Patient Terms of Service

Last Modified: 23 March 2026

Wesper, Inc. (together with its designated affiliates, “Wesper”) has established these Terms of Use and Arbitration (“Agreement”) that governs access to and use of the Wesper Sleep Lab offerings and associated pulse oximeter, sleep patches, charging station, adhesives, applications, portal, websites, documentation, usage data, third-party functionality and other inputs, related information and materials, any updates or modifications thereto, and any support (collectively, the “Application Services”) that Wesper makes available to licensed healthcare professionals.

THIS IS A LEGALLY-BINDING AGREEMENT BETWEEN THE USER OF THE APPLICATION SERVICES (“USER”) AND WESPER. BY ONLINE ACKNOWLEDGEMENT, CLICK-THROUGH, OR ACCESS TO OR USE OF THE APPLICATION SERVICES, USER CONFIRMS THAT IT IS AT LEAST THE AGE OF MAJORITY IN THE APPLICABLE JURISDICTION AND HAS READ, UNDERSTANDS, AND IS BOUND BY THIS AGREEMENT, BY ACKNOWLEDGING AND AGREEING AS FOLLOWS:

Intended Use. The Application Services are intended for use by recommendation of licensed healthcare professionals to collect and analyze physiological sleep data about patients under their care. THE APPLICATION SERVICES ARE NOT A SUBSTITUTE FOR MEDICAL JUDGMENT AND DO NOT DIAGNOSE OR TREAT ANY CONDITION OR USER. WESPER IS NOT A HEALTHCARE PROVIDER. IN A MEDICAL EMERGENCY, USER SHOULD SEEK AVAILABLE ASSISTANCE SUCH AS CALLING 911.

Authorization. User is authorized by a healthcare professional to use the Application Services.

Modifications. The Agreement may be updated from time to time and posted on the Wesper website at https://wesper.co/blogs/policies/privacy-policy with a “date last modified” notation.

Support. Wesper may provide limited technical support and troubleshooting, User consents to the recording of support and troubleshooting calls for quality assurance and training purposes.

Security. User has carefully read all instructions and shall adhere to them and maintain the security of, and not share, passwords and access codes, or otherwise allow a third party to access the Application Services. User agrees to report unauthorized use. User is responsible for required network connections and security of data transmitted.

Limitations. Users shall not use the Application Services in any manner that is prohibited by this Agreement or applicable law, transmits unauthorized or unsolicited advertisements, transmits viruses or other undesirable code, interferes with or gains unauthorized access to Wesper’s network, or impairs Wesper’s ability to operate the Application Services. Without limiting the foregoing, User shall not, directly or indirectly: (i) sublicense, lease, rent, loan, distribute, or otherwise transfer any component of the Application Services to any third party; (ii) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any component of the Application Services; (iii) copy, reproduce or create derivative works of any component of the Application Services; (iv) permit use of the Application Services for the development of new, or the modification of existing, products or services, whether offered by User or a third party; (v) permit use of the Application Services for a time share, outsourcing or similar relationship; or (vi) remove, alter or obscure any labels, Wesper markings or other proprietary notices from the Application Services.

User Materials. User shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, storage, and backup of information, data, images, photographs and other content provided by or on behalf of User. User hereby grants Wesper a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, fully paid up and transferable license, with the right to sublicense through multiple tiers, to host, copy, use, distribute, access, read, store and display such materials for the purposes of (i) providing the Application Services; exercising Wesper’s rights and performing its obligations with respect thereto; satisfying any legal process, governmental request, or compliance with applicable law; detecting, preventing or otherwise addressing technical issues; and responding to User support requests; and (ii) creating or having a third party create, aggregated, statistical data or compilations of such materials with other data, and use or otherwise exploit or make available to other persons and entities such aggregated, statistical data or compilations, in each case for any business or commercial purpose.

Intellectual Property Rights. As between the parties, Wesper owns and retains all worldwide right title and interest in and to the Application Services and all associated and available intellectual property and proprietary rights of any kind including but not limited to trademarks, copyrights, trade secrets, patents, and database rights, and all associated registrations and/or applications. Wesper is free to use in any manner and without attribution or payment any User feedback regarding the Application Services. Wesper may collect usage data relating to User use of the Application Services and may use such data for any purpose, provided that if Wesper provides such data to a third party, it will aggregate such data so that Users cannot be identified as the source of such data. Usage data does not include PHI (as defined below).

