Using Nomi

Terms and conditions

Last updated April 25, 2018

This Agreement governs the provision of the Nomi System by Secora, Inc., a Massachusetts corporation with its principal place of business at 40 Richardson Road, Boxborough, MA 01719 (“Secora”). Capitalized terms not defined elsewhere in this Agreement are defined in Section 2.

BY STARTING YOUR FREE TRIAL, YOU ARE INDICATING ACCEPTANCE OF THESE NOMI TERMS OF SERVICE AND THE NOMI PRIVACY POLICY, AND ARE UNCONDITIONALLY AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE NOMI TERMS OF SERVICE AND THE NOMI PRIVACY POLICY.

For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, Customer (“Customer”) and Secora agree as follows:

  1. PRIVACY POLICY; CHANGES TO THIS AGREEMENT
    • Privacy and Protection of Personal Information. Secora respects the privacy of users of the Nomi System. Information collected from Customer and any individual that Customer registers to use the Nomi System is subject to Secora’s privacy policy for the Nomi System, as the same may be updated from time to time (the “Nomi Privacy Policy”). Customer acknowledges and agrees that the Nomi Privacy Policy, including, but not limited to, the manner in which Secora collects, uses and discloses personally identifiable information and non-personally identifiable information, is incorporated into and governed by this Agreement. By accepting this Agreement, Customer agrees to all of the terms of the Nomi Privacy Policy. Customer further agrees to hold all information Customer may receive from Secora in confidence and to comply with all applicable laws with respect to all information Customer may receive from Secora.
    • Changes to this Agreement. Except with respect to Section 3, Secora reserves the right, in its sole discretion, to change, modify, add to, supplement or delete any terms and conditions of this Agreement (including the Privacy Policy, which is incorporated into and governed by this Agreement) at any time; provided, however, that Secora will use reasonable efforts to provide Customer with notification of any material changes (as determined in Secora’s sole discretion) by email, postal mail, website posting, pop-up screen, or in-service notice. Customer should visit this page whenever using the Nomi System to review this Agreement and learn if any terms have changed. If any future changes to this Agreement are unacceptable to Customer or cause Customer to no longer be in compliance with this Agreement, Customer must immediately stop using the Nomi System. Customer’s continued use of the Nomi System following any revision to this Agreement constitutes Customer’s complete acceptance of any and all such changes.

  1. DEFINITIONS
    • Agreement” means collectively these Nomi Terms of Nomi System and the Nomi Privacy Policy, each of which are incorporated into this Agreement by reference.
    • Customer Data” means electronic data and information collected by the Secora System, whether in individual or aggregate form.
    • Documentation” means Secora’s online user guides, documentation, and help and training materials, as updated from time to time.
    • Embedded Software” is the software contained in the Nomi sensors.
    • Equipment” means the in-home wireless activity sensors, communications hubs, and other hardware and equipment supplied by Secora as part of the Nomi System.
    • Nomi System” means Secora’s proprietary system for the collection of information and insights about a subjects activities, comprised of the Subscription Nomi Systems, the Equipment, and the Embedded Software.
    • Subscription Nomi Systems” means the online application components of the Secora System, which are provided by Secora on a “Software as a Nomi System” (SaaS) subscription basis.

  1. SECORA RESPONSIBILITIES
    • Provision of the Nomi System. Secora will (a) supply the Equipment and make the Subscription Nomi Systems available to Customer pursuant to this Agreement, (b) provide Secora standard support for the Secora System to Customer at no additional charge, (c) use commercially reasonable efforts to make the Subscription Nomi Systems available, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Secora’s reasonable control (including, for example, but not limited to, wireless network unavailability, weak wireless connection, Internet service provider failure or delay, denial of service attack, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, and strikes or other labor problems), and (d) provide the Secora System in accordance with applicable laws and government regulations when used according to this Agreement and the Documentation.
    • Changes to the Nomi System. Secora may change, modify, suspend, or discontinue in its entirety any aspect of the Nomi System at any time. Secora may also impose limits on certain features or restrict or prohibit access to parts or all of the Nomi System at any time, all without notice or liability.

