Subscription Services End User License Agreement

This Subscription Services End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Nexion Solutions, LLC (“Nexion”). This Agreement governs your use of the NightWatch” platform, including the applicable wrist-wearable device (“Device”) and all related software, documentation, and monitoring and other services, collectively with the Device, the “Services.” The Services are licensed, not sold, to you.

NEXION PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “AGREE” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. [NEXION MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME (IN ITS SOLE DISCRETION) BY REQUIRING YOU TO ACCEPT AND “CLICK TO AGREE” TO AN UPDATED VERSION OF THIS AGREEMENT PRIOR TO YOUR CONTINUED USE OF THE SERVICES.] IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT USE THE SERVICES.

  1. License Grant. Subject to the terms of this Agreement, Nexion grants you a limited, non-exclusive, non-sublicensable, nontransferable, revocable license to access and use the Services for your own personal, non-commercial use strictly in accordance with the Service’s documentation.
  2. License Restrictions. You shall not: (a) copy, modify, translate, adapt, or otherwise create derivative works or improvements of, whether or not patentable, the Services; (b) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code within the Services or any part thereof; (c) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; (d) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason; (e) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; (f) use the Services for any illegal purpose, or in violation of any local, state, national, or international law and regulations; (g) perform any fraudulent activity, including falsifying or attempting to falsify location or activity information, or impersonating any person or entity; or (h) use the Services for any purpose other than as authorized under this Agreement.
  3. Reservation of Rights. The Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with terms, conditions, and restrictions, under this Agreement. Nexion and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Services, including all intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
  4. Collection and Use of Your Information.
    • You acknowledge that when you use the Services, Nexion may use automatic means (including, for example, GPS tracking to collect information about your use of the Services. Certain features of the Services require access to your location to provide the parts of the Services based on your location (“Location-based Services”). You also may be required to provide certain information about yourself as a condition to or using the Services or certain of its features or functionality, including registering for an account. When you register for an account, you are required to provide information about yourself (such as your name, e-mail address, or other contact information), and you agree that such information you provide to us is accurate and that you will keep it accurate and up to date. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must notify Nexion immediately.
    • All information we collect through or in connection with the Services (including through Location-based Services) is subject to our Privacy Policy [INSERT AS LINK TO PRIVACY POLICY] (“Privacy Policy”). By using and providing information to or through the Services, you consent to all actions taken by Nexion with respect to your information in compliance with the Privacy Policy. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND NEXION DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES.
  5. Feedback. If you provide any feedback, input, ideas, suggestions, or recommendations regarding the Services (collectively, “Feedback”), Nexion is free to use and incorporate such Feedback in its goods and services, without payment of royalties or other consideration to you. You agree that any such Feedback is provided on a voluntary basis and Nexion will treat any Feedback you provide as non-confidential and non-proprietary. You agree that Nexion will have the right to use and fully exploit the Feedback and related information in any manner it deems appropriate (including, without limitation, developing, manufacturing, and marketing goods and services using such Feedback).
  6. [Website. The Services may provide you with access to Nexion’s website located at nexionsolutions.com (the “Website”) and certain features, functionality, and content accessible on or through the Services may be hosted on the Website. Your access to and use of such features, functionality, and content are governed by Website’s Terms of Use located at [TERMS OF USE LINK], which are incorporated herein by this reference. Any violation of such Terms of Use will also be deemed a violation of this Agreement.]
  7. Geographic Restrictions. The Services provided are for the access and use only by persons located in the United States. You may not be able to access all or some of the Services outside of the United States and access thereto may be illegal. If you access the Services from outside the United States, you are responsible for compliance with local laws.
  8. Updates. Nexion may from time to time in its sole discretion develop and provide Services updates, which may include upgrades, improvements, modifications, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Nexion has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. When the Device is connected to the internet either: (a) the Device will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.
  9. Term and Termination. The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Nexion as set forth in this Section 9.
    • You may terminate this Agreement by (i) ceasing all use of the Services, (ii) terminating your account with Nexion by contacting the entity that provided the Device to you and returning the Device to that entity.
    • Nexion may terminate this Agreement at any time without notice if it ceases to support the Services, which Nexion may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
    • Upon termination: (i) all rights granted to you under this Agreement will also terminate; and (ii) you must cease all use of the Services and return the Device to the entity that provided the Device to you.
    • Termination will not limit any of Nexion’s rights or remedies at law or in equity. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including Sections 3, 4, 5, 6, this Section 9(d), and 10 through 21.
  10. Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEXION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND SUBSIDIARIES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. Limitation of Liability.
    • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEXION OR ITS AFFILIATES AND SUBSIDIARIES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES).
    • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NEXION AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER EXCEED $1,000.
    • THE LIMITATIONS IN THIS SECTION 11 WILL APPLY (i) WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR NEXION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
  2. Indemnification. You agree to indemnify, defend, and hold harmless Nexion and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of the Services, (b) your breach of this Agreement, or any applicable law or regulation, or (c) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
  3. Export Regulation. The Services may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services 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 Services available outside the US.
  4. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
  5. Governing Law and Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in Milwaukee County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
  6. Waiver of Class Actions Rights and/or Claims. You agree that to the extent you have or believe that you have any claims against us relating to your use or Nexion’s provision of the Services, you will bring those claims in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Unless both you and Nexion agree, no judge may consolidate more than one person’s claims or otherwise preside over any form of a representative class proceeding.
  7. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
  8. You may not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Nexion. Any purported assignment or delegation in violation of this Section 18 will be null and void.
  9. No Third Party Beneficiaries. Except for those indemnitees expressly set forth in Section 12, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  10. Entire Agreement. This Agreement, the Privacy Policy, and any other documents incorporated herein by reference constitute the entire agreement between you and Nexion with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services.
  11. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable other terms, the terms of this Agreement shall govern.