Welcome to Somn!
PhenomHealth Inc. (“PhenomHealth “, “us”, “we”, or “our”) maintain the Somn website somn.co (the “Website”) subject to these Terms of Service. By using the Somn Website, its subdomains, and the other services and features made available through the Somn Website and any related services including our servers and any other future downloadable applications we make available to you from time to time (collectively with the Website, the “Services”), you indicate your unconditional acceptance of these Terms of Service. Throughout these Terms of Service, “you” or “your” refers to a registered user of our Services or a member of the general public accessing or using any of our Services (each a “User”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CREATE A BINDING CONTRACT BETWEEN YOU AND PHENOMHEALTH. FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND PHENOMHEALTH ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION (SEE SECTION 19 “AGREEMENT TO ARBITRATE”).
- Scope of Services
- Access and Use Terms
- Third Party Links
- Service Content
- No Solicitation
- Intellectual Property Rights
- Suggestions and Feedback
- Use of Data for Research Consent
- Copyright Infringement
- Disclaimer of Warranty
- Information Disclaimer
- Limitation of Liability
- Country of Use
- Governing Law; Dispute Resolution
- Agreement to Arbitrate; Waiver of Class Action
- For Additional Information
The Services and related components provide a platform to help you understand your sleep. The Somn Website enables users to enter sleep and related health and wellness and location information and then the Somn Website presents results to users to help them learn about their sleep. Content related to sleep and sleep behaviors and health are also viewable to Users.
2. SCOPE OF SERVICES.
The Somn Website and all other software included in the Somn Website is licensed, not sold, for your use only as outlined in these Terms of Service, and ownership of all intellectual property rights in and to the Services remains with PhenomHealth. We reserve all rights not expressly granted to you. PhenomHealth hereby grants to you, subject to the Terms of Service, a non-transferable, non-sublicensable, non-exclusive, revocable, limited right to access and use the Services and Content (as defined below) solely for your personal, non-commercial use with the other components of your Somn Website (and any other uses provided for herein) on the mobile device that you own or control, and subject to the policies and restrictions that we post on the Services from time to time. You may not rent, lease, lend, sell, redistribute or sublicense the Somn Website; provided, however, that other members of your family or other caregivers, who you expressly allow to use the Somn Website may exercise your licensed rights on your behalf. You agree that the Somn Website is the property of PhenomHealth, including all intellectual property rights embodied therein, and that you have no right to use them other than as set out in these Terms of Service. You agree not to copy, reverse engineer, decompile, decode, decrypt, disassemble, or otherwise attempt to obtain the source code for any such software, or to assist anyone else in doing so, or to modify or create derivative works of the Somn Website. You may not copy, reprint, modify, display, perform, translate, distribute, adapt, broadcast, communicate to the public by telecommunication, circulate, or sell the Content retrieved from the Services in any way, for any commercial use or provide it to any commercial source, including other websites, without the prior written permission of PhenomHealth.
In addition, you agree not to: (i) use the Services in any manner that could disable, overburden, damage, or impair the Services, or interfere with any other use of the Services, including, any User’s ability to engage in real-time activities through the Services; (ii) use any robot, spider or other automatic device, process or means to access the Services for any purpose, including to scrape, mine data, monitor or copy any of the Content; (iii) use any manual process to monitor or copy any of the Content, or to engage in any other unauthorized purpose without the express prior written consent of PhenomHealth; (iv) use any device, software or routine that interferes with the proper working of the Services; or (v) attempt to interfere with the proper working of these Services.
We are not responsible for any harm or loss that you suffer in relation to any use you make of the Services for any business purposes or other purposes not authorized under these Terms of Service. We reserve the right to refuse or terminate access to the Services at our discretion. You may not copy, change or reuse the Services, any updates to them or any part of them including the software incorporated in them. You may use the Services only for lawful purposes and in accordance with these Terms of Service. You may choose to use the version of the Services that are currently provided free of charge. On that basis, we have no obligation to provide any maintenance or support services in relation to the free version of the Services and we are not responsible for any loss or damage you may suffer as a result of any failure to maintain or update the free version of the Services.