  1. USE OF NOMI SYSTEM
    • Customer Responsibilities. Customer will (a) be responsible for compliance with this Agreement, and (b) use the Secora System only in accordance with the Documentation and applicable laws and government regulations.
    • Title to the Equipment (excluding the Embedded Software) will transfer to Customer upon Customer’s payment in full of twelve (12) consecutive months of service fees. If Customer cancels the system within the first twelve (12) months, Customer must return the Equipment to Secora. Customer will install the Equipment and validate the Nomi System in accordance with instructions provided by Secora. Customer acknowledges that Customer’s failure to follow Secora’s instructions could adversely affect the functionality of the Nomi System and without limitation to any other provision of this Agreement, Customer agrees that Secora will have no liability as a result of any such failure. The Equipment may contain refurbished hardware components. Customer acknowledges that Secora may remotely deploy updates to the Embedded Software.
    • Usage Restrictions. Customer will not (a) make the Nomi System available to, or use the Nomi System for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease the Nomi System, or include the Nomi System in a service bureau or outsourcing offering, (c) use the Secora System to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Nomi System, (e) attempt to gain unauthorized access to the Nomi System or its related systems or networks, (f) copy the Nomi System or any part, feature, function or user interface thereof, (g) frame or mirror any part of the Nomi System, (h) access the Nomi System in order to build a competitive product or service, or (i) reverse engineer any portion of the Nomi System, including the Embedded Software (to the extent such restriction is permitted by law).

  1. FEES AND PAYMENT
    • Customer will pay all agreed to fees, including Equipment activation fees and Subscription Nomi Systems fees. Secora may increase Subscription Nomi Systems fees upon at least 60 days’ prior written notice. Except as otherwise specified herein, fees paid are non-refundable.
    • Equipment activation fees will be due and payable by Customer upon the time of the order. Subscription Nomi Systems fees will be due monthly in advance. Customer is responsible for providing complete and accurate billing and contact information to Secora and notifying Secora of any changes to such information. Note that during certain documented promotional or sale events, activation and/or subscription fees may be reduced, eliminated or deffered.
    • Overdue If any invoiced amount is not received by Secora by the due date, then without limiting Secora’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
    • Suspension of the Subscription Nomi Systems. If any charge owing by Customer is 30 days or more overdue, Secora may, without limiting its other rights and remedies, immediately suspend the Subscription Nomi Systems, without notice, until such amounts are paid in full.
    • Secora's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Secora has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Secora will invoice Customer and Customer will pay that amount unless Customer provides Secora with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Secora is solely responsible for taxes assessable against it based on its income, property and employees.
    • Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Secora regarding future functionality or features.

  1. PROPRIETARY RIGHTS AND LICENSES
    • Reservation of Rights. Subject to the limited rights expressly granted hereunder, Secora and its licensors reserve all of their right, title and interest in and to the Subscription Nomi Systems and the Embedded Software, including but not limited to (a) its programming architecture and platform, (b) any modifications thereof, (c) any data generated though the Secora System or platform in connection with this agreement (other than the Customer Data ); and (d) all intellectual property rights in the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein. Without limiting the foregoing, Customer has no right to access or use the Embedded Software, except for the non-exclusive right during the Subscription Term to use the Embedded Software as installed on the Equipment as necessary to utilize the Nomi System.
    • License by Customer to Host Customer Data. Customer grants Secora and its affiliates a worldwide, limited-term license to host, copy, transmit and display Customer Data as necessary for Secora to provide the Nomi System in accordance with this Agreement. Customer agrees that Secora will have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from any and all use of the Nomi System (“Blind Data”). To the extent that any Blind Data is collected by Secora, such Blind Data will be solely owned by Secora and may be used by Secora for any lawful business purpose without a duty of accounting to Customer, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data.
    • License by Customer to Use Feedback. Customer grants to Secora and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Nomi System any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer to Secora.

