Nomo beta terms & conditions

These terms and conditions (these “Terms”) are binding upon each individual who uses Beta Products (defined herein) provided by NOMO International, LLC, a Delaware limited liability company (“Nomo”), which may include associated media, printed materials, and online or electronic documentation. Individuals subject to these Terms are referred to as “You”, “Your” and “Participant” herein. These Terms incorporate NOMO’s privacy policy available at nomosmartcare.com/privacy-policy/ and any other exhibits or attachments referenced hereto, all of which are incorporated herein by reference. Your use of the Beta Products indicates your agreement to these Terms.

1. DEFINITIONS

(a) “Beta Products” means the beta version of certain NOMO products (including any Updates thereto, in the case of software) and the media and Documentation provided by NOMO to You. Beta Products may include Software and/or Hardware, both as defined below.

(b) “Documentation” means the printed or online written reference material furnished to You in conjunction with the Beta Products, including, without limitation, instructions, beta testing guidelines, and end user guides.

(c) “Hardware” means any NOMOvhardware appliance products loaned to You pursuant to these Terms, including, without limitation, the NOMO Smart Care TM hub, satellites, and tags.

(d) “Intellectual Property Rights” means all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret.

(e) “Open Source Software” means various open source software components of the Software that are licensed to You under the terms of the applicable license agreements included with such open source software components or other materials for the Software.

(f) “Software” means the applicable NOMO software products licensed to you for non-production or in production evaluation purposes pursuant to these Terms.

(g) “Updates” means a modification, error correction, bug fix, new release, or other update to or for any Software.

2. LICENSE GRANT, USE AND OWNERSHIP

(a) Limited License. Subject to these Terms, NOMO grants You a non-exclusive, nontransferable license (without the right to sublicense) (i) to use the Software in accordance with the Documentation solely for purposes of in-production testing and evaluation of the Beta Products; and (ii) to use the Documentation provided with the Software in support of Your authorized use of the Software. Nothing in this limited license permits You to modify the Software.

(b) Loan of Hardware. If NOMO loans Hardware to you pursuant to these Terms, NOMO is loaning such Hardware to You solely for purposes of in-production testing and evaluation of the Beta Products. You shall not disassemble the Hardware, in whole or in part, or use any mechanical, electrical or other method to decompile, disassemble or decrypt the Hardware or encourage others to do so. You shall do nothing inconsistent with NOMO’s title to the Hardware, including but not limited to transferring, loaning, selling, assigning, pledging or otherwise disposing, encumbering or suffering a lien or encumbrance upon or against any interest in the Hardware.

(c) Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Products and Documentation. In furtherance of this purpose, You shall provide feedback to NOMO concerning the functionality and performance of the Beta Products from time to time as reasonably requested by NOMO, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). Such Feedback will be in a manner convenient to You and will be subject to Your reasonable availability. Notwithstanding the foregoing, prior to disclosing to NOMO any information in connection with these Terms which You consider proprietary or confidential, You will obtain NOMO’s prior written approval to disclose such information to NOMO, and without such prior written approval from NOMO, You will not disclose any such information to NOMO. Feedback and other information which is provided by You to NOMO in connection with the Beta Products or these Terms may be used by NOMO to improve or enhance its products and, accordingly, You grant NOMO a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback and information without restriction.

(d) Restrictions.
You shall not copy or use the Beta Products (including the Documentation) or disseminate Confidential Information, as defined below, to any third party except as expressly permitted in these Terms. You will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any Software or accompanying Documentation. In no event shall You use the Beta Products for Your product development or any other commercial purpose. The Beta Products and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Beta Products are the Confidential Information of NOMO, and will be treated in accordance with the terms of Section 4 of these Terms. Accordingly, You will not publish or disclose to any third party any Performance Data relating to the Beta Products.

(e) Ownership. NOMO shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Beta Products and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. You do not acquire any other rights, express or implied, in the Beta Products. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO NOMO.

(f) No Guaranteed Updates. NOMO is under no obligation to provide any Updates to You. In the event NOMO, in its sole discretion, supplies any Update to You, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of these Terms.

(g) Hardware Products. For any Hardware loaned to You under these Terms, the following additional terms shall apply:

(i) You will take delivery of the Hardware via direct shipment from NOMO to Your shipping address. You will provide accurate ship-to addresses, contact information, emails, and phone numbers.

(ii) All Hardware will be packaged for shipment in accordance with the packaging regulations in force in the relevant territory (You will provide any special packaging requirements to NOMO for review and preparation prior to shipment).

(iii) You will (at NOMO’s expense) return the Hardware to NOMO after the beta test end date specified by NOMO.

(v) You will maintain the Hardware in good working condition, reasonable wear and tear excepted.

(vi) You are solely responsible for all risk of loss or damage to the Hardware while in Your possession.

