PLEASE REVIEW THESE TERMS AND CONDITIONS (“AGREEMENT”) CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING THE SERVICES (AS DEFINED BELOW), YOU (“EMPLOYER” OR “YOU”) AGREE TO THIS AGREEMENT WITH NOOM, INC. (“NOOM”). NOOM AND EMPLOYER ARE INDIVIDUALLY KNOWN AS A “PARTY” AND COLLECTIVELY AS “PARTIES”. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES.
- The Services
1.1 Access to Services. Subject to compliance of its obligations by the Employer, Noom shall provide (i) access to the Services specified in an Order to Eligible Users and (ii) if Reports are expressly offered by Noom, in its sole discretion, to Employer, a limited, non-exclusive, non-sublicensable, non-transferable license during the Subscription Term of this Agreement to Reports solely for its internal business purposes. Each Eligible User must acknowledge receipt of the Privacy Policy and accept the applicable Terms prior to using the applicable Services and must remain in compliance with the applicable Terms while using the Services. Absent the execution of an Order specifying the delivery of any Professional Services, this Agreement does not, in and of itself, represent a commitment by Noom to deliver any Professional Services.
1.2 Affiliates. An Affiliate of Employer may also execute an Order with Noom pursuant to this Agreement and, in such circumstances, all references in this Agreement to Employer shall be deemed to be to the applicable Affiliate of Employer with respect to that particular Order.
1.3 Employer Assistance. Employer represents and warrants to Noom that it shall use commercially reasonable efforts to (i) promote the Services to Eligible Users and (ii) provide Noom administrative information required to offer the Services to only Eligible Users, including, but not limited to, immediately notifying Noom when an Eligible User no longer qualifies for the Services, for example, if they terminate their employment and lose eligibility for access.
1.3 Access Restrictions. Employer shall not and shall not permit or authorize any third party to, directly or indirectly: (i) copy, rent, sell, lease, sublicense, assign (other than as permitted in Section 11), or otherwise transfer or encumber rights to the Services; (ii) reverse engineer, modify, translate, enhance, decompile, disassemble, or create derivative works based on the Services; (iii) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (iv) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Services; or (v) use the Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Services.
1.4 Change Order. If Employer requests, and Noom agrees, to develop and implement additional features, enhancements, or reports specifically designed for Employer or to perform other services that are outside the scope of this Agreement, such services must be set forth in a mutually executed change order and Noom may be entitled to an adjustment in fees in accordance with the changes reflected in the change order.
- Ownership.
2.1 Ownership of Services. Each Party owns and retains all right, title, and interest in and to all Intellectual Property Rights that it owned or developed prior to the Effective Date, or acquired or developed after the Effective Date without reference to or use of the Intellectual Property Rights of the other Party. Notwithstanding the foregoing, as between the Parties, Noom owns all right, title, and interest, including all Intellectual Property Rights in the Services, Reports, and any other information, program, or marketing materials provided by Noom to Employer.
2.2 Employer Data. Employer owns all Employer Data. Employer hereby grants Noom a non-exclusive, royalty-free license to: (i) use the Employer Data to perform Noom’s obligations under this Agreement and any applicable Order; (ii) comply with Employer’s instructions; and (iii) aggregate and de-identify the Employer Data solely for the purpose of providing, developing, improving, or reporting on the Services, including creating derivative works.
2.3 Marks. Employer may use Noom Marks solely in connection with the obligations to assist and support the Services as contemplated in Section 1.3 of this Agreement, provided Employer shall not use Noom Marks in any manner that is defamatory, misleading, libelous, obscene, or otherwise potentially damaging to the reputation or goodwill of Noom. Noom may use Employer Marks, and Employer hereby does provide Noom with the necessary rights and licenses, to use Employer’s name and logo on the Noom’s website, blog, or in marketing materials, including case studies and press references, to identify Employer as a customer of Noom. Each Party recognizes and acknowledges exclusive ownership of its respective Marks and the goodwill associated therewith.
2.4 Feedback. If Employer provides Noom any Feedback, Noom shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Services. Employer hereby grants to Noom and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty-free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Employer or any third party. In addition, Noom shall be free to reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to or acquired during the provision of Services.
- Confidentiality.
