EverSleep | Terms of Service

TERMS OF SERVICE

Monthly Subscription Agreement Terms and Conditions

PLEASE CAREFULLY REVIEW THE FOLLOWING END USER LICENSE AGREEMENT OF Somno Health Inc. SOFTWARE CORPORATION (HEREINAFTER “Promethean”) AND ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN SUBSCRIBER AND Somno Health Inc. (AS DEFINED BELOW). THIS AGREEMENT EXPRESSLY INCORPORATES ANY AND ALL TERMS OF USE THAT REFERENCE THIS AGREEMENT. THIS AGREEMENT GOVERNS ALL USE OF Somno Health Inc. RANGE OF SERVICES, SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, BOTH ONLINE AND OFFLINE.

BY CLICKING “SUBSCRIBE” AT CHECKOUT, OR BY DOWNLOADING OR OTHERWISE USING THE SOFTWARE OR SERVICES, SUBSCRIBER CONSENTS TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER SHALL IMMEDIATELY STOP USING THE SERVICES AND / OR SOFTWARE.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY TERMS OF USE, THE TERMS OF THIS AGREEMENT SHALL PREVAIL AND CONTROL.

Somno Health Inc. may modify the terms of this Agreement from time to time and shall post the most current version at https://www.getEverSleep.com/terms-and-conditions; it is Subscriber’s responsibility to monitor and stay informed of any changes that Subscriber’s continued use of the Services following modification of this Agreement shall constitute and Subscriber herewith consents to be bound by the modified Agreement. The Software, Hardware, and other Services are licensed and not sold. During a Subscription Period and subject to the due payment by Subscriber and receipt by Somno Health Inc. of all due and payable Subscription Fees, Somno Health Inc. grants Subscriber a revocable, limited, non-transferable, non-exclusive license to access and use of Somno Health Inc. Hardware, Software and other Services as defined by the specific subscription options selections chosen by the Subscriber at checkout.

Subscriber agrees to subscribe to the services that they have selected on a monthly basis commencing on the initial subscription date at the monthly subscription rate for the selected services until Subscriber completes the following:

Written notice, email accepted, of desire to end Subscription.
Obtain a Return Authorization Number
Return all hardware, that was part of the subscription, device, charger, cable, etc.
If hardware is not available or has been damaged beyond normal wear and tear a hardware replacement charge of $100.00 will be charged to your account and then the Subscription will be terminated. Note: If the Subscriber desires to continue the Subscription and would like replacement hardware a $100.00 replacement charge will be charged to the Subscriber’s account.

Somno Health Inc. reserves the right to increase my “Subscription Price per Month” subscription rate upon written notice to Subscriber given not less than sixty (60) days prior to the effective date of such increase. Subscription Fees are non-refundable if Subscriber cancels or if the Subscription is terminated for cause. I UNDERSTAND THAT AN ACTIVE SUBSCRIPTION IS REQUIRED IN ORDER TO USE THE SOFTWARE, HARDWARE, SERVICES, AND TO OBTAIN TECHNICAL SUPPORT, INCLUDING, BUT NOT LIMITED TO, REGISTRATION, RE-REGISTRATION AND AUTHORIZED TRANSFER BY LICENSEE OF THE SOFTWARE TO ANOTHER DEVICE.

Monthly Subscription Agreement Terms and Conditions updated 10/22/2019. These Terms and Conditions supersede any previous Terms and Conditions.

TERMS AND CONDITIONS

SomnoHealth, Inc., for the purpose of this document also referred to as EverSleep, designs products and applications that track sleep and health to give you information to improve your own sleep and quality of life.

These Terms of Service (“Terms”) govern your use of our personal sleep and health monitoring products, our websites, including www.getEverSleep.com, the software embedded in SomnoHealth devices, the EverSleep wearable monitor, the EverSleep mobile applications, and other SomnoHealth products (collectively, “EverSleep”).