Privacy and Protected Health Information. Wesper may be a business associate (as defined under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”)) to licensed health care professionals recommending the Application Services that are covered entities under HIPAA. Wesper’s privacy policy, found at https://wesper.co/blogs/policies/privacy-policy, the Health Information Technology for Economic and Clinical Health (HITECH) Act, and, to the extent that Wester is acting as a business associate, this section, shall govern Wesper’s use and disclosure of Protected Health Information as defined under HIPAA (“PHI”). Wesper may use or disclose PHI to provide the Application Services for covered entities as specified in this Agreement, and as necessary for its proper management and administration or to carry out its legal obligations. Wesper will use appropriate administrative, physical, and technical safeguards with respect to PHI including electronic PHI. Wesper will notify the applicable covered entity of any unauthorized use or disclosure of PHI, and security incidents (as defined by HIPAA) of which it becomes aware, quarterly or at such interval as otherwise may be agreed with such covered entity. Wesper will ensure that any subcontractor handling PHI on behalf of Wesper agrees to substantially similar conditions as those found herein. Wesper will cooperate with a covered entity as necessary for such covered entity to satisfy its legal requirements. Upon termination, Wesper will return or destroy all PHI. Wesper may maintain one (1) copy of such information for its internal purposes and legal obligations.

Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE APPLICATION SERVICES ARE PROVIDED “AS IS,” AND WESPER MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, (B) WESPER DOES NOT WARRANT THAT OPERATION OF ANY COMPONENT OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE REPAIRED, AND (C) WESPER HAS NO RESPONSIBILITY OR LIABILITY ARISING FROM OR RELATED TO: (I) ANY DATA OR DATA OUTPUT CONTAINED IN THE APPLICATION SERVICES, (II) THE USE, MISUSE, ABUSE, IMPROPER, OR UNAUTHORIZED USE OF, OR INABILITY TO USE, THE APPLICATION SERVICES; OR (III) THE USE OF EQUIPMENT, ADHESIVES, OR ANY OTHER PRODUCTS NOT MANUFACTURED BY OR SOLD UNDER THE WESPER MARK (REGARDLESS OF WHETHER PURCHASED FROM OR FURNISHED BY WESPER). THE APPLICATION SERVICES IS A PRESCRIPTION MEDICAL DEVICE AND SHOULD NOT BE PROVIDED TO: (i) PEDIATRIC PATIENTS, INFANTS OR NEONATES; OR (ii) PATIENTS WITH ANY KNOWN HEALTH CONDITION THAT, IN THE OPINION OF THE HEALTHCARE PROVIDER, RENDERS USE INADVISABLE.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WESPER NOR ITS AFFILIATES OR SUPPLIERS SHALL BE LIABLE TO USER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH WESPER’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE APPLICATION SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF WESPER HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF WESPER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR THE WESPER SLEEP LAB SHALL NOT EXCEED THE FEES PAID BY USER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL WESPER’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that applicable fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

Effect of Termination or Expiration. Upon termination or expiration of this Agreement or any applicable subscription or period of permitted use, for any reason: (a) all rights and obligations of both parties regarding the Application Services, including all licenses granted hereunder to the Application Services, will immediately terminate; (b) if this Agreement is terminated by User for Wesper’s uncured material breach, Wesper will refund prepaid unused fees for the Application Services, (c) User shall cease accessing or using the Application Services; and (d) User access to the Application Services will be automatically terminated, all passwords and individual accounts will be removed, and all User Materials that have been uploaded, submitted or entered into the Application Services by User may be destroyed. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement will survive.

Indemnification. User will indemnify, hold harmless and, at Wesper’s request, defend Wesper, in each case at User’s expense, from any suit brought against Wesper, and will pay any settlement User makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to: (a) User’s use of the Application Services, (b) the actual or alleged violation of applicable laws by User, or, (c) improper use of Application Services

Miscellaneous. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by Applicable Law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes all prior discussions and agreements (oral or written) between the Parties with respect to such subject matters. No modification of or amendment to this Agreement by User, or any waiver of any rights under this Agreement by Wesper, will be effective unless in writing and signed by an authorized signatory of the parties. User shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without the prior written consent of Wesper. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. This Agreement will be governed and interpreted by and under the laws of the state of New York, without regard to its conflicts of laws provisions. Subject to the arbitration provisions hereof, any action relating to this Agreement shall exclusively be brought in New York, New York, and both Parties irrevocably consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Except as otherwise expressly provided herein, the parties’ rights and remedies under this Agreement are cumulative. User acknowledges that the Application Services contain valuable trade secrets and proprietary information of Wesper, that any actual or threatened breach of this agreement by the User will constitute immediate, irreparable harm to Wesper for which monetary damages would be an inadequate remedy. In such case, Wesper will be entitled to immediate injunctive relief without the requirement of posting bond. User agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Wesper, or any products utilizing such data, including the Application Services (or any component thereof), in violation of the U.S. export laws or regulations. Any delay in the performance of any duties or obligations of a party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such. Notices or other communications required or permitted under this Agreement must be sent in writing, if to User, to an email address User has previously provided, if available, or other contact means including a message in User account, and if to Wesper, at the address listed on the Wesper website, by courier, certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Notice will be effective upon receipt or refusal of delivery.

