Terms and Conditions for Sleepme Inc. Products and Services
Last Updated: September 23, 2022
1. Relationship between you and Sleepme Inc. (“Sleepme”).
1.1 By using Sleepme Products and Services, including the Website, the Applications, the Products, the Services, the API or any other services provided by Sleepme (hereinafter the “Products and Services”) you expressly confirm your agreement to the following Terms and Conditions for Sleepme Inc. Products and Services (“Sleepme Terms and Conditions”).
1.2 Sleepme Terms and Conditions are binding and form a contract between you and Sleepme. Any breach, or suspected breach, by you of the Sleepme Terms and Conditions will entitle Sleepme to terminate your access to, and use of, the Products and Services. Sleepme shall include all Sleepme affiliates as described in each of the following documents (hereinafter “Sleepme” or “We”). Any reference to a particular affiliate of Sleepme shall be enforceable for the specific condition into which such affiliate is your contractual partner. These Sleepme Terms and Conditions supersede any other document of the Sleepme Terms and Conditions concerning its purpose.
1.3 The Sleepme Terms and Conditions are composed of:
(b) the Sleepme Website Terms and Conditions.
In addition to the documents and policies referenced above, our Sleepme products, as detailed in the user guides associated with our various products (each, a “Product” and together, the “Products”) must be used in accordance with the user guides attached to, or provided with, our Products.
1.4 As a user of the Products and Services, you acknowledge and guarantee:
(a) That you have obtained and read a copy of the Sleepme Terms and Conditions;
(b) That you are in possession of the Sleepme Terms and Conditions on a durable media (for example by printing them out). “Durable Media” means any instrument which enables you to store information addressed personally to you in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored; and
(c) To be of age required or otherwise authorized under the law of your country of residence to commit yourself to be bound by, and subject to, the Sleepme Terms and Conditions.
1.5 Any objection to these Sleepme Terms and Conditions will be interpreted as a refusal to agree to these Sleepme Terms and Conditions. IF YOU DISAGREE WITH THESE SLEEPME TERMS AND CONDITIONS YOU ARE NOT PERMITTED TO USE ANY SLEEPME PRODUCTS OR SERVICES. ANY VIOLATION OR ATTEMPTED VIOLATION OF THESE SLEEPME TERMS AND CONDITIONS MAY RESULT IN THE IMMEDIATE TERMINATION OF YOUR ABILITY TO ACCESS THE WEBSITE, APPLICATIONS AND THE SLEEPME SERVICES.
2. Modification of the Sleepme Terms and Conditions
2.1 It is understood and agreed between the parties that Sleepme keeps the right, in any case, to modify all or part of the Sleepme Terms and Conditions to reflect changes to the law or any applicable regulation, changes to our Products and Services, or any event which is deemed sufficient by Sleepme to command such revisions. Any new version of the Sleepme Terms and Conditions will not apply retroactively but replaces and supersedes all previous versions of the Sleepme Terms and Conditions. We advise you to frequently consult the Sleepme Terms and Conditions and to save each version on Durable Media.
3. General provisions
3.1 Force Majeure Any event that is deemed at once unforeseeable, insurmountable and external and thereby prevents us from fulfilling our obligations under these Sleepme Terms and Conditions is considered an event of Force Majeure (“Force Majeure Event”). The following events are especially considered as non-exclusive examples of Force Majeure Events: strikes, flood, fire, lock-outs, disruption and distractions in transport services, supply difficulties in raw material or energy, and any communication interference resulting in any difficulty to fulfil any order or perform any act required by the Sleepme Terms and Conditions. For so long as a Force Majeure Event is in existence, as determined in the sole discretion of Sleepme shall not be responsible for any act, or failure to act, in accordance with the Sleepme Terms and Conditions, to the extent such action or failure to act is reasonably related to such Force Majeure Event. The performance of such act shall be continued as promptly as is commercially reasonable once the cause of the Force Majeure Event ceases.
