any source, including third parties, by any means.

consent” means voluntary agreement with the collection, use and disclosure of personal information for defined purposes. Consent can be either express or implied and can be provided directly by the individual or by an authorized representative, such as a parent or guardian.  Express consent is permission that is granted by an individual taking a positive step to signify consent and may be given orally, electronically or in writing.  Implied consent is the assumption of consent that can reasonably be inferred from a user’s action or inaction.

user” means an individual, such as a student, tutor or mentor, who uses the Service provided by Nimbus, including anyone else who accesses or visits the Sites.

disclosure” means making personal information available to a third party.

employee” means an employee of Nimbus, and for the purpose of the Privacy Policy only, includes agents, independent and other contractors performing services for Nimbus.

personal information” means information about an identifiable individual, but not aggregated information that cannot be associated with a specific individual. 

“registered user” means a user who has created and registered an account with Nimbus, as well as a Subscribing Organization that has created and registered an account or accounts with Nimbus.

“Subscribing Organization” means a company, entity or organization, including any business that has subscribed to the Service.

third party” means an individual other than the user, or the user’s agent, or an organization other than Nimbus or a Subscribing Organization.

use” means the treatment, handling and management of personal information by and within the Nimbus.

  1.         Information We Collect

When you interact with us through the Service, we may collect or receive the following types of information.

Personal Information You Provide To Us

You may provide us with your personal information in different ways. For example, we may collect any or all of the following personal information if the information is reasonably required to provide the Service to you:

(a)       information that you provide when you become a registered user or otherwise complete forms on the Service, such as your name, university, degree information, email address, course information, lesson logistics (including location, price, time and details of the lesson), teaching profile, postal address, and telephone number;
(b)       your log-in and password details in connection with your account(s), including your username;
(c)       your correspondence with Nimbus employees, including any questions, concerns or comments you may have about the Service or problems that you report;
(d)       comments, videos, photographs, and any other content or information that you may submit to the Service;
(e)       your location information via your mobile device; and/or
(f)         details of your requests made through the Service.

Nimbus does not collect information related to method of payment such as a credit or debit card number. All purchases of Nimbus products and services will be directed to and handled by third parties such as Stripe. You will be bound by the privacy policies of these third party sites. 

Technical Information We Collect Automatically

When you visit the Sites, we may collect, using electronic means, technical information. This information may include:

(a)       the IP address of your computer and which browser you used to view our Sites;
(b)       operating system;
(c)       resolution of screen;
(d)       location;
(e)       language settings in browsers; and/or
(f)         the site you came from and searched for keywords if arriving from a search engine.

This technical information (some of which in certain instances may be considered personal information) is aggregated and used to measure and improve effectiveness of our Sites. We do not attempt to combine this technical information with other personal information we collect on our Sites.

  1.         Purpose of Collection and Use of Personal Information

Nimbus collects your personal information and will use your personal information as is reasonably required for the following purposes:

(a)       if you are a registered user, to establish and maintain your Nimbus account;
(b)       to provide web applications, the Service, and/or the other services or information that you request;
(c)       to verify your identity if you submit comments, videos, photographs, opinions, or any other content or information to the Service;
(d)       to respond to questions, comments, requests, job applications, or complaints that you submit to Nimbus;
(e)       to collect amounts owing from you to the Nimbus, if applicable;
(f)         to track communications with you;
(g)       to analyze use of the Service and to improve the Service;
(h)       to send emails, newsletters, regular mail or other communications you have consented to receive from the Nimbus;
(i)         to provide Service-related announcements or notifications to you;
(j)         to fulfill a purpose that we disclose to you when we request your personal information;
(k)       to aggregate your personal information resulting from the combination and/or aggregation of certain raw personal information collected from you with other data in a way that no longer personally identifies you;
(l)         to process payments made by you; and/or
(m)      to meet legal and regulatory requirements.

Your personal information will only be collected and used by Nimbus and employees, agents, partners and service providers in a manner consistent with the activities of the Nimbus.  Access to your personal information by Nimbus employees, agents, partners and service providers is limited only to those authorized, based on their need to deal with the personal information for the reason(s) for which it was obtained, including to enable them to perform a business, professional or technical support function for Nimbus.

  1.         Disclosure of Personal Information

Nimbus may disclose your personal information to:

(a)       its employees, agents, partners, licensees, independent contractors and service providers as is reasonably necessary to enable these parties to perform a business, professional or technical support function for Nimbus;
(b)       a person who, in the reasonable judgment of Nimbus, is seeking the information as your agent; and
(c)       a third party or parties, where you consent to such disclosure or the disclosure is permitted or required by law.

