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Terms and Conditions of Use

Welcome to Noom! These Terms of Use (“Terms”) govern your access to and use of the services offered by Noom, Inc. (“we” or “us”) via Noom’s websites and apps (“Noom” or the “Service”). Please read these Terms carefully, and contact us if you have any questions. By accessing or using Noom, you agree to be bound by these Terms, our Privacy Policy, our Cookies Policy, our Community Guidelines and any other supplemental terms for the Service offerings that you access (collectively, the “Agreement”).

Section 6 below sets out the terms governing any subscription you purchase. IF YOU PURCHASE A SUBSCRIPTION TO THE SERVICE, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED AT THE END OF THE DISCLOSED BILLING PERIOD AT OUR THEN-CURRENT FEE FOR SUCH SERVICE UNLESS YOU DECIDE TO CANCEL YOUR SUBSCRIPTION OR THE AGREEMENT IS TERMINATED. Additionally, in some locations you might have a “cooling off period.” For example, if you are a California resident and purchase a subscription and decide before midnight of the third business day following your purchase that you want to cancel your contract with us and receive a refund, you can mail a notice of cancellation to Noom, Inc., Attn: Legal Department, 450 W. 33rd. St., 11th Floor, New York, NY 10001.

SECTION 12 (DISPUTE RESOLUTION) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND US. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 12) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 12.6 (OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. IN ARBITRATION, THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

You should print a copy of the Terms or save them to your computer for future reference. We reserve the right to determine the form and means of providing notifications to you, and you agree to receive legal notices electronically if that’s what we decide. We may revise this Agreement from time to time and the most current version will always be posted on our website. If a revision, in our discretion, is material, we’ll notify you and we may require you to provide consent to the new Agreement in a specified manner before further use of the Service is permitted. By continuing to access or use Noom after revisions become effective, you agree to be bound by the revised Agreement. If you don’t agree to the revised Agreement, please stop using Noom and cancel your subscription as set forth in Section 6.6 below.

Table of Contents

Our Service

Your Responsibilities

Your Content

Intellectual Property

Content Removal

Fees and Purchase Terms; Automatically Renewing Subscriptions

Indemnification

Disclaimers

Limitation of Liability

Safety and Enforcement

Termination

Dispute Resolution

Class Action Waiver; Jury Trial Waiver

Third Parties

General Provisions

Contact Us

1. OUR SERVICE

1.1 What We Do. Our mission is to help as many people as possible live healthier lives through behavior change. Our Service is designed to support weight loss, fitness, and overall physical and mental well-being. To access most features of the Service, you must register for an account and have a valid subscription.

1.2 Who Can Join. Noom is not for everyone. You cannot use the Service if you are under 18 years old, pregnant, have an eating disorder, or if you are underweight (according to the Center for Disease Control and Prevention, a BMI falling below 18.5 is considered to be underweight). The Service should never be used as a replacement for recommended medical or mental health treatment; if we find that it’s appropriate (including if based upon any restrictions listed in this section), you may be removed from the Service so that your condition may be managed by a licensed medical profession.

1.3 Public Profiles. Based on what features you use, you may be required to create a public profile. We rely on you to provide accurate profile information but do not verify any information contained in other Noomers’ public profiles.

1.4 Social Features and Coaches. You may access group discussions with other Noomers, moderators, and Noom Coaches. These groups are designed to provide you with information and support regarding your health-related issues and goals. By accessing these groups, you agree to our Noom Circles Community Guidelines. We also provide a variety of Virtual Coaching programs. Please note that we may engage or replace any Noom Coach with another coach or coaches without notice. Noom Coaches are not licensed medical professions, and any information provided by Noom Coaches should not be interpreted as medical advice. Noom Coaches cannot offer advice regarding diagnosis or treatment of any medical or mental health condition or illness. Under no circumstances will any of your interactions with any Noom Coach be deemed or construed to create a physician-patient relationship or a legal duty of any kind.

1.5 Food Database. As part of the Service, we maintain a food database that contains a combination of nutritional information entered directly by us and Noomers (“Food Database”). We don’t verify the accuracy of nutritional information added to the Food Database, so please use your own discretion in assessing any nutritional information in the Food Database.

1.6 No Physician-Patient Relationship. We are not a licensed medical service provider, and any information provided by us should not be interpreted as medical advice or construed to form a physician-patient relationship. Be sure to talk to your doctor before starting Noom or any health or wellness service, and don’t use Noom if you’re having a medical emergency. IF YOU THINK YOU ARE HAVING A MEDICAL EMERGENCY, CALL 911 OR SEEK IMMEDIATE MEDICAL ATTENTION.