3.1 Use of Confidential Information. Each Party agrees to use the Confidential Information of the other Party only to exercise rights and fulfill its obligations under this Agreement. Each Party will only disclose any Confidential Information disclosed to it by the other Party to those employees, consultants, agents, representatives, and contractors who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to nonuse and nondisclosure) materially the same as those required by such Party for its own Confidential Information. Each Party will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
3.2 Exclusions. The provisions in Section 3.1 will not apply to Confidential Information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party rightfully knew prior to receiving such information from the disclosing Party and is free of confidentiality obligations; or (iv) is independently developed by the receiving Party without the use of or reference to the Confidential Information of the disclosing Party. Either Party may disclose Confidential Information of the other Party (a) pursuant to an order or requirement of a court, administrative agency, or other governmental body of competent jurisdiction, provided that the disclosing Party gives reasonable notice to the other Party to contest such order or requirement and (b) on a confidential basis to its legal or financial advisors.
- Fees.
4.1 Payment. Employer shall pay Noom the fees set forth in an Order, which are non-refundable. Except as set forth in an Order, fees due will be billed to Employer’s credit card and Employer authorizes the card issuer to pay all such amounts authorized by Noom or its authorized billing agent. Noom shall charge and collect a service fee on any unpaid, past-due amount equal to the lesser of (i) 1.5% per month or (ii) the highest interest rate legally permitted. Employer will reimburse Noom for all reasonable collection expenses, including reasonable attorneys’ fees and court costs, for delinquent amounts. Noom reserves the right to suspend or terminate access to the Services for non-payment of fees. If Noom suspends or terminates access to the Services, Noom will not be responsible for any damages (including but not limited to lost profits or consequential, exemplary, special, indirect, or punitive damages) incurred as a result of the suspension or termination of the Services.
4.2 Taxes. Other than net income taxes imposed on Noom, Employer will bear all Taxes resulting from this Agreement. Employer will pay any additional Taxes as are necessary to ensure that the net amounts received by Noom after all such Taxes are paid are equal to the amounts that Noom would have been entitled to in accordance with an Order as if the Taxes did not exist. Employer, upon Noom’s reasonable request, will provide Noom with official receipts issued by appropriate taxing authorities, or such other evidence as Noom may reasonably request to establish such Taxes have been paid.
4.3 Modifications. Subject to pricing terms agreed in an Order, Noom may modify the pricing of the Services and add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion without prior notice to Employer.
- Term.
5.1 Term. The term of this Agreement commences on the Effective Date and continues for the greater of twelve months and the Subscription Term of an active Order.
5.2 Termination for Cause. Either Party may terminate this Agreement for a material breach if the breaching Party does not cure such breach within 30 days of written notice detailing the material breach.
5.3 Effect of Termination. Upon the termination of this Agreement or any Order, Employer and Eligible Users will no longer have access to the Services, including any Services purchased during the term of an Order or were unused during the term of the Order. Upon written request, each Party shall return or destroy all copies of Confidential Information of the other Party in its possession or control. All paragraphs herein relating to confidentiality, indemnification, use of Marks, notices, survival, assignment, and governing law shall survive the expiration or early termination of this Agreement.
- Warranties and Disclaimer.
6.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms and (ii) no authorization or approval from any third party is required to perform and fulfill its obligations under this Agreement.
6.2 Services Warranties. Noom warrants that the Services shall substantially conform to the specifications in the applicable Order, if any. The entire liability of Noom, and Employer’s exclusive remedy for any breach of this warranty, shall be for Noom to use commercially reasonable efforts to correct, in accordance with Noom operating procedures for quality assurance, any such non-conformance which has been properly reported by Employer to Noom in writing within 60 days of delivery of the affected Services.
6.3 Compliance. In the performance of this Agreement, each Party will comply with Applicable Law, including privacy laws and regulations governing such Party and its data privacy practices. Employer represents, warrants and covenants that Employer has complied with Applicable Law in connection with its processing of the Employer Data and has provided all notices, and obtained all rights and permissions required under Applicable Law as may be necessary for each Party to process the Employer Data and provide the Services as contemplated by this Agreement.
6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES SHALL BE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT FURTHER INDEMNITIES OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NOOM EXPRESSLY DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, OR THAT THE SERVICES AND ANY OTHER INFORMATION PROVIDED BY NOOM ARE OR WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED. YOU ACKNOWLEDGE THAT NOOM IS IN NO WAY RESPONSIBLE IF YOU ARE UNABLE TO ACCESS THE SERVICES AS A RESULT OF TECHNICAL OR OTHER DIFFICULTIES RESULTING FROM YOUR HARDWARE OR INTERNET CONNECTION.
6.5 No Medical Use. THE SERVICES DO NOT MAKE A MEDICAL DIAGNOSIS, PROVIDE MEDICAL CARE OR CLINICAL TREATMENT, OR PRESCRIBE MEDICATIONS AND SHOULD IN NO WAY BE CONSIDERED A REPLACEMENT FOR MEDICAL ADVICE OR ACTION IN ORDER TO CURE, TREAT, OR PREVENT DISEASES OF ANY NATURE. EMPLOYER WILL NOT USE ANY SERVICES IN THE TREATMENT OR MANAGEMENT OF ANY DISEASES OR CONDITIONS.