3.2 Entire Agreement This version of the Sleepme Terms and Conditions constitutes the entire agreement between you and us and cancels, excludes and replaces any previous conditions in its subject matter. You acknowledge that other documents of the Sleepme Terms and Conditions may also apply to you when you are subject to these Sleepme Terms and Conditions.
3.3 Severability If any provision of the Sleepme Terms and Conditions is held invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable part or provision will be deemed as unwritten.
3.4 Waiver Any failure to exercise or delay in exercising any right, power or privilege under the Sleepme Terms and Conditions shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
3.5 Evidence – Electronic communication Any notification and communication between Sleepme and you can be realized by any electronic means of communication, including email. You hereby grant us your express consent for sending you by electronic means of communication any notification through your Sleepme account.
3.6 Governing law These Sleepme Terms and Conditions and all any action related thereto shall be governed, controlled, interpreted by and construed in accordance with the laws of the State of North Carolina (USA) without regard to principles of conflict of laws.
3.7 Dispute Resolution Any dispute, claim or controversy arising out of or relating to these Sleepme Terms and Conditions or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Sleepme Terms and Conditions to arbitrate, shall be determined by arbitration rather than in court. The Federal Arbitration Act and federal arbitration law apply to these Sleepme Terms and Conditions. The arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to its Streamlined Arbitration Rules and Procedures then in effect. The arbitration will be conducted on an individual basis – class arbitrations and class actions are not permitted-- in the City of Raleigh, County of Wake, State of North Carolina, using the English language, by one arbitrator who shall be selected from the appropriate list of JAMS arbitrators. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
3.8 Indemnification Upon our request, you agree to indemnify, defend, and hold us and our suppliers harmless from and against any and all losses, liabilities, damages, and costs, including, but not limited to, legal fees, expert witness fees, and court costs, arising from any claim, action, or demand related to or alleged to relate to: (a) your or any other person’s use or misuse of the Services, the Products, the Website, the API, or the Applications related to the Services or Products purchased by you; (b) violation of these Sleepme Terms and Conditions by you or another user of your Account, or the Products or Services purchased by you; (c) violation of the rights of any third party by you or any person using the Services, the Products, the Website, the API or the Applications related to the Services or Products purchased by you; (d) violation of any applicable law, rule, or regulation in connection with your or any other person’s use of the Services, the Products, the Website, the API, or the Applications related to the Services or Products purchased by you; (e) any other person’s use of the Services, the Products, the Website, the API or the Applications related to the Services or Products purchased by you, including, without limitation, disclosure of any information or the Data concerning any other user thereof; or (f) your failure to timely inform us that you are transferring possession or otherwise disposing of the Services or Products purchased by you. We reserve the right to assume control of the defense of any claim that is subject to indemnification hereunder, in which event you shall cooperate with us in connection with our defense to or of such claim. We reserve the sole right to settle or otherwise compromise any claim, action or demand subject to indemnification under these Sleepme Terms and Conditions, with or without your consent.
3.9 Assignment You are not permitted to assign these Sleepme Terms and Conditions without our prior written consent. Any such assignment without such prior consent shall be deemed a breach of these Sleepme Terms and Conditions. We may assign these Sleepme Terms and Conditions to any other business or company that we own or control, or to a third party, so long as such other party undertakes all of our obligations, rights and duties hereunder.
3.10 Sleepme Inc. Website Terms and Conditions Your access to and use of the following websites located at ChiliSleep, Ebb Sleep, Sleepme, Back to Sleep Challenge (the “Website”) is subject exclusively to these Website Terms and Conditions and the Terms and Conditions for Sleepme Inc. Products and Services. You will not use the Website for any purpose that is unlawful or prohibited by these Website Terms and Conditions. By using the Website you are fully accepting the terms, conditions and disclaimers contained in this notice. If you do not accept these Website Terms and Conditions you must immediately stop using the Website.
