Please read these Terms carefully before accepting, and/or before downloading or installing or using the Licensed System. By clicking on the “I accept” (or similar consent) button or downloading, installing or using all or any portion of the Licensed System, you are accepting all of the Terms and conditions of this agreement.
If you do not agree to all of these terms and conditions, do not click to accept or otherwise download, install or use the System.
1.1. “Application” means the “SleepRate” application, a mobile application that collects heart rate data, transmitted through the Hardware, and provides tools to monitor Your sleep. SleepRate reserves the right to add, change, remove, and/or modify the Application, including modifications to functionality, look and feel, and companion products without providing prior notification.
1.2. “Effective Date” means the date on which you completed the purchase of the applicable Subscription to the Services.
1.3. “Hardware” – means a device that functions as a heart rate monitor and which connects wirelessly or through Antenna and other technology connectors to your mobile device, providing real time heart rate data.
1.4. “Licensed System” means the Application and the Services. SleepRate reserves the right to add, change, remove, and/or modify the Licensed System and any part thereof, including modifications to functionality, look and feel, tools and the presentation, as well as any Hardware requirements.”Services.” The Services are online (internet and mobile) provided services in which data collected via the Application are analyzed by the proprietary SleepRate heart rate analysis technology.
1.5. “Extract Information” to extract information about your sleep, and provide statistics (such as REM, deep sleep, and arousals data) (the “Monitoring” services) and, if You purchase the applicable Package (as defined in the Terms), provide insights, alerts or recommendations based on the collected data ( the “Checkup” Services), as well as any other services developed, operated, and maintained by SleepRate, accessible via the Website or any other designated partner website, service names, domains or IP address and/or any ancillary online or offline products and services provided to You by SleepRate, to which You are being granted access under these Terms.
2. Subscription Terms, Fees, and Payment.
2.1. Subscriptions. There are several variations/packages of the Licensed System that You may subscribe to, which may defer by their term, scope of Services (with or without Monitoring, Checkups, frequency thereof, etc.), price etc., all as detailed in http://store.mysleeprate.com (“Subscription(s)”). SleepRate is entitled to change, modify, amend and recreate the Subscriptions, without prior notice.
2.2. Subscription Term and Fees. Each Subscription expires at the end of the applicable Subscription Term, unless renewed by You. You shall pay the fees for each Subscription as specified at the time of purchase of such Subscription from SleepRate. The Subscription fee for any additional Subscription will be according to SleepRate’s then-current Subscription fee.
2.3. Payment Terms. You shall pay all fees upon purchase of the Subscription. All payments are non-refundable. You shall be responsible for all taxes, withholdings, duties and levies arising from Your purchase of the Subscription to the Licensed System (excluding taxes based on the net income of SleepRate ). The fees are published on the Website at [http://store.mysleeprate.com]. SleepRate reserves the right to modify the fees at any time, without prior notice; however, such new prices shall not apply for Subscriptions made before the price change.
2.4. Nonpayment. In addition to other remedies available to it, SleepRate expressly reserves the right to suspend or terminate Services and notify You of such termination or suspension, in the event You fail to pay the Fees in a timely manner. You further agree and acknowledge that SleepRate has no obligation to retain your Personal Information and that it may be deleted from the Service if Your Subscription has expired and you have not renewed or purchased a new Subscription.
3. Grant of License.
Subject to all of the terms and conditions of this Agreement, when you purchase a Subscription, upon completion of the subscription process and in consideration of the payment therefore, you are granted, as of the Effective Date, a non-transferable, non-sub licensed, non-exclusive, limited, and revocable license to (i) download the Application and use the Application and Services included in the selected Subscription, for Your own private use, in accordance to the terms and conditions set forth in this Agreement and during the term of such Subscription or any renewal thereof (“Subscription Term“); and (ii) during the Subscription Term, SleepRate shall provide You with updates and/or enhancements made generally available to customers from time to time, and online e-mail support, as applicable.
4. Restrictions on Use and License.
You agree not to, or attempt to (or permit other third parties to): (i) decipher, reverse engineer, de-compile, disassemble or otherwise disintegrate or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Licensed System, by any means whatsoever; (ii) copy, adapt, translate, modify, change, create any derivative work of the Licensed System or any portion thereof; (iii) remove any copyright or other proprietary notices from the Licensed System or any part thereof; (iv) test the Licensed System or use the Licensed System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public, without SleepRate’s prior written approval; (v) (i) or disclose your user name and password to others (ii) or allow anyone other than You, directly or indirectly, use the Services with your user name and password; (vi) make copies of the Licensed System or any portions thereof; (vii) use the Licensed System in a manner that is not in compliance with SleepRate’s specific instructions. You are aware and agree that SleepRate is entitled, at its sole discretion, and without prior notice, to restrict and/or block your use of the Services, in the event that your use of the Services or the Website does not comply with the provisions of these Terms, without any remedy to you.
