Terms and Conditions
CUSTOMER TERMS AND CONDITIONS
Last Updated: June 23, 2021
These Customer Terms and Conditions (the “Agreement“) apply to your (“you” and “your“) purchase and use of the WESPER™ sleep kit (the “Product“), as well as the related software applications and services (the “Software“). You must read this Agreement carefully, and by placing an Order (defined below) and/or accessing or using the Software, you confirm that you have read, understood, and agree to be bound by the following (the date of such occurrence, the “Effective Date“):
(A) these terms and conditions in their entirety; and
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT (AND ALL REFERENCES TO “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY). YOU ALSO REPRESENT THAT YOU ARE: (i) AT LEAST EIGHTEEN (18) YEARS OF AGE (AND IN ANY EVENT, OF A LEGAL AGE TO FORM A BINDING CONTRACT); AND (ii) A RESIDENT OF THE UNITED STATES OF AMERICA OR ITS TERRITORIES.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PLACE AN ORDER, OR OTHERWISE ACCESS OR USE THE SOFTWARE.
This Agreement is a binding agreement between you and Tatch, Inc., a Delaware corporation located at 234 5th Avenue, New York, NY, 10001, USA (“Tatch“, “we“, “us“, and “our“). However, at Tatch’s sole discretion, any Tatch obligation may be performed (in whole or in part), and any Tatch right or remedy may be exercised (in whole or in part), by a Tatch Affiliate (defined below), and Tatch may subcontract its performance hereunder to Tatch Affiliates.
Tatch reserves the right to modify this Agreement at any time by posting the modified Agreement at https://wesper.co/terms-and-conditions/. Such modifications will be effective upon posting (unless we specify a later effective date). In such cases, we will also update the “Last Updated” reference set forth at the beginning of this Agreement.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT – SEE SECTION 12 (MANDATORY ARBITRATION) AND ITS RELATED SCHEDULE A. PLEASE READ THAT SCHEDULE CAREFULLY, SINCE IT MAY REQUIRE YOU AND TATCH TO ARBITRATE CERTAIN DISPUTES AND LIMIT THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF. THERE IS, HOWEVER, AN OPTION TO OPT-OUT.
DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section and some of which are defined elsewhere. The Section headings in this Agreement are for convenience of reading only and may not to be used or relied upon for interpretive purposes.
“Tatch Affiliate” means, with respect to Tatch, any organization or entity controlling, controlled by, or under common control with, Tatch, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities, by contract, or otherwise.
“Tatch Materials” means, collectively, the Product, Software, any Content appearing or displayed on or in the Software, and any other services made available to you in connection with your Order. For the avoidance of doubt, Tatch Materials includes without limitation Third Party Content and Third Party Services (as defined below).
“Content” means any text, data, information, images, graphics, sounds, videos, audio clips, links, and/or similar materials and content.
“Dispute” means any claim, dispute or controversy under, or otherwise in connection with, this Agreement.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property (collectively, “Intellectual Property“), and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule, in any jurisdiction.
“Site” means the website www.wesper.co, together with its subdomains.
“Subscription Term” means the subscription term specified in your Order.
You may place an order for Products (an “Order“) via the functionality offered on the Site.
Your Order is hereby incorporated into, and made a part of, this Agreement by reference.
Your Order is only an offer, and is subject to our acceptance of it (“Acceptance“). Acceptance only occurs at such time that both of the following have occurred:
(a) provided you with an Order confirmation number; and
(b) received full payment (as confirmed by us or our payment service provider) of the purchase price of your Order through settlement of funds via your provided credit card or other payment method.
We may, without liability, reject your Order at any time and for any reason prior to Acceptance (for example, if we are unable to process or fulfill the Order due to unavailability of the Product), and in such cases we will cancel your payment, or, if your payment has already been received we will issue you a refund or credit for the paid amount. FOLLOWING ACCEPTANCE, AN ORDER IS FINAL, NON-CANCELABLE AND NON-REFUNDABLE.