3.11 Advice The contents of the Website do not constitute advice and should not be relied upon in making or refraining from making any decision. Content found on the Website, in our and our authorized dealers’ advertisements, or provided through the Applications, the Services or the Products (together, the “Data”), is for informational purposes only, and under no circumstance should you construe such information as medical advice, diagnosis, or treatment. We do not intend for the foregoing content to replace medical care, medical diagnosis, or the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. The Data should not be used in any way to diagnose or treat any medical condition. You should always consult with a physician or healthcare professional regarding any concerns you have relating to your health, especially before you start or stop any particular health-related regimen. Never delay seeking or disregard professional medical advice because of something you have read or interpreted while using the Services, the Products, the Website or the Applications, or based on any Data generated by the Applications or published on the Website.
3.12 Change of Use Sleepme reserves the right to:
(a) Change or remove (temporarily or permanently) the Website or any part of it without notice and you confirm that Sleepme shall not be liable to you for any such change or removal; and
(b) Change these Website Terms and Conditions at any time, and your continued use of the Website following any changes shall be deemed to be your acceptance of such change.
3.13 Links to Third-Party Websites The Website may include links to third-party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that Sleepme is not responsible for the content, information collection practices, or availability of any such sites.
(a) All copyright, trademarks and all other intellectual property rights in the Website and its content (including without limitation the Website design, text, graphics and all software and source codes connected with the Website) are owned by or licensed to Sleepme or otherwise used by Sleepme as permitted by law.
(b) In accessing the Website you agree that you will access the content solely for your personal, non-commercial use. None of the content may be downloaded, copied, reproduced, transmitted, stored, sold or distributed without the prior written consent of the copyright holder. This excludes the downloading, copying, or printing of pages of the Website for personal, non-commercial home use only.
3.15 Patents The following Sleepme Products are protected by patents in the U.S. and elsewhere. This Section 3.15 is intended to satisfy the virtual patent marking of various jurisdictions, including the virtual patent marking provisions of the America Invents Act, 35 U.S.C. 287(a). The following list of Sleepme Products may not be all inclusive, and other Sleepme Products not listed here may be protected by one or more patents, or patents pending, in the U.S. and elsewhere.
|Sleepme Product||U.S. Patent Number(s)|
|CHILIPAD®/CHILIPAD PRO®||Protected by U.S. Patent Nos. 11,013,339 and 10,278,511. Additional patents may be pending in the U.S. and elsewhere.|
|OOLER®||Protected by U.S. Patent Nos. 11,013,339 and 10,278,511. Additional patents may be pending in the U.S. and elsewhere.|
|DOCK PRO™||Protected by U.S. Patent Nos. 11,013,339 and 10,278,511. Additional patents may be pending in the U.S. and elsewhere.|
1. Relationship between you and Sleepme
1.2 The Applications are distributed by Sleepme. The following Applications Terms are a sub-set of the Terms and Conditions for Sleepme Inc. Products and Services (“Sleepme Terms and Conditions”). The Applications Terms supersede any other document of the Sleepme Terms and Conditions concerning its purpose.
1.3 An Application (each, an “Application” and together, the “Applications”) is a software application developed by or for Sleepme, composed of a graphic interface (and other Application Elements as defined below), that can be used in particular through your smartphone, tablet, or other internet-connected device and through which you interact with the features that are made available to you by the Application, including any feature(s) that allow you to save, store, access, and use your data, such as identifying data. As of the date hereof, the Applications include the Ooler App, Sleepme App, and any successor Application thereto.
1.4 By using the Applications, you hereby acknowledge and guarantee:
(a) That you have obtained and read a copy of these Applications Terms;
(b) That you are in possession of the Applications Terms on a Durable Media (for example by printing them out);
(c) That you are of the age required or otherwise authorized under the law of your country of residence to commit yourself to be subject to, and bound by, these Applications Terms; and
(d) That you have the right to access and use the Applications.