You must accept these Terms to create an EverSleep account and to use EverSleep. These Terms (“Terms”) are a binding agreement between you and SomnoHealth, Inc. (“EverSleep”) governing the use of the associated products, applications, and websites, including the EverSleep wearable device and mobile application, any websites owned and/or controlled by or on behalf of EverSleep for marketing as well as support of EverSleep’s associated cloud service.

IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN EVERSLEEP ACCOUNT, DO NOT VISIT WWW.GETEVERSLEEP.COM, and DO NOT USE EVERSLEEP.

Terms

These Terms are subject to change over time. The app is licensed to you, not sold, and you may only use EverSleep as set forth in these Terms. The use of EverSleep may be subject to third party terms of service and fees, including your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.

If we make minor changes to the Terms without materially changing your rights, we will post the modified Terms on www.getEverSleep.com. We will notify you by email, through EverSleep, or by presenting you with a new Terms of Service to accept if we make a modification that materially changes your rights. If you use EverSleep after a modification is posted, you are accepting the modified terms.

IMPORTANT: EVERSLEEP IS NOT A FDA CLEARED MEDICAL DEVICE AND DOES NOT CLAIM TO DIAGNOSE, TREAT, OR CURE ANY DISEASE.

ALWAYS TALK TO YOUR PHYSICIAN BEFORE STARTING A SLEEP IMPROVEMENT PROGRAM OR ANY OTHER HEALTH PROGRAM.

If you think you have a sleep disorder or other medical illness, consult your health care provider for diagnosis and treatment.

Who Can Use EverSleep?

The EverSleep device and application is recommended for adults ages 18-80. You must be at least 18 years of age and not barred from receiving services under any applicable law to create an account for any EverSleep or SomnoHealth product, service, or application. Children under the age of 18, or those mentally or physically infirm, may not use EverSleep without the express consent and supervision of a parent or legal guardian.

You may connect to the EverSleep app or web service only using an EverSleep wearable device that is manufactured, distributed, sold, or subscribed by or on behalf of SomnoHealth, Inc.

You may not connect to the EverSleep app or web service using any wearable device that is not manufactured, distributed, or sold by or on behalf of SomnoHealth, Inc. (such as a copy or counterfeit version of an EverSleep Product); otherwise intends to resemble or purports to be an EverSleep Product; or any unauthorized application or-third party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access EverSleep.

If you have questions about whether a product or application qualifies as an Authorized Connection, please contact support@getEverSleep.com.

Creating an Account

We may need to contact you with important information about your use of EverSleep. These communications are part of EverSleep, and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications.

Necessary Equipment

Full use of EverSleep is dependent upon your use of a supported mobile device and internet access. The maintenance and security of this equipment may influence the performance of EverSleep, and it is your responsibility to ensure the equipment’s functionality.

What You Can Do with EverSleep

EverSleep is intended for personal, non-commercial use.

EverSleep grants you a license that is: limited, non-exclusive, non-transferable, and non-sub-licensable, to

1. access and view the EverSleep content,

2. access and use the software and mobile applications provided by EverSleep, and

3. use the software that is embedded into EverSleep products as authorized in these Terms. This license is provided solely for your personal use and enjoyment of EverSleep as permitted in these Terms.

WHAT You Cannot Do WITH EverSleep

You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit EverSleep or SomnoHealth, Inc.’s content, products and applications, or any portion thereof, except as expressly permitted in these Terms.

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by EverSleep or its licensors, except for the licenses and rights expressly granted in these Terms.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using EverSleep:

1. use, display, mirror, or frame EverSleep or any individual element within EverSleep, EverSleep’s name, any EverSleep or SomnoHealth trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without EverSleep’s express written consent

2. access or tamper with non-public areas of EverSleep, SomnoHealth’s computer systems, or the technical delivery systems of SomnoHealth’s providers

3. test the vulnerability of any EverSleep system or breach any security or authentication measures

4. circumvent any technological measure implemented by SomnoHealth or any of SomnoHealth’s providers or any other third party (including another user) to protect EverSleep or EverSleep content

5. access EverSleep or EverSleep content using any mechanism other than through the use of an Authorized Connection, or

6. modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that EverSleep provides to you or any other part of EverSleep.

