Terms of Service
Last Updated: 13/12/2017
These Terms of Service (the “Terms” or the “Agreement“) are important and govern your use of and access to our app Nightly (the “App” or “Nightly”) and services we provide through this medium (the “Services”)
- ACCEPTANCE OF THE TERMS OF SERVICE
- CHANGES TO THE TERMS OF SERVICE
- OUR SERVICES
- CONDITIONS FOR USING NIGHTLY
- INTELLECTUAL PROPERTY
- DATA, FEEDBACK AND SUGGESTIONS
- TERM AND TERMINATION
- LIMITATION OF LIABILITY, RELEASE AND DISCLAIMER
- DISPUTE RESOLUTION, GOVERNING LAW, VENUE, JURISDICTION
1. Acceptance of the Terms of Service
2. Changes to the Terms of Service
DreamJay may revise the Terms, from time to time, at its sole discretion. If revised, we will send the Terms of Service to you at your e-mail address of record. The date the Terms of Service were last revised is identified at the top of the first page. You are responsible for keeping your e-mail address current and reviewing any revised Terms of Service we send to you. Your continued use of Nightly represents that you agree to be bound by the then-current Terms.
3. Our Services
DreamJay provides Customers with Nightly. In general Nightly is aimed to help you to fall asleep, self-manage nightmares and improve sleeping habits. The App is not meant to replace the advice of or treatment by health care professionals. Always contact a qualified health care professional for any medical symptoms or medical conditions.
The Customer provides his/her own equipment for use of the App. The App can be purchased and downloaded from an app store. The Customer must then register an account through the App in order to utilize the Services (“Account”).
At bedtime, the Customer may choose a two minute relaxing theme (with video and music) and watch it. Then he/she puts the phone next to him/her on the bed and falls asleep, while listening to the music (the length of the music can be chosen). During the night, the accelerometer which is built into the phone estimates, based on the movements, Customer’s sleep phases. Based on these estimates, Nightly, when needed, plays short soothing sounds. These sounds are designed to reduce the number of sleep disturbances. The Customer sets the hour range when he/she wants to wake up. In the morning, the App wakes the Customer, while he/she is in the lightest sleep phase, which helps the Customer feel good and have more energy. After the alarm is turned off, the phone presents the Customer with a questionnaire about the night’s sleep. The Customer also may write a description of his/her dream. The App will provide the Customer with information about the night’s sleep, e.g., how long he/she was falling asleep, how long the sleep lasted, and the consistency of the sleep. The Customer will also be able to see his/her estimated sleep structure.
DreamJay will use commercially reasonable efforts to make the Services available to you pursuant to these Terms. The Customer may describe any issues with the Services via the “Send Feedback” option in the App, and DreamJay will respond via e-mail sent to the Customer’s e-mail address of record for the Account.
We may modify our Services from time to time, for any reason, and without notice, including the right to terminate or suspend any or all of our Services, with or without notice, without liability to you, any other user or any third party.
4.1 Payment In General
Each Customer shall be responsible for timely payment of the fee in the amount agreed during the registration of the Account (“Subscription Fee”), subject to an annual increase at DreamJay’s discretion. The Subscription Fee may cover the App and additional services, as agreed, and is payable monthly or yearly (in the Customer’s discretion) and must be paid in full before each date agreed during the registration (“Payment Date”). By using Nightly, you acknowledge and agree that (i) our fees are based on your subscription to Nightly rather than actual usage of the App and must be paid in full regardless of amount of use, (ii) fees cannot be cancelled once charged and (iii) all fees paid are non-refundable.
We may use one or more third party service provider to process payments collected for our Services, and may change the service provider from time to time, in our sole discretion. By using our Services, you consent to our use of third party services to process your payments. You must keep your payment information current and promptly notify us in the event of any changes via your registered Account.