1.5 Any objection to these Applications Terms will be interpreted as a refusal to agree to these Applications Terms. IF YOU DISAGREE WITH THESE APPLICATIONS TERMS YOU ARE NOT PERMITTED TO USE THE APPLICATIONS, AND YOU MUST UNINSTALL THE APPLICATIONS IMMEDIATELY AND DELETE ANY ACCOUNTS YOU HAVE WITH US. ANY VIOLATION OR ATTEMPTED VIOLATION OF THESE APPLICATIONS TERMS MAY RESULT IN THE IMMEDIATE TERMINATION OF YOUR ABILITY TO ACCESS THE APPLICATIONS AND THE SLEEPME SERVICES.
1.6 Content found on the Website, in our and our authorized dealers’ advertisements, or provided through the Applications, the Services or the Products (together, the “Data”), is for informational purposes only, and under no circumstance should you construe such information as medical advice, diagnosis, or treatment. We do not intend for the foregoing content to replace medical care, medical diagnosis, or the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. The Data should not be used in any way to diagnose or treat any medical condition. You should always consult with a physician or healthcare professional regarding any concerns you have relating to your health, especially before you start or stop any particular health-related regimen. Never delay seeking or disregard professional medical advice because of something you have read or interpreted while using the Services, the Products, the Website or the Applications, or based on any Data generated by the Applications or published on the Website.
2.1 “API” refers to all current and future Sleepme application programming interfaces for developers dedicated for Sleepme Products and Services, as specified in the applicable API agreement.
2.2 “Products” or “Sleepme Products” refers to all Sleepme products offered and sold by Sleepme.
2.3 “Services” or “Sleepme Services” refers to all Sleepme services offered and provided by Sleepme. “Sleepme Products and/or Services” refers to all Sleepme products and services offered and provided by Sleepme.
3. Modification of the Applications Terms
3.1 It is understood and agreed between the parties that Sleepme shall have the right, in any case, to modify all or part of these Applications Terms, to reflect changes to the law or any applicable regulation, or any event which is deemed sufficient by Sleepme to command such revisions. Any new version of the Applications Terms will not apply retroactively but replaces and supersedes the previous Applications Terms. We advise you to frequently consult the Sleepme Terms and Conditions and to save each version on Durable Media.
4. Prerequisites for Applications usage, downloading and updates
4.1 You must download the Application on your personal medium before using it. This medium can be your personal smartphone, tablet, or other Bluetooth or internet-connected device (hereafter collectively referred to as the “Device”). The download of the Applications, and the exchange of data between the Applications and Sleepme data centers, including any third-party data centers utilized by Sleepme for the processing or storage of any data, requires an Internet network connection that you must supply. Some Applications, or features thereof, may be used without Internet connection. Sufficient quality of your Internet connection and sufficient speed and performance of the processor of your Device are essential prerequisites for the use of Applications. More detailed information on such prerequisites can be found on our website.
4.2 Your Device may not be compatible with an Application even if you are able to download it to your Device. Before any use, you are responsible to check if your Device and the Application or Sleepme Products are compatible.
4.3 You must comply also with the terms and conditions applicable to the online store used to download the Applications. All Applications updates will be set up in accordance with the terms of how updates are managed by the manufacturer of your Device or the provider of your operating system. We hereby inform you that the Applications updates may include substantial modifications of: (a) the Applications; or (b) functionality available through the Applications. We are unable to guarantee the continuity and availability of any functionality available through the Applications. Furthermore, the functionality and availability of the Applications may also vary depending on where you download or connect to the Applications.