You are responsible for obtaining any equipment, Internet and phone service necessary to access the Services and for paying any fees for the equipment and services you select. We may alter, suspend, or discontinue the Services in whole or in part, at any time and for any reason, without notice. You acknowledge that the Services are evolving and that the form and nature of our Services, including our Website, may change from time to time without notice to you. The Services may also periodically become unavailable due to repairs, maintenance or emergencies, because of issues with third party telecommunications providers or malfunction of computer equipment or for other reasons.
You acknowledge that PhenomHealth has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
3. ACCESS AND USE TERMS.
A) Registered Users.
B) Social Network Login Credentials.
D) Acknowledgment of Electronic Communications.
The information communicated on the Website constitutes an electronic communication. When you communicate with us on the Website or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically, subject to local privacy laws, and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically with you, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. As a registered member of the Services, you may receive emails from us from time to time regarding upcoming events, special promotions, and product and service offerings from us and our partners. We offer an opportunity to opt-out of certain communications on the Website, or you may contact us at firstname.lastname@example.org
E) Consent to Use Aggregate Data.
4. THIRD PARTY LINKS.
External links on the Services may lead to other websites. We may provide access to third party services and products through such links. We are not liable for the content, goods, services, advertising, or other materials found on these external sites.
Even if we refer to a third party or third-party product or service, that does not mean that we necessarily approve or endorse that third party or that product or service. Likewise, a link (including without limitation external websites that are framed by the Services as well as any advertisements displayed in connection therewith) to any third-party website does not imply that we endorse or accept any responsibility for the content or use of such a website.
5. SERVICES CONTENT.
You agree that PhenomHealth is not liable in any way for the accuracy, completeness, timeliness or correct sequencing of Content, or for any decision made or action taken by you relying upon the Content.
The term “Content” means all information, text, alerts, images, data, links, software, or other material accessible through the Services, whether created by us or provided by you or another person or User, for display through the Services, including your sleep data. Nothing contained on our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use our Services or any Content or trademarks displayed on our Services, through the use of framing or otherwise, unless and only to the extent: (a) expressly permitted by these Terms of Service; or (b) with our prior written permission or the permission of the third party that may own the trademark or copyright of material displayed on our Services.
The Content may contain typographical errors, other errors or inaccuracies. We reserve the right, but without obligation, to make changes to Content, descriptions or specifications of products or services, or other information without obligation to issue any notice of such changes.
You may view, copy, download, and print Content that is available to you through the Services, subject to the following conditions:
A) The Content may be used solely for personal, non-commercial, informational purposes.
B) No part of the Services or Content may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording for any other purpose, except as may be available through the Services from time to time.
C) The Content may not be modified.
By using the Services, you agree to indemnify and hold harmless PhenomHealth and, at PhenomHealth’s option, defend PhenomHealth, from and against any and all claims, damages, losses, liabilities, costs and expenses, including but not limited to, all legal fees and costs (including attorneys’ fees), arising from or related to(i) your use of the Services; (ii) your breach of these Terms of Service; (iii) any claim or allegation that any of your User Content infringes the intellectual property or other proprietary rights, or privacy rights, of any third party; and (iv) the unauthorized use of any Personal Information or data uploaded in connection with the Services.
The Services are available only to, and may only be used by, individuals who are 17 years and older who can form legally binding contracts under applicable law. Individuals under the age of 17 can use our Services only in conjunction with and under the supervision of a parent or legal guardian. In this case, the parent or legal guardian is responsible for any and all activities of the User in connection with our Services.
8. NO SOLICITATION.
Without limitation, the Services may not be used to solicit for any other business, website or service. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through PhenomHealth.