- Indemnification.
7.1 Noom Indemnification. Noom shall indemnify, save and hold harmless the Employer, its subsidiaries, affiliates, related entities, partners, agents, officers, directors, employees, successors and assigns, and each of them, from and against any and all Claims, and will pay for the corresponding costs and damages finally awarded against Employer to a third party by a court of competent jurisdiction, which may arise by reason of the Services infringing of a third party’s Intellectual Property Rights; provided, however, Noom shall not have an indemnification obligation to the extent the Claim arises in whole or in part from: (i) the use or combination of the Services with any hardware, software, products, processes, data, or other materials not provided by Noom, including Employer’s own systems and data; (ii) modification or alteration of the Services by anyone other than Noom; or (iii) Employer or any Eligible User’s misuse of the Services or use of the Service in excess of the rights granted in the Agreement (collectively, the “Excluded Claims”).
7.2 Employer Indemnification. Employer shall indemnify, save and hold harmless Noom, its subsidiaries, affiliates, related entities, partners, agents, officers, directors, employees, successors and assigns, and each of them, from and against any and all Claims, and will pay for the corresponding costs and damages finally awarded against Noom to a third party by a court of competent jurisdiction, which may arise by reason of: (i) the Excluded Claims; (ii) Employer’s breach of this Agreement or any breach of the Terms by any Eligible User; and (iii) any allegation that the Employer Data or other content or information provided by Employer infringes, misappropriates, or violates the rights of a third party or violates Applicable Law.
7.3 Notice. Each Party seeking indemnification will give the indemnifying Party prompt written notice of any Claim as to not prejudice the indemnifying Party. The indemnitor shall have sole control of the defense of any such Claim with all assistance, information and authority reasonably required from indemnitee; provided, (i) indemnitee shall also have the right to provide its own defense at its own expense and (ii) the indemnitor shall not settle any Claim without the indemnitee’s consent unless the settlement does not bind indemnitee to pay any monetary amounts or admit any wrongdoing.
- Limitation of Liability.
8.1 No Consequential Damages. To the fullest extent permitted under applicable law, Noom shall not be liable for any incidental, consequential, indirect, or special damages, lost business or anticipated savings, lost profits, lost data, lost goodwill, or third party claims, whether foreseeable or not, arising out of or in connection with the Services or the Agreement even if such Party has been advised, knew, or should have known, of the possibility of such damages and regardless of the form of action, whether in contract or in tort, including negligence and strict liability.
8.2 Liability Limitation. Except for Employer’s payment obligations under Section 4, to the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract or in tort, including negligence and strict liability, Noom’s total liability, if any, for any and all claims arising out of or in connection with the Agreement shall not exceed the total fees (excluding taxes) paid or payable by Employer under the applicable Order over the last twelve (12) months.
- Notices. All notices, requests, demands, and other communications required or permitted to be given pursuant to this Agreement must be in writing and shall be (i) delivered to the appropriate address by hand, by nationally recognized overnight service (costs prepaid), (ii) sent by email, or (iii) sent by registered or certified mail, return receipt requested. Notices shall be deemed received immediately if by email or upon two business days after being deposited by registered or certified mail. In each case, the address for notice for Noom is notice@noom.com or 229 West 29th St., 9th Floor, New York, NY 10001, Attn: Legal and for the Employer, contact information provided in the Order.
- Force Majeure. Neither Party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is rendered commercially impracticable, illegal, or impossible due to circumstances beyond its reasonable control, including without limitation earthquakes, governmental regulation, fire, flood, labor difficulties, epidemic, pandemic, civil disorder, acts of terrorism and acts of God, provided that the Party experiencing the delay promptly notifies the other Party of the delay. The Party experiencing the force majeure event will use commercially reasonable efforts to mitigate the effects of the same.
- Assignment. Employer may assign this Agreement, or any of its rights, remedies, obligations, or liabilities hereunder, without the prior written consent of Noom; provided, however, that either Party may assign this Agreement to an (i) Affiliate or (ii) to a third party acquiring (by sale, merger, reorganization, or otherwise) substantially all of the transferor’s assets or business, provided that (a) the transferee agrees to assume and perform all obligations of the transferor for periods following the transfer, (b) the transferor remains liable for all obligations prior to the transfer, and (c) in the case of a transfer by Employer, the transferee shall not be engaged in the business of developing, marketing, or supporting a digital healthcare platform in competition with Noom or the Services. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the Parties.