1.7 Noom Communications. We may text you as part of the Service, or as part of a promotion or advertisement (“Noom Communications”). You agree that Noom Communications are governed by this Agreement. We do not charge for Noom Communications, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in Noom Communications, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at the number. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchase. While you consent to receive messages sent using an ATDS, you will not interpret that to suggest or imply that our messages are sent using such a system. Message frequency varies, and you can opt-out at any time. If you do not wish to continue participating in Noom Communications, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. To the extent you subscribe to more than one communications program that we operate, you must unsubscribe from each program separately. For support or assistance, email us at support@noom.com. We may change any short code or telephone number we use to operate Noom Communications at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. Noom Communications may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by Noom Communications are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Noom Communications program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to Noom Communications will be governed by Section 12 (DISPUTE RESOLUTION) below.

1.8 Noom Updates. Our Service is evolving. We may update the Service with or without notifying you. You understand that we are not liable to you or to any third party for any modification, update, suspension, or discontinuation of any part of the Service, and that you may be required to update Noom’s applications to continue to access the Service through such applications.

2. YOUR RESPONSIBILITIES

2.1 What You Do. You are responsible for everything you do under your account. Each account is personalized to you, so please don’t share accounts or passwords. Let us know right away if you suspect unauthorized use of your account or any other breach of security. If we suspect the information you provide is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account. Basically, don’t create an account using a false identity or on behalf of someone other than yourself.

2.2 Linked Accounts. You may be able to link your account with a third-party application or service. If you decide to link your account, you are responsible for making sure you aren’t breaching any of the third party’s terms and conditions. Any content from that third party shall be considered to be your User Content and subject to our Privacy Policy.

2.3 Your License. The Service is protected by copyright laws throughout the world. Subject to these Terms and our policies (including our Community Guidelines), and provided you have an active account and subscription on the Service, we grant you a limited, non-exclusive, non-transferable, and revocable license to use the features and functionality of our Service that are included in your subscription (including any add-ons purchased by you) during your applicable subscription term.

2.4 Noom for Work. If you access the Service through an employer or health plan benefit program, you shall also be subject to use Noom for Work based on the terms agreed to by the respective employer or health plan benefit program. If someone else pays for your subscription, then some of these provisions may not apply to you, including Section 6 (FEES AND PURCHASE TERMS; AUTOMATICALLY RENEWING SUBSCRIPTIONS).

3. YOUR CONTENT

3.1 What You Provide. Noom allows you to post content, including photos, comments, links, and other materials, if you so choose. Anything that you or another user posts or otherwise makes available on the Service is referred to as “User Content.” You retain all rights in, and are solely responsible for, the User Content you make available or post on Noom.

3.2 How We Use It. You grant us a non-exclusive, royalty-free, irrevocable, perpetual, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify, translate, adapt, create derivative works, perform, and distribute your User Content. Nothing in these Terms restricts other legal rights we may have to User Content, for example, under other licenses. We reserve the right to remove or modify User Content, or change the way it’s used on Noom, for any reason. This includes User Content that we believe violates these Terms, our Community Guidelines, or any other supplemental terms, laws, or policies.

4. INTELLECTUAL PROPERTY

4.1 Noom’s Rights. Except with respect to your User Content, you agree that we own all rights, title, and interest in the Service. You may not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Service.

4.2 Noom’s Trademarks. Noom, Noom.com, Noom Health, and the Noom logo, and all related graphics, logos, service marks, and trade names are the trademarks of Noom, Inc. and may not be used without our express written permission.

4.3 Your Feedback. We love hearing from our Noomers, and are always interested in learning about ways we can make Noom better. If you decide to share your comments, ideas, or feedback (“Feedback”) with us, then Noom shall have the right to use your Feedback in any manner, including, but not limited to, future enhancements and modifications to the Services. All such Feedback shall be owned exclusively by Noom, and you agree to assign all right, title and interest in and to such Feedback and related intellectual property. We are 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.

5. CONTENT REMOVAL

5.1 Content Moderation. We are not responsible for User Content submitted by other Noomers and we do not have any obligation to proactively review or pre-screen User Content, but we may remove any User Content for any reason (or no reason) at our sole discretion. If you see User Content in violation of any of our policies, including our Community Guidelines, please report it to us here.