9. INTELLECTUAL PROPERTY RIGHTS.
Unless otherwise noted, all Content available through the Services is the property of PhenomHealth and/or its affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. The service marks and trademarks of PhenomHealth, including without limitation and the PhenomHealth logos, are owned by PhenomHealth. Any other trademarks, service marks, logos and/or trade names appearing via the Services are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
10. SUGGESTIONS AND FEEDBACK.
By posting Content or sending us any ideas, suggestions, documents or proposals (collectively, “Suggestions”), you represent and warrant to us that (i) your Content and Suggestions do not contain the confidential or proprietary information of yours or any third party, and (ii) we are under no obligation of confidentiality, express or implied, with respect to the Content or Suggestions. In addition, you agree that we may have something similar to the Content and Suggestions already under consideration or in development, and you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, transferable, sublicensable license to use, modify, prepare derivative works, publish, distribute and sublicense the Content and Suggestions, and you irrevocably waive against PhenomHealth and its Users any claims and assertions of any moral rights contained in such Content and Suggestions. Furthermore, by posting Content or Suggestions to any Public Area of the Services, you automatically grant PhenomHealth all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of such Content or Suggestions on the Services by any party for any purpose.
You may not assign or transfer these Terms of Service in whole or in part to any third party without the consent of PhenomHealth. These Terms of Service shall bind and inure to the benefit of the parties to these Terms of Service and their respective successors, permitted transferees, and permitted assigns.
12. USE OF DATA FOR RESEARCH CONSENT
13. COPYRIGHT INFRINGEMENT; NOTICE AND TAKE DOWN PROCEDURES.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), it is PhenomHealth Devices’ policy to respond to notices of any actual or alleged infringement that are reported to PhenomHealth’s “Designated Copyright Agent” and that comply with the DMCA. If you believe that any material on our Services infringes your copyright, you may request that it be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that you believe to be infringing and its location, including a description of the material, its website location or other pertinent information that will help us to locate the material; (3) your name, address, telephone number, and email address; (4) a statement that you have a good faith belief that the complained of use of the material is not authorized by the copyright owner, its agent, or the law; (5) a statement that the information in your claim is accurate; and (6) a statement that “under penalty of perjury,” you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf.
The address of our Designated Agent to Receive Notification of Claimed Infringement (the “Designated Agent”) is listed at the end of this Section.
A) Responding to Complaints.
After notification of an alleged infringement is received by the Designated Agent:
- PhenomHealth will remove or disable access to the allegedly infringing material.
- PhenomHealth will then immediately notify the User responsible for the allegedly infringing material (the “Offending User”) that it has removed or disabled access to the material.
- If the Offending User is a repeat offender, PhenomHealth will immediately terminate such user’s account and access to the Services in addition to removing the infringing material.
B) Right to Dispute.
If the Offending User disputes the claim of infringement, the Offending User may send a counter-notice containing the following information to the Designated Agent:
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled.
- A statement that the Offending User has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material.
- The Offending User’s contact information, including name, address, telephone number and e-mail address.
- A statement that the Offending User consents to the jurisdiction of the Federal Court for the judicial district in which the Offending User’s address is located, or if the Offending User’s address is located outside the United States, for any judicial district in which PhenomHealth is located, and that the Offending User will accept service of process from the Notifying Party.
- The Offending User’s physical or electronic signature.
If such counter-notice is received by the Designated Agent, PhenomHealth. will send a copy of the counter-notice to the notifying party informing them that PhenomHealth may replace or restore access to the material in question. Unless the copyright owner thereafter files an action seeking a court order against the Offending User, and PhenomHealth has actual knowledge of such filing, then the material will be replaced or access to it restored in 10 to 14 business days after receipt of the Offending User’s counter-notice.
Our Designated Agent for copyright issues relating to our Services can be contacted at at:
ATTN: Copyright Agent
35 E Gravers Ln
Philadelphia PA 19118
14. DISCLAIMER OF WARRANTY.
THE SOMN WEBSITE AND THE SOMN SLEEP ASSESSMENT IS NOT A MEDICAL DEVICE, IS NEITHER REGULATED NOR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION, AND IS NOT DESIGNED TO DIAGNOSIS, DETECT, PREVENT, OR TREAT CAUSES OF SLEEP DISORDERS, OR ANY OTHER HEALTH CONDITION. THE SOMN WEBSITE SLEEP ASSESSMENT IS INTENDED TO HELP YOU UNDERSTAND YOUR SLEEP. USE OF THE SERVICES AND ANY CONTENT IS ENTIRELY AT YOUR OWN RISK.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SERVICES, THE CONTENT, AND ALL OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND AND ARE BASED IN PART ON CONTENT PROVIDED BY USERS, WHICH ARE NOT VERIFIED BY PHENOMHEALTH, AND THAT ANY CONTENT ACQUIRED THROUGH THE USE OF THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. PHENOMHEALTH AND ITS AFFILIATES AND LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY INFORMATION OR DATA GENERATED THROUGH THE USE OF THE SERVICES. WE PROVIDE NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, AND WITHOUT LIMITATION, PHENOMHEALTH DOES NOT WARRANT THAT: (i) THE CONTENT AND INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) PROVIDED BY THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE AND/OR ANY DATA LOSS THAT MAY RESULT FROM YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, DAMAGE RESULTING FROM COMPUTER VIRUSES.
