Terms of Service
**Updated August 1, 2021**
SleepTest CRM LLC (“SleepTestCRM”, “We”, “Us”, or “Our”) has developed an online software application (the “Portal”) which permits licensed medical professionals (the “Professional(s)”) who have identified potential sleep disorders in their patients (the “Patient(s)”) to recommend those Patients for, and for Patients to obtain, a Sleep Study. A “Sleep Study” consists of a 2-night, in-home sleep test study (the “Testing”), utilizing a home sleep testing device (the “Testing Device”) which records information concerning the Patient’s sleeping habits and vitals (the “Testing Data”). The Testing Data is reviewed by licensed medical physicians (“Physician(s)”, and collectively with Professionals, “Provider(s)”), who provide the Patient with a diagnosis and, if appropriate, a proposed treatment (the “Interpretation”).
These Terms of Service (the “Terms” or “Agreement”) govern the terms and conditions of your (“Subscriber”, “You” or “Your”) use of the Portal and constitute a legally binding agreement made between You, on the one hand, and SleepTestCRM, on the other. You agree that by following the prompt in first logging on to the Portal and checking the box providing for “I Agree to these Terms and Conditions”, You are representing to SleepTestCRM that You have read, understood, and agree to be bound by all of the terms, conditions, and restrictions set forth in this Agreement.
YOU ACKNOWLEDGE THAT SLEEPTESTCRM IS NOT, AND DOES NOT CLAIM TO BE, A LICENSED MEDICAL PROVIDER. SLEEPTESTCRM PROVIDES AN ONLINE SOFTWARE PORTAL WHICH ALLOWS PROVIDERS TO RECOMMEND PATIENTS FOR A SLEEP STUDY AND FACILITATE THE PATIENT RECEIVING A SLEEP STUDY. NOTHING IN THESE TERMS, THE SLEEPTESTCRM SOFTWARE (OR THE SLEEPTEST.COM WEBSITE), OR THE ADMINISTRATION OF A SLEEP STUDY IS INTENDED TO CONSTITUTE MEDICAL TREATMENT, DIAGNOSIS OR ADVICE.
SleepTestCRM may amend, modify, revoke, or replace these Terms from time to time. SleepTestCRM reserves the right, in its sole discretion, to make changes or modifications to these Terms at any time and for any reason. SleepTestCRM will alert You electronically to any changes of the new, amended, or supplemental Terms by sending You notice via text message, e-mail, or by posting them in the Portal. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any amended, revised, or new Terms by Your continued use of the Portal.
SleepTestCRM hereby grants You a non-exclusive, nontransferable, royalty-free, revocable, right and license (the “License”) to access and use the Portal for the purposes identified herein until such time as SleepTestCRM suspends or terminates Your use of the Portal (Your “Subscription”). You hereby acknowledge and agree that SleepTestCRM has made no representation or warranty with respect to the functionality or availability of the Portal and that all or any portion(s) thereof may be unavailable to You for use either temporarily or permanently without notice. We reserve the right in Our sole discretion, without notice, to suspend Your access to parts of the Portal or to change the content, presentation, performance, or functionality thereof. We reserve the right to monitor, edit, and remove any content available on the website or the Portal, but do not have any obligation to do so.
SleepTestCRM shall retain all right, title and interest, including all intellectual property and other proprietary rights, in and to the Portal, or any parts or components thereof, including all derivative works thereof. In addition, You acknowledge that SleepTestCRM owns or licenses various development tools, routines, subroutines and other programs, data and materials provided with or embedded within the Portal that were developed or procured by SleepTestCRM prior to, independent of, or not exclusively for Subscriber as part of SleepTestCRM’s performance of services hereunder (collectively, the “Background Technology”). As between You and SleepTestCRM, SleepTestCRM retains all right, title and interest, including all intellectual property and other proprietary rights, in the Background Technology. SleepTestCRM may improve, change, or develop customizations to the Portal for itself, for You, for Your use, or for other Subscribers’ use of the Portal (“Improvement(s)”), all of which shall be regarded as part of the Portal, and the sole and exclusive property of SleepTestCRM.
Restrictions on License.