Prior to Acceptance, an automatic e-mail acknowledgement of your Order may be generated (but such acknowledgement does not constitute Acceptance or confirmation of your Order).
Notwithstanding the above, if you and Tatch (or a Tatch Affiliate) execute an Order Form, Sales Order, or similar ordering document for the purchase of the Product (an “Order Form“), such Order Form shall be treated as an Order for the purposes of this Agreement. Such an Order Form will not be subject to any Acceptance, and will deemed effective upon execution.
PRICING AND PAYMENT
- Pricing. The fees and other charges you pay for the Product and/or Software (collectively, the “Fees“) is the price(s) displayed on the Site checkout page when you place your Order (or, in the case of an Order Form, the price(s) specified in the Order Form), and no other prices are applicable. Notwithstanding the preceding sentence, while we try and ensure that all prices on the Site are accurate, errors may occur (including, but not limited to, mispricing in our catalog). If we discover an error in the price of Products you have placed an Order for, we will inform you of this as soon as possible and give you the option of reconfirming your Order at the correct price or cancelling it. If we are unable to contact you, we will treat the Order as cancelled. If we cancel the Order in such cases, and you have already paid for the Product, you will receive a refund or credit in the amount of the price you paid. Except as expressly stated otherwise in this Agreement, Fees are non-refundable, non-cancellable, and without right of setoff. Tatch shall be entitled to issue invoices (and any associated reporting) and billing notices via email to you and/or via a functionality of the Software.
- Currency. The base currency currently used on the Site is U.S. Dollars. Pricing may be offered in other currencies, and in such cases the pricing is calculated according to the rate of exchange between the base currency and the currency that you select when placing your Order. We reserve the right to update such exchange rates regularly, in our sole discretion, and you acknowledge that such updates may affect Product pricing. You will be charged according to the applicable exchange rate at the time you place your Order.
- Payment Method. You may pay by debit card, credit card or another alternative payment method offered as part of the checkout process. The availability of a certain payment method may depend on your geographical location. (If we change or supplement existing payment method options, this will not affect any existing Order.) Tatch will charge you through the payment method you have selected for your Order, and you authorize Tatch to do so immediately following placement of your Order. Accordingly, you must provide valid and current billing information for yourself. If applicable to the payment method: (a) payment of Fees may be processed through a third-party payment processing service (which will receive and process your billing information), and additional terms may apply to such payments; and (b) in processing payment, we may use tools, software and services of payment processors to process transactions, and if your payment is not received by us for any reason from your payment method provider/issuer, you agree to promptly pay all amounts due upon request and use the method that we reasonably prescribe. You hereby represent and warrant that you are the person in whose name the payment method was issued or registered, and you are authorized to place the Order with such payment method and disclose all related billing information. You hereby irrevocably authorize Tatch (and/or its designee) to: (i) request and collect payment (and to otherwise take other billing actions, such as refunds) from you (and if applicable, on a recurring basis); and (ii) make any inquiries Tatch deems necessary, from time to time, to validate your designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from your payment, credit card, or banking account provider – such as, updated expiry date or card number).
- Verification. When deciding whether to accept your Order we may use certain information about you, including information provided to us by our third party identity verification and fraud alert partners. For example, we may pass on your details for them to check against certain public and private databases and to provide an assessment to us. This will help to protect you and us from fraudulent activities.
- Taxes. Except for taxes based on Tatch’s net income, you are responsible for any and all taxes, duties, and other governmental charges relating to your Order, which may include, but will not be limited to, VAT, GST, or any other any sales, use, or consumption tax. For certain shipping destination countries and/or certain Products, you may be offered the option to pre-pay applicable taxes, which will then be calculated and included in the final price when you place the Order.