4.4 You hereby authorize us to access your Device(s) and Account, and to make changes to all or any portion of the Applications (including user interfaces), and to issue upgrades, bug fixes, patches, or other modifications to maintain or improve the Applications in our discretion (“Upgrades”). You agree we may make Upgrades without advance notice to you or additional consent from you. Upgrades may temporarily interfere with your access to and use of the Applications, or temporarily or permanently change the features, functionality, benefits, or uses of the Applications and you agree those will be done at our discretion. If you do not want the Upgrades, then you agree that your sole remedy is to terminate your use of the Applications altogether and cancel your Account according to this Agreement. Furthermore, you accept the risk that prior versions of the Applications may not be supported by Sleepme in the future. Your continued use of the Applications after any Upgrade(s) will indicate your acceptance of those Upgrades.
5 .Your Use of the Applications
5.1 You may download, install and use any Application in accordance with these Applications Terms.
5.2 Data retrieved and presented to you through an Application may not be accurate, including due to an inappropriate use of the Applications, API, Services, Products or your Device. Therefore, you may not use such data as a specific basis in a health plan.
5.3 By using an Application, you shall not:
(a) Make any use of the Application in contradiction with any law or regulation, or third party rights such as intellectual property rights, or rights with respect to privacy etc.;
(b) Act in any manner that shall create any prejudice to Sleepme, its affiliates, partners or any user of our Applications, Website, API, Products and Services;
(c) Fraudulently introduce any data on the Application, Website, API or through the Application;
(d) Fraudulently introduce any data on the Website or on any Sleepme data server, including any third-party server utilized by Sleepme;
(e) Interfere, obstruct, or distort the proper working of the Application or use the Application in any manner whatsoever to interfere with any rights of third parties or Sleepme;
(f) Take any action and/or use any method allowing data to be retrieved, including data scraping, data harvesting, Web crawling from the Application or our database enabling any direct or indirect migration and/or duplication of a significant portion of the data and Services accessible from the Application;
(g) Probe, scan, reverse-engineer or otherwise technically analyze the Application;
(h) Test the vulnerability, the performance or functionality of the Application for reasons other than the ones strictly necessary to use the Application as a consumer of the Sleepme Products and Services;
(i) Breach any security measures implemented on the Application by Sleepme;
(j) Use any illegitimate means to breach any authentication method implemented by Sleepme in order to enable connection by the user to the Application and/or to the purchasing and payment system;
(k) Access or maintain yourself in any section of the Application that is not specifically accessible to you by the usual use of the Application.\
6. Connection and identification
6.1 Your identification through a Sleepme account (hereinafter the “Account”) is required before any connection, access and use of an Application.
6.2 By connecting an Application and a Product, you identify yourself as the user of the Product. This connection allows you to:
(a) Link data collected by the Product to your Account;
(b) Have access to your data through the graphic interface of the Application; and
6.3 Should you create an Account, you must follow a set of requirements to help prevent a third party from obtaining access to your Account. For example, you must verify that your password is sufficiently secured (composed with enough characters, mixed cases, and varied alphanumerical characters, etc.), and use best efforts to prevent any third party from accessing your Account from the Website or the Application after you are no longer using the Website or the Application. You are responsible for maintaining the confidentiality of the information provided in your Account, including your login information, and password(s), and are responsible for all activities that occur under the Account, with or without your knowledge. You may not provide the login information or password of your Account to another person. You agree to notify Sleepme immediately of any unauthorized use of your Account or any other breach of security. You agree that we may, in our sole discretion, treat as you any person who presents your login and password, or any other credentials that we deem sufficient for Account access, and we shall be entitled to disclose to such person your Data and account information and permit such person to make changes in the Services, the Products, the Applications and your Account.
6.4 Any connection to your Account from a third party to which you have given your prior consent is your own responsibility. We cannot be responsible for any of the personal data communicated to one or several third parties through an authorization given implicitly or explicitly by you to any such third parties. Leaving the Application without logging-out, or not adding a second password security, is considered as an implicit authorization by you.