5.2 IP Infringement. It is our policy to terminate access to the Service of any user who infringes copyright, trademark, or other intellectual property rights upon prompt notification to us by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes intellectual property rights infringement, please send: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (ii) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf to our designated agent for notice of claims of infringement: legalnotice@noom.com.

6. FEES AND PURCHASE TERMS; AUTOMATICALLY RENEWING SUBSCRIPTIONS

6.1 Defined Terms.

(a) “Billing Period” is the interval of time between each recurring billing date and corresponds to the term of your subscription, which may be measured in days, weeks, or months. If you sign-up for a subscription to the Service, your subscription term will be indicated at the time of sign-up.

(b) “day” or “date” begins at 12:00 a.m. Eastern time and ends at 11:59 p.m. Eastern time of that same calendar day.

6.2 Service Tiers and Other Offerings. When purchasing your subscription to the Service, you may be presented with different plans or options (each a “Service Tier”). Different Service Tiers or other offerings, such as add-ons, may be subject to differences in pricing, usage rules, eligibility, restrictions, features, and availability, as indicated at the time of sign-up.

6.3 Free Trials and Promotions. Your subscription to the Service may begin with a free trial or promotional pricing. Availability of a free trial or promotional pricing is not guaranteed and, if one is available, is only available on the specified terms of the free trial or promotion. Eligibility for free trials or promotions may vary and certain limitations may also exist with respect to combining free trials with any other offers.

(a) Free Trials. If your subscription begins with a free trial, your first payment will be charged to your chosen payment method immediately following the end of the free trial, unless canceled in accordance with the instructions for cancellation below. You can cancel your subscription without being charged at any time before the end of your free trial. We provide notice of the terms of the free trial at the time you register and you will not receive a separate notice that your free trial is about to end or has ended, or that your paid subscription has begun, unless required by law in particular instances or jurisdictions.

(b) Promotions. We may also offer, in our sole discretion, promotions (e.g., promotional pricing or bundled add-ons) subject to promotional terms disclosed during your sign-up or in other materials provided to you. We will begin billing the same payment method we otherwise have on-file for your subscription at the then-current, non-promotional price after your promotion ends, unless you cancel prior to the end of your promotion or unless otherwise disclosed.

6.4 Subscriptions Automatically Renew. Your subscription to the Service includes enrollment into an ongoing/recurring payment plan. Your subscription will automatically renew at the end of the disclosed billing period, unless canceled in accordance with the instructions for cancellation below. You agree that you must cancel your subscription, as set out in Section 6.6 below, to avoid being charged for your next Billing Period. Payment will be charged to your chosen payment method. If indicated in the checkout flow, charges for the Service or an add-on may be prorated (e.g., for a partial month). You acknowledge that the timing of when you are billed may vary, including if your subscription began on a day not contained in a given month (e.g., if you have a monthly subscription and became a paying subscriber on March 31, your payment method would be billed next on April 30), due to free trials and other promotional offers, or if you make changes to your Service Tier or payment method. You are responsible for all third-party Internet access charges and taxes in connection with your use of the Services. Please check with your Internet provider for information on possible Internet data usage charges.

6.5 Price Changes. We reserve the right at any time to change our prices, refund policy, and billing methods, subject to any obligations to provide notice of such changes under applicable law. If you do not wish to accept a price change, you may cancel your subscription as described in Section 6.6. If you do not timely cancel your subscription, your subscription will be renewed at the price in effect at the time of the renewal, without any additional action by you, and you authorize us to charge your payment method for these amounts. We will not be able to notify you of any changes in applicable taxes.

6.6 Canceling Auto-Renewal of Your Subscription. You can cancel your subscription at any time before the end of the then-current billing period or free trial. Cancellation will take effect at the end of the then-current billing period or free trial period, as applicable, unless otherwise disclosed. If you cancel, then except as set forth in Section 6.7 below, you will continue to have access to the Service through the end of your then-current billing period, unless you are subscribed through a free trial or promotion, in which case cancellation may be effective immediately. If you modify your subscription to switch from one Service Tier to another Service Tier during your billing period, you may not have continued access to your original Service Tier. You must cancel your subscription prior to 11:59 p.m. Eastern time on the day before your next recurring billing date in order to avoid being charged for the next billing period. We do not provide a refund or credit for partially used billing periods, although we may provide such refunds or credits on a case-by-case basis in our sole and absolute discretion. To cancel your subscription to the Service, log into your account and follow the instructions on your account page. If you subscribed via a third party (e.g., the Apple App Store or Google Play), please visit our support center here for instructions on how to cancel.