You shall not, directly or indirectly: (i) disassemble, decompile, or reverse engineer the Portal or any Improvement made thereto, or in any way attempt to discover or reproduce source code thereof; (ii) make the Portal available to any third party on a time-sharing or service bureau basis, or otherwise attempt to resell to any third party the right to use the Portal; (iii) create any derivative work of the Portal; or (iv) use the Portal for any illegal or unauthorized purpose, or to violate any Applicable Laws, or any proprietary right of a third party. You shall not remove from the Portal or alter or attempt to alter: (i) any Confidential Information contained on the Portal; or (ii) the SleepTestCRM trademarks, trade names, logos, patent or copyright notices or markings.
You are not authorized to utilize any materials, trademarks, marketing, and promotional items related to the Portal, prepared, or utilized by SleepTestCRM (hereinafter “Materials”). Materials can include marks, writings, or other information prepared by third parties, who have permitted SleepTestCRM to utilize the same. You shall make no representations regarding the Portal other than those contained in the Materials, or in any other way act or represent that it is authorized to act in a manner which would bind SleepTestCRM in any way whatsoever. You shall not use the name “SleepTestCRM” or any derivation thereof in any of its marketing, advertising or any of its other publications without SleepTestCRM’s prior written consent. SleepTestCRM may make certain Materials, including the “Patient HST Guide”, “Patient Education Tool”, screening tools and video tutorials available to You via the Portal. You shall only use those Materials in furtherance of providing services to Patients or as otherwise pursuant to the terms and conditions of these Terms.
You shall have access, through the Portal, to third-party software, products, applications, or services, and information pertaining to each (collectively, the “Third-Party Applications”) which may be integrated into, or used in connection with, the Portal. Your access to and use of the Third-Party Applications, and any exchange of data between You and the third-party, shall not be warranted or otherwise supported by the Portal. You hereby authorize SleepTestCRM to permit the Third-Party Applications to access the Portal and any content You are permitted to access or view on the Portal. You acknowledge and agree that SleepTestCRM shall have no responsibility or liability arising from: (i) actions or omissions associated with the Third-Party Applications; or (ii) Your use of the Third-Party Applications. You further agree that You shall abide by any and all terms, conditions, policies, and/or procedures that are distributed by the Third-Party Applications, which are incorporated herein by reference.
- SUBSCRIPTION FEES.
You shall pay SleepTestCRM the license, professional services, and maintenance and support fees (“Subscription Fees”) on a monthly or annual basis (as may be applicable, “Monthly Subscription” and “Annual Subscription”), as follows:
Basic Monthly Subscription Fee (1 User)
Enterprise User Monthly Profile Fee (Up to 5 Users)
$68 per User
Platinum User Monthly Profile Fee (Up to 10 Users)
$58 Per User
Basic Annual Subscription Fee (1 User)
Enterprise User Annual Profile Fee (Up to 5 Users)
$816 per User
Platinum User Annual Profile Fee (Up to 10 Users)
$696 per User
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for taxes, duties, levies and other governmental charges (including sale and use taxes) that are imposed by a governmental authority, federal, state, or local (“Taxes”) with respect to the transactions contemplated by this Agreement; provided that SleepTestCRM shall at all times be responsible for Taxes based on SleepTestCRM’s income or property, and for payroll and other employment-related taxes assessed in connection with SleepTestCRM’s personnel.
You acknowledge and agree that the Subscription Fees are subject to change, in SleepTestCRM’s sole and absolute discretion. Any change in the Subscription Fees shall be deemed effective upon SleepTestCRM providing You with thirty (30) days written notice. Any promotional pricing offered by SleepTestCRM will not be honored unless You have received written confirmation from an authorized SleepTestCRM.
Your Subscription Fees will be charged to the credit card that You provide SleepTestCRM (“Primary Billing Method”). For a Monthly Subscription, SleepTestCRM will charge Your Primary Billing Method on the first of every month, which will provide You with access to the Portal, absent a breach of these Terms, until the conclusion of that month, at which time Your Primary Billing Method will be charged again, unless Your Subscription is earlier terminated pursuant to these Terms. For an Annual Subscription, SleepTestCRM will charge Your Primary Billing Method at the outset of Your Subscription, which will provide You with access to the Portal, absent a breach of these Terms, until the conclusion of that year, at which time Your Primary Billing Method will be charged again, unless Your Subscription is earlier terminated pursuant to these Terms.