4.2 Late Payments
In the event that your Subscription Fee is not timely paid for any reason (included declined credit card payment or late payment) your Account will be automatically suspended and you will not have access to the App or its content, but your payment obligations will continue during suspension. In addition, if your payment obligations remain unpaid for more than 25 days, we reserve our right to terminate this Agreement, the Account and your future access to Nightly, and to delete the Customer Data (as defined below) subject to Section 8.3.
4.3 Future Functionality
You agree that your Account and Subscription Fee are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
5. Conditions for Using Nightly
The App is not directed to or intended for use by anyone under the age of 18. By agreeing to these Terms, registering an Account, or downloading and/or using Nightly, you represent, warrant and covenant that: (a) you are 18 years of age or older and have the legal right and ability to agree to these Terms, and will provide Nightly with complete and accurate information; (b) you have not been previously suspended or removed from Nightly, or engaged in any activity that could result in suspension or removal from Nightly, as described more fully in Section 5.2 below; (c) you do not have more than one Account; (d) the execution of this Agreement and performance of this Agreement will not violate any other agreement to which you are party; (e) this Agreement constitutes your legal, valid and binding obligation; and (f) you shall perform this Agreement in accordance with all applicable laws.
5.2 Use of Nightly
You further acknowledge, agree, represent, warrant and covenant that:
- you are aware that there is a possibility that the App may awaken you during the night and this may result in lack of proper sleep;
- you shall not use Nightly for any unlawful purpose or acts, or any infringing, libelous, or tortious acts, or any commercial purpose;
- you shall not infringe any rights of DreamJay or a third party, including any contractual, property, intellectual property, privacy or publicity rights of DreamJay or a third party;
- you shall not use Nightly in violation of any of the Terms herein;
- you shall not use Nightly in violation of your contractual or other legal obligations;
- you shall not make false representations or provide false information, including about your identity;
- you shall not knowingly use any software, program, file, bots, scripts, agents, or any other code, including, for example, viruses, worms, time bombs and Trojan horses, that is designed to scrape, gain unauthorized access or control, interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications platform, system, application, database or equipment;
- you shall not engage in any conduct that interferes with the App, or restricts or inhibits any other person from using or enjoying the same, or which, in DreamJay’s sole judgment, exposes DreamJay or any of its officers, directors, employees or agents to any liability or detriment of any type;
- you shall not copy, reproduce, duplicate, modify, sell, license, distribute, or attempt to do any of the foregoing, to any part of the App including any feature, function or user interface thereof;
- you shall not reverse engineer, decompile, disassemble, reconstruct, or attempt to do any of the foregoing, to any part of Nightly;
- you shall not access Nightly with the intent to build a competitive product or service;
- you shall not frame or mirror any part of Nightly; and
- you shall notify DreamJay regarding: (i) any illegal, suspicious, or fraudulent activity; (ii) any security or data breaches; (iii) any activity that violates these Terms; or (iv) any misrepresentations, errors, or inaccuracies you discover in relation to your use of Nightly.
You also acknowledge and agree that you are responsible for your own acts and omissions.
When you submit any information, including any personal information, on or through our App, you represent and warrant that you are the owner of such information or are authorized to submit such information.
By registering an Account via Nightly you represent and warrant that you shall:
- maintain and promptly update the information, including any billing, payment method and contact information;
- maintain the security of your password, including not disclosing your password to another;
- not permit or enable anyone else to access or otherwise use your Account;
- not access or otherwise use, or attempt to access or use, an Account of another other than your own; and
- immediately notify us if you discover or otherwise suspect any security breaches related to the App or your Account.
6. Intellectual Property
6.1 Ownership of DreamJay Intellectual Property
Unless otherwise indicated in writing by us, the App, software, code, database, lists, screens, presentation, look and feel, and all content and other materials contained therein, including, without limitation, the DreamJay and Nightly logos, trademarks, trade names, service marks, slogans and all designs, text, graphics, pictures, information, data, software, videos, sound files (as described herein), other files and the selection and arrangement thereof (collectively, the “Content”) are owned by and all rights, title and interest in are retained by DreamJay and/or our licensors. The Content constitutes the proprietary property of DreamJay and/or our licensors, as applicable, and are protected by U.S. and international copyright and other laws. No rights to the Content are granted to you hereunder other than as expressly set forth herein.