Our Enforcement Rights

We are not obligated to monitor access or use of EverSleep, EverSleep content, or to review or edit any EverSleep content, but we have the right to do so for the purpose of operating EverSleep, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements.

We may consult with and disclose unlawful conduct to law enforcement authorities, and we may cooperate with law enforcement authorities when requested. We reserve the right (but are not required) to remove or disable access to EverSleep at any time and without notice, and at our sole discretion, if we determine that your use of EverSleep is in violation of these Terms. We may investigate violations of these Terms and any conduct that impacts EverSleep.

Use EverSleep At Your Own Risk

SomnoHealth Inc. aims to provide helpful information with EverSleep, but we make no endorsement, representation, or warranty of any kind about any EverSleep content, information, services, third-party product, or recommendations.

We make no warranty regarding the quality, accuracy, timeliness, completeness, or reliability of EverSleep or any EverSleep content. You acknowledge and agree that if you rely on any EverSleep content or EverSleep, you do so solely at your own risk.

The accuracy of the data collected and presented by EverSleep is not intended to match that of medical or scientific measurement devices.

EverSleep is not intended to diagnose, treat, cure, or prevent any disease.

Always talk to your physician before starting a sleep improvement program or any other health program.

If you have a sleep disorder, heart condition, or other medical problems, consult your doctor before using EverSleep and EverSleep content.

If you experience a medical emergency, stop using EverSleep and consult with a medical professional. We are not responsible for any health problems that may result from recommendations, coaching, tips, products, or programs you learn about through EverSleep. If you engage in any activity, product use or remedy you receive from or learn about through EverSleep, you agree that you do so at your own risk and are voluntarily participating.

We are not responsible for the accuracy, reliability, or correct use of information you receive through EverSleep. If you rely on any EverSleep content, you do so solely at your own risk.

Keep your device clean and apply the wrist monitor and finger sensor as directed, taking care not to wear either too tight. If you feel soreness, tingling, numbness, burning or stiffness in your hands or wrists while or after wearing the product, please discontinue use.

Feedback And Submissions Policy

If you submit comments or ideas, you agree that we can use them without restriction and without compensation to you. We do not waive any rights to use similar or related information previously known to us, developed by EverSleep, or obtained from sources other than you.

Alerts And Notifications

As part of your use of EverSleep, you may receive notifications, alerts, or other electronic correspondence. You agree to the receipt of these communications. You can control receipt of non-service-related communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier.

Third-Party Links And Services

EverSleep contains links to third-party websites, apps, products, services and resources (collectively “Third-Party Services”) that are not under EverSleep’s control. We provide these links only as a convenience and are not responsible for the content, products, apps, resources, or services that are available from Third-Party Services.

We not responsible for privacy policies and/or practices used by Third-Party Services. We strongly advise you to read the privacy policies stated for any Third-Party Service linked by EverSleep.

You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.

Changes To EverSleep Product And Applications

EverSleep may change or discontinue, temporarily or permanently, any feature or component of EverSleep at any time without notice. EverSleep is not liable to you or to any third party for any modification, suspension or discontinuance of any feature or component of EverSleep. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by EverSleep products without prior notice to you.

Termination

If you violate these Terms, we reserve the right to deactivate your account or terminate your rights under these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your content and other information related to your account. Upon any termination, discontinuation or cancellation of EverSleep or your account, these Terms will still apply.

Disclaimer of Warranties

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

EVERSLEEP PRODUCTS AND APPLICATIONS ARE PROVIDED “AS IS,” AND SOMNOHEALTH INC. MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE EVERSLEEP PRODUCTS AND APPLICATIONS (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED BY SOMNOHEALTH INC., OR OTHERWISE ARISING UNDER THIS AGREEMENT.