You represent and warrant that You will keep all payment information, including Your Primary Billing Method, up to date on the Portal. The Primary Billing Method may be used for payment of all amounts owed by You under this Agreement, including but not limited to the Subscription Fees. You further authorize SleepTestCRM to verify that the Primary Billing Method identified by You is valid by, among other things, verifying Your identity or the Primary Billing Method with financial institutions, or initiating charges for the sole purpose of verifying that the charges are properly authorized and funded (“Verification”). If SleepTestCRM is unable to verify a Primary Billing Method, You will not be permitted access to the Portal. By providing Your Primary Billing Method information to SleepTestCRM, You represent and warrant that: (i) You are legally authorized to provide such information to Us; (ii) You are legally authorized to perform payments using the Primary Billing Method(s); (iii) such action does not violate the terms and conditions applicable to Your use of such Primary Billing Method(s) or Applicable Law; and (iv) that there are sufficient funds or credit available to complete the payment using the designated Primary Billing Method.
SleepTestCRM may terminate Your access to the Portal, or any Information (as defined below) contained on the Portal, should You fail to timely pay Your Subscription Fees, or if Your Primary Billing Method fails for any reason.
- USER REGISTRATION.
Subscriber shall be responsible for identifying all individuals that Subscriber would like to access the Portal on its behalf (“User(s)”), and the scope of use that Subscriber desires to permit each User (“Permissions”). Subscriber shall ensure that each User’s full legal name, company title, address, phone number and a valid email address, and any other information requested by SleepTestCRM, are maintained on the Portal. All Users shall be owners, officers, directors, employees, or authorized agents (“Authorized Person”) of a Physician or Professional, or the legal entity through which that Physician or Professional operates. Each User’s Log-In Information, as defined herein, may only be used by one person who is either an employee or is an authorized representative of Subscriber. A single login shared by multiple persons is not permitted and in violation of this Agreement. Subscriber must create separate and unique login credentials for each User. Subscriber is responsible for administering and monitoring usernames and passwords for all Users (the “Log-In Information”). Subscriber and its Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred without Subscriber’s consent and control. You are solely responsible for safeguarding and maintaining the confidentiality of Your Log-In Information. Subscriber and its Users shall be responsible for any and all activities that occur under all of its Users’ accounts.
You authorize SleepTestCRM to assume that any person using the Portal with Your username and password is You. You agree to notify Us immediately if You suspect or become aware of any unauthorized use of Your account or any unauthorized access to Your password. You authorize SleepTestCRM, directly or through third parties, to make any inquiries We consider necessary to validate or authenticate Your identity or personal information. This may include asking You for further information and/or documentation about Your usage of the Portal or identity, or requiring You to take steps to confirm Your identity, or Your e-mail address. You understand and hereby agree that We may verify Your information against third-party databases or through other sources. This process is for internal verification purposes.
SleepTestCRM will not be responsible or liable for any losses that Subscriber or its Users may incur as a result of an unauthorized person using a User’s Log-In Information or accessing the Portal. SleepTestCRM does not guarantee the security of any information transmitted to or from Subscriber or its Users over the Internet or the Portal. Any security breaches occasioned by Subscriber’s access to the Portal through the Internet, servers maintained by Subscriber, or other third-party internet service providers, shall be the sole responsibility of Subscriber. SleepTestCRM shall not have any liability for any loss or damage from any security breach resulting from Subscriber’s failure to maintain the security of the Log-In Information. Subscriber and its Users shall be responsible for any and all activities that occur under all of its Users’ accounts.
- USER CONTENT.
You acknowledge and agree that, during the course of Your use of the Portal, information about You, Your Patients, or the services that You provide to Patients (“Information”) will be stored by SleepTestCRM, or by third-party vendors or affiliates of SleepTestCRM. You hereby authorize SleepTestCRM to provide Your Patients, medical professionals, or other individuals, businesses, or organizations designated by You, with access to Your Information, whether through the Portal, or by other means, applications, or procedures. SleepTestCRM shall not be responsible for any inadvertent or accidental exposure of Information arising from or caused by the negligence or misconduct of You or any other individual, business, or organization that You permit access to the Portal or Information. Upon the suspension or termination of Your use of the Portal, You authorize SleepTestCRM to maintain a copy of all Your Information.
Your Information, and any information, documents, or messages, that You upload or place on to the Portal may be immediately accessible to Your Patients or other Professionals required to complete the Sleep Study. You are responsible for verifying the accuracy of all Information. By accessing the Portal, You are acknowledging that all Information is true and accurate. SleepTestCRM is not responsible for verifying that Your Information is accurate or that the Information or documents that You upload on to the Portal are accurately identified and represented on the Portal. If You believe that any aspect of Your Information is inaccurate for any reason, You should immediately contact SleepTestCRM.