Disputes, Arbitration, and Class Action Waiver.

USER ACKNOWLEDGES THAT THIS PROVISION SIGNIFICANTLY AFFECTS ITS RIGHT TO FILE A LAWSUIT IN COURT OR TO PURSUE CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY, INSTEAD UTILIZING A NEUTRAL ARBITRATOR WITH LIMITED DISCOVERY, LIMITED REVIEW BY COURTS AND SPECIFIC PROVISIONS FOR COORDINATED CLAIMS AMONG OTHER USERS.
Agreement to Binding Arbitration. The parties agree that any dispute, claim or controversy, known or later discovered, arising out of or relating to any aspect of this Agreement (including the validity and enforceability of its arbitration provisions), any privacy policy, and/or the Solution, (each, a “Dispute”), shall be resolved by binding arbitration in New York, NY, in the English language before one arbitrator, except as expressly provided herein, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules (collectively, the “JAMS Rules”), as they exist on the effective date of this Agreement, including without limitation Rules 16.1 and 16.2 of the JAMS Rules. The arbitrator may select a less burdensome location or conduct the arbitration by video or telephone. An award may be entered in any court of competent jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Exceptions to Arbitration. Notwithstanding these arbitration provisions, either party may bring an action in state or federal court that only asserts claims for or enjoin patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation, or in other scenarios where injunctive relief is appropriate.. Such excluded claims are subject to the governing law provision above. Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.
Jury Trial and Class Action Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY; ANY CLAIMS OR ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND USER IS AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION; AND IF USER OPTS-OUT OF THESE ARBITRATION PROVISIONS AS SET FORTH BELOW, THIS CLASS ACTION WAIVER STILL APPLIES. Further, unless mutually agreed otherwise, the arbitrator may not consolidate more than one person’s claims with User’s claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Seeking Arbitration. If User elects to seek arbitration or file a small claim court action, it must first send to Wesper a written notice of the claim in accordance with the provisions above (“Notice”). If Wesper initiates arbitration, it will send a written Notice to an email address User has previously provided, if available, or use other contact means including a message in User account. A Notice must (i) describe the nature and basis of the Dispute; and (ii) set forth the specific relief sought (“Demand”). If the parties do not reach an agreement to resolve the Dispute within thirty (30) days after the Notice is received, either Party may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com.
Fees. The parties agree that for any arbitration User initiates, User will pay the filing fee up to US $250 and Wesper will pay the remaining JAMS fees and costs in accordance with the JAMS Rules. For any arbitration initiated by Wesper, it will pay all JAMS fees and costs.
Hearing. If User’s Demand is for US $10,000 or less, User may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If User Demand exceeds US $10,000, the right to a hearing will be determined by the JAMS Rules. In the event the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
Award. In the event arbitration awards User damages of an amount at least US $100 greater than Wesper’s last-documented settlement offer, Wesper will pay such awarded damages or US $2,500, whichever is greater.
Unenforceability; No Waiver. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Confidentiality. Each party shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Coordinated Proceedings. If twenty-five (25) or more individuals initiate Notices of Dispute against Wesper raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims”), the claims shall proceed in a coordinated proceeding. Counsel for the individuals and Wesper counsel shall each select ten (10) cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten (10) have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another twenty-five (25) cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against Wesper. Individuals bringing Coordinated Claims shall be responsible for up to US $250 of their filing fees or the maximum permissible under the applicable arbitration rules. All applicable statutes of limitations and defenses based upon the passage of time will be tolled while the Coordinated Proceedings specified in this Section are pending.
Governing Law. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
Punitive Damage and Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator (i) is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages; and (ii) may not award any incidental, indirect, or consequential damages, including damages for lost profits.
Opt-Out Right. User has the right to opt-out and not be bound by the arbitration agreement and class action waiver provisions in this Section by sending written notice to opt-out to support@wesper.co, using the subject line “Arbitration Opt-Out.” The notice must be sent within 30 days of the date on which User first became subject to this Agreement. Wesper shall not be bound upon such opt-out, however, the class action waiver would still apply.
Severability. If the clauses concerning the procedures related to Coordinated Claims and Test Case procedures are or become invalid or unenforceable, then the remaining entire arbitration arrangement shall be severed from this Agreement. However, any duty of confidentiality whether or not such duty is connected with arbitration shall survive such severance.
California Residents. To the extent provided in applicable law, a California-resident User is not required to pay the fees and costs incurred by the opposing party if such User does not prevail.

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