6.7 California Users: Rescinding Your Contract with Us. If you are a resident of California, provided that no more than three (3) business days have elapsed since you signed up for your subscription, you may also rescind your agreement with us and seek a refund. Specifically, if you are a California resident, you may cancel your agreement without penalty or obligation, at any time prior to midnight of the third business day following the date of this contract, excluding Sundays and holidays. To cancel this agreement and receive a refund, mail or deliver a signed and dated notice which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice must be sent to Noom, Inc., Attn: Legal Department, 450 W. 33rd. St., 11th Floor, New York, NY 10001. Note, if you cancel your agreement pursuant to the instructions in this section, we may terminate your access to the Service upon receipt of your cancellation notice.

6.8 Payment Methods. Unless you sign up through an App Store (as described in Section 6.9 below), you must provide us with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal or other account of a payment method (“Payment Method”) as a condition to signing up for the Service. Your agreement with the provider of the Payment Method governs your use of the designated credit card or PayPal account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities with respect to the Payment Method. By providing us with your credit card number or PayPal account and associated payment information, you agree that we are authorized to immediately charge your Payment Method for all fees and charges due and payable to us hereunder, including any applicable taxes, and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or PayPal account used for payment hereunder. We may also update your credit card details or other Payment Method information using information provided by our payment service providers. Following any such update, you authorize us to continue to charge the applicable method of payment. In the event of a failed attempt to charge to your Payment Method (e.g., if your Payment Method has expired), we reserve the right to retry billing your Payment Method. If we do not receive payment from your Payment Method for whatever reason, (a) you agree to pay all amounts due on your Account upon demand, and/or (b) you agree that we may either terminate or suspend your subscription and continue to attempt to charge your Payment Method for purchased Services until payment is received (and upon receipt of payment, your Account will be activated and, for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received). You will remain responsible for any amounts you fail to pay in connection with your subscription or any add-ons, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. You also agree that we may charge your payment method on file if you decide to restart your subscription.

6.9 Subscriptions Obtained Through Third Parties. If you obtain a Noom subscription via a third party application store (e.g., the Apple App Store or Google Play) (each, an “App Store”), that subscription is also subject to the third party’s terms, and the provisions in this Agreement concerning subscription purchase, billing, cancellation/refunds, and payment do not apply to that subscription to the extent this Agreement conflicts with the applicable third party’s terms regarding subscription purchase, billing, cancellation/refunds and payments. For subscriptions obtained via a third party App Store, your billing relationship will be directly with the applicable third party App Store. Any fees charged for your subscription to the Service will be billed by the applicable third party App Store using the payment information you have provided to such third party App Store. To cancel a subscription to the Service obtained via a third party App Store, please follow the cancellation instructions set out by the applicable third party App Store or visit our support center here.

6.10 Add-Ons. We may from time to time offer add-ons to Noom subscriptions, such as specialized coaching sessions. Add-ons may be subscriptions or may be offered on as a one-time purchase, subject to the terms disclosed during your sign-up for such add-on or in other materials provided to you regarding such add-on.

6.11 Tangible Products. We may also from time to time make available tangible products for purchase. If you place an order for tangible products from us, then such order will be subject to our Terms of Sale.

6.12 Taxes. For purposes of this section, “Sales Tax” means any state and local sales or use tax, value-added tax, levies, duties, or and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. Prices displayed exclude taxes. If any Service, or payments for any Service, under the Agreement are subject to any Sales Tax in any jurisdiction and we have not charged the applicable Sales Tax, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority. You agree to make all payments of fees to us free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to us will be your sole responsibility. Upon subscription renewal, tax is subject to change in accordance with the prevailing tax rates, determined by the subscriber’s provided billing or home address.

6.13 Refund Policy. California residents may cancel their contract and seek a refund pursuant to, and consistent with, the instructions set out in Section 6.7 herein. In all other instances, all fees and charges assessed by us are non-refundable except as expressly promoted by Noom and to the extent that you qualify for such promotion.

7. INDEMNIFICATION

You agree to indemnify and hold us harmless for any of the following: (a) Your use of the Service; (b) your User Content; (c) your violation of our policies; (d) your violation of any rights of another party, including any other Noomers; and (e) your violation of any applicable law. You understand that the provisions in this section will survive any termination of your account, as well as any changes in our policies or Service.

