end user license agreement
This End User License Agreement (the “Agreement”) pertains to the provision of, license to, access to, and use of software applications, mobile applications, firmware and hardware (the "Products and Solutions") provided by Nomo International, Inc., a Delaware limited liability company (“NOMO”) to track motion and other activities of family members or other individuals (each a "Care Recipient") within their homes to assist their caregivers (each a "Caregiver") in providing care to such Care Recipients and is a binding legal agreement among each Individual and Caregiver (collectively, "Users") and NOMO. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES AND A WAIVER OF YOUR CLASS ACTION RIGHTS
The Products and Solutions include the following hardware ("Hardware") and software applications (the "Software") when made available by NOMO to Users:
Nomo SmartCare Essential Care Kit, consisting of:
- Smart Hub: a Wi-Fi-enabled sound and motion sensor, with 24/7 scanning technology and hands-free voice calling. The hub also possesses Bluetooth technology capable of connecting approved external devices to the Nomo Smart Care system, such as blood pressure monitors, thermometers, scales, and other diagnostic devices with Bluetooth connectivity. This connection allows information from affiliated devices to be viewed in the Nomo Smart Care app.
- Smart Satellite: a sound and motion sensing wall plug-in to extend monitoring range within the home. The satellite possesses Wi-Fi and Bluetooth capability to also connect to external diagnostic devices.
- Smart Tag: a motion-sensing device that can be attached to doors, drawers, windows (surfaces) or worn on a lanyard around the neck of the Care Recipient.
- Nomo Smart Care App: provides instant notifications in case of emergency for caregivers and allows easy communication and monitoring of the care recipient. The app is available on both iOS and Android devices. The Nomo Smart Care App connects external devices such as blood pressure monitors, thermometers, and scales through Bluetooth connectivity.
The Software is used in connection with the Hardware to enable tracking and caregiving of Care Recipients by Caregivers. The Software also includes any firmware installed on the Hardware and the related mobile application(s).
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY. YOU, THE USER, WILL HAVE ACCEPTED THIS AGREEMENT IF YOU: (1) ACCEPT THE TERMS OF ANY QUOTE OR PURCHASE ORDER THAT REFERENCES THIS AGREEMENT OR TO WHICH THIS AGREEMENT IS ATTACHED OR OTHERWISE INCORPORATED; (2) CLICK THE "ACCEPT" BUTTON OR CHECK ANY ACCEPTANCE CHECK BOX PRESENTED IN ASSOCIATION WITH THE PRODUCTS AND SOLUTIONS AND REFERENCING THIS AGREEMENT OR (3) ACCESS OR USE THE PRODUCTS AND SOLUTIONS.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP, COMPANY OR ANY OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT TO NOMO THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU ALSO AGREE THAT YOUR USE OF THE PRODUCTS AND SOLUTIONS IS SOLELY FOR THE BENEFIT OF THE INDIVIDUAL CARE RESIPIENTS AND CAREGIVERS.
NOMO IS WILLING TO ALLOW YOUR ACCESS, USE, AND LICENSE TO THE PRODUCTS AND SOLUTIONS ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. IF YOU ELECT NOT TO AGREE TO THE TERMS OF THIS AGREEMENT, YOUR SOLE RECOURSE IS TO CEASE ACCESSING AND USING THE PRODUCTS AND SOLUTIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN NOMO IS UNWILLING TO ALLOW YOUR ACCESS AND USE OF, AND ANY LICENSE TO, THE PRODUCTS AND SOLUTIONS AND YOU MUST NOT ACCESS, SETUP, ACTIVATE, OR USE ANY PART OF THE PRODUCTS AND SOLUTIONS.
INSTALLERS AND OTHER SERVICE PROVIDERS MAY ONLY ACCESS THE PRODUCTS AND SOLUTIONS TO AID USERS IN SETUP. ANY PERSON OR ENTITY IN VIOLATION OF THIS PARAGRAPH AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES FOR ANY CLAIMS AND FOR ANY ACT OR OMISSION TAKEN IN VIOLATION OF THIS PARAGRAPH PURSUANT TO THE TERMS OF SECTION 11.
