SleepWatch Terms of Service
Updated: May 10, 2018
Effective: May 24, 2018, unless you agree to the Terms sooner, for example, from within the Services. Then these Terms are effective as of the date of your agreement.
Please read these Terms carefully because it governs your use of the Services. By accessing or using the Services you agree to be bound by these Terms.
The Services cannot be provided and the agreement described in these Terms cannot be performed without Bodymatter processing data about you, and other SleepWatch users, including your health, body profile, lifestyle, and non-precise location data. Processing of the data you share with SleepWatch, including health, body profile, lifestyle, and non-precise location data, is essential to the Services which we provide and a necessary part of our performance of the agreement we have with you.
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how disputes between you and Bodymatter are resolved, including an agreement to arbitrate, which will, unless you reside within the European Union, with limited exception, require you to submit claims you have against us to binding and final arbitration and limit you to claims against Bodymatter on an individual basis, unless you opt-out in accordance with the instructions below.
Changes to Terms or Services
Bodymatter reserves the right, at its sole discretion, to modify, discontinue or terminate the Services or to modify these Terms, at any time and without prior notice. If we modify these Terms we’ll post the modification on the Site or via the App or provide you with notice of the modification. We’ll also update the “Updated” date at the top of these Terms. By continuing to access or use the Services after we have posted a modification on the Site or via the App or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
Who May Use the Services
You may use the Services only if you are 16 years of age or older, or of such a higher age required in your country to use the Services and only if you are capable of forming a binding contract with Bodymatter and are not barred from using the Services under applicable law.
Registration and Accounts
If you want to use certain features of the Services you are required to register with Bodymatter, create an account (“Account”) and provide certain information about yourself as prompted by the registration form.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account. Bodymatter cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Consult Your Doctor Before Use
The Services and Bodymatter Content are not intended to diagnose, treat, cure, or prevent any disease. If you have a medical, sleep, or heart condition, consult your doctor before using the Services, engaging in an exercise program, or changing your lifestyle. If you experience a medical emergency, stop using the Services and consult with a medical professional. We are not responsible for any health problems that may result from the lifestyle choices, exercise activity, consultations, products, or events you learn about through the Services. If you engage in any exercise activity you learn about through the Services, you agree that you do so at your own risk, that you are voluntarily participating in these activities, and that you have consulted your doctor prior to initiating such activity.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
The Services may enable you to upload, store, share, send, post, input, or display text, photos, images, video, data, music, regimens, logs, comments, and other information and content (“Your Content”) via or to the Services.
“Bodymatter Content” includes any data, derived data, information, text, graphics, works of authorship of any kind, photos, images, software, mobile apps, video, audio, music, logs, comments, and other content or other materials that are posted, inputted, generated, uploaded, created, provided, gathered, or otherwise made available through the Services.
Content Ownership, Responsibility and Removal
Subject to the foregoing, Bodymatter and its licensors exclusively own all right, title and interest in and to the Bodymatter Content, the Services, and the Services’ underlying technology, including all associated intellectual property rights. You acknowledge that the Bodymatter Content, the Services, and the Services’ underlying technology are protected by copyright, intellectual property, patent, trademark and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Bodymatter Content. Bodymatter reserves all rights not expressly put forth in these Terms.
Bodymatter may, in its sole discretion, alter, remove, or refuse to display any of Your Content, and may forbid you from uploading, storing, sharing, sending, posting, inputting, or displaying Your Content via and to the Services.
You retain all rights to Your Content that you post to the Services. Subject to your compliance with these Terms, Bodymatter grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) use and access the Services, (2) use and access the mobile applications and software associated with the Services, and (3) use and access the Bodymatter Content. This license is provided solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
Except to the extent permitted by law, you may not perform, attempt to perform, or assist or encourage others in performing any of the following while using or accessing the Services: (1) use, mirror, frame or display the Services or any individual element within the Services, including the design and layout of any view, without Bodymatter’s explicit written consent; (2) use Bodymatter or SleepWatch’s name, any Bodymatter trademark or logo, or any proprietary information of Bodymatter without Bodymatter’s explicit written consent; (3) tamper with or access non-public components of the Services, Bodymatter’s computer systems, or the technical delivery systems of Bodymatter’s providers; (4) breach any authentication or security measures of any Bodymatter system or test vulnerability of any Bodymatter system; (5) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Bodymatter or any of Bodymatter’s providers or any other third party (including another Bodymatter or SleepWatch user) to safeguard, protect, or secure the Services or Bodymatter Content; (6) modify, reverse engineer, disassemble, decipher, decompile, tamper with, or otherwise attempt to derive the software source code of any software that Bodymatter provides to you or any other component of the Services.
You will not use, copy, adapt, modify, distribute, publicly perform, publicly display, translate, disclose, sublicense, prepare derivative works based upon, license, sell, rent, lease, assign, transfer, transmit, broadcast, or otherwise exploit the Bodymatter Content, Services or any portion thereof, except as expressly allowed by these Terms. No rights or licenses are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Bodymatter or its licensors, except for the rights and licenses expressly granted in these Terms.