15. INFORMATION DISCLAIMER.
THE INFORMATION IN THE SERVICES (INCLUDING ANY GUIDELINES, ADVICE AND RECOMMENDATIONS) IS INTENDED SOLELY AS A GENERAL EDUCATIONAL AID. IT IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE CIRCUMSTANCES. ALWAYS SEEK THE ADVICE OF YOUR DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION AND BEFORE STARTING ANY NEW TREATMENT. WE ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL ON THE SERVICES. WHILE WE STRIVE TO KEEP THE INFORMATION ON THE SERVICES ACCURATE, COMPLETE, AND UP-TO-DATE, WE DO NOT GIVE ANY ASSURANCES, AND WILL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION ON THE SERVICES.
16. LIMITATION OF LIABILITY.
IN NO EVENT SHALL PHENOMHEALTH BE LIABLE TO ANY USER OF THE SERVICES OR ANY OTHER PERSON OR ENTITY FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF THE SERVICES, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF PHENOMHEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS.
YOU AGREE THAT PHENOMHEALTH’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE, THE SERVICES, OR THE CONTENT, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNTS, IF ANY, YOU PAID TO PHENOMHEALTH FOR THE SERVICES IN THE THEN-PRIOR SIX MONTHS OR (II) $1.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
17. COUNTRY OF USE
We make no representation that the Services are appropriate or available for use outside the United States. By using the Services, you consent to having your Personal Information transferred to and processed in the United States.
19. GOVERNING LAW; DISPUTE RESOLUTION.
These Terms of Service shall be governed by the laws of the State of Delaware, USA, excluding: its conflicts of laws principles that would result in the application of the law of any other jurisdiction; the United Nations Convention on Contracts for the International Sale of Goods; the 1974 Convention on the Limitation Period in the International Sale of Goods; and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
20. AGREEMENT TO ARBITRATE; WAIVER OF CLASS ACTION.
You may opt out of this Agreement To Arbitrate. If you do so, neither you nor PhenomHealth can require the other to participate in an arbitration proceeding. To opt out, you must notify PhenomHealth in writing within thirty (30) days after the date that you first became subject to this arbitration provision. The opt-out notice must state that you do not agree to the Agreement To Arbitrate and must include your name, address, phone number, and a clear statement that you want to opt out of this Agreement To Arbitrate. You must sign the opt-out notice for it to be effective. This procedure is the only way you can opt out of the Agreement To Arbitrate. You must use this address to opt out:
ATTN: Arbitration Opt-out
35 E Gravers Ln
Philadelphia, PA 19118
If you opt out of this Agreement To Arbitrate, you and PhenomHealth consent to the non-exclusive jurisdiction of the state and federal courts located in the State of Delaware
This Arbitration section will survive the termination of your relationship with PhenomHealth.
PhenomHealth and you are independent contractors and are not partners, joint venturers, agents, employees or representatives of the other party. These Terms of Service contain the entire understanding of the parties with respect to the transactions and matters contemplated hereby, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by PhenomHealth, and cannot be amended except by a writing signed by both parties or by PhenomHealth ‘s posting of an amended version of these Terms of Service. The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service. If any part of these Terms of Service is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions. You and PhenomHealth agree there are no third party beneficiaries intended under these Terms of Service.
22. FOR ADDITIONAL INFORMATION.
If you have any questions about these Terms of Service, please contact email@example.com.
Copyright 2020 PhenomHealth Inc. All Rights Reserved
These Terms of Service were last updated on May 10, 2020
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