NOMO may make changes to this Agreement at its sole discretion. Changes will be communicated to you by us posting the new version of the Agreement at www.nomosmartcare.com, or as otherwise determined by NOMO in its sole discretion provided you are given notice of its location, and your acceptance of and/or continued access or use of any Products and Solutions after such notification of changes to this Agreement will constitute your acceptance of such changes. COPIES OF THIS AGREEMENT INCLUDED IN PACKAGING OR REFERENCED AT THE TIME OF ACCEPTANCE OF A QUOTE MAY BE OUTDATED IN COMPARISON TO UPDATED VERSIONS OF THIS AGREEMENT. IN ALL CASES THE CURRENT VERSION OF THIS AGREEMENT AS PRESENTED AT THE ABOVE INDICATED LOCATION WILL BE THE TERMS AND CONDITIONS BINDING UPON YOU.
1. DEFINITIONS. Throughout this Agreement and in addition to terms defined throughout this Agreement, the following descriptions and definitions shall apply.
- “Content” means all text, graphics, audio, video, photographs, charts, data, and other information displayed or otherwise accessible or viewable by you by accessing or using the Products and Solutions, in particular and without limitation, by accessing any webpage or dashboard related to the Products and Solutions.
- "Documentation" as used in this Agreement means written information (whether contained in user or technical manuals, instructions, training materials, or specifications) specifically pertaining to the Products and Solutions and made available by NOMO with the Products and Solutions.
- “Intellectual Property” means all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, publicity, moral and paternity rights, and all registrations, applications for registration and renewals of such copyrights; (c) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential information and all rights therein; (d) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re- examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); and (e) software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation.
- "Modifications" refers to additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to the Products and Solutions or to remove or terminate the functionality of the Products and Solutions.
- “User Data” means such data of each User as is collected or transmitted by or through the Products and Solutions, which may include without limitation information about the configuration of the Hardware and the number and types of devices included in the User's deployment of the Products and Solutions.
2. GRANT OF SOFTWARE LICENSE.
- LICENSE. Subject to the terms and conditions of this Agreement, NOMO grants to User a limited, nonexclusive, non-sublicensable, and nontransferable license to access and use during the term of this Agreement the Software, along with its related Documentation. Certain portions of the Products and Solutions may incorporate third party software components that are subject to the third party licenses ("Third Party Software"). In the event of a conflict between this Agreement and such third party licenses, the terms and conditions of such third party licenses shall control and supersede any conflicting terms and conditions in this Agreement as to the software components subject to such third party licenses. Certain portions of the Products and Solutions may incorporate software that is licensed under an open source license ("Open Source Software"). Open Source Software is licensed under the applicable open source license agreement provided in connection with such Open Source Software and is not subject to this Section 2.
- TITLE AND LIMITATIONS. This is a subscription license to access and use the Software during the term of this Agreement, not a transfer of title to all or any part of the Products and Solutions. NOMO and its licensors retain ownership of all copies of, and all Intellectual Property rights in and to, the Products and Solutions, including without limitation all Software and Content, Modifications, and all related Documentation. You are granted no implied licenses to any other Intellectual Property rights other than as specifically granted herein. You acknowledge that the Products and Solutions contain trade secrets of NOMO, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information within the Software. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to: (i) transfer, assign or sublicense your subscription license to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, the Software or to create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, translate, disassemble or otherwise reduce the Products and Solutions including without limitation any Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the Products and Solutions to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of NOMO; (v) disclose, provide, or otherwise make available trade secrets contained within the Products and Solutions in any form, to any third party without the prior written consent of NOMO; (vi) use the Products and Solutions to develop any software application or similar products and services or develop methods to enable unauthorized parties to use, recreate or infringe upon the Intellectual Property rights in and to the Products and Solutions; and (vii) contest or challenge the ownership or validity of, or adopt, apply for, register or otherwise seek to legally protect any of NOMO’s or its licensors' Intellectual Property related to the Products and Solutions, or aid or abet others in doing so, either during the Term of this Agreement or afterword. You acknowledge and agree that NOMO reserves the right to remotely prevent access to and/or use of the Products and Solutions in its sole discretion and without prior notice to you.
- FEEDBACK. You may provide feedback to NOMO with respect to the Products and Solutions. NOMO may use such feedback for any purpose without obligation to you of any kind. To the extent a license is required to make use of such feedback, you hereby grant to NOMO an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use such feedback in connection with business of NOMO or any licensor of NOMO, including without limitation enhancement of the Products and Solutions.
- DATA. Each individual User owns their User Data. NOMO is not responsible for storing or retaining any User Data, or to comply with any legal or corporate retention periods applicable to the User. You represent and warrant to NOMO that you have the authority and all legal rights to use such User Data in connection with the Products and Solutions. If you are an Individual, you acknowledge and agree that the Products and Solutions will provide your User Data to your Caregivers for caregiving purposes.