6.5 To facilitate access through the electronic system, we remind you that your identification can be automated through the use of third-party identification services (e.g., Apple TouchID, FaceID, LastPass, etc.), and Sleepme will not be responsible for any unauthorized disclosure of your identification by any such third-party identity verification services.\
7. Intellectual property - License to use the Application
7.1 Each Application is composed of elements such as text, interfaces, photographs, charts, pictures, browsing means, trademarks, logo, graphics, design, music, artworks, computer code, software, fonts or any other elements incorporated into such Application (hereinafter “Application Elements”). The Application Elements and all rights, including without limitation title and intellectual property rights therein, are owned by Sleepme or its licensors and affiliates and are protected by international treaty provisions and all other applicable national laws of the country in which it is being used. The structure, organization, and code of the software are valuable trade secrets and confidential information of Sleepme or its licensors and affiliates.
7.2 Subject to your compliance with the Sleepme Terms and Conditions, including these Applications Terms, we, or any third party specifically designated for this purpose, grant you a personal, non-commercial, non-exclusive, non-transferable, non-assignable, non-sublicensable license, revocable at any time at Sleepme’s sole discretion, to access and use the Applications strictly for your own benefit and in accordance with the Sleepme Terms and Conditions. Use of the Applications does not grant you any intellectual property rights in or to any information or content in the Applications. The license granted under these Application Terms is strictly limited to your use of the Applications in accordance with the Sleepme Terms and Conditions.
7.3 You may not distribute, transfer the right to use, modify, translate, reproduce, resell, sublicense, market, rent, lease, reverse engineer, de-compile, extract or otherwise attempt to discover the source code of any software included in the Applications. For open source licensed software, if any, applicable open source license terms apply.
7.4 No right or license, express or implied, is granted to any part of the Applications except as expressly set forth herein. In addition, no licenses or immunities are granted to the combination of the Applications with any other software or hardware not delivered by Sleepme or its authorized distributors or resellers. Also, any and all licenses with respect to any patents of Sleepme or its licensors and affiliates and of any third party (including essential patents) are specifically excluded from the scope of the Sleepme Terms and Conditions, including these Applications Terms, and such licenses need to be acquired separately from Sleepme or the respective right holders, as the case may be. Unless otherwise specified, the right hereby granted may apply to any updates and evolution of the Applications. However, some functionality or features may be available through a specific license, if these functionalities or features are produced by third parties, although integrated into the Applications (hereinafter “Third-Party Functionality”).
7.5 All rights not expressly granted herein are reserved to us and our suppliers, and no other licenses are granted herein by implication, estoppel or otherwise. You shall not take any action to interfere with the ownership of the Services, the Applications, the Website, the API, and the online documentation by us, or by our suppliers. All proprietary notices incorporated in, marked on, or fixed to any portion of the Products and Services provided to you shall not be altered, removed or obliterated.
8. Third Party Functionality and Products
8.1 We may introduce functionality or features developed and provided by third parties into the Applications in order to provide you additional functionality and features. You must agree to any applicable third-party terms and conditions in order to be able to use such Third-Party Functionality. As we are not a party to your contract with such third party, we are not liable for any use nor for direct or indirect consequences of your use of such functionalities or features provided by third parties. Third-party products or services may be available for purchase through the Website, and the Website may contain links to third-party websites offering such products or services, which may be posted by us, our advertisers, our affiliates, our partners, or other users (“Third-Party Products”). Third-Party Products are not under our control, and we are not responsible for any third party’s websites, products, or services. Your purchase or use of Third-Party Products (including Third-Party Products purchased through the website) is at your own risk ,and you should make any investigation you feel necessary before proceeding with any transaction in connection with such Third-Party Products. Except as otherwise indicated when you purchase certain Third-Party Products through the Website, all matters concerning the shipment, delivery, return process, or warranty with respect to Third-Party Products are solely between you and the third party offering such Third-Party Products.