PRODUCT SHIPPING AND DELIVERY; REPLACEMENT
- Delivery. Delivery charges and timeframes vary depending on [the type of Product ordered, the service you select, and] the delivery address. Further details of our shipping and delivery policies can be found at https://wesper.co/shipping-policy/ (“Shipping and Delivery Policy“), which is hereby incorporated into, and made a part of, this Agreement by reference. In all cases, however, delivery timeframes are just estimates (and should not be relied upon as guaranteed delivery times). Products will be deemed accepted by you upon delivery. All Products will be packed for shipment and shipped in accordance with our standard practices. We shall not be liable for any damages or penalties for delivery delay or for failure to give notice of delay. You will be responsible for ensuring that the Product under your Order complies with applicable import Laws and for paying any applicable import duties and taxes, as well as any customs clearance fees that are levied by the importing country at the time the shipment arrives in your country.
- Replacement. During a period of ninety (90) days period commencing as of the date you place your Order (the “Replacement Period“), you shall be entitled to request a replacement Product. During the Replacement Period, we will pay the shipping charges for delivery of replaced Product to you. You acknowledge that if you request a replacement of a Product, you are required to return the Product to us in the same conditions (less reasonable wear and tear).
- License. Subject to the terms and conditions of this Agreement, Tatch hereby grants you a limited, personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license to download, install and use the Software on a Device (collectively, the “License“). The License is granted for the sole purpose of authorizing you, as an individual, to use and enjoy the Software services. The Software services will be provided to you during the Subscription Term.
“Device” means any mobile telephone, tablet or device that you own or control. In the event Tatch make available a web-based version of the Software, then the License shall also be construed as permitting you to access and use the Software via the web. The Software (and any of its copies) is only licensed or provided on a subscription basis (and is not sold) under this Agreement.
- Software Delivery. Delivery of the Software shall be by electronic means, and will be deemed delivered once made available for download or access (as the case may be). The Software shall be deemed accepted by you upon delivery.
- Features and Functionalities. Tatch may, from time to time, modify and replace the features and functionalities (but not material functionalities to which you are entitled under an Order, unless it improves the material functionality), as well as the user interface, of the Software. Some features and functionalities may in any event be restricted by geography or otherwise, in order for Tatch to comply with applicable Law or commitments to third parties.
- Messages. If the Software enables you to send messages or similar Content to third parties (“Messages“), you are solely responsible and liable for the Content of your Messages, for the manner in which you sends them, for the timing of sending them, and generally for the consequences of sending them (for example, you shall ensure you’re your Messages do not violate any Laws relating to privacy, anti-harassment, or anti-spamming). You acknowledges that many jurisdictions have Laws that require a recipient of a Message to give his/her prior consent (and that in certain cases such consent must be express, written and/or signed) to receive the Message, and you: (a) agree to obtain such consent prior to sending the Message; and (b) agree to (and hereby does) hold Tatch harmless, and expressly release Tatch, from any and all responsibility or liability arising from Messages that you send or receive.
As a condition to the License, you shall not (and shall not permit or encourage any third party to) do any of the following, in whole or in part: (a) copy or reproduce (such as by screen scraping), republish, create public Internet “links” to, “frame”, or “mirror” any Tatch Materials, or otherwise access Tatch Materials via any automated process,; (b) except for the Products which you purchase, sell, assign, lease, lend, rent, distribute, or make available any Tatch Materials to any third party, or otherwise offer or use any Tatch Materials as part of a time-sharing, outsourcing, or service bureau environment; (c) modify, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, any Tatch Materials; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in any Tatch Materials; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of any Tatch Materials; (f) make a derivative work of any Tatch Materials, or use any Tatch Materials to develop or create any service, product, or Content that is the same as (or substantially similar to or competitive with) any of the Tatch Materials; (g) provide, upload, publish, or transmit (whether as Your Content or otherwise) any “robots” or “spiders” (such as web crawlers), virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt, or otherwise misuse, any Tatch Materials; (i) take any action that imposes or may impose (at Tatch’s sole discretion) an unreasonable or disproportionately large load on any infrastructure of the Tatch Materials, or otherwise interfere (or attempt to interfere) with the integrity or proper working of any Tatch Materials; (j) use any Tatch Materials to infringe, misappropriate or violate any third party’s Intellectual Property Rights (as defined below), privacy (or other personal) rights), or any Law (such as to impersonate or attempt to impersonate any other person or entity); and/or (k) upload or publish any advertisement or promotional material on the Tatch Materials.