SOMNOHEALTH INC. DOES NOT WARRANT THAT ERRORS CAN BE CORRECTED, OR THAT OPERATION OF EVERSLEEP SHALL BE UNINTERRUPTED OR ERROR FREE.

Limitations And Indemnities

SOMNOHEALTH’S MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL BE IN THE AGGREGATE OF AND LIMITED TO THE TOTAL PRICE THAT YOU ACTUALLY PAID TO SOMNOHEALTH FOR THE EVERSLEEP DEVICE.

IN NO EVENT SHALL SOMNOHEALTH, ANY PARENT, SUBSIDIARY, AFFILIATE, OR LICENSOR, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SHAREHOLDERS, OR REPRESENTATIVES, BE LIABLE TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND; OR TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL RELATED TO OR ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OF EVERSLEEP OR RESULTING FROM OR IN CONNECTION WITH SOMNOHEALTH’S DEFAULTS HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE EVERSLEEP OR OTHER PRODUCTS OR SERVICES HEREUNDER; REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SOMNOHEALTH HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF ANY EXCLUSIVE REMEDY.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN EVERSLEEP AND YOU.

Dispute Resolution

You agree that any dispute between you and EverSleep arising out of or relating to these Terms of Service, EverSleep, or any other EverSleep products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

Governing Law: The Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Colorado without regard to its conflict of laws principles.

Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against EverSleep, you agree to try to resolve the Dispute informally by contacting support@getEverSleep.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 60 days after submission, you or EverSleep may bring a formal proceeding.

READ THE FOLLOWING PARAGRAPH CAREFULLY:

You and SomnoHealth agree to arbitrate any dispute arising from the Terms or relating to the App, except that you and SomnoHealth are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.

ARBITRATION PREVENTS YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.

Arbitration: Any controversy or claim arising out of or relating to this TERMS OF SERVICE, or the breach hereof, shall be settled by arbitration in accordance with the rules, then obtaining, of the American Arbitration Association. You and SomnoHealth agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal dispute resolution prior to demand for arbitration. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Colorado, without regard to its rules governing conflicts of laws. The parties’ consent to the exclusive jurisdiction of the courts of the State of Colorado in Jefferson County, and the United States District Court, for the aforementioned county, and waive any contention that any such court is an improper venue for enforcement of this Agreement. Other than class procedures and remedies discussed below the arbitrator has the authority to grant any remedy that would otherwise be available in court. Whether the dispute is heard in arbitration or in court, you and SomnoHealth will not commence against the other in a class action, class arbitration, or other representative action or proceeding.

Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the EverSleep products or applications must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

General Terms

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between EverSleep and you regarding EverSleep, and these Terms supersede and replace any and all prior oral or written understandings or agreements between EverSleep and you regarding EverSleep and EverSleep content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without EverSleep’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. EverSleep may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by EverSleep under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to EverSleep. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

EverSleep’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of EverSleep. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Additional Terms May Apply

Additional terms may apply to certain products or services. If there is a conflict between these Terms and any additional terms, the additional terms will control.

Please contact us if you have any questions about these terms.

SomnoHealth Incorporated

Golden, CO USA

support@getEverSleep.com

DATE OF LAST UPDATE: 2017 OCTOBER 30

IMPORTANT: EVERSLEEP IS NOT A MEDICAL DEVICE AND DOES NOT CLAIM TO DIAGNOSE, TREAT, OR CURE ANY DISEASE.

ALWAYS TALK TO YOUR PHYSICIAN BEFORE STARTING A SLEEP IMPROVEMENT PROGRAM OR ANY OTHER HEALTH PROGRAM.

If you think you have a sleep disorder or other medical illness, consult your health care provider for diagnosis and treatment.

Terms and Conditions updated 10/22/2019. These Terms and Conditions supersede any previous Terms and Conditions.