Last Updated: 08/04/2021
What Are the Services?
The Platform is designed to allow Clients of BlueSleep that are interested in seeking treatment for sleep apnea or other sleep disorders (“Clients”) to make appointments with a sleep apnea healthcare provider, receive sleep test kits, have tele-visits with BlueSleep healthcare providers, and receive sleep apnea treatment devices, as well as communicate with their BlueSleep healthcare provider (“Provider”). The Platform also allows Providers to communicate with Clients and receive communications when using the Platform and Services. These Terms apply to both Clients’ and Providers’ use of the Platform.
The Services are not intended to be used to treat emergent, serious, or life-threatening conditions and may not be used as such. If you are a Client and you or someone you know believes you are suffering an emergent or life-threatening condition, call 9-1-1 immediately where that service is available or go to the nearest open clinic or emergency room.
Who Is Eligible to Use the Services?
You must register to create an account (“User Account”) and become a “Registered User” to use the Services. To register, You must create a username and provide Your name, Your email address, and other information specified in the registration form (“Registration Data”). You may change or correct information in Your account by contacting BlueSleep at [email protected]. You agree not to register for a User Account on behalf of an individual other than Yourself unless You are legally authorized to bind such person to these Terms. By registering another person, You hereby represent that You are legally authorized to do so.
By registering for an account and using the Services, You represent and warrant:
1. That You are at least 18 years old and are otherwise legally qualified to enter into and form contracts under applicable law;
2. If you are a Client, you are physically located in the State you choose/have chosen as your current location. You acknowledge that your ability to access and use the Services is conditioned upon the truthfulness of this certification and that the Provider(s) you access are relying upon this certification in order to interact with you. In the event that your certification is inaccurate, you agree to indemnify BlueSleep and the Provider(s) you interact with from any resulting damages, costs or claims as set forth in the Indemnification Section below;
3. Your Registration Data is true, accurate, current, and complete;
4. You will update Your Registration Data as needed to maintain its accuracy;
5. You are authorized to create a User Account (either for Yourself or another person);
7. You are legally authorized to view information accessible through the Services; and If you are a
8. Provider, You are licensed to provide virtual healthcare services through the Services.
NOTE: THIS AGREEMENT IS VOID WHERE PROHIBITED BY LAW. DO NOT USE THE SERVICES WHERE PROHIBITED BY LAW. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES MAY INVOLVE OR REQUIRE THE TRANSMISSION OF SIGNIFICANT AMOUNTS OF DATA. YOU ARE RESPONSIBLE FOR ALL DATA CHARGES THAT MAY BE CHARGED BY YOUR WIRELESS CARRIER OR INTERNET SERVICE PROVIDER OR THAT MAY OTHERWISE ARISE FROM YOUR USE OF THE SERVICES.
How Will We Tell You If We Change These Terms?
With the exception of the Arbitration Agreement (see “Dispute Resolution” section) included at the end of these Terms, BlueSleep reserves the right to change or modify these Terms at any time without prior notice to You. If We materially change or modify these Terms, We will let You know by posting the new version to our website.
If You continue to use the Services after we have let You know that we have made changes, You agree to be bound by the modified Terms. If You do not accept the changes, You should immediately stop using the Services and delete all files associated with the Services on Your computer or mobile device.
Who Owns the Services?
Snooze Inc. owns the Services, including all content and functionality You access through the Platform. Subject to Your compliance with these Terms, BlueSleep grants You a non-exclusive, non-sublicensable, revocable, non-transferable license to use the Services by accessing the Platform via the BlueSleep website at www.BlueSleep.com. The Services are for your personal use only and you may not resell or sublicense your access to the services. You may not use the Services for any other purpose than what is allowed under these Terms without Our express written permission.
You may not use BlueSleep’s name, trademarks, service marks, or logos, or those of third parties appearing on or affiliated with the Services in any advertising or publicity or to otherwise indicate BlueSleep’ or such third party’s sponsorship or affiliation with any product or service without express written permission from BlueSleep or such third party.
What Are You Prohibited from Doing?
