Terms and Conditions for Nimbio Products

Last Updated: March 23, 2023

PLEASE READ THESE TERMS AND CONDITIONS (THE “CONDITIONS”) FOR NIMBIO PRODUCTS CAREFULLY BECAUSE THESE CONDITIONS CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND NIMBIO. IF YOU DO NOT WISH TO ACCEPT THESE CONDITIONS, PLEASE DO NOT ORDER AND/OR USE PRODUCTS OR ACCESS NIMBIO SERVICES THROUGH PRODUCTS.  BY ORDERING AND/OR USING ANY PRODUCT, YOU AGREE (1) TO BE BOUND BY THESE CONDITIONS, (2) YOU ARE AT LEAST 18 YEARS OLD, (3) YOU HAVE READ AND UNDERSTAND THESE CONDITIONS AND (4) YOU ACCEPT THESE CONDITIONS.  

Nimbio reserves the right to change these Conditions at any time; each time Customer orders Products, the Conditions in force at that time will apply between Customer and Nimbio.
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BASIS OF SALE

1. When you (“Customer”) purchase and/or use at your Property any hardware or other products (“Products”) from Nimbio Labs, Inc. (“Nimbio”), including, but not limited to, a Nimbio System (as defined in the Terms of Service), such purchase constitutes your agreement to be bound by these Conditions and the Contract (as defined below). For clarity, a Customer may receive Products for use at Customer’s property for no charge and in any such instances these Conditions will apply to the Products used by the Customer whenever applicable.  THE CONDITIONS CONTAIN AN AGREEMENT TO ARBITRATE DISPUTES, WHICH (I) REQUIRES THAT YOU AND NIMBIO ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT; AND (II) LIMITS CLASS ACTION CLAIMS.
2. “Contract” means, collectively, the Terms of Service, an Order that is accepted by Nimbio (if any), and these Conditions.
3. “End User” means (i) the person or entity who owns or controls a residential or commercial property where Products are installed (a “Property”), (ii) each agent of Customer authorized by Customer to use Products on Customer’s behalf, and (ii) any person to whom Customer makes available Products as permitted by the Contract.
4. “Order” means any order for Products placed by Customer that, when accepted by Nimbio, shall be part of a Contract.
5. “Terms of Service” means the terms and conditions applicable to the website and mobile applications Nimbio operates and makes available for use in connection with Products which are set forth at https://start.nimbio.com/terms-of-service (or any successor website). 
6. Customer’s commencement of any act consistent with ordering Products, or ordering Products in any manner, whichever is earlier, shall conclusively evidence unconditional acceptance of the Contract.  The Contract constitutes the entire agreement between Nimbio and Customer for the supply of Products.  Without limiting the foregoing, any variation to these Conditions must be agreed in a written document signed by Nimbio’s authorized representative that specifically references this Contract and the section(s) to be varied.  Nimbio objects to, and is not bound by, any terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, that differs from or adds to the Contract.  Any proposal, invoice, attempted acknowledgment of an order or similar document containing terms inconsistent with, or in addition to, these Conditions shall not be binding, and is expressly rejected, even if executed by an authorized Nimbio representative.
7. Customer acknowledges that Customer has verified the compatibility of the Product with the Property and related equipment and utilities at the Property where the Product will be used. Such determination is Customer’s sole responsibility. Lack of compatibility is not a valid claim under Nimbio’s warranty and does not entitle Customer to any refund.

CANCELLATION AND DELAY

Nimbio will not be liable to Customer or be in breach of the Contract by reason of delay or failure to perform any of Nimbio’s obligations. Orders are not cancellable by Customer (and amounts paid in respect of Orders are non-refundable).  

PRICE & PAYMENT 

1. Prices quoted by Nimbio are exclusive of costs of delivery (including but not limited to transport, packaging, insurance and any taxes, duties or surcharges) and any applicable sales tax, unless otherwise stated.
2. Payment for Products is due and payable as agreed upon by Nimbio and Customer in writing, in USD.  Any outstanding payments are due and payable immediately upon cancellation or termination of the Contract between Nimbio and Customer.  By providing a credit card or other payment method to Nimbio, Customer represents and warrants that Customer is authorized to do so, and further authorizes Nimbio to charge, or to use a third party processor to charge, such payment method for the total amount of the Order (including any applicable taxes and other charges).
3. Nimbio is entitled to set off sums owed to Customer against sums owed by Customer to Nimbio.  Nimbio may cancel or suspend any Order for which the provided payment method is rejected or which is not paid in full.
4. Overdue amounts owed to Nimbio bear interest at the rate of 1.5% per month.

DELIVERY, INSTALLATION

1. Products will be delivered to Customer as described in the Order. Customer shall be responsible for complying with any legislation or regulations governing the importation of Products into the country of destination and for the payment of any duties on Products.   Any dates for delivery are approximate only. 
2. Title to Products passes to Customer upon full payment therefor.  If Customer is provided Products at no charge, title to such Products remains with Nimbio unless otherwise agreed by Nimbio and the customer.
3. Customer is solely responsible for determining compliance with all relevant laws in Customer’s jurisdiction regarding the installation of Products. Customer should refer to Nimbio’s Installation Terms, at https://start.nimbio.com/installationpolicy , which are hereby integrated by reference, for additional terms and conditions applicable to Product installation.

