Access to the Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Nomos grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right to access and use the Nomos service(s) described in such Order Form (collectively, the “Services”) during the subscription term set forth in such Order Form. Customer may only use the Services for its internal business purposes and only in accordance with Nomos’s applicable official user documentation (the “Documentation”). As part of the provision of the Services, Nomos may provide Customer with access to one or more application programing interfaces (“APIs”). Nomos may, in its sole discretion, set and enforce limits on Customer’s use of any API and Customer agrees to comply with such limits. Nomos may also suspend Customer’s access to any API or cease providing any API at any time.
Professional Services. Subject to Customer’s compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Nomos agrees to provide any professional services described in such Order Form (“Professional Services”).
Fees; Payment. Customer shall pay Nomos the applicable fees (the “Fees”) to the subscription selected by Customer via the Subscription Page or another Order Form. Customer shall provide Nomos with valid and updated credit card information. Customer authorizes Nomos to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the section titled “Term; Termination.” Such charges shall be made in advance in accordance with the Subscription, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Nomos will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Payments will be payable in U.S. dollars and are due within thirty (30) days from the invoice date (if applicable). Nomos currently uses Stripe as its third-party service payment processor, and, by using the Services, Customer agrees to be bound by Stripe’s Services Agreement, available at https://stripe.com/us/legal. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Nomos’s net income). Except as otherwise expressly stated in this Agreement, all Fees paid are non-refundable and are not subject to set-off. Nomos reserves the right to amend the Fees upon renewal of the then-current subscription term by providing notice to Customer. Customer’s continued use of the Services following the effective date of such amendment to the Fees constitutes acceptance of the amended fees. If Customer does not agree to the amended Fees, then Customer may not use the Services.
Nomos Intellectual Property. As between the parties, Nomos retains all right, title, and interest in and to (a) the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Nomos for the purposes of this Agreement, including any copies and derivative works of the foregoing and (b) Nomos’s Confidential Information (as defined below). No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Nomos with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Nomos and Nomos may freely use and exploit such Feedback. Nomos may derive from the use and operation of the Services volumes, frequencies, bounce rates, performance metrics and other data that does not directly or indirectly identify Customer or any natural person (“Usage Data”), and may use and disclose Usage Data to analyze and improve the Services and for other lawful business purposes.
Customer Responsibilities. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Nomos product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Nomos may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer shall ensure (and is solely responsible for ensuring) that it has given all notices, and obtained all rights, permissions and consents, as are necessary to use the Services and to provide Customer Data to Nomos for use as contemplated by this Agreement. Customer is solely responsible for all of Customer’s activity in connection with the Services and all activity associated with the Services’ user accounts provisioned to Customer, including but not limited to uploading Customer Data onto the Services. Customer shall use the Services in compliance with this Agreement and all applicable local, state, national and foreign laws, treaties and regulations and all applicable rules and professional standards in connection with Customer’s use of the Services (including those related to email marketing, data privacy, international communications, export laws and the transmission of technical or personal data laws). Customer shall not use the Services in a manner that is harmful, deceptive, threatening, harassing or obscene or that violates any third-party intellectual property, contractual or other proprietary rights. Customer shall ensure that Customer Data do not contain any of the following categories of sensitive data (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; (g) any other information or combinations of information that falls within the definition of “special categories of data,” “sensitive data” or “sensitive personal information” or any applicable law or regulation relating to privacy or data protection; or (h) personal information of children under the age of 16. Customer shall defend, indemnify and hold harmless Nomos against any damages, losses, liabilities, settlements and expenses (including reasonable attorneys’ fees) in connection with any claim or action that arises from any violation of the foregoing or otherwise from Customer’s use of Services.
Confidentiality. The parties acknowledge and agree that each party (the “Receiving Party”) may have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is (i) proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries, and its affiliates, including any business plans, strategy, pricing, or financial information; (ii) the terms of this Agreement; and/or (iii) any other information that is designated as confidential by the Disclosing Party. Confidential Information of Nomos shall also include the Services and Usage Data, and Confidential Information of Customer shall also include Customer Data. Confidential Information does not include any information that is or was, at the time of the disclosure: (a) generally known or available to the public; (b) rightfully disclosed to the Receiving Party by a third party; (c) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party without restriction; or (d) independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party. At all times the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party’s Confidential Information other than as permitted under this Agreement, and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement or to the extent necessary to comply with applicable law.
Third-Party Services. Customer acknowledges and agrees that the Services may operate on, with or using APIs and/or other services operated or provided by third parties (collectively, “Third-Party Services”), including without limitation through integrations or connectors to such Third-Party Services that are provided by Nomos. Except as expressly provided by this Agreement, Nomos is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Nomos does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider, either directly or indirectly (such as through the Services), is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions. If certain features of the Services require Customer to provide its login information to Nomos, (a) Nomos will use such login information solely for the purpose of providing the Services and (b) Customer represents and warrants that Customer has the right to provide such login information without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third-Party Services.