You may use the Services only for lawful purposes and in accordance with these Terms, In addition, We impose certain restrictions on Your use of the Services, which are highlighted below. While using the Services, You shall not:
1. provide false, misleading or inaccurate information to Us or any other user;
2. use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
3. impersonate or attempt to impersonate Us, one of Our employees, another user, or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
4. use or attempt to use any manual process, engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest, monitor, or otherwise collect information from the Platform for any use, including without limitation, use on third-party websites, without Our consent;
5. access content or data not intended for You, or log onto a server or account that You are not authorized to access;
6. violate any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
7. attempt to probe, scan, or test the vulnerability of the Platform or BlueSleep’ website or any associated system or network, or breach security or authentication measures without proper authorization;
8. interfere or attempt to interfere with the functionality of the Platform or use by any other user, host or network, including, without limitation by means of submitting a virus, trojan horse, worm, logic bomb or other material which is malicious or technologically harmful, overloading, "flooding," "spamming," "mail bombing," or "crashing";
9. forge any TCP/IP packet header or any part of the header information in any e-mail or in any uploading or posting to, or transmission, display, performance or distribution by means of, the Platform;
10. post or transmit any unsolicited advertising, promotional materials, "junk mail", "spam," "chain letters," "pyramid schemes" or any other form of solicitation;
11. post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
12. exploit, harm or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
13. avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by US, You, or any other third-party (including another user) to protect the Platform;
14. attempt to modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Us in providing the Services. Any violation of this section may subject You to civil and/or criminal liability;
15. engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm the Us or users of the Services or expose them to liability, or otherwise interfere with or attempt to interfere with the proper working of the Platform; or
16. encourage or enable any other individual to do any of the above.
We are not obligated to monitor Your use of the Services, but We may do so to ensure Your compliance with these Terms, and to respond to law enforcement or other government agencies if and when we are required to. BlueSleep reserves the right to suspend or terminate Your use of the Services without notice to You if You partake in any of the prohibited uses described above.
How Should You Protect Your Login Information?
The Platform is designed to require users to create a username and password to access and receive communications when using the Platform and Services. Your username and password are, collectively, Your “User Credentials.” You are solely responsible for (A) maintaining the strict confidentiality of Your User Credentials, (B) not allowing another person to use Your User Credentials to access the Services, (C) any and all damages or losses that may be incurred or suffered as a result of any activities that occur under Your User Credentials, regardless of whether You were aware of those activities. You agree to immediately notify Us in writing by email of any unauthorized use of Your User Credentials or any other compromise of the security of Your User Account.
WE WILL NOT BE LIABLE FOR ANY LOSS THAT YOU INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. WE ARE NOT AND SHALL NOT BE LIABLE FOR ANY HARM ARISING FROM OR RELATING TO THE THEFT OF YOUR USER CREDENTIALS AND/OR ANY RESULTING ACCESS TO YOUR PERSONAL DATA, YOUR DISCLOSURE OF YOUR USER CREDENTIALS, OR THE USE OF YOUR USER CREDENTIALS BY ANOTHER PERSON OR ENTITY REGARDLESS OF WHETHER YOU WERE AWARE OF SUCH USE.
You may be held liable for any losses incurred by BlueSleep and/or its affiliates, officers, directors, and representatives (“Company Representatives”) due to someone else’s use of Your account or password, regardless of whether You were aware of such use.
How Do We Protect Your Privacy?
You expressly acknowledge and agree that We are neither responsible for nor liable to You or any third party for the treatment of Your Personal Data by any such individual or entity, including any collection, use, disclosure, storage, loss, theft, or misuse of Your Personal Data, whether or not such treatment violates applicable law or the third party’s privacy practices.
Computer Equipment and Internet Access
You are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, "Systems") necessary for You to access and use the Services. This includes, without limitation, obtaining internet services, using up to date web-browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. You are responsible for the data security of the Systems used to access the Services and for the transmission and receipt of information using such Systems. We are not responsible for any errors or problems that arise from the malfunction or failure of the Internet or Your Systems.
There are always certain security and access availability risks associated with using open networks such as the internet, and you expressly assume such risks.
How Can You Opt-Out Of Receiving Emails From Us?
In providing the Services, You may receive periodic email communications that are essential to the proper functioning and delivery of the Services (e.g., information regarding your User Account), which are part of the Services, and which You cannot opt out of receiving.
You may also receive periodic promotions and other offers or materials We believe might be of interest to You. You can opt-out of receiving these promotional messages at any time by emailing Us at [email protected].
Links to Outside Third-Party Applications
SMS Terms of Service
By consenting to Bluesleep's SMS marketing, you agree to receive recurring text notifications regarding appointment reminders. Message frequency varies. Consent is not a condition of any services provided by Bluesleep.
If you wish to unsubscribe from our text SMS messages, reply with STOP to any mobile message sent from us or unsubscribe via your profile setting in the portal. You understand and agree that using other means or alternative words to opt-out will not be considered a valid method of unsubscribing. While Bluesleep does not charge for this service, you may incur charges from your wireless provider. Message and data rates may apply.
Should you have any questions, kindly text HELP to the number from which you received our messages. You can also reach out to us at [email protected] for more details.We reserve the right to change any telephone number or short code we utilize for the service without prior notice. You will be informed if such changes occur. Please note that messages, including STOP or HELP requests, sent to an old or changed number may not be received, and Bluesleep will not be held accountable for not acknowledging such requests.