LIMITED WARRANTY

1. Nimbio provides a warranty with respect to Products purchased by Customer, which warranty is in lieu of all other warranties (express or implied) and is set forth at https://start.nimbio.com/warranty (or any successor website) (the “Warranty Statement”), which Warranty Statement is hereby integrated into the Contract.
2. While Nimbio uses commercially reasonable efforts to provide suitable illustrations and descriptions relating to Products on its website (collectively, “Documentation”), Documentation does not form part of the Contract nor amount to any representation or warranty by Nimbio.  Customer acknowledges that it is not relying on any representations made by Nimbio outside of the Contract.  Any suggestions or advice given by Nimbio or its employees or agents to Customer or its employees or agents (if any) as to the application or use of Products which is not contained in the written operating instructions provided by Nimbio shall not be construed as any representation or warranty of Nimbio and are hereby disclaimed in their entirety.  If Customer acts on the foregoing, Customer does so at its own risk.
3. Other than the express warranties made by Nimbio in the Warranty Statement, Nimbio hereby disclaims all other warranties, express and implied, including all warranties, conditions or other terms implied by statute, common law, trade usage or otherwise.
4. Customer is solely responsible for all loss, liability, damage, or other harm that may result from Customer’s use of a Product.

SUPPORT SERVICES

To the extent that Nimbio provides any support or maintenance services for Products to Customer, such services are provided at Nimbio’s sole discretion, without any obligation to Customer to provide or continue to provide such services, and on an “AS IS” basis, with all faults.  Nimbio hereby disclaims all responsibility for any acts or omissions in connection with the provision of any such services.

INTELLECTUAL PROPERTY

All patent, copyright, trademark, trade secret, or other intellectual property rights in all Products are and shall remain vested in Nimbio and nothing in these Conditions shall be construed as granting to Customer a license to such intellectual property rights or any right of manufacture of Products.  Customer agrees not to, and shall cause End Users not to, modify, repair, disassemble, analyze, or reverse engineer Products, or attempt to do any of the foregoing, or have a third party do any of the foregoing on its behalf.  

LIABILITY

1. Except to the extent prohibited by applicable law, this Section 8 sets forth Nimbio’s entire financial and legal liability (including any liability for the acts or omissions of Nimbio’s employees, agents or subcontractors) to Customer in respect of any legal claim under any theory (breach of contract, tort, or other) in connection with the Products.  Customer acknowledges and agrees that this Section 8 forms an essential basis of the bargain in the Contract and that but for this Section, Nimbio would not have entered into the Contract.
2. Nimbio’s total liability in connection with the Products, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, shall be limited to the amount paid by Customer to Nimbio for the Products.  Nimbio is not liable to Customer for any loss of revenue or profit, commercial loss, depletion of goodwill or any incidental, exemplary, indirect, special or consequential loss, damage, costs or expenses whatsoever.
3. Except with respect to Nimbio’s obligation to provide the warranty remedies set forth in the Warranty Statement for properly tendered, valid warranty claims under the Warranty Statement, Customer hereby voluntary releases and forever discharges and covenants not to sue Nimbio and its officers, directors, employees, agents, affiliates, successors and assigns (collectively, “Releasees”) from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with Customer’s or an End User’s use of Products, including without limitation any and all negligence or fault of any Releasee.  CUSTOMER UNDERSTANDS THIS IS A RELEASE OF LIABILITY THAT IS VALID FOREVER, and will apply to all current and future use of Products.  Customer understands that this release of liability will prevent Customer and any of its successors, assigns or affiliates from bringing any action at law, suit in equity, or other jurisdictional proceeding or making any claim for damages, injury, death or property damage arising from or relating to Customer’s or an End User’s use of Products.
4. Customer shall indemnify and hold Nimbio harmless in respect of all claims, damages, and losses of any kind arising or in connection with: (i) any non-compliance by Customer with any provision in the Contract; or (ii) Customer’s or an End User’s use of Products (except to the extent directly caused by Nimbio’s breach of its obligations under the Warranty Statement).

TERMINATION AND DEFAULT; MISCELLANEOUS

1. If Customer breaches any provision of the Contract and does not cure such breach (if capable of cure) within ten (10) days after having been made aware of it by Nimbio, Nimbio may, without limiting its other legal or equitable remedies, terminate or suspend any or all of its obligations to Customer and repossess Products (and Customer shall fully cooperate to enable the foregoing), without being obligated to return any payments that may have been made to Nimbio.  Customer shall reimburse Nimbio for all reasonable costs incurred by Nimbio in undertaking any such repossession.
2. The dispute resolution, class action waiver, arbitration requirement, and other dispute-related provisions of the Terms of Service, by which Customer is bound, apply to these Conditions and are hereby integrated into these Conditions by reference.