Corporate Reorganization and Business Transfers

Nimbus may also disclose your personal information in connection with a corporate re-organization, a merger or amalgamation with another entity, a sale of all or a substantial portion of our assets or stock, including any due diligence exercise carried out in relation to same, provided that the information disclosed continues to be used for the purposes permitted by the Privacy Policy by the entity acquiring the information. 

User Content

If you voluntarily submit or post any information, videos, photographs or other content (“User Content”) to the Service, certain of your personal information may be included in the posting, such as your user name and email address, and this information may be collected and used by others. Nimbus has no control over and is not liable for the collection, use or disclosure of any posted User Content or your included personal information by users of the Service. You are responsible for ensuring the protection of any of your personal information that you post to any other user’s Nimbus’ messaging account. The term “User Content” does not include aggregated non-personal data as described in Section 10 of this Privacy Policy. 

  1.         Change of Purpose

Nimbus will only use your personal information for the purposes for which we collected it, unless we reasonably consider that we need to use it for another reason and that reason is compatible with the original purpose. If we need to use your personal data for an unrelated purpose, we will notify you and obtain your express consent to do so pursuant to Section 21.

Please note that we may process your personal data without your knowledge or consent where this is required by law.

6.         Children

The Service is intended for general audiences and is not directed to children under the age of 13. We do not knowingly collect personal information from children under 13. In the event that we learn that we have collected personal information from a child under the age of 13, we will take appropriate steps to delete that personal information. If you become aware or believe that a child has provided us with personal information, please contact us as provided in Section 17.

7.          Safeguarding Your Personal Information

Nimbus is committed to safeguarding your personal information. Nimbus uses appropriate security measures to protect personal information against risks such as loss or theft, unauthorized access, disclosure, copying, misuse, modification or destruction, and any other unlawful form of processing of the personal information in our possession regardless of the format in which it is held. The methods of protection and safeguards used by Nimbus include, but are not limited to:

  • Administrative safeguards such as privacy and security policies and procedures, privacy and data protection training for Nimbus staff;
  • Technical safeguards such as security testing, vulnerability scans, and technological measures, including the use of passwords, encryption, firewalls, and secure coding frameworks;
  • Physical safeguards such as locked filing cabinets, and need-to-know access for Nimbus employees.

Nimbus also ensures that its employees with access to personal information are made aware of the importance of maintaining the confidentiality of personal information.

Nimbus takes care in disposing of or destroying personal information to prevent unauthorized parties from gaining access to the information.

While Nimbus is committed to safeguarding your personal information, we cannot ensure or warrant the security of any personal information we collect either directly or automatically from you, and you do so at your own risk.

Nimbus cannot guarantee that such personal information may not be accessed, disclosed, altered, or destroyed by breach of any of our security safeguards. To the degree that personal information is of a sensitive nature, in the event of a breach, there may be a risk of significant harm to you which includes bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property.

Nimbus also cannot guarantee that information sent or received over the Internet is secure and does not make any representation or warranty concerning the security of personal information communicated to or from Nimbus via the Internet or regarding the interception by third parties.

8.          Transfer of Personal Information

Subject to any contractual restrictions as between Nimbus and a Subscribing Organization requiring your personal information to be stored and processed in Canada, your personal information may be stored and processed in any country where we engage third party service providers (e.g. United States). While such information is outside of your country of residence, it is subject to the law of the country in which it is held, and may be subject to disclosure to the governments, courts, or law enforcement or regulatory agencies of such other country, pursuant to the laws of such country. For example, personal information stored in the United States is subject to the US PATRIOT ACT.
Regardless of where your personal information may be stored and processed, Nimbus’s practices will at all times continue to be governed by this Privacy Policy. In addition, Nimbus has measures in place to ensure that when your personal information is transferred to a third party for processing, whether within or outside Canada, it is subject to appropriate safeguards in accordance with applicable data protection laws. These measures typically include contractual safeguards stipulating the confidentiality of the information and the purposes for which it is to be used.

 Where and when appropriate, we will transmit amended personal information to third parties having access to the personal information in question.

9.          Retention of Personal Information

Nimbus   will only keep personal information for as long as reasonably necessary to fulfil the relevant purposes set out in the Policy Privacy and in order to comply with our legal and regulatory obligations. To determine the appropriate retention period for your information, we consider the amount, nature, and sensitivity of the information, the potential risk of harm from unauthorized use or disclosure of your information, the purposes for which we process your information and whether we can achieve those purposes through other means, and the applicable legal requirements.