As per the applicable law, Bluesleep will not be responsible for unsuccessful, late, or wrongly directed delivery of any information through the service, any inaccuracies in the provided information, and/or any decisions you make based on the service or the information provided. Carriers are not liable for delayed or undelivered messages.
You agree that We will not, under any circumstances, be responsible or liable, directly or indirectly, for any goods, services, business practices, information, resources, applications, and other content (“Third-Party Matters”) available on or through any third-party sites or third-party dealings or communications, or for any harm related thereto, or for any damages or loss caused or alleged to be caused by or in connection with your use or reliance on the Third-Party Matters. Any reference in the Services to any product, service, publication, institution, organization of any third-party entity, or individual does not constitute or imply Our endorsement or recommendation.
Third-Party Services Within the Platform
Certain features, aspects, products and services offered through the Services are provided, in whole or in part, by third parties (“Third-Party Services” as provided by “Third-Party Service Providers”). For example, We use third parties to host our data, provide you with payment services, and send you sleep kits. Third-Party Services may be subject to additional terms and conditions, in which case you will receive a notification and have the opportunity to accept such terms and conditions. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO BE BOUND BY THOSE ADDITIONAL TERMS AND CONDITIONS, DO NOT USE THE RELATED THIRD-PARTY SERVICES.
Your Representations and Warranties
You represent and warrant that Your use of the Services will be in accordance with these Terms and all applicable laws, regulations, rules, and any BlueSleep policies and procedures We provide to You in writing. Specifically, you represent and warrant that you are legally authorized to share Personal Data (belonging to yourself or others on whose behalf you are submitting such personal data) with us.
Warranty Disclaimers & Limitation of Liability
NO WARRANTIESThe services are provided “as is”, without warranty of any kind, express or implied. BlueSleep explicitly disclaims any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of trade. Other than as expressly provided to You in writing by BlueSleep, BlueSleep makes no warranty that the services or materials will meet your requirements or be available on an uninterrupted, secure, or error-free basis. BlueSleep makes no warranty regarding the quality of any products, applications, or materials accessed or purchased through the Services or the accuracy, timeliness, truthfulness, completeness or reliability of the Services.
YOUR RESPONSIBILITY FOR OUR LOSS OR DAMAGE
You agree that your use of the Platform and Services is at your sole risk. You will not hold BlueSleep or its third-party service providers, licensors or suppliers, as applicable, responsible for any loss or damage that results from your access to or use of the Services, including without limitation any loss or damage to any of your computers or data.
LIMITATION OF LIABILITY
Neither BlueSleep, nor any other person or entity involved in creating, producing, or delivering the services will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with the use of or inability to use the Services, or from any communications, interactions, or meetings with other users of the Services or other persons with whom you communicate or interact as a result of your use of the Services whether based on warranty, contract, tort (including negligence and medical malpractice), product liability or any other legal theory, and whether or not BlueSleep has been informed of the possibility of such damage.
Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, some of these limitations may not apply to you. In such states, BlueSleep’ liability is limited, and warranties are excluded to the greatest extent permitted by law, but shall in no event exceed $100.00. You must bring any claim arising from the usage of the Services within one (1) year of the event from which the claim arose.
You agree to indemnify, defend and hold harmless BlueSleep and Company Representatives from any liability, loss, claim, suit, damage, and expense (including reasonable attorneys' fees and expenses) arising out of or in any way connected with your access to or use of the Services, your violation these Terms, or any negligent or wrongful conduct by you or related to your account by you or any other person accessing the Services through your account, regardless of whether you were aware of such use.
If you are a California resident, you waive California civil code section 1542, which states: “a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Feedback and Who Owns It
We welcome and encourage You to provide feedback, comments, and suggestions for improvements to the Services (“Feedback”). You may submit Feedback by emailing Us at [email protected]. You acknowledge and agree that if You submit any Feedback to Us, You hereby grant to Us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable, 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.
Termination of Your Account
If You breach any of these Terms, we may suspend or disable Your account or terminate Your access to the Services without prior notice to You. There may be other instances where We may need to terminate Your access to the Services that are not related to any of Your actions or inactions. We reserve the right to terminate Your access to and use of the Services at any time, with or without cause.
If You wish to terminate Your account, please contact BlueSleep at [email protected], immediately discontinue Your use of the Services, and delete all files associated with the Services from Your computer or mobile device.
*PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS*
You agree that any dispute between You and BlueSleep arising out of or relating to these Terms will be governed by the dispute resolution procedure outlined below. We want to address Your concerns without needing a formal legal case, so We have included a tiered dispute resolution process. This Arbitration Agreement section may be modified by written agreement between You and BlueSleep.