8.2 Use of the Services and the Products may require compatible devices (e.g., smart phones, tablets, wearables, and other related hardware or firmware), Wi-Fi access, Bluetooth connectivity, and certain software and hardware. We issue periodic updates for the Applications, the Services and the Products, and your failure to implement those updates may affect the performance of the Applications, the Services and the Products or prevent you from enjoying certain features. You agree that meeting the foregoing requirements and implementing the updates are your responsibility. Some or all of the foregoing updates may download or install automatically, and you hereby consent to such downloading and installation without any separate notice thereof from us. To the extent such third-party equipment, software, or ancillary services require you to agree to other terms and conditions of access or use, you are responsible for complying with such agreements separate and apart from this agreement.
9. Data Protection
10. Data Hosting
10.1 By using an Application, you may allow Sleepme, or any third party designated by Sleepme for such purpose, to store data collected when using a Product, Service, or an Application, or when using functionalities allowed by a Product, Service, or Application. You may not be able to access your data within the Application at all times. We therefore recommend that you frequently save your data though the means provided in the Application.
11.1 With respect to the Products, Sleepme provides the warranty set forth at https://sleep.me/warranty.
11.2 Disclaimer. Unless required by any mandatory legal provision, the Website, the Applications, the Services, the API, the Products (except as described in the warranty reference in Section 11.1), and improvements of any of the above (hereinafter the “Elements”) are provided on an “AS IS” and “AS AVAILABLE” basis. SLEEPME MAKES, AND USER RECEIVES, IN CONNECTION WITH THE ELEMENTS NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT PROMISE THAT THE ELEMENTS, OR ANY CONTENT, SERVICES OR FEATURE OF THE ELEMENTS, INCLUDING ANY INFORMATION AND DOCUMENTS DOWNLOADED BY YOU ARE FREE OF ERRORS OR DEFECTS, OR THAT THE AFOREMENTIONED WILL BE CORRECTED. SLEEPME MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
12. Payment Information; Subscriptions; Recurring Orders
12.1 Payment Information. You may submit your debit card, credit card, or other payment information (“Payment Information”) when purchasing Products or Services. If you submit your Payment Information, you agree to pay all costs that you incur, and you give us (and any third-party service providers we may use to process your Payment Information) permission to charge you when payment is due (including in connection with a Membership Subscription or a Subscription Order) for an amount that includes these costs and any applicable taxes and fees. All transactions are final, and we do not refund or credit for partially used billing periods.
12.2 Membership Subscriptions. Certain Services may require the purchase of a subscription (“Membership Subscription”) and the payment of subscription fees (“Membership Subscription Fees”). You agree to pay any applicable Membership Subscription Fees for the period of time (e.g., six months, twelve months, eighteen months) to which you agree during the process of purchasing your Subscription (the “Membership Subscription Term”). Any payment terms presented to you in the process of obtaining your Membership Subscription are deemed part of these Terms and are incorporated herein by reference.
(a) Membership Subscription Renewal. Your Membership Subscription will be automatically renewed for an additional Membership Subscription Term equal in length to your Membership Subscription Term in effect immediately prior to renewal at the then-current non-promotional rate. If you do not want to continue to be charged for the renewal of your Membership Subscription, you must notify us prior to the expiration of the current Membership Subscription Term that you do not want to renew your Membership Subscription. While you can elect not to renew your Membership Subscription, you cannot terminate an existing Membership Subscription prior to the expiration of the Membership Subscription Term. In other words, once your Membership Subscription Term starts, you must pay all Membership Subscription Fees due for the entire Membership Subscription Term. Except as expressly set forth in these Terms, all Membership Subscription Fees are non-refundable, even if you stop using the applicable Service.