THIRD PARTY CONTENT AND PROVIDERS
- General. The Tatch Materials may display, link to, and/or otherwise allow you to view, access, or interact with, Content, as well as receive services, from third parties and other sources that are not owned or controlled by Tatch, even if they are Tatch-branded or otherwise display Tatch’s name or logo (such Content and third parties, “Third Party Content“, “Third Party Services“, and “Third Party Providers“, respectively). The Software may also enable you to communicate with the Third Party Providers. For example, the Software may display links to, or otherwise contain embedded links to, sleep consultants’ (each, a “Sleep Consultant“) websites, and to receive sleep consulting services (each, a “Sleep Consulting Services“).
The display or communication to you of such Third Party Content or Third Party Services does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Tatch of such Third Party Content, Third Party Services, or Third Party Provider, or by such Third Party Provider of Tatch, and nor any affiliation between Tatch and such Third Party Provider.
- Sleep Consulting Services. If covered by your Order, you may be entitled to Sleep Consulting Services. Unless your Order expressly states otherwise, Sleep Consulting Services are limited to a single session of fifteen (15) minutes, and is provided online. To the extent that you are desire to purchase additional Sleep Consulting Services during the Subscription Term, please contact us at email@example.com Such additional Sleep Consulting Services may be subject to additional fees.
We may earn fees from, pay fees to, or have other compensation arrangements in place with, Sleep Consultants in connection with Sleep Consulting Services or other interactions you may have with them.
- Responsibility. If you provide, publish, upload, or transmit any Content to or via the Software (“Your Content“), you represent and warrant as follows: (A) Your Content will be complete and accurate; (B) no processing of Your Content under this Agreement (whether by Tatch, a Tatch Affiliate, Third Party Providers, or subprocessors) will violate any Law, proprietary right, or privacy (or other personal) right; (C) you have obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy Laws (if applicable), necessary to so provide, publish, upload, and transmit Your Content; and (D) Your Content will not be unlawful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, and will not contains or depict nudity or sexual activity.
- No Storage. The Software is not intended to, and will not, operate as a data storage or archiving product or service, and you agree not to rely on the Software for the storage of any Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Content.
- License to Your Content. You hereby grant (and shall grant) Tatch and each Tatch Affiliate a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, paid-up, sublicensable (through multiple tiers), assignable and transferable right and license to use, process, store, edit, modify, truncate, aggregate, reproduce, transfer, distribute, create derivative works of, publicly display and perform, and otherwise fully exploit Your Content in connection with the Tatch Materials and our (and our successors’ and assigns’) businesses, including without limitation for promoting Tatch, the Products, and Software, in any media formats and through any media channels (including, without limitation, third party websites and feeds) (collectively, the “License to Your Content“). You represent and warrant that you have obtained (and will maintain) all rights and consents to grant the License to Your Content without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights.
Tatch (and/or its Affiliates, licensors and suppliers, as applicable) is and shall remain the sole and exclusive owner of all right, title, and interest (including, but not limited to, all Intellectual Property Rights) in and to:
(a) the Tatch Materials, as well as any computer programs (including APIs), databases, or other Intellectual Property underlying, operating, or otherwise embodied in any Tatch Materials; and
(b) the trademarks, service marks, trade names, service names, trade dress, symbols, brands, and logos displayed on contained on or in any Tatch Materials (“Trademarks“).
You acknowledge that the items in paragraphs (a) and (b) above may be protected by Intellectual Property Rights treaties and Laws. Without limiting paragraph (b) above, Tatch and Wesper™, and their respective logos and designs, are the Trademarks of Tatch or a Tatch Affiliate. Other Trademarks displayed on contained on or in any Tatch Materials are the property of their respective third party owners.