6.2 Limited License
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use Nightly as specifically authorized herein. However, such license is subject to these Terms and does not include any right to:
- sell, resell, license, sublicense, distribute, rent or lease the App or the Content;
- distribute, publicly perform or publicly display any Content;
- modify or otherwise make any derivative uses of the App or the Content, or any portion thereof;
- use any data mining, robots or similar data gathering or extraction methods; or
- download any portion of the App or the Content, except as expressly permitted by us.
Any use of the App or the Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of DreamJay or any third party, whether by estoppel, implication or otherwise.
7. Data, Feedback and Suggestions
You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free license to make, have made, use, distribute, modify, make derivative works of, and incorporate into the App or Content: (i) data collected from your use of the App to analyze your sleep and to present information to you about your sleep cycles; and (ii) to otherwise exploit in any manner any aggregated and anonymous data collected from your and others’ use of the App and any suggestion, enhancement request, recommendation, correction or other feedback provided by you in relation to the usage of the App.
8. Term and Termination
8.1 Term of Agreement
This Agreement is effective on the date you first accept it pursuant to Section 1 of these Terms and continues until your Account has been terminated, except for provisions that by their nature continue to apply.
The Customer may terminate this Agreement and the Account by providing written notice to DreamJay. If the Customer desires that DreamJay delete the Customer Data, Customer must request deletion by DreamJay.
DreamJay may terminate this Agreement and the Account based on late payment under Section 4.2. DreamJay reserves the right to terminate this Agreement, the Account and your access to the App for any or no reason. If the Account is suspended or terminated by DreamJay due to late payment, the Customer remains obligated to pay any outstanding fees owed to DreamJay for the period prior to the date of termination.
8.3 Customer Data Portability and Deletion
Upon a written request made within 30 days after the date of termination of your Account, we will make the data associated with your use of the App (the “Customer Data”) available to you for export or download. After this time, all Customer Data may be deleted or retained in aggregated form, in DreamJay’s discretion, and will no longer be available to Customer.
8.4 Surviving Provisions
The following provisions and any other provisions which by their nature are intended to survive, shall survive the expiration or termination of these Terms: Sections 4 (Payment), 6 (Intellectual Property), 8.3 (Customer Data Portability and Deletion), 9 (Limitation of Liability and Release), 10 (Indemnification), 11 (Dispute Resolution, Governing Law, Venue, Jurisdiction), and 12 (Miscellaneous).
9. Limitation of Liability, Release and Disclaimer
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM DREAMJAY, OUR PAST, PRESENT AND FUTURE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, CONSULTANTS, EQUITY HOLDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, PREDECESSORS, SUCCESSORS AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY, THE “DREAMJAY PARTIES”) ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, FOR ANY HARM OR DAMAGE CAUSED BY, ARISING FROM, OR RELATING TO THE USE OF THE APP OR THE CONTENT OR OUR SERVICES, 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 FULLY APPLY TO YOU.
IN ANY EVENT THE DREAMJAY PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES ABOVE THE TOTAL AMOUNT OF $200.
THE APP (INCLUDING ALL UPDATES) AND THE CONTENT ARE MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. THE DREAMJAY PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE APP AND THE CONTENT. DREAMJAY DOES NOT WARRANT THAT THE APP, CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP (INCLUDING ANY UPDATES) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP (INCLUDING ANY UPDATES) WILL BE CORRECTED. DREAMJAY IS NOT RESPONSIBLE FOR ANY SYSTEM ERRORS OR EQUIPMENT MALFUNCTION THAT MAY RESULT FROM DOWNLOAD, INSTALLATION, OR USE OF THE APP.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DREAMJAY SHALL BE DEEMED TO ALTER THIS DISCLAIMER OF WARRANTY, OR TO CREATE ANY WARRANTY.
THE PROVISIONS OF THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DREAMJAY.