Please note, if you are a registered user and your Nimbus account becomes inactive, Nimbus may choose not to retain your personal information associated with your Nimbus account, or any other records associated with your Nimbus account, for a period longer than three years after your Nimbus account becomes inactive, in which case such information may be destroyed. If your Nimbus account becomes inactive, you are solely responsible for exporting any such information from your Nimbus account that you may wish to retain.

  1.       Non-Personal Information

We may collect, use and disclose non-personal information, including aggregated data resulting from the combination and/or aggregation or certain raw data collected from you with other data in a way that no longer personally identifies you. We make no attempt to link this non-personal information with the identity of individuals. We may permanently archive non-personal information for future use in any manner whatsoever.

  1.       Accuracy of Personal Information

Nimbus is committed to keeping your personal information as complete, up-to-date and accurate as is necessary for the purposes for which it is to be used. Nimbus will promptly correct or complete any personal information found to be inaccurate or incomplete. Where appropriate, Nimbus will transmit amended information to third parties having access to the personal information in question.

  1.       Access to Personal Information

Upon request, Nimbus will provide you with a reasonable opportunity to review the accuracy of your personal information. Such personal information will be provided within a reasonable time of the request and at a minimal or no cost to you. 

Also upon request, Nimbus will provide an account of the use and disclosure of your personal information and, where reasonably possible, will state the source of the information. In providing an account of disclosure, Nimbus will provide a list of organizations to which it may have disclosed personal information about you when it is not possible to provide an actual list. 

In certain situations, Nimbus may not be able to provide access to all of the personal information we hold about you.  In such a case, we will provide the reasons for denying access upon request.  Such reasons may include:

 

(a)       if doing so would likely reveal personal information about another individual that cannot be severed or the information could reasonably be expected to threaten the life or security of another individual;          

(b)       if doing so would reveal any of our confidential information;

(c)       if the information is protected by solicitor-client privilege;

(d)       if the information was generated in the course of a formal dispute resolution process; or

(e)       if the information was collected in relation to the investigation of a breach of an agreement or a contravention of a federal or provincial law, or that of a foreign jurisdiction.

Individuals can obtain information or seek access to their personal information by contacting our Privacy Officer pursuant to Section 17 of the Privacy Policy during regular business hours.

13.       Cookies and Similar Technologies

The Sites use “cookies”, which are small text files placed on your computer or other device when you visit a website. When you visit the site again, the cookie allows that site to recognize your browser. Cookies may store user preferences and other information.

There are three main types of cookies:

(a)       Session cookies are specific to a particular visit and limited to sending session identifiers (random numbers generated by the server) so you don’t have to re-enter information when you navigate to a new page or check out.  Session cookies are not permanently stored on your device and are deleted when the browser closes;
(b)       Persistent cookies record information about your preferences and are stored in your browser cache or mobile device and remain on your device between browsing sessions. For example, a persistent cookie may be used on a website to remember your log-in details so you will not need to enter those details each time you visit that website; and
(c)       Third party cookies placed by someone other than us which may gather data across multiple websites or sessions.

We use the below listed cookies to perform the following functions:

(a)       Strictly necessary / technical cookies that are essential to enable you to move around a website and use its features. You cannot withdraw your consent to the use of these types of cookies because without them, the Service cannot be provided.
(b)       Analytical / performance cookies that collect information in aggregated form about how users interact with the Sites so that we may improve functionality. These cookies are sometimes placed by third party providers which enable features or functionality provided by third parties in connection with the Service. For example, advertising, interactive content, and analytics (see Section 16 below). The parties that set these third-party cookies can recognize your device both when it visits the website in question and also when it visits certain other websites.
(c)       Functional cookies that allow a website to remember choices you make, recognize you when you return and to personalize content.
(d)       Targeting / advertising cookies that track browser habits and used to deliver targeted (interest-based) advertising based on your browsing activities and interests. See Section 15 on how you may opt out of targeting advertising.

You acknowledge that where we allow third parties to drop cookies, we have no control over those cookies or the data generated.  Please refer to the third party’s privacy policy for information on what information they collect and how they use it.  These cookies are likely to be analytical/performance cookies or targeting cookies.

Managing Cookies

You can manage website cookies in your browser settings, and you always have the choice to change these settings by accepting, rejecting, or deleting cookies. If you choose to change your settings, you may find that certain functions and features will not work as intended on the Service. All browser settings are slightly different, so to manage cookies, you should refer to the relevant settings within your browser.

Other Technologies

 We may use other technologies similar to cookies like web beacons, which are sometimes called “tracking pixels” or “clear gifs”. These are tiny graphics files that contain a unique identifier that enable us to recognize when someone has visited the Sites or opened an email that we have sent them. In many instances, these technologies are reliant on cookies to function properly, and so declining cookies will impair their functioning.