3. FEES. In addition to the purchase price you paid for the Hardware, all fees for the Products and Solutions are as set forth in the applicable online order form. You agree to pay all such fees according to the terms and in the amounts stated in the applicable order form. Except as otherwise stated in the applicable quote or purchase order, all payments will be due within thirty (30) days of the date of the corresponding online order form. Without waiving any of its rights under the law or this Agreement, NOMO may charge you a late fee the rate of one and a half percent (1.5%) per month for any overdue amounts, or the maximum amount allowed by law, whichever is less.
4. USE OF PRODUCTS AND SOLUTIONS.
- REQUIREMENTS TO USE PRODUCTS AND SOLUTIONS. To use the Products and Solutions, User must purchase the Products and Solutions and abide by the terms of this Agreement, provide all necessary telecommunication services; and otherwise provide all devices, services, equipment and software necessary to use the Products and Solutions that are not a part of the Products and Solutions. You are responsible for ensuring that your devices, services, equipment and/or software do not disturb or interfere with NOMO’s operations or the operations of other users of the Products and Solutions. If any modification to Products and Solutions requires changes in your devices, services, equipment or software, you must effect these changes at your own expense or at the expense of User. Unless explicitly stated otherwise, any new or additional features that augment or enhance the Products and Solutions, including the release of new products and services and all Modifications, shall be subject to the terms and conditions of this Agreement. NOMO reserves the right to charge additional fees for new products and services and any Modifications. You must install the Products and Solutions according to the instructions provided for them to function properly.
- SAFETY-RELATED FEATURES. Certain features of the Products and Solutions may attempt to provide assistance to Users in safety-related situations, such as safety-related detection features and connecting you to emergency services (as available) (collectively, “Safety-Related Features”). You understand that (i) use of these Safety-Related Features is conditioned upon your provision of location-specific User Data to NOMO and its Subcontractors (as defined herein), and without the provision of location-specific User Data the Safety-Related Features may be unavailable, and (ii) NOMO does not guarantee the availability, accuracy, completeness, reliability, or timeliness of such Safety-Related Features. These Safety-Related Features are not intended to be solely relied upon in situations where more immediate or effective help is available and may be obtained by Users. You agree to use these features at your sole risk and exercise independent judgment, and that NOMO, its affiliates, agents, or principals shall have no liability to you for your use of these features and any resulting consequences to the maximum extent permitted by law.
* Specifically with respect to Safety-Related Features provided by RapidSOS, Inc. (the “RapidSOS Services”), you agree that by using the RapidSOS Services, you have read and agreed to the terms of the RapidSOS End User License Agreement, located at https://rapidsos.com/business-terms-of-service/ on behalf of yourself and/or any of your family members, invitees and guests, if applicable.
- RIGHT TO SUBCONTRACT. As referenced above, Safety-Related Features within the Products and Solutions may be provided by one or more third-party independent contractors engaged by NOMO. The provisions of this Agreement inure to the benefit of and are applicable to (i) any subcontractor of NOMO engaged to provide any services (including those related to Safety-Related Features) which are embedded within the Products and Solutions, including but not limited to RapidSOS, Inc. (collectively, “Subcontractors”); and (ii) NOMO and each of its affiliates, directors, officers, members, shareholders, employees, agents and representatives (each together with Subcontractors, a “NOMO Party” and collectively, the “NOMO Parties”), and bind you to all such persons or entities listed in the foregoing subsection (i) and (ii) with the same force and effect as they bind you to NOMO. Any Subcontractor that NOMO engages is an independent contractor and not NOMO’s partner, affiliate, or joint venture. You authorize NOMO to act as your agent for purposes of working with, or providing any direction to, any Subcontractors with respect to the provision of the Safety-Related Features, including but not limited to emergency services. You authorize NOMO to share your User Data (including, where appropriate, personally identifiable information) with NOMO’s Subcontractors or other authorized third parties for the purpose of providing Safety-Related Features within the Products and Solutions under this Agreement.
5. SETUP DETAILS AND CREDENTIALS. All e-mail, SMS, and other notification methods related information you provide must be accurate and current. You agree to keep all Products and Solutions setup and credential details private and to not share them with anyone else to prevent unauthorized access to your notification settings, and/or the Content. NOMO is not liable for any loss or damage arising from any access to, sharing or use of your notification settings password or the Content. NOMO EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY LOSS OR THEFT OF INFORMATION YOU ENTER AS A PART OF THE SETUP, INCLUDING WITHOUT LIMITATION ANY PERSON OR ENTITY ACCESSING, HIJACKING, OR OTHERWISE USING YOUR E-MAIL OR TELEPHONE NUMBER.