Any rights not expressly granted herein are hereby reserved by Tatch and its licensors and suppliers, and, except for the License, you are granted no other right or license in or to the Product, the Software, or other Tatch Materials, whether by implied license, estoppel, exhaustion, operation of law, or otherwise
THE TATCH MATERIALS ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY TATCH AND ITS LICENSORS AND SUPPLIERS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF TATCH SHALL CREATE OR GIVE RISE TO A REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION. ANY USE OF, OR RELIANCE UPON TATCH MATERIALS IS AT YOUR SOLE RISK.
IN ADDITION, NEITHER TATCH NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION:
(A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF ANY TATCH MATERIALS;
(B) THAT YOUR USE OF, OR RELIANCE UPON, TATCH MATERIALS WILL MEET YOUR REQUIRMENTS OR EXPECTATIONS, THAT YOU WILL OBTAIN ANY INSURANCE PRODUCTS (OR QUOTE THEREFOR), THAT ANY INSURANCE PRODUCT QUOTES, FEES OR TERMS ARE THE BEST AVAILABLE, OR THAT YOU WILL BE MATCHED WITH AN INSURANCE PROVIDER;
(C) THAT TATCH MATERIALS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS WILL BE CORRECTED;
(D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY INDSUTRY STANDARDS; OR
(E) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, ANY CYBERSECURITY EVENT, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS.
TATCH WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
The above disclaimers apply to the maximum extent permitted by applicable Law. You may have legal rights in your country of residence which would prohibit the above disclaimers from (fully or partially) applying to you (for example, some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and do not allow limitations to be imposed on statutory rights), and, to the extent the above disclaimers are prohibited, then you and Tatch agree that they will not apply to you.
YOU ACKNOWLEDGE THAT TATCH IS NOT A LICENSED MEDICAL PROFESSIONAL, AND THAT THE TATCH MATERIALS ARE NOT MEDICAL DEVICES AND RE NOT INTENDED TO BE USED AS MEDICAL DEVICES. Furthermore, the Tatch Materials are neither regulated nor approved by the U.S. Food and Drug Administration (or other regulatory or governmental agency), and are not designed to detect or prevent causes of any medical condition. The Tatch Materials are not a substitute for medical care or adult supervision, and you are solely responsible for your medical and health decisions. We urge you to obtain the advice of licensed medical professionals who are fully aware of your individual circumstances before you make any health or medical decisions.
LIMITATION OF LIABILITY
IN NO EVENT SHALL TATCH BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF OPPORTUNITY, WASTED TIME OR EXPENDITURE, OR OTHER ECONOMIC LOSS;
(C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF COVER, OR OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE COMBINED AGGREGATE LIABILITY OF TATCH AND ALL TATCH AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (i) FIVE US DOLLARS (US$ 5); OR (ii) THE AMOUNT ACTUALLY PAID BY YOU TO TATCH UNDER THE ORDER TO WHICH THE LIABILITY RELATES.
THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (SUCH AS, FOR EXAMPLE, IF A JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR OF LIABILITY FOR PERSONAL INJURY OR DEATH CAUSED BY NEGLIGENCE); (ii) EVEN IF TATCH HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (iii) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (iv) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.
To the maximum extent permitted by applicable Law, you hereby irrevocably release Tatch, all Tatch Affiliates, and our and their respective directors, officers, members, employees, representatives, consultants, agents, suppliers and/or distributors from all responsibility, liability, claims, demands and/or damages of every kind and nature, known and unknown, arising out of or in any way connected with: (x) disputes between or among users of the Product or Software and/or between you and a Sleep Consultant; and (y) Third Party Providers, Third Party Content, and Third Party Services. You hereby irrevocably waive the applicability of California Civil Code §1542, and any similar statute or principle of common law. California Civil Code §1542 says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
If any third party (including, but not limited to, a regulatory or governmental authority) makes or institutes any demand, claim, suit, action or proceeding against Tatch, a Tatch Affiliate, and/or any of our or their respective directors, officers, employees, or representatives (each, an “Indemnitee“), and it is based upon or arises from any breach by you under this Agreement (in each case, an “Indemnity Claim“), then, upon written request by Tatch (to be decided in our sole discretion), you agree to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (a) Tatch reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases you agree to reasonably cooperate with Tatch’s defense counsel and activities at your own cost and expense; and (b) you shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) you controlled or participated in the defense and/or settlement of an Indemnity Claim, you agree to indemnify and hold harmless the Indemnitee(s) for and against: (A) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (b) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including, but not limited to, any fines or penalties).
TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with the provisions of this Agreement, shall remain in effect for the duration of the Subscription Term.
- Suspension by Tatch. Tatch reserves the right to temporarily suspend your access to the Software: (a) if you are seven (7) days or more overdue on a payment; (b) if Tatch deems such suspension necessary as a result of your breach of this Agreement; (c) if Tatch reasonably determines suspension is necessary to avoid material harm to Tatch, to its other customers, or to the Software, including if the Software’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Tatch’s control, or (d) as required by Law or at the request of governmental entities.
- Effect of Termination; Survival. Termination of this Agreement shall not affect any rights, remedies, obligations, or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) you agree to pay an outstanding Fees that accrued as of the effective date of termination, and Tatch shall be entitled to invoice you for such outstanding Fees; and (b) Tatch shall be entitled to cease providing all Software services, but you are not obligated to uninstall the Software from your Device; provided, however, that if Tatch terminates this Agreement for cause (for example, due to your breach under this Agreement) and/or revokes the License by notice to you, then you agree to install uninstall the Software from your Device and cease all further access and use of the Software. Sections 9 (Intellectual Property) through 16 (Miscellaneous), as well as any provision that ought by its nature to survive termination, shall survive termination of this Agreement.
This Agreement (including without limitation its validity) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
In the event of any Dispute, such Dispute shall be resolved exclusively by arbitration in accordance with Schedule A attached hereto. However, if the Dispute is not subject to arbitration (either because you opted-out of the arbitration in the manner described in Schedule A, or because a court of competent jurisdiction determined that the agreement to arbitrate does not to apply to you or the Dispute) then the Dispute shall be subject to the exclusive jurisdiction and venue of the competent courts located in New York County, New York, USA, and the parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
Regardless of any Law to the contrary, you agree that any claim or cause of action arising under, or otherwise in connection with, this Agreement (other than to seek equitable relief or to otherwise protect or enforce a party’s Intellectual Property Rights) must be filed within ONE (1) YEAR after such claim or cause of action arose, or else you agree that such claim or cause of action will be barred forever. Any claims or damages that you may hereunder shall only be enforceable against Tatch, and not any other entity (such as Tatch Affiliates) or Tatch’s officers, directors, representatives, employees, or agents. Moreover, if you are a consumer (as defined in the law of your jurisdiction), this Agreement is not intended to, and shall not, exclude or limit any mandatory rights you may have under the consumer protection Laws of your jurisdiction.
- Entire Agreement. This Agreement (together with its Schedules) represents the entire agreement between you and Tatch with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between you and Tatch with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site.
- Non-Solicitation. You shall not collect or harvest any personally identifiable information or other personal data (such as account names) from any Tatch Materials, and you shall not: (a) use any communication systems provided on or via the Tatch Materials for any commercial or solicitation purposes; and/or (b) solicit any users of the Tatch Materials.
- Language; Electronic Contract and Communications. The language of this Agreement is expressly agreed to be the English language. You hereby irrevocably waive, to the maximum extent legally permitted, any Law applicable to you requiring that the Agreement be localized to meet your language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. We may be able (but are not obligated) to provide you with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for your own records. When you visit or submit information on the Website or send an email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to provide you notice under this Agreement by postal mail, we may also choose to provide notice by email (in which case the notice will be deemed given on the day after sending) and/or by posting notices on the Site and/or Software (in which case the notice will be deemed given when you access the Site or Software). In addition, you acknowledge and agree that when you click on any “SUBMIT”, “I AGREE”, “I ACCEPT”, or similar button, you are submitting a legally binding electronic signature. Pursuant to any applicable Laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act“) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR SERVICES OFFERED BY TATCH.