Subscription Term; Termination. Unless earlier terminated as provided in this Agreement, this Agreement shall begin on the date of the first Order Form and end as of the expiration of the last active Order Form. For each Order Form, unless otherwise provided therein or earlier terminated as provided in this Agreement, the subscription term of such Order Form shall begin as of the date of such Order Form and shall continue until the end of the subscription term set forth in such Order Form, and shall automatically renew for successive renewal subscription terms of equal duration to the initial subscription term unless either party provides notice of non-renewal prior to the end of the then-current subscription term (or in the case of a subscription term longer than one month, at least thirty (30) days prior to the end of the then-current subscription term). Customer may provide notice of non-renewal by either canceling Customer’s Subscription via its Nomos dashboard or by sending an email to firstname.lastname@example.org. Customer may also terminate Customer’s account (and all of its users’ individual accounts) at any time via its Nomos dashboard or by sending an email to email@example.com, in which case Customer shall immediately lose access to the Services and Customers Subscription shall be canceled. Either party may terminate this Agreement for the other party’s material breach that remains uncured thirty (30) days (ten (10) days in the case of a one-month term) after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, Nomos may suspend Customer’s access to the Services if Customer’s account is more than sixty (60) days past due. All provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability. In the case of expiration or termination of this Agreement, upon request by Customer made before, or within thirty (30) days after, the effective date of expiration or termination, Nomos shall make available to Customer a download of all Customer Data in a file or database format in Nomos’s discretion. For clarity, any services provided by Nomos to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Nomos standard rates then in effect.
Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (a) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Services infringes, violates, or misappropriates any third-party intellectual property or proprietary right or violates any applicable law, or (b) in the case of Nomos as Indemnitor, the Services infringe, violate, or misappropriate any third-party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Nomos do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Nomos (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Nomos, (iv) combined with other products, processes or materials not provided by Nomos (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
Warranty; Disclaimer. Nomos will provide the Services and any other services provided hereunder in a professional and workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES (IF ANY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. OUTPUTS MAY CONTAIN INACCURATE OR INCOMPLETE INFORMATION AND NOMOS MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNITIES WITH RESPECT THERETO; CUSTOMER AND ITS END USERS ARE RESPONSIBLE FOR ALL DECISIONS MADE, ADVICE GIVEN, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON THEIR USE OF THE SERVICES. CUSTOMER IS ADVISED TO SAFEGUARD CUSTOMER DATA AND ITS OTHER DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION.
Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION TITLED “RESTRICTIONS,” IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO NOMOS HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Free Trial. If Customer signed up for the Services under a free trial, the free trial expires on the last day of the free trial period specified in the Order Form. Unless Customer has terminated this Agreement on or prior to the last day of such free trial period, this Agreement shall automatically continue in accordance with the terms of this Agreement and Nomos may immediately charge Customer for the Services in accordance with the payment terms set forth under this Agreement. Additional free trial terms and conditions may appear on the Order Form or the free trial promotions page. Any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding. Customer may only sign up for one free trial. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND NOMOS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE NOMOS’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, NOMOS, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER'S REQUIREMENTS, (B) CUSTOMER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY OUTPUTS OR USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE, OR (D) HUMANS GENERATE ANY OUTPUTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO NOMOS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICES DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
Changes to Terms & Conditions. Nomos reserves the right, in its sole discretion, to update, change or replace any part of these Terms & Conditions. The most current version of these Terms & Conditions will be posted on the Services and it is Customer’s responsibility to check Nomos’s website periodically for changes. If the changes include material changes that affect Customer’s rights or obligations, Nomos will notify Customer of the changes by reasonable means, which could include notification through the Services or via email. Customer’s continued use of the Services following the effective date of any changes to these Terms & Conditions constitutes acceptance of those changes. If Customer does not agree to the new Terms & Conditions, then Customer may not use the Services.
How to Contact Nomos. Please contact Nomos at firstname.lastname@example.org with any questions or concerns about the Services or these Terms & Conditions.
Miscellaneous. This Agreement represents the entire agreement between Customer and Nomos with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Nomos with respect thereto. In the event of a conflict between these Terms & Conditions and any Order Form, such Order Form shall govern. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and any dispute between the parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in Anaheim, CA under the rules of JAMS; the decision of the arbitrator will be enforceable in any court. All notices under this Agreement will be sent via email. All notices to Nomos must be sent to email@example.com, and all notices to Customer must be sent to the email address set forth in the applicable Order Form, or in each case, at such other email address as may be given in writing by either party to the other in accordance with this Section. Notice will be treated as given on receipt, as confirmed by written or electronic records. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including without limitation the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Nomos may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Customer agrees to allow Nomos to use and display Customer’s name and logo on Nomos’s website and in Nomos’s promotional materials to identify Customer as a customer. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.