5. Title and Intellectual Property .
All rights title and interest in and to the Licensed System, including any revisions, corrections, modifications, enhancements and/or updates or upgrades thereto and including any and all associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, patents etc., whether registered or not), evidenced by or embodied in and/or attached/connected/related to the Licensed System, are and shall remain SleepRate’s sole property protected under any applicable laws and treaties, worldwide. This Agreement does not convey to You an interest in or to the Licensed System or any portion thereof, but only a limited right of use of the Licensed System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of SleepRate’s intellectual Property rights under applicable law.
6. Third Party Services.
7. Use of Information.
7.1. Private Information. You may be required to provide certain details about yourself including personal information (such as – name, age, gender, weight, height, working hours, billing address, shipping address, contact information, and more), and some information is automatically collected by using the Licensed System and the Hardware (such as – heart rate, duration of sleep cycles, etc, all the foregoing “Personal Information“) – all for the purpose of establishing a Subscription as well as for the purpose of providing you the Service and for Your use of the Licensed System; You agree and undertake that all such information provided by You through the Service on registration or at any time are correct and complete and You undertake to inform SleepRate immediately of any changes to any such information. SleepRate does not keep or save any payment information, which is relayed to third parties for processing of payments, under the terms and conditions provided by such payment-processing third parties.
7.3. Confidentiality of Access Information. Subject to the terms and conditions herein, SleepRate shall provide you with a user name and you shall generate your own password for the use of the Licensed System. You hereby warrant and undertake that any access information to your Subscription will be kept safe, secure and confidential at all times and You shall not disclose or share such access information with any third Party. You hereby release SleepRate from any and all liability for any losses and/or damages caused by your breach of the foregoing undertaking and You assume and undertake full liability for any such losses and/or damages.
7.5. Non Disclosure of Private Information. SleepRate agrees that it shall not disclose to any person or entity, any Personal Information concerning You, without verbal or written permission from You, except for internal and auditing purposes. However, SleepRate may use, at its sole discretion, any anonymous, statistical and non identifying information, even if extracted from or based upon Personal Information. SleepRate takes reasonable precautions to secure any Personal Information, but please note that it is not possible to guarantee the security of transmissions over the Internet, so when using the Website, we urge you to exercise appropriate discretion.
8. Third Party Information.
The Services may contain data, information, and/or files provided to SleepRate by third parties applications and systems (“Third Party Information”). SleepRate uses such Third Party Information as is, and assumes the accuracy and completeness of such Third Party Information while employing its services through the System. SleepRate has no control over and assumes no responsibility as to the content of the Third Party Information and/or to the results of the Licensed System and/or its Services that are based on such Third Party Information. By using the Licensed System, you expressly relieve SleepRate from any and all liability arising from the use of such Third Parties Information and/or reliance thereon by employing the System. For the avoidance of doubt, Third Party Information includes information generated and collected by the Hardware.
9. Access to Your Account.
From time to time, SleepRate’s support team may access Your account to provide the Services and/or maintenance and/or support/customer care for Your account. Such access may be per Your specific request and/or as a proactive action by SleepRate customer service team to ensure the proper operation of the Licensed System provided to You.
10. Term of Agreement.
10.1. Term and Termination. This Agreement is effective as of or the date upon which You have subscribed through the Service (the “Effective Date“) and until the end of the Subscription Term (the “Term“), or until terminated by SleepRate. Upon the end of the Term, provided that, You have not renewed your Subscription, and paid the applicable fees, Your license to the Services provided herein shall be automatically terminated and You shall not have access to your account. Upon any violation by You of any of the provisions of this Agreement, which have not been remedied within the time specified in a written notice, after you have been given such written notice of the violation, which may be made via e-mail, rights to use the Licensed System shall automatically terminate.
10.2. You may notify SleepRate of termination of this Agreement at any time. However, upon termination you will no longer have access to your account and to the Application or Services; You shall not be relieved from Your obligation to pay any Subscription Fees for the duration of the term to which You have subscribed.
10.3. SleepRate may at any time terminate the Services and discontinue the Subscription and the license of the Licensed System, under its sole discretion. In the event that SleepRate does so, it shall not continue to charge the Subscription fees for the remainder of the Subscription Term.
10.4. Effects of Termination. Upon expiration or termination of this Agreement for any reason. Your access to your account shall be blocked, and you will not be able to use the Application or the Services. The provisions of paragraphs 1, 4, 5, 6 7, 8, 10, 11, 12 and 13 will survive any termination of this Agreement.
11. Warranty, Disclaimers and Limitations.
11.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTY OF ANY KIND WITH RESPECT TO THIRD PARTY PRODUCTS AND SERVICES, AND THIRD PARTY INFORMATION, IS PROVIDED BY SLEEPRATE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONSULTANTS, AGENTS AND AFFILIATES (“SLEEPRATE INDEMNITIES”), HEREUNDER AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT THERETO, ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, IT IS HEREBY AGREED AND UNDERSTOOD THAT ANY WARRANTY WITH RESPECT TO THE HARDWARE, IF EXISTS, SHALL BE PROVIDED BY THE MANUFACTURER OR VENDOR OF THE HARDWARE, UNDER THE TERMS AND CONDITIONS PROVIDED BY SUCH MANUFACTURER OR VENDOR, EVEN IF THE HARDWARE WAS PURCHASED BY YOU THROUGH SLEEPRATE, DURING YOUR SUBSCRIPTION.