Use the Services At Your Own Risk
If you rely on the Services or any Bodymatter Content, you do so solely at your own risk. We aim to empower you with helpful information through the Services, but we make no representation, endorsement, or warranty of any kind about any Bodymatter Content, information, or Services. The accuracy of the data presented and collected through the Services is not intended to match that of medical devices. Do not rely on the Services for medical advice or diagnosis. The Services do not offer any kind of medical advice and any content accessed through the Services is for informational purposes only. Use of the Services should not replace your common sense and good judgment. Please consult your doctor or qualified healthcare provider if you have any questions or concerns about any information or Bodymatter Content you access via the Services.
Rights and Terms for Apps
Additional Terms for App Store Apps
If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:
These Terms are concluded between you and Bodymatter, and not with the App Provider, and that Bodymatter (not the App Provider), is solely responsible for the App. The App Provider has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Bodymatter. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the App or your possession or use of that App infringes that third party’s intellectual property rights, Bodymatter will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof. You must also comply with all applicable third-party terms of service when using the App. You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the App 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.
Acceptable Use Policy
Bodymatter respects its users and expects its users to respect Bodymatter and one another. You agree that you will use the Services only in a manner consistent with the following Acceptable Use Policy.
YOU AGREE NOT TO POST CONTENT THAT: contains any information or content we deem to be hateful, violent, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; infringes any third party’s intellectual property rights, privacy rights, publicity rights, or other personal or proprietary rights; creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal or seeks to harm or exploit children; may create a risk of any other loss or damage to any person or property; violates, or encourages any conduct that violates laws or regulations or contains illegal information or content is fraudulent, false, misleading, or deceptive.
YOU PROMISE NOT TO DO ANY OF THE FOLLOWING: Attempt to access or search the Services, Bodymatter Content or scrape or download Bodymatter Content from the Services, or otherwise use, upload content to the Services through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Bodymatter or other generally available third party web browsers; Send any unsolicited or unauthorized, advertising messages, promotional materials, email, junk mail, chain letters or other form of solicitation; Use any meta tags or other hidden text or metadata utilizing a Bodymatter trademark, logo, URL, or product name without Bodymatter’s express written consent; Use the Bodymatter Content or Services for any commercial purpose or for the benefit of any third party, except as otherwise explicitly permitted for you by Bodymatter; Use the Bodymatter Content or Services in any manner not permitted by the Terms; Use the Bodymatter Content or Services to facilitate any clinical study or data collection trial without Bodymatter’s express written consent; Use user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; Collect or store any personal information from the Services from other users of the Services without their express permission; Perform any activity in connection with use of Bodymatter products and the Services that poses a risk of harm or death to oneself of another; Impersonate or misrepresent your affiliation with any person or entity; Violate any applicable law or regulation; or Encourage or enable any other individual to do any of the activities noted above.
Links to Third-Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any such termination, we may delete or remove Your Content and other information related to your Account. You may cancel your Account at any time contacting our support team.
THE SERVICES AND BODYMATTER CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Bodymatter Content.
You agree to defend, indemnify, and hold Bodymatter, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of Services or your violation of these Terms.
Limitation of Liability
NEITHER BODYMATTER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR BODYMATTER CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING PHYSICAL INJURY, DEATH, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR BODYMATTER CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BODYMATTER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL BODYMATTER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR BODYMATTER CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO BODYMATTER FOR USE OF THE SERVICES OR BODYMATTER CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BODYMATTER, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BODYMATTER AND YOU.
PLEASE READ THIS SECTION WITH CARE SINCE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE FASHION IN WHICH YOU CAN SEEK RELIEF FROM US.
Except as otherwise required by applicable law, these Terms and any action related thereto shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Bodymatter agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Bodymatter Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Orange County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Bodymatter are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Bodymatter otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. Except as provided in the case that this specific paragraph is held unenforceable, this “Dispute Resolution” section will survive any termination of these Terms.
Opt-out of Agreement to Arbitrate
You can decline to this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting these Terms and stating that you (including your first name, last name and the email address associated with your Account) decline this arbitration agreement. If you opt out of this arbitration agreement, Bodymatter also will not be bound by them. In addition, if you elect to opt out of this arbitration agreement, Bodymatter may terminate your use of the Services.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org and a separate form for California residents at www.adr.org.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Bodymatter otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Bodymatter submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Bodymatter will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Bodymatter will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Bodymatter changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Updated” date above or in the date of Bodymatter’s email to you notifying you of such change. By rejecting any change, except as otherwise provided in these Terms in limited cases, you are agreeing that you will arbitrate any Dispute between you and Bodymatter in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
No Class Actions
You may only resolve Disputes with Bodymatter on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
Judicial Forum for Disputes
Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Bodymatter agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Orange County, California. Both you and Bodymatter consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Time 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 Services 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.
These Terms constitute the entire and exclusive understanding and agreement between Bodymatter and you regarding the Services and Bodymatter Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Bodymatter and you regarding the Services and Bodymatter 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 Bodymatter's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Bodymatter 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 Bodymatter under these Terms, including those regarding modifications to these Terms, will be given by Bodymatter: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Bodymatter's failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Bodymatter. 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 to certain offerings associated with the Services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
Who We Are and How to Contact Us
If you have any questions about these terms, please contact us at firstname.lastname@example.org. The Services are provided to you by Bodymatter, Inc., which is headquartered in Newport Beach. This agreement was written in English. To the extent a translated version conflicts with the English version, the English version controls.
You may also contact us at:
Attn: Legal Dept. (SW Terms of Service)
4343 Von Karman Ave, Suite 150J
Newport Beach, CA 92660