8. DISCLAIMERS

8.1 “As Is.” YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. This section does not affect in any way our return policy for tangible goods purchased through the Services, which are subject to the terms of our Terms of Sale.

(a) WE MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (3) THAT DEFECTS WILL BE CORRECTED; (4) THAT THE APPLICATIONS OR THE SERVERS THAT MAKE THE APPLICATIONS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (5) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE PERMANENT, ACCURATE, OR RELIABLE.

(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

8.2 No Liability for Third Parties. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND THE PROVIDERS OF THE TELEHEALTH SERVICE AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. WE MAKE NO WARRANTY REGARDING THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES.

9. LIMITATION OF LIABILITY

9.1 Disclaimer of Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (B) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.

9.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO US BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE STATUTORY DAMAGES PRESCRIBED BY A STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO OUR LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY OUR FRAUD OR FRAUDULENT MISREPRESENTATION.

9.3 Severability. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

9.4 Exclusions. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

9.5 Statute of Limitations. To the fullest extent permitted by law, no claim, demand for mediation or arbitration, or cause of action which arose out of an event or events that occurred more than two (2) years prior to the filing of a demand for mediation or arbitration or suit alleging a claim or cause of action may be asserted by you against Noom.

9.6 “Basis of the Bargain.” The limitations of damages set forth above are fundamental elements of the basis of the bargain between you and us.

10. SAFETY AND ENFORCEMENT

10.1 We care about the safety and security of all our Noomers. If we think it’s appropriate, we may disclose your identity, your User Content, or other data associated with you to third parties, like law enforcement; take legal action; or terminate your access to the Service. For more information on what data we may disclose and why, please see our Privacy Policy.

11. TERMINATION

11.1 Termination by Us. We reserve the right to terminate your access to the Service for any reason (or no reason).

11.2 Termination by You. You can terminate this Agreement by canceling any subscriptions and closing your Account. PLEASE NOTE THAT THE SERVICE WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION.

11.3 Survival. The following provisions will survive any termination or expiration of this Agreement or your Subscription: 1.7, 3.2, 4, 5, and 7-14, and any other provisions intended to survive termination.

12. DISPUTE RESOLUTION

12.1 Resolving Disputes. If you have a problem with us that we can’t resolve, we and you agree that any dispute, claim, or disagreement arising out of or relating to the Services or your relationship with us, including claims that arose before the existence of this or any prior Agreement (including claims related to advertising) or claims that may arise after the termination of this Agreement, will be resolved by individual arbitration (“Arbitration Agreement”). The exception is that we and you each may bring qualifying individual claims in “small claims” court, so long as those claims remain in small claims court and are not removed or appealed to a court of general jurisdiction. All other disputes must be arbitrated on an individual basis, which means you and we are each waiving our right to sue in court and have a court or jury trial. To the extent there is a dispute as to whether claims qualify for small claims court, a court of competent jurisdiction will decide.

12.2 Informal Dispute Resolution. You also agree that you will try in good faith to resolve any dispute informally before filing an arbitration. To start the informal dispute process, you must send an individualized written notice (“Notice of Dispute”) to Noom, Inc., Attn: Legal Department, 450 W. 33rd. St., 11th Floor, New York, NY 10001 that includes (1) your name, phone number and email address for your account, and (2) a description of the dispute and how you’d like it resolved. If we have a dispute with you, we will send a Notice of Dispute with the same information to the email address we have on file for your account. Once a complete Notice of Dispute has been received, the recipient has 60 days to investigate and try to resolve the claims. If either side requests a settlement conference during this period, then you and we must cooperate to schedule that meeting by phone or videoconference. You and we each will personally participate and can each bring counsel, but the conference must be individualized, even if the same firm(s) represent multiple parties. For the claims asserted in the Notice of Dispute, any statute of limitations will be tolled from the date the Notice of Dispute is received until the later of (i) 60 days, or (ii) after a timely requested settlement conference is completed (“Informal Dispute Resolution Period”). An arbitration cannot be filed until the Informal Dispute Resolution Period has ended, and a court can enjoin the filing or prosecution of an arbitration in breach of this section. Nothing in this section precludes you or us from seeking relief for non-compliance with this Informal Dispute Resolution process in arbitration.