14.       Links to Other Websites

The Sites may contain links to other sites, such as Facebook, Instagram, Twitter, and LinkedIn. The Privacy Policy only applies to personal information that we collect, use and disclose. We are not responsible or liable for the privacy practices of third parties, and we strongly recommend that you review their privacy policies before you disclose personal information to them.

15.       Targeted Advertising and How You May Opt Out

We may use third party advertising partners such as advertising networks, exchanges, and social media platforms to display advertising on the Sites or to manage and serve our advertising on other sites. You have a variety of options to opt out of interest based advertising ranging from browser controls, add on utilities such as ad blockers, and other opt out tools. Other opt out tools may include organizations, such as the Network Advertising Initiative, whose members agree to provide a means for consumers to opt out of the members’ targeted advertising on websites.

16.       Analytics

The Sites employ Google Analytics, a web analysis service from Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). Google Analytics uses “cookies,” which are text files placed on your computer, to help the website analyze how users use the Sites, compiling reports on the Sites’ activity for the Sites’ operators and providing other services relating to website activity and Internet usage. The information generated by the cookie (including the IP address) is transferred and stored on a Google server located in the United States.

Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google’s behalf.  Google will not associate your IP address with any other information held by Google.

We may also use additional analytics programs from time to time to process non-personal information about you.

We make no attempt to link this non-personal information with the identity of individuals using the Service. Non-personal information may be permanently archived for future use in any manner whatsoever by Nimbus.

Disable Google Analytics

You can prevent the collection and processing of cookie created data relating to your utilization of the Sites (including your IP) via Google by downloading and installing the browser-plugin available under the following link (https://tools.google.com/dlpage/gaoptout?hl=en).

Google currently offers this opt-out tool for Internet Explorer 11, Google Chrome, Mozilla Firefox, Apple Safari and Opera. 

Further information concerning the terms and conditions of Google’s use and data privacy can be found at https://www.google.com/analytics/terms/us.html or at https://policies.google.com/privacy.

  1.       Contact Us

To submit an inquiry, complaint, request a review of your personal information, correct or update your personal information, withdraw your consent or request more information or additional copies of the Privacy Policy contact:

Nimbus Privacy Officer

Mailing Address:  373 Front Street West, Suite 1107, Toronto, ON M5V 3R7

Telephone No.: 204-960-0086

E-mail: support@Nimbus.com.

  1.       Complaints

Nimbus will promptly investigate all complaints concerning our compliance with the Privacy Policy and our dealings with your personal information.  If a complaint is found to be justified, Nimbus will take appropriate measures to resolve the complaint, including, if necessary, amending our policies and procedures. You will be informed of the outcome of the investigation regarding your complaint. 

  1.       Withdrawing Consent

You may withdraw your consent to the collection, use or disclosure of your personal information by Nimbus at any time, subject to legal or contractual restrictions and reasonable notice.  In certain circumstances, your withdrawal of consent may result in the inability of Nimbus to continue providing aspects or optimization of the Service to you. Please contact Nimbus for more information regarding the implications of withdrawing consent.

  1.       Unsubscribe from Commercial Electronic Messages

If you no longer wish to receive commercial electronic messages from Nimbus regarding our new products or services, promotions or other similar communications, you may unsubscribe by clicking at the bottom of that communication. Please note that, after you unsubscribe, Nimbus may still send electronic communications to you in certain limited circumstances, such as to provide you with Service notifications and billing information, or to provide information that Nimbus is legally obligated to provide you.   

  1.       Privacy Policy Changes

We may modify the Privacy Policy to accommodate changes in our services, changes in technology and legal developments. If we make changes to the Privacy Policy, we will provide notice through the Service, or by other means to provide you the opportunity to review the changes before they become effective. For example, we may place a prominent notice on the Sites or e-mail you to let you know of an updated Privacy Policy.

If we make significant changes to the Privacy Policy, we will provide at least 30 days’ notice through the Service, or by other means, to provide you the opportunity to review the changes and provide your required consent before they become effective. A significant change may be using personal information for a new purpose or disclosures to new third parties.

You acknowledge that your continued use of the Service after we modify the Privacy Policy, publish or send a notice about our changes to the Privacy Policy means that the collection, use and sharing of your personal data is subject to the updated Privacy Policy.

If you object to any changes to the Privacy Policy you may close your account. 

Whenever we update the Privacy Policy, we will change the date below to indicate when the changes were made.

Date: January 11 2021