6. NOMO DOES NOT MONITOR. NOMO has no responsibility for monitoring or otherwise taking action regarding any notices related to the Products and Solutions. You acknowledge that all such monitoring and other actions related any notification are solely your responsibility. THE PRODUCTS AND SOLUTIONS MAY NOT BE USED IN HAZARDOUS LOCATIONS. You are solely responsible for all hazards associated with your use of the Products and Solutions. You acknowledge that the Products and Solutions will be utilized within a system that NOMO did not design, approve, install, operate, or maintain.
7. MODIFICATIONS. For continuity of performance, you agree that NOMO may, at any time in the sole discretion of NOMO, access the Products and Solutions, and/or cause the Products and Solutions to contact NOMO, to provide Modifications. NOMO does not warrant that Modifications to the Products and Solutions will be compatible with your devices, equipment, or software. All Modifications are subject to the license terms set forth in this Agreement.
8. TERMINATION. This Agreement shall be effective as of your acceptance of this Agreement as stated in this Agreement and shall continue in effect until terminated. NOMO may, at its election and in its sole discretion, terminate this Agreement and your subscription, access, or use of all or any portion of the Products and Solutions at will and with or without cause. NOMO is further entitled to obtain injunctive relief if your use of the Products and Solutions is in violation of any restrictions set forth in this Agreement, including without limitation any license restrictions. Upon termination, you must cease using and accessing the Products and Solutions. The preamble prior to the Sections and Sections 1, 2(b), (c), and (d), and 3 through 13 shall survive termination.
9. WARRANTY AND DISCLAIMER. NOMO warrants that the Software will perform in substantial conformity with the Documentation. The sole and exclusive remedy for any breach of the foregoing warranty shall be that NOMO shall use commercially reasonable efforts to repair or replace the defective Software. Warranties as to Hardware, if any, are included with the Hardware. OTHER THAN AS SET FORTH IN THIS SECTION 9 OR IN ANY WARRANTY INCLUDED IN THE HARDWARE, THE PRODUCTS AND SOLUTIONS FURNISHED BY NOMO AND ACCEPTED BY YOU ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM TECHNICAL ADVICE OR RECOMMENDATIONS, COURSE OF DEALING OR OF PERFORMANCE, OR CUSTOM OR USAGE OF TRADE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY NOMO. NOMO DOES NOT WARRANT THAT THE PRODUCTS AND SOLUTIONS OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS AND SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT NETHER NOMO NOR THE PRODUCTS AND SOLUTIONS PROVIDE ANY MEDICAL ADVICE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF PRODUCTS AND SOLUTIONS IS WITH YOU.
10. LIMITATION OF NOMO LIABILITY. IN NO EVENT WILL NOMO BE LIABLE TO YOU FOR ANY DIRECT OR INDIRECT DAMAGES OF ANY TYPE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS, LOST DATA, PROPERTY DAMAGE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS AND SOLUTIONS FURNISHED OR TO BE FURNISHED BY NOMO UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF NOMO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF NOMO TO USER UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS AND SOLUTIONS FURNISHED OR TO BE FURNISHED BY NOMO WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE GREATER OF THE TOTAL AMOUNT USER PAID NOMO FOR THE PRODUCTS AND SOLUTIONS THAT ARE THE SUBJECT OF ANY LIABILITY CLAIM DURING THE SIX (6) MONTHS PRIOR TO THE INCIDENT THAT GIVES RISE TO THE CLAIM OR THE MINIMUM AMOUNT ALLOWED BY LAW. THE AGGREGATE LIABILITY OF NOMO TO YOU THE END USER UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS AND SOLUTIONS FURNISHED OR TO BE FURNISHED BY NOMO WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THREE HUNDRED DOLLARS ($300) OR THE MINIMUM AMOUNT ALLOWED BY LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NOMO EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF THIRD PARTY PRODUCTS OR OPEN SOURCE SOFTWARE.