- Feature Specific Terms. Certain Product or Software features and functionalities may be accompanied by separate or additional terms and conditions (in each case, “Feature Specific Terms“). Except to the extent expressly stated otherwise within Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement, and are hereby incorporated into, and made a part of, this Agreement by reference.
- Assignment. Tatch may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, and without notice or obligation to you. This Agreement is personal to you, and, except as permitted by this Agreement, you may not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Tatch’s express prior written consent. Any prohibited assignment shall be null and void.
- Feedback. If you send us any suggestions, feedback, or similar ideas for or about any Tatch Materials (collectively, “Feedback“), you agree that: (a) Tatch exclusively owns all right, title, and interest (including without limitation all Intellectual Property Rights) in and to the Feedback, and you are not owed any compensation in exchange; (b) the Feedback does not contain confidential or proprietary information belonging to you or any third-party; (c) Tatch may (itself and/or via third parties), in perpetuity, use, copy, distribute, sell, create derivative works of, and otherwise commercially exploit the Feedback for any purpose and in any way, and without any restriction or obligations of any kind whatsoever; (b) there is no obligation for us to review your Feedback; and (d) Tatch has no obligation to keep the Feedback confidential.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
- Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Tatch, the writing must be duly signed by an authorized representative of Tatch), and shall be valid only in the specific instance in which given.
- Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
- Notices to Tatch. Except as stated otherwise in this Agreement, you agree to send all notices to Tatch, to: firstname.lastname@example.org
- No Third Party Beneficiaries. Except as may be expressly provided otherwise in this Agreement (such as Tatch Affiliates, Tatch’s licensors and suppliers, and Indemnitees), there shall be no third-party beneficiaries of, or under, this Agreement, and no third party shall be entitled to enforce any of these terms and conditions.
- Export Compliance. You represent and warrant that: (a) you are not a resident of (and you will not use the Website in) a country that the U.S. government has embargoed for use of the Website, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) your country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event you breach this Section (Export Compliance), in whole or in part, or otherwise violate any Export Control Laws (defined below) in connection with the Website, you agree to indemnify and hold harmless Tatch and all Tatch Affiliates (including our and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Tatch, a Tatch Affiliate, and/or such individuals as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to you and/or Tatch, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
- Force Majeure. Neither party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Tatch’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party.
- Advice. Tatch shall have no obligation or liability for any medical, technical, legal, or other advice or suggestions provided to you (whether via the Tatch Materials or otherwise).
- California Users. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916).
- Subpoenas. Nothing in this Agreement prevents Tatch from disclosing your information or data to the extent required by Law, subpoenas, or court orders.
- Third Party Software. The Software may include what is commonly referred to as ‘open source’ software. Under some of their respective license terms and conditions, Tatch may be required to provide you with notice of the license terms and attribution to the third party, in which case Tatch may provide you with such information (whether via the Software, via the Site, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to you hereunder), and to the extent any such license terms and conditions grant you rights that are inconsistent with the limited rights granted to you in this Agreement, then such rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Tatch will comply with any valid written request submitted by you to Tatch for exercising any rights you may have under such license terms and conditions.
- Your Resources. Except for any goods and services that Agreement expressly requires Tatch to provide, Tatch is under no obligation to provide any goods or services. You shall be solely responsible: (a) for providing all hardware (such as Device), software, systems, assets, facilities, and ancillary goods and services needed for you to access and use the Product and Software; (b) for ensuring their compatibility with the Product and Software; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise your rights under the License. In the event Tatch is legally or contractually required to modify or replace features or functionalities of Tatch Materials in order to ensure they comply with the terms of service or privacy policies of various platforms, networks and/or websites, you shall be responsible for making all necessary changes to your hardware, software, systems, assets, and facilities in order to continue using the Tatch Materials.
Capitalized terms not defined in this Schedule shall have the meanings given to them in the main body of the Agreement to which this Schedule is attached.
- Tatch wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Tatch, you agree to try to resolve the Dispute informally by contacting email@example.com. If a Dispute is not resolved within thirty (30) days after the email noting the Dispute is sent, you may initiate proceedings, as set forth in this Schedule A.