10.1 Indemnification by You
BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE DREAMJAY PARTIES AGAINST ANY CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BROUGHT AGAINST ANY DREAMJAY PARTY CONCERNING YOUR USE OF THE APP, OUR WEBSITES OR SOCIAL MEDIA SITES, OR OUR SERVICES (A “CLAIM AGAINST US”). YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS THE DREAMJAY PARTIES FROM ANY CLAIM DAMAGES, AWARDS, JUDGMENTS, LOSSES, LIABILITIES, OBLIGATIONS, PENALTIES, INTEREST, FEES, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) AND COSTS (INCLUDING, WITHOUT LIMITATION, COURT COSTS, COSTS OF SETTLEMENT AND COSTS OF PURSUING INDEMNIFICATION AND INSURANCE), OF EVERY KIND AND NATURE WHATSOEVER IN CONNECTION TO A CLAIM AGAINST US, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, OR SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY.
10.2 Exclusive Remedy
THIS SECTION 10 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION 10.
11. Dispute Resolution, Governing Law, Attorney Fees
The laws of the State of California, U.S.A., without regard to choice of law principles, shall apply to any dispute between the parties, except as to matters relating to arbitration, which shall be governed by the Federal Arbitration Act. Any arbitration will be administered by the American Arbitration Association and will take place in Newcastle County, Delaware, U.S.A.
If either party institutes a suit against the other party to enforce or declare any of its rights under this Agreement, the prevailing party in such action shall be entitled to recover from the other party all attorneys’ fees and costs thereof. As used herein, the term “prevailing party” means that party whose position is substantially upheld in a final judgment rendered in any litigation, or, if the final judgment is appealed, that party whose position is substantially upheld by the decision of the final appellate body that considers the appeal.
Customer recognizes that irreparable injury to DreamJay may be caused by Customer’s violation of this Agreement and agrees that, in addition to such other rights and remedies, DreamJay may enforce the specific performance of the provisions hereof and obtain injunctive or similar equitable relief against any act which would violate any such provisions, and the parties agree that DreamJay will not be required to post a bond or other security or to show actual damages to obtain such relief.
Except as otherwise specified in the Agreement, all notices, permissions and approvals shall be deemed to have been given upon:
- personal delivery;
- the second business day after mailing; or
- the first business day after sending by e-mail.
Notwithstanding the aforementioned, e-mail shall not be sufficient for notices of termination or indemnification purposes.
All notices, permissions and approvals to DreamJay pursuant to this Agreement shall be delivered to:
2612-A Eighth St.
All notices, permissions and approvals to the Customer pursuant to this Agreement shall be delivered to the address or e-mail address of record for your Account. All billing-related notices will be sent to the relevant billing contact designated by you.
It is the responsibility of the Customer to update his/her contact information with DreamJay. DreamJay is not responsible for any correspondence that fails to reach Customer due to a change in address or e-mail address not reported to DreamJay.
12.2 Entire Agreement
The Agreement is the entire agreement between Customer and DreamJay regarding Customer’s use of the App and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
12.4 No Waiver of Rights
No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
12.5 No Third Party Beneficiary
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
DreamJay may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement, or any part of it, to any other person, and any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use all or any part of your Account or the App. To the extent that you allow a third party to use your device, you shall remain solely responsible for the use of the App by others using the device.
12.7 Force Majeure
DreamJay shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of or interruption in common carriers (including, without limitation, Internet service providers and web hosting providers) or utilities, or shortages of transportation facilities, fuel, energy, labor or materials.
12.8 Notice to California Residents
If you are a California resident, you are entitled under California Civil Code Section 1789.3 to the following specific consumer rights notice:
The name, address and telephone number of the provider of the App and Services is DreamJay Inc., 2612-A Eighth St.
Berkeley CA 94710, (415) 992-7042 Complaints regarding the App, Services or Content or requests to receive further information regarding use of the App or Content may be sent to the above address or to: firstname.lastname@example.org
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.