11.2. SLEEPRATE AND SLEEPRATE INDEMNITIES MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE LICENSED SYSTEM, AND/OR THE WEBSITE, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE AND/OR REGARDING ANY RESULTS AND OUTCOMES OF THE USE THEREOF. SLEEPRATE DOES NOT WARRANT THAT YOUR USE OF THE LICENSED SYSTEM OR THE WEBSITE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT IT SHALL FIT YOUR INTENDED USE; OR THAT IT SHALL PROVIDE YOU ANY BENEFIT.
11.3. SLEEPRATE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, MALFUNCTIONS AND THE LIKE, OR INACCURACIES OF THIRD PARTY PRODUCTS OR SERVICES, (II) PERSONAL INJURY, ANY HEALTH CONDITION, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE LICENSED SYSTEM OR WEBSITE (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SLEEPRATE’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY OR YOU.
11.4. SLEEPRATE DENIES ANY WARRANTY OR ANY GUARANTEE WITH RESPECT TO THE RELIANCE UPON THE LICENSED SYSTEM AND ANY INFORMATION PROVIDED TO YOU AS PART OF THE SERVICES THERE UNDER THE USE OF THE LICENSED SYSTEM IS FOR GENERAL INDICATIVE PURPOSES AND IT IS NOT INTENDED TO PROVIDE ANY MEDICAL DIAGNOSIS, OR TO SERVE AS AN AID FOR MEDICAL DIAGNOSIS, OR TO PROVIDE ANY MEDICAL ADVICE, OR TO RECOMMEND ON ANY TREATMENT OR OTHER MEDICAL PROCEDURE. ANY INFORMATION PROVIDED TO YOU THROUGH THE SERVICES, EVEN IF IN THE FORM OF ADVICE OR RECOMMENDATION, SHOULD NOT BE REGARDED AS MEDICAL OR OTHERWISE QUALIFIED ADVICE, AND YOU SHOULD IN ANY CASE CONSULT WITH A QUALIFIED PHYSICIAN OR OTHER PROFESSIONAL CONSULTANT AS THE CASE MAY BE. IN NO EVENT SHALL THE INFORMATION GENERATED BY THE SYSTEM SUBSTITUTE MEDICAL DIAGNOSIS AND TREATMENT MADE BY CERTIFIED AND QUALIFIED, ACCORDING TO APPLICABLE LAW, PROFESSIONALS. NEITHER SLEEPRATE NOR ANY OF SLEEPRATE INDEMNITIES SHALL BE HELD LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES CAUSED TO YOU DUE TO RELIANCE ON THE LICENSED SYSTEM AND ANY SERVICES PROVIDED THERE UNDER OR DUE TO ANY MEDICAL DIAGNOSIS OR TREATMENT MADE OR PROVIDED TO YOU BASED ON THE INFORMATION GENERATED FROM THE LICENSED SYSTEM. ANY USE OR RELIANCE ON THE INFORMATION GENERATED BY THE LICENSED SYSTEM IS MADE AT YOUR OWN RISK AND YOU HEREBY RELEASE SLEEPRATE FROM ANY WARRANTY OR LIABILITY THERETO.
11.5. SLEEPRATE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE LICENSED SYSTEM OR THE WEBSITE. SLEEPRATE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR OR IN ANY WAY LIABLE IN CONNECTION WITH ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PRODUCTS OR SERVICES PROVIDERS. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
12. Limitation of Liability.
12.1. YOU HEREBY AGREE THAT IN NO EVENT SHALL SLEEPRATE OR SLEEPRATE INDEMNITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF SLEEPRATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND SLEEPRATE.
12.2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SLEEPRATE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT SLEEPRATE RECEIVED FROM YOU FOR THE SUBSCRIPTION GIVING RISE TO THE ALLEGED LIABILITY, YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT SLEEPRATE WOULD NOT PROVIDE YOU WITH LICENSE TO USE THE LICENSED SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT.
SleepRate may make changes to the Terms from time to time. When these changes are made, SleepRate will make a new copy of the Terms available at https://www.sleeprate.com/terms-of-use. You understand and agree that if You use the Licensed System after the date on which the Terms have changed, Your use of the Licensed System shall be construed as acceptance of the updated Terms. If there is any contradiction between the Terms of this Agreement and the updated Terms published at https://www.sleeprate.com/terms-of-use then the updated Terms shall take precedence in relation to the Licensed System. This English version of the Terms shall supersede in any case of conflict between these terms and any translation thereof. These Terms or the updated version thereof shall constitute the entire agreement between You and SleepRate with respect to the Licensed System. (i) Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect; (ii) Notices and Reports. Any notice or report hereunder shall be in writing to the notice address provided by either party to the other and shall be deemed given: (a) upon personal delivery to the recipient by hand delivery or a nationally recognized overnight courier (e.g., Federal Express); (b) when sent by confirmed facsimile if sent during normal business hours of the recipient, or if not, then on the next business day; (c) five (5) days after having been sent by registered or certified airmail, return receipt requested, postage prepaid; or (d) one (1) business day after having been sent by email message; (iv) Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.