- You and Tatch agree to resolve any Dispute only by FINAL AND BINDING BILATERAL ARBITRATION in accordance with the below; except, however, that:
- each party retains the right to bring an individual action: (i) in a small claims court located in your county of residence (or in New York County, New York, USA if you meet the requirements of such court);
- each party retains the right to seek equitable relief to protect any Intellectual Property Rights, in any court of competent jurisdiction; and
- nothing herein precludes you from bringing issues to the attention of federal, state, or local agencies.
- Unless you and Tatch expressly agree otherwise in writing, the arbitration shall take place in-person (except that if telephonic or other remote electronic means are available and permissible, then you may elect to conduct the arbitration via such means) in New York City, New York, USA. The arbitration will be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”), before a single arbitrator and in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Streamlined Rules”), as modified by this Agreement. The arbitrator must honor the terms and conditions of this Agreement (including, but not limited to, all liability exclusions and limitations), and shall not make any award or decision that is contrary to, or in excess of, what this Agreement provides. The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) (and not any state law concerning arbitration) applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
- The arbitrator’s decision must be in writing, and must include the essential findings and conclusions upon which the decision and any award is based. Judgment on any arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between you and Tatch in any court in a proceeding to vacate or enforce an arbitration award, YOU AND TATCH HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the plaintiff/claimant and only to the extent necessary to provide relief warranted by the plaintiff’s/claimant’s individual claim.
- Regardless of who initiates arbitration for a Dispute, you will always remain responsible for your costs and expenses relating to legal counsel, experts, witnesses, and travel to and from the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Streamlined Rules. If you are an individual and have not accessed or used the Website on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000 (unless the arbitrator determines the claims are frivolous), and we will not seek attorneys’ fees and costs in arbitration (unless the arbitrator determines the claims are frivolous). If Tatch initiates an arbitration for a Dispute, Tatch will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services.
- Other than to a party’s legal counsel, all aspects of the Dispute and arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only to the extent) otherwise required by applicable Law. However, this paragraph shall not: (a) prevent a party from submitting to a court any information necessary to enforce an arbitration award, or to seek equitable relief; or (b) prevent Tatch from sharing aspects of the Dispute and arbitration proceeding (including but not limited to the decision and award of the arbitrator and compliance therewith) with Tatch Affiliates, as well as its and their investors, potential investors and acquirers, and other third parties involved in Tatch’s business (to the extent such third parties have a legitimate interest in knowing).
- YOU ACKNOWLEDGE AND AGREE THAT, EVEN IF ANYTHING IN THE JAMS STREAMLINED RULES (OR OTHER JAMS RULES, AS APPLICABLE) PERMIT OTHERWISE:
- YOU AND TATCH ARE HEREBY EACH IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY, AS WELL AS THE RIGHT TO PARTICIPATE (FOR EXAMPLE, AS A CLASS REPRESENTATIVE OR CLASS MEMBER) IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER CLASS-WIDE OR REPRESENTATIVE ACTION OR PROCEEDING, AND THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY; AND
- NO ARBITRATION WILL BE JOINED TO ANY OTHER ARBITRATION, AND THE ARBITRATOR MAY NOT CONSOLIDATE ANY INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE.
- OPT-OUT: You can choose to reject this agreement to arbitrate (“Opt-out”) by emailing firstname.lastname@example.org within thirty (30) days after the date you agree to this Agreement for the first time. The Opt-out email you send to us must state that you do not agree to this agreement to arbitrate and must include your name, address, phone number, and email address. Providing an Opt-out notice is the only way you can opt-out of this agreement to arbitrate. If you Opt-out of this agreement to arbitrate, all other provisions of the Agreement will continue to apply, and you will not be permitted to invoke this agreement to arbitrate to resolve any Dispute with Tatch.
- To the extent any provision of this Schedule A is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, you and Tatch agree that the provisions of Section 15.8 (Severability) shall apply.