12.3 Product Subscriptions. Certain Products may be purchased on a subscription basis as indicated during the process of purchasing such Products (a “Subscription Order”). If you elect to make a Subscription Order when placing an order for an eligible Product, you acknowledge and agree that we will automatically create a recurring order for the selected Product according to your delivery schedule you elected in your Subscription Order, until you cancel. Immediately prior to shipping the applicable Product, Sleepme will automatically charge your Payment Information the price for such Product. Your Subscription Order will remain in effect until it is cancelled. You can cancel your Subscription Order at any time in Your Account. Sleepme may, in its sole discretion, terminate Subscription Orders at any time without notice.
13. Limitation of Liability
13.1 SLEEPME DISCLAIMS ANY AND ALL LIABILITY FOR ANY DAMAGE DIRECTLY OR INDIRECTLY SUFFERED BY YOU, IN CONNECTION WITH OR RELATED TO YOUR USE OF ANY ELEMENTS. YOU MUST ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE ELEMENTS. YOUR SOLE REMEDY AGAINST SLEEPME FOR ANY DISSATISFACTION WITH ALL OR PART OF THE ELEMENTS OR ANY CONTENT DIRECTLY OR INDIRECTLY LINKED TO IT IS TO STOP USING THE ELEMENT. THIS LIMITATION OF RELIEF IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES WITHOUT WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
13.2 IN NO EVENT SHALL WE BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF THE USE OF THE DATA, THE SERVICES, THE APPLICATIONS OR THE WEBSITE, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE APPLICATIONS, THE WEBSITE, THE DATA, AND THE SERVICES, REGARDLESS OF THE FORM OF ACTION OR CLAIM, IS LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM ONE JURISDICTION TO ANOTHER.
14. Feedback and Submissions Policy
14.1 If you submit comments, ideas, or feedback to Sleepme, you agree that Sleepme can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. Sleepme does not waive any rights to use similar or related ideas or feedback previously known to Sleepme, developed by Sleepme, or obtained from sources other than you. Sleepme is always pleased to hear from the members of the Sleepme community. You are solely responsible for any comments, ideas, drawings, concepts, feedback or other information you provide to Sleepme, including information intended to improve or otherwise result in a modification to the Applications, Products, Services, Website or API (“Submitted Content”). You represent and warrant that you have all rights necessary to Submitted Content for your use and our use in accordance with these Sleepme Terms and Conditions. You hereby license to us all patent, trademark, trade secret, copyright, and other proprietary rights in and to Submitted Content for publication on and use with or in connection to Sleepme or our business. If you send us Submitted Content, that Submitted Content will automatically, and without any compensation to you, become the property of Sleepme, including the rights to modify, publish, create derivative works from, redistribute, copy, and use as we determine in our sole discretion (whether for commercial purposes or otherwise), and you hereby assign all such rights in such Submitted Content to Sleepme and thereby forfeit any intellectual property or other rights in the Submitted Content. None of the Submitted Content will be subject to any obligations of confidentiality and Sleepme will not be liable for any future use or disclosure of such Submitted Content.
15. Text Messages
15.1 The Sleepme SMS/text mobile message service (the “Mobile Service”) is operated by Sleepme Inc. Your use of the Mobile Service constitutes your agreement to the provisions of this Section 15 (this Section 15, the “Mobile Terms”). We may modify or cancel the Mobile Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Mobile Service following the effective date of any such changes shall constitute your acceptance of such changes.
15.2 By consenting to Sleepme’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Sleepme through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Mobile Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
15.3 You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Sleepme. Your participation in this program is completely voluntary.
15.4 We do not charge for the Mobile Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
15.5 You may opt-out of the Mobile Service at any time. Text the single keyword command STOP to 32765 or click the unsubscribe link (where available) in any text message to cancel. You'll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Sleepme mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Mobile Service support or assistance, text HELP to 32765 or email email@example.com.
15.6 We may change any short code or telephone number we use to operate the Mobile Service at any time and will notify you of these changes. 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 will not be responsible for honoring requests made in such messages.
15.7 The wireless carriers supported by the Mobile Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
15.8 To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Mobile Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Mobile Service.