12.3 What Arbitration Is. Arbitration is a more informal way to resolve our disagreements than a lawsuit in court. For instance, arbitration uses a neutral arbitrator instead of a judge or jury, involves more limited discovery, and is subject to very limited review by courts. Although the process is more informal, arbitrators can award the same individualized damages and relief that a court can award. You and we agree that the U.S. Federal Arbitration Act and federal arbitration law govern the interpretation and enforcement of this provision. A court of competent jurisdiction has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. This arbitration provision shall survive termination of these Terms and the termination of your Noom account.

12.4 How Arbitration Works. Any arbitration will be administered by National Arbitration and Mediation (“NAM”) under the Comprehensive Dispute Resolution Rules and Procedures then in effect for NAM, except as modified by this Arbitration Agreement. If the administrator is unwilling or unavailable to administer consistent with these Terms, the parties will agree on an alternative administrator that will do so. If no agreement can be made, then the parties agree to jointly petition a court of competent jurisdiction to appoint an administrator that will do so. To initiate arbitration after the Informal Dispute Resolution process is complete, either you or we must file an arbitration demand with NAM. You may serve us with any arbitration demand by mail to: Noom, Inc., Attn: Legal Department, 450 W. 33rd. St., 11th Floor, New York, NY 10001. You must include a signed certification of compliance with the Informal Dispute Resolution process. If we have a dispute with you, we will send an arbitration demand to the email address on file for your account. Unless we agree otherwise with you, the arbitration will be conducted in the county (or parish) where you reside. Each party will be responsible for paying any NAM filing, administrative, and arbitrator fees in accordance with NAM Rules. As in court, the arbitrator shall apply governing law, any counsel must comply with Federal Rule of Civil Procedure 11(b), and the arbitrator may impose any sanctions available under the NAM Rules, Rule 11, or other applicable law against the parties or their counsel. The arbitrator shall issue a reasoned written decision explaining the essential findings and conclusions on which the award is based, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; however, an award that has been satisfied shall not be entered in any court. The arbitrator may consider rulings in other arbitrations involving different users, but an arbitrator’s decision will not be binding in proceedings involving different users. Nothing in this section shall prevent either party from seeking injunctive or other equitable relief from the courts, including for matters related to data security, intellectual property or unauthorized access to the Service.

12.5 Additional Procedures for Mass Filings. The following provisions set forth additional procedures that apply to mass filings. If twenty-five (25) or more similar claims are asserted against us by the same or coordinated counsel or are otherwise coordinated, consistent with the definition and criteria of Mass Filings set forth in the NAM Rules, you and we understand and agree that these additional procedures shall apply and the resolution of your dispute might be delayed. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. You and we agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and we acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of claims. The parties are encouraged to meet and confer throughout this staged process and to discuss potential ways to modify procedures, increase efficiencies, and resolve claims.

  1. Stage One. Counsel for the claimants and counsel for us shall each select 25 claims per side to be filed and to proceed in individual arbitrations as part of a staged process. Each case shall be assigned to a different arbitrator unless the parties agree otherwise. If there are fewer than 50 claims, all will be filed in individual arbitrations. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any administrative fees, other than applicable fees related to a procedural arbitrator, be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and we shall pay the mediation fee.
  2. Stage Two. If the remaining claims are not resolved at this time, counsel for the claimants and counsel for us shall each select 50 claims per side to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. No more than two (2) cases may be assigned to a single arbitrator unless the parties agree otherwise. If there are fewer than 100 claims, all will be filed in individual arbitrations. Any remaining claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining claims with a retired federal or state court judge to be jointly selected by counsel for the parties, and we shall pay the mediation fee.

Upon the conclusion of the second global mediation session (should the parties be unable to resolve the remaining claims), each remaining dispute (if any) that is not settled or not withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Notwithstanding the foregoing, counsel for the parties may mutually agree in writing to proceed with the adjudication of some or all of the remaining disputes in individual arbitrations consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel) or through another mutually-agreeable process. A court of competent jurisdiction shall have the authority to enforce the Additional Procedures for Mass Filings, including the power to enjoin the filing or prosecution of arbitrations. The Additional Procedures for Mass Filings provision and each of its requirements are essential parts of this arbitration agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the Additional Procedures for Mass Filings apply to your dispute and are not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Any relevant limitations period (including statutes of limitations) and filing fee or other deadlines shall be tolled subject to these Additional Procedures for Mass Filings from the time the first cases are selected for a staged process until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.