(h) Open Source Software. The terms and conditions of these Terms shall not apply to any Open Source Software accompanying the Beta Products. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software.

3. TERM AND TERMINATION

Unless otherwise terminated as specified under these Terms, Your rights with respect to the Beta Products will terminate upon the earlier of (a) the date the Hardware products are returned to NOMO, (b) the initial release by NOMO of the next generally available version of the Beta Product, or (c) one (1) year after the effective date set forth below. Notwithstanding the foregoing, either party may terminate these Terms at any time for any reason or no reason by providing the other party advance written notice thereof. NOMO will immediately terminate these Terms and Your rights with respect to the Beta Products without notice in the event of improper disclosure of NOMO’s Beta Products as specified under Section 4 (Confidentiality) below. Upon any expiration or termination of these Terms, the rights and licenses granted to You under these Terms shall immediately terminate, and You will immediately cease using, and will return to NOMO (or, at NOMO’s request, destroy), the Beta Products, Documentation, and all other tangible items in Your possession or control that are proprietary to NOMO or contain NOMO Confidential Information. The rights and obligations of the parties set forth herein shall survive termination or expiration of these Terms for any reason.

4. CONFIDENTIALITY

(a) “Confidential Information” means all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, methodology, performance and software source documents relating to the Beta Products, and other information provided by NOMO, whether disclosed orally, in writing, or by examination or inspection, other than information which You can demonstrate (i) was already known to You, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to You; (iii) became generally available in the public domain after disclosure other than through any act or omission by You; (iv) was subsequently lawfully disclosed to You by a third party without any obligation of confidentiality; or (v) was independently developed by You without use of or reference to any information or materials disclosed by NOMO or its suppliers. Confidential Information shall include without limitation the Beta Products, Documentation, Performance Data, any Updates, information relating to NOMO products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies. You shall not use any Confidential Information for any purpose other than as expressly authorized under these Terms. In no event shall You use the Beta Products or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. In no event shall You disclose any Confidential Information to any third party. Without limiting the foregoing, You shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.

5. LIMITATION OF LIABILITY

IT IS UNDERSTOOD THAT THE BETA PRODUCTS ARE PROVIDED WITHOUT CHARGE FOR TESTING AND FEEDBACK PURPOSES. ACCORDINGLY, IN NO EVENT SHALL NOMO OR ITS AFFILIATES HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF NOMO AND ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. WARRANTY DISCLAIMER

IT IS UNDERSTOOD THAT THE BETA PRODUCTS, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR TESTING AND FEEDBACK ONLY. THE BETA PRODUCTS, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOMO AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

You acknowledge that NOMO has not publicly announced the availability of the Beta Products, that NOMO has not promised or guaranteed to You that such Beta Products will be announced or made available to anyone in the future, that NOMO has no express or implied obligation to You to announce or introduce the Beta Products, and that NOMO may not introduce a product similar or compatible with the Beta Products. Accordingly, You acknowledge that any research or development that it performs regarding the Beta Products or any product associated with the Beta Products is done entirely at its own risk. Specifically, the Beta Products may contain features, functionality or modules that will not be included in the final production version of the Beta Products, if released, or that will be marketed separately for additional fees.

7. EQUITABLE REMEDIES

The restrictions contained in these Terms are necessary for the protection of the business and goodwill of NOMO and are considered by Participant to be reasonable for such purpose. Participant agrees that any breach of these Terms is likely to cause NOMO substantial and irrevocable damage which is difficult to measure. Therefore, in the event of any such breach or threatened breach, Participant agrees that NOMO, in addition to such other remedies which may be available, shall have the right to obtain an injunction from a court of competent jurisdiction restraining such a breach or threatened breach and the right to specific performance of the provisions of these Terms, without in either case the requirement of posting a bond or other security in support of the same, and Participant hereby waives the adequacy of a remedy at law as a defense to such relief.

8. OTHER PROVISIONS

(a) Governing Law. These Terms, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the State of Minnesota without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Hennepin County, Minnesota, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.

(b) Assignment. You shall not assign these Terms or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of NOMO. Subject to the foregoing, these Terms shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(c) Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of these Terms shall be valid unless in writing signed by each party. Notwithstanding the foregoing, NOMO may amend the terms and conditions of these Terms or any other documents and policies referenced herein at any time, including without limitation by posting such revised terms on its website (nomosmartcare.com) or the location of such other document or policy. Such amended terms and conditions shall be binding on Participant on the effective date of such change and shall supersede any prior version (including these Terms) which may have been embedded in or packaged with the Product itself. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law the remaining provisions of these Terms shall remain in full force and effect.

9. CONTACT INFORMATION

If you have any questions about these Terms, or if you want to contact NOMO for any reason, please direct all correspondence to:

NOMO International, LLC

c/o Product Beta Test Director

7151 Metro Blvd.

Edina, MN 55439