Before filing a claim against BlueSleep, You agree to try to resolve the dispute informally by contacting [email protected]. We will try to resolve the dispute informally by contacting You through email. If a dispute is not resolved within 15 days after submission, You may bring a formal proceeding, as outlined below.
In the event of any controversy or claim arising out of or relating to these Terms or a breach of these Terms, You must first attempt to settle the dispute with non-binding mediation through the American Health Lawyers Association (“AHLA”).
You shall, in writing, join BlueSleep in a joint demand for mediation and afterward jointly select a suitable mediator from the AHLA roster. If You and BlueSleep cannot agree upon a mediator, the AHLA shall designate one. The mediation will be conducted according to the AHLA’s Agreement to Mediate. The findings, conclusions, and recommendations of the mediator shall be non-binding, confidential, and inadmissible in arbitration or any other subsequent proceeding. Either You or BlueSleep shall have the right to bypass mediation and/or reject the Mediator’s findings, conclusions, and recommendations. In which event, all claims and disputes shall be exclusively, fully, and finally resolved using binding arbitration through the AHLA. You and BlueSleep agree to employ three (3) arbitrators (the “Panel”), where one arbitrator (1) is selected by You, one (1) is selected by BlueSleep, and the third (3rd) is selected by mutual consent of You and BlueSleep. If You and BlueSleep cannot agree upon the third arbitrator, the first two (2) arbitrators chosen shall select the third arbitrator. The selection decision shall be binding.
The arbitration shall be conducted by telephone, online, and/or be solely based on written submissions—the specific manner to be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. Any judgment on the award rendered by the Panel may be entered in any court of competent jurisdiction.
You and BlueSleep shall each pay 50% of all mediator and/or arbitrator costs, expenses, and fees incurred in connection with mediating and/or arbitrating under these Terms.
Any claim or dispute arising under these Terms must be initiated for mediation and/or arbitration within two (2) years from its accrual date. Any claim or dispute initiated two (2) years or longer from its accrual date shall be time-barred and dismissed.
Exceptions to Agreement to Arbitrate: BlueSleep may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Platform or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the informal dispute-resolution process described above.
Notwithstanding the above, You can decline or “opt out” of the alternative dispute resolution process described above by contacting BlueSleep within 30 days of first accepting these Terms and stating that You (first and last name) decline this dispute resolution process.
If You opt-out of the dispute resolution process described in this section, or if any matter is otherwise determined not to be subject to such dispute resolution process, You hereby submit to the exclusive jurisdiction of any state or federal court sitting in the State of New York within twenty-five (25) miles of New York, New York in any legal proceeding arising out of or relating to these Terms. You agree that any and all claims and matters arising out of these Terms, unless subject to the dispute resolution process described above, may be heard and determined in any such court, and You hereby waive any right to object to such filing on grounds of improper venue, forum non-conveniens, or other venue-related grounds, unless such objection asserts that the claim or matter in dispute is subject to determination through the dispute resolution process described above.
General Contract Terms
These Terms shall be governed by the laws of the State of New York without reference to its conflict of laws provisions.
You may not assign or transfer these Terms, by operation of law or otherwise, without BlueSleep’ prior written consent. Any attempt by You to assign or transfer these Terms, without such consent, will be null and of no effect. BlueSleep may assign or transfer these Terms, at its sole discretion, 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 permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (i) by BlueSleep via email (in each case to the address that You provide); and/or (ii) by posting to the Platform. For notices made by email, the notice will be effective as of the date the notice is first transmitted. You agree that any notice received from BlueSleep electronically satisfies any legal requirement that such notice be in writing. You alone are responsible for ensuring that your email address on file with BlueSleep is accurate and current and notice to you shall be deemed effective when sent.
You shall give any notice to BlueSleep by email to: [email protected]. Notice to BlueSleep shall be effective upon receipt of notice by BlueSleep.
NO INADVERTENT WAIVER
The failure of You or BlueSleep to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the party against which the waiver is sought to be enforced. 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. 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.
If any provision of these Terms is determined to be invalid, illegal or unenforceable, the remaining provisions of these Terms remain in full force, provided that the essential terms and conditions remain valid, binding and enforceable and the economic and legal substance of the transactions contemplated by these Terms are materially preserved.
INTELLECTUAL PROPERTY RIGHTS
“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
As between You and Us, all right, title and interest, including all Intellectual Property Rights, in the Services, any related materials, logos, products, and documentation, and any other property or materials furnished or made available hereunder, and all modifications and enhancements thereof, belong to and are retained solely by BlueSleep or its licensors, vendors and affiliates, as applicable. All rights not expressly granted are reserved by Us. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
15 Broad Street, Suite 2414
New York, NY 10005