11. GENERAL INDEMNITY BY YOU. You will, to the fullest extent permitted by law, indemnify NOMO its affiliates, licensors and service providers and their respective officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “Indemnified Parties”) against and hold the Indemnified Parties harmless from any and all claims, losses, liabilities, damages, judgments, awards, settlements, costs and expenses, including reasonable attorneys' fees (collectively a "Claim") in connection with investigating, defending, or settling any claim relating to or arising out of: any breach by you of this Agreement; your implementation or use of the Products and Solutions in a way that infringes or misappropriates any third party’s Intellectual Property rights or violates applicable law; your use of User Data in connection with the Products and Solutions; your provision or receipt of caregiving; and any acts or omissions on the part of you which gives rise to claims against the Indemnified Parties.
12. YOUR OBLIGATIONS. You represent and warrant that (a) you are the owner or an authorized user of the property and associated equipment on or in which any Products and Solutions and Hardware is installed or used and with respect to which any Products and Solutions that are networked and that you have all the requisite power and authority to enter into this Agreement; (b) you shall use the Products and Solutions only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; and (c) you shall use the Products and Solutions only for your personal caregiving needs and not for any third party use. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Products and Solutions.
13. GENERAL PROVISIONS.
- ENFORCEMENT/CHOICE OF LAW/CHOICE OF FORUM. You agree that: (1) Any claim, dispute, or controversy (whether in contract, tort, or otherwise) arising out of, relating to, or connected in any way with the website or the services provided on the website will be resolved exclusively by final and binding arbitration conducted pursuant to the American Arbitration Association (“AAA”) Procedures for Consumer-Related Disputes in conjunction with the AAA Commercial Arbitration Rules (if and as applicable depending on the amount in controversy); (2) This arbitration agreement is made pursuant to a transaction governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) The arbitration will be held at the AAA regional office nearest you; (4) The arbitrator’s decision will be controlled by the terms and conditions of this Agreement; (5) The arbitrator will apply Minnesota law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law; (6) There will be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) The arbitrator will not have the power to award punitive damages against any party; (8) In the event that the administrative fees and deposits you are required to pay under the AAA rules exceed $125, and you are unable to pay the additional fees and deposits, NOMO retains the right to forward them to the AAA on the your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, NOMO retains the right to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) If any part of this Arbitration Provision is deemed to be invalid or otherwise unenforceable or illegal, the balance of this Arbitration Provision will remain in full force and effect and will be construed in accordance with its terms as if the invalid or illegal provision were not contained herein. You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class-action basis, and that You have expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration in accordance with the provisions of this paragraph. Subject to the foregoing mandatory arbitration agreement, all disputes regarding or relating to this Agreement shall be litigated solely in the state courts located in Minneapolis, Minnesota or the federal courts located in Minnesota. You hereby irrevocably consent to non-exclusive jurisdiction and venue of these courts. You further acknowledge that NOMO’s rights in its Intellectual Property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages and that NOMO may seek injunctive relief against you for any violation of its Intellectual Property. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be modified by that court of competent jurisdiction to be valid and enforceable while maintaining as close as possible the intent of the parties as indicated by the wording of this Agreement or, if the provision cannot be so modified, deemed severed from this Agreement, and all other provisions will remain in full force and effect. The laws of the State of Minnesota, excluding its conflicts of law rules, govern this Agreement and your use of the Products and Solutions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, nor does any enactment of the Uniform Computer Information Transactions Act.
- ENTIRE AGREEMENT/NO WAIVER. This Agreement together with the information referred to or linked to by this Agreement, all of which are incorporated herein, sets forth the entire agreement and understanding between NOMO and you regarding Products and Solutions and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter subject to the terms of any purchase agreement between User and NOMO relating to Hardware, the terms of which are incorporated by reference herein. You acknowledge that you have not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained in this Agreement. The failure by NOMO at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by NOMO will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.
- NO JOINT VENTURE. This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.
- ASSIGNMENT AND RESALE. NOMO may assign its rights and obligations under this Agreement but your rights under this Agreement are not assignable or transferable. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
- EXPORT CONTROL. The Products and Solutions may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Products and Solutions to, or make the Products and Solutions or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products and Solutions available outside the US.
- FORCE MAJEURE. The parties acknowledge and agree that either party shall be excused from any delay or failure in its performance hereunder caused by any disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any labor dispute, epidemic, pandemic government requirement, act of God, or any other cause beyond its reasonable control including, without limitation, the consequences of the COVID 19 pandemic. The parties shall use reasonable commercial efforts to cure any such failure or delay in performance arising from a force majeure condition, and shall timely advise each other of such efforts.