- Independent Contractor; Third-Party Beneficiaries. Noom’s relationship with Employer will be that of an independent contractor and nothing contained herein shall be construed to constitute the Employer and Noom as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. Nothing set forth in this Agreement is intended to or will be construed to confer any rights or remedies upon any individual, corporation, or other entity that is not a Party to this Agreement.
- Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without giving effect to principles of conflicts of law or the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement is in the state and federal courts located in New York, New York, and Parties irrevocably agree to submit to the jurisdiction of such courts.
- Export. Employer shall not access or use the Services if Employer is located in any jurisdiction in which the provision of the Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Employer shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. Employer represents, warrants, and covenants that (i) it shall comply with all U.S. export control and economic sanctions laws and regulations as they relate to access to and use of the Services; (ii) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) Employer is not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) Employer shall not permit its Eligible Users or any agents to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Employer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Employer and its Eligible Users are located.
- Government Contractors. If Employer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, any Services licensed to Employer is done so only with those rights as provided under the terms and conditions of this Agreement.
- Changes. This Agreement, or any part thereof, may be modified by Noom, including the addition or removal of terms at any time, and such modifications, additions, or deletions will be effective immediately upon posting. Employer’s continued use of the Services after such posting shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
- Entire Agreement. This Agreement represents the entire understanding of the Parties superseding any and all prior communications whether written or oral and any modification of this Agreement shall not be effective unless contained in writing and signed by both Parties. In the event the Parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the Parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. Each provision of the Agreement shall be considered severable such that if any single provision or clause conflicts with existing or future applicable law, or may not be given full effect because of such law, it shall not affect any other provision of the Agreement which shall be given effect without the conflicting provision or clause.
- Miscellaneous. This Agreement may be amended only in writing signed by the Parties hereto. This Agreement may be executed in counterparts (including by facsimile or PDF), each of which shall be deemed an original and all of which together shall continue one and the same instrument.
- Definitions.
“Affiliate” means an entity that directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.
“Applicable Law” means all laws and regulations including state and federal laws and regulations, orders, and ordinances, applicable to such Party.
“Beta Services” means a product, service, or functionality provided by Noom that may be made available to Employer to try at Employer’s option which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation, or by a similar description.
“Claim” means claims, actions, demands, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and expenses), and liabilities of every kind and character whatsoever, filed by a third party.
“Confidential Information” means (i) commercial business or technical information of either Party, including but not limited to information relating to either Party’s product plans, security information, customers, designs, costs, product prices, and names, finances, marketing plans, business opportunities, research, development, or know-how and (ii) any information expressly designated in writing by either Party as “confidential” or “proprietary”.
“Effective Date” means the date Employer completed the payment for the Platform Services.
“Eligible User” means an individual that has been designated by Employer as eligible to use the Platform Services.
“Employer Data” means identifying data of Eligible Users provided by Employer to Noom for the purpose of provisioning the Platform Services.
“Feedback” means suggestions, recommendations, or other feedback relating to its current or future products or services, including Beta Services.
“Intellectual Property Rights” means all patent rights, copyrights, mask work rights, trade secret rights, sui generis database rights, moral rights, trade secrets, rights to know-how, data and other confidential information, and all other intellectual and industrial property rights of any kind anywhere in the universe (whether or not registered or perfected or patentable), together with all applications for or to register any of the foregoing and any rights to renew, extend or otherwise improve any of the foregoing.
“Marks” means trademarks, service marks, logos, and other brands.
“Order” means a mutually agreed ordering document or a completed submission by Employer through a purchasing portal designated by Noom, for the purchase of Services.
“Privacy Policy” means the privacy policy on https://www.noom.com/noom-privacy-policy/, its successor website, or within the Platform Services, as updated from time to time in Noom’s sole discretion.
“Platform Services” means collectively (i) access to the Noom mobile application and related websites that provide a variety of content and (ii) content accessed from such application or website.
“Professional Services” means consulting, customization work, implementation, or other professional services described in an Order.
“Reports” means documents, written summaries, and presentations summarizing aggregated usage of the Platform Services by Eligible Users.
“Services” means Professional Services and Platform Services.
“Subscription Term” means 12 calendar months starting from the Effective Date.
“Taxes” mean local, state, federal or foreign taxes, levies, duties, and other governmental charges, including value-add, use, or withholding taxes.
“Terms” mean any terms of use governing use of the Services on www.noom.com or within the Platform Services, as updated from time to time in Noom’s sole discretion.