12.6 Opt Out. If you are a new user of Noom, you can opt out of this Arbitration Agreement within 30 days after you first accept the Terms. If you are an existing user of our Services, you can opt out within 30 days after the effective date of 12/11/23. To opt out, please visit our support center here and include your name, the email address for your account, and a clear request to opt out of arbitration. If you opt out, neither we nor you will be required to arbitrate as a result of this (or any prior version of the) Arbitration Agreement, but the Terms (and any other agreements between us) will otherwise apply to you. If we update the Terms after you validly opt out, we will continue to respect your opt-out, but such updates do not provide a new opportunity to opt out of arbitration.

12.7 Non-Arbitrable Claims. Nothing in these Terms shall affect any non-waivable statutory rights that apply to you. To the extent any dispute regarding us or our Service isn’t arbitrable under applicable laws or otherwise, we both agree that the dispute will be resolved exclusively in accordance with the remainder of these Terms. If you’re a consumer in the EEA, Section 12 doesn’t apply to you.

13. CLASS ACTION WAIVER; JURY TRIAL WAIVER

You and we each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, collective, consolidated, private attorney general, or representative action. You and we agree to waive any right to bring or to participate in such an action in arbitration or in court to the fullest extent allowable by applicable law. Notwithstanding the foregoing, the parties retain the right to participate in a class-wide settlement. To the fullest extent permitted by law, you and we waive any right to a jury trial.

14. THIRD PARTIES

14.1 Third-Party Payment Service Provider. We use a few different third-party service providers to process payment for the Service (e.g., card acceptance, merchant settlement, and related Service) (“Third-Party Payment Service Providers”). By using the Service, you authorize us to share the information and payment instructions you provide with our Third-Party Payment Service Providers to the extent necessary to complete your transactions.

14.2 Third-Party Providers. Certain products and features of the Service are provided by third parties (“Third-Party Providers”), like the Telehealth Service. In order to use these products and features, you may be required to enter into additional terms and conditions with our Third-Party Providers. This Agreement applies only to the Service, so any interactions between you and a Third-Party Provider is solely between you and them. Make sure to review their policies before taking advantage of those products and features.

14.3 App Stores. With respect to any Noom application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. With respect to any application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the application on a shared basis within your designated family group. Additionally, the following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

(a) You acknowledge and agree that (i) this Agreement is concluded between you and us only, and not Apple, and (ii) we, not Apple, are solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between us and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of us.

(d) We and you acknowledge that, as between us and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

(e) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between us and Apple, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

(f) We and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(g) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

15. GENERAL PROVISIONS

15.1 Effective Date. These Terms go into effect on the date published below and remain in full force while you use the Service, unless the Agreement terminated.

15.2 Force Majeure. We are not liable for any delay or failure to perform resulting from causes outside its reasonable control.

15.3 Assignment. These Terms, and any rights and licenses granted under them, may not be transferred or assigned by you, but may be assigned by us without restriction. If you’re a consumer in the EEA, either you or we may assign this Agreement, and any rights and licenses granted under it, to a third party. In those cases, if we assign the Agreement, you are entitled to terminate the Agreement with immediate effect by deactivating your account. We will provide you with reasonable notice of any such assignment.

15.4 Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State of New York, without respect to its conflict of laws principles. If you are not a consumer in the EEA, you irrevocably consent to the exclusive jurisdiction of the federal and state courts in New York County, New York over any disputes (except for disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of the Section 12 or any of its parts. You and we consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If you are a consumer in the EEA, this won’t deprive you of any protection you have under the law of the country where you live and access to the courts in that country.

15.5 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language. C’est la volonté expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.

15.6 Notice. When you sign-up for the Service, we ask that you provide your current email address. In the event that your email address is not valid, or for any reason is not capable of delivering to you, any email we send to you with notice will nonetheless constitute effective notice.

15.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.8 Severability. Except as provided in Section 12 (DISPUTE RESOLUTION), if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the original intention of the parties. The remaining portions shall remain in full force and effect.

15.9 Export Control; Sanctions Compliance. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Noom products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations.

15.10 California Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

15.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement between you and us concerning the Service. In the event of any conflict between these Terms and any supplemental terms applicable to a Service offering, these Terms will control.

CONTACT US

The best way to get in touch with us is by emailing support@noom.com or at

Noom, Inc.
450 W. 33rd. St., 11th Floor
New York, NY 10001.

Updated December 11, 2023.