  1. LIMITED HARDWARE WARRANTY; DISCLAIMERS
    • Limited Hardware Warranty. (a) Warranty: Secora warrants that the Equipment will operate substantially in accordance with applicable Documentation and will be free of defects in material and workmanship under normal use and service during the applicable Warranty Period, as defined below. (b) Exclusions: The Equipment warranty does not apply to defects resulting from: improper or inadequate maintenance by Customer; improper use or operation outside of the uses specified in the Documentation; abuse, negligence, accident, loss or damage in transit; improper site preparation; or unauthorized maintenance or repair. This warranty does not apply to Equipment that has had its original serial number or other identification marks altered or removed. Some newly manufactured Secora Equipment may contain, and warranty service may use, refurbished and/or remanufactured parts, which are equivalent in material respects to new in performance. The Warranty Period for Equipment will be ninety (90) days, and will commence on the date that Secora Equipment is shipped from Secora, but in no event will exceed one hundred twenty (120) days from the date of shipment from Secora. Any replacement Equipment will be warranted for the remainder of the original Warranty Period or thirty (30) days, whichever is longer.
    • EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 7.1, SECORA DOES NOT MAKE ANY WARRANTY OF ANY KIND WITH RESPECT TO THE NOMI SYSTEM OR ANY PORTION THEREOF OR ANY OTHER SERVICES, EQUIPMENT, OR MATERIALS SUPPLIED BY SECORA, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, AND SECORA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
    • Special Admonitions. WITHOUT LIMITING SECTION 2, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SECORA MAKES NO WARRANTY THAT THE NOMI SYSTEM WILL ALWAYS BE AVAILABLE OR ERROR FREE OR THAT IT IS SUITABLE FOR CUSTOMER'S INTENDED USE. CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THE FEATURES AND FUNCTIONALITY OF THE NOMI SYSTEM AND HAS CONCLUDED THAT IT IS SUITABLE FOR CUSTOMER'S USE, AND THAT IT ACCEPTS ALL RISKS ASSOCIATED WITH THE UNAVAILABILITY OF THE NOMI SYSTEM, ANY ERRORS IN THE NOMI SYSTEM, ANY TECHNICAL MALFUNCTION, OR ANY OTHER FAILURE OF THE NOMI SYSTEM TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION OR SECORA'S PRODUCT DESCRIPTIONS. CUSTOMER ACKNOWLEDGES THAT THE NOMI SYSTEM IS NOT A SUBSTITUTE FOR IN PERSON OR OTHER FORMS OF SUBJECT MONITORING OR CARE.

  1. LIMITATIONS OF LIABILITY; INDEMNIFICATION
    • Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SECORA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
    • Exclusion of Consequential and Related Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL SECORA HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO PERSONAL INJURIES SUSTAINED BY CUSTOMER OR ANY OTHER USERS OF THE NOMI SYSTEM.
    • Waiver and Release. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND WITHOUT LIMITATION TO SECTIONS 2, 8.1, AND 8.2, BY ENTERING INTO THIS AGREEMENT, CUSTOMER HEREBY IRREVOCABLY WAIVES AND RELEASES SECORA FROM ANY INJURY, INCLUDING WITHOUT LIMITATION ANY BODILY INJURY, TO ANY PERSON, INCLUDING WITHOUT LIMITATION ANY USER OF THE NOMI SYSTEM, THAT MAY BE CAUSED BY USE OF THE NOMI SYSTEM, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR INTENTIONAL MISCONDUCT, NEGLIGENCE, OR GROSS NEGLIGENCE. CUSTOMER HEREBY ACKNOWLEDGES ITS FULL UNDERSTANDING AND WILLINGNESS TO ACCEPT ANY RISKS ASSOCIATED WITH ITS AND ITS USE OF THE NOMI SYSTEM AND RELEASES SECORA FROM ANY AND ALL LIABILITY IN RELATION THERETO.
    • Applicability of Limitations and Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT TO THE EXTENT PROHIBITED BY LAW, THE ABOVE LIMITATIONS OF LIABILITY, EXCLUSIONS OF DAMAGES, AND WAIVERS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF SECORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • Customer hereby agrees to defend, indemnify and hold harmless Secora, its affiliates, licensors, and suppliers, and its and their employees, agents, officers, directors, owners, and members, from and against all liability, claims, actions and expenses, including attorneys' fees and costs, arising out of Customer’s use of the Nomi System or Customer’s breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement.

  1. TERM AND TERMINATION
    • Term and Termination. This Agreement will remain in effect as long as Customer’s account is up-to-date and Customer remains in compliance with the terms hereof, unless it has been voluntarily suspended or terminated by Customer or Secora. The privileges granted to Customer under this Agreement will terminate immediately and automatically without notice from Secora if, in Secora’s sole discretion, Customer fails to comply with any term or provision of this Agreement. This Agreement will automatically terminate if Secora ceases provision of the Subscription Service, in which case Customer will be entitled to a pro rata refund of any amounts paid by Customer for periods following termination. Upon termination of this Agreement for any reason, Customer will discontinue all use of the Nomi System and return the Equipment (unless ownership of the Equipment has been transferred to Customer).
    • Surviving Provisions. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration of this Agreement and continue in full force and effect.

  1. DISPUTES; MANDATORY ARBITRATION
    • Governing Law; Venue. This Agreement and any controversy, claim or dispute arising under or related to this Agreement or the Nomi System will be governed by and construed in accordance with the internal laws of the U.S. and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (thus, without regard to conflict of laws provisions) regardless of Customer’s location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), Customer agrees not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and Customer hereby consents to, and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts. BOTH SECORA AND CUSTOMER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT.
    • Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), Customer and Secora agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one party to the other.
    • Mandatory Arbitration. If Customer and Secora are unable to resolve a Dispute through informal negotiations within 30 days, either Customer or Secora may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. CUSTOMER UNDERSTANDS THAT ABSENT THIS PROVISION, CUSTOMER WOULD HAVE THE RIGHT TO SUE IN COURT. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Customer’s arbitration fees and Customer’s share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Notwithstanding the above, Customer and Secora agree that arbitration will be limited to the Dispute between Secora and Customer individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
    • Excluded Disputes. Customer and Secora agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Secora’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

  1. GENERAL PROVISIONS
    • Waiver; Severability.
      • The failure of Secora to require or enforce strict performance by Customer of any provision of this Agreement or to exercise any right under any provision of this Agreement will not be construed as a waiver or relinquishment of Secora’s right to assert or rely upon any such provision or right in that or any other instance.
      • Customer and Secora agree that if any portion of this Agreement, except any portion of Section  3, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If any portion of Section 10.3 is found to be illegal or unenforceable, then neither Customer nor Secora will elect to arbitrate any Dispute falling within that portion of Section 10.3found to be illegal or unenforceable, and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts in accordance with Section 10.1, and Customer and Secora agree to submit to the personal jurisdiction of that court.
    • All notices related to this Agreement will be in writing and will be effective upon (a) the day of sending by email or (b) two (2) business days after sending by nationally recognized overnight courier with package location and delivery tracking capabilities. Notices to Secora will be sent to the attention of Legal Affairs at Secora, Inc., at 40 Richardson Road, Boxborough, Massachusetts 01719 or [email] or such other address as Secora may from time to time specify for notices. Notices to Customer will be sent to the email address provided by Customer at registration.
    • Statute of Limitations. Customer and Secora both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Nomi System or this Agreement (including the Privacy Policy) must be filed within ONE (1) YEAR after such claim or cause of action arose (or, if longer, within the shortest statute of limitations for such claim which the parties may establish by agreement) or the claim will be forever barred.
    • Secora operates and controls the Nomi System from its offices in the United States. Secora makes no representation that the Nomi System is appropriate, lawful or available in other locations. The Nomi System is not intended for use by any person or entity in any jurisdiction or country where such use would be contrary to law or regulation or which would subject Secora to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Nomi System from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement. Secora may assign this Agreement to any party at any time without any notice to Customer. Customer may not assign this Agreement without Secora’s prior written consent. This Agreement (including the Secora Privacy Policy) contains the entire understanding of Customer and Secora, and supersedes all prior understandings between the parties concerning its subject matter, and cannot be changed or modified by Customer. There are no other third-party beneficiaries under this Agreement. The section headings used in this Agreement are for convenience only and will not be given any legal import. Upon Secora’s request, Customer will furnish Secora with any documentation, substantiation or releases necessary to verify Customer’s compliance with this Agreement. Customer agrees that this Agreement will not be construed against Secora by virtue of having drafted it. Customer hereby waives any and all defenses Customer may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
    • Questions? If Customer have any questions about this Agreement, its terms, Customer’s account or Customer’s rights hereunder, or if Customer have any complaints or claims, please contact: Privacy and Compliance Office, Secora, Inc. 40 Richardson Road, Boxborough MA 01719 or (844) 4-SECORA or info@secora.care.