The Portal will provide You with the ability to view, transmit, download, and upload (the “Tools”) information, communications, and documents concerning Your Patients or their Sleep Study (“Study Information”). The Tools may or may not be made available to You based upon the permissions granted by SleepTestCRM. The Tools may include, but are not limited to, the ability to access, view, and download medical information and reports concerning the Study Information.
You expressly acknowledge and agree that SleepTestCRM is authorized to send Your Information, Study Information with respect to Your Patients, to health insurance carriers, medical billing companies, third party vendors, or other Professionals who are assisting in the diagnosis or treatment of a Patient.
The Study Information is not intended for distribution to or use by any person or entity other than You, other Professionals, and the Patient. You acknowledge and agree that in the event You use or otherwise disseminate any Study Information, such information will only be used and provided in compliance with Applicable Law (as defined below).
- INTELLECTUAL PROPERTY RIGHTS.
The Portal and all source code, databases, functionality, software, web designs, audio, video, text, photographs and graphics on the Portal (collectively, the “Proprietary Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by Us or licensed to Us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Proprietary Content and the Marks are provided on the Portal “AS IS” / “WHERE IS” for Your information and personal use only. No part of the Portal and no Proprietary Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Our express prior written permission.
You acknowledge that, during the course of Your use of the Portal, You may have access to certain confidential information in the form of know-how, trade secrets, or proprietary information belonging to SleepTestCRM, including but not limited to the Proprietary Content (“Confidential Information”). Confidential Information shall include, without limitation, any and all information provided by SleepTestCRM to Subscriber, or otherwise obtained or received by Subscriber, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, the Portal, the code making up the Portal, software, accounting information, advertising and promotional plans, agreements, budgets, business plans and information, contracts, data, designs, drawings, files, financial analysis, financial statements and information, bank account information, compilations of information, concepts, copyrightable material, correspondence, cost analyses, cost data, documents, e-commerce information and data, employee information, employee lists, expense data, ideas, intellectual property, inventions, investor presentations, .jpegs or other file types, know-how, layouts, licenses, manuals, market analyses, marketing plans and information, marketing data, materials, memoranda, models, negatives, notes, operational techniques, passwords, photographs, presentations, pro forma financial information, procedures, processes, product and service information, products and services, programs, projections, prototypes, pricing and rate information, quality assurance policies and procedures, records, research and development, reports, sales forecasts and data, samples, sketches, security information and controls, service marks, software, software code, spreadsheets, strategies, studies, supplier lists, surveys, symbols, technical information, technology, trademarks, trade secrets, tools, vendor information, vendor lists, website information, any information which is designated as “confidential” or “proprietary” or by words of similar effect, either in writing or orally, prior to, at or promptly after the time of disclosure, and any other information, written or oral, made known to or learned by Subscriber by virtue of Subscriber’s use of the Portal.
You acknowledge and agree that maintaining the confidentiality of the Confidential Information is integral to the ongoing operation of SleepTestCRM, and that the Confidential Information itself is of significant value to SleepTestCRM. In view of the foregoing, You agree to maintain the confidentiality of all Confidential Information and to not, directly or indirectly, disclose, divulge, exploit, or use the Confidential Information in any manner inconsistent with these Terms, for Your own benefit or the benefit of another person, to the exclusion of SleepTestCRM. You will additionally take all reasonable precautions to prevent the inadvertent or accidental exposure of the Confidential Information.
You hereby acknowledge and agree that as between SleepTestCRM and Subscriber, the Confidential Information, and specifically, the Portal, is owned solely and exclusively by SleepTestCRM. You shall have no, and shall not acquire any, right, title, or interest in the Confidential Information or the Portal, except as provided in this Agreement. Should Subscriber or any consultant or employee of Subscriber make or discover any improvement in connection with the Confidential Information or the Portal, whether patentable or not, which if practiced would constitute an infringement of the Confidential Information, Subscriber shall forthwith disclose or cause the same to be disclosed to SleepTestCRM, and such improvement shall be deemed to be a part of the Confidential Information.
Third Party Confidential Information.
Subscriber recognizes that it may have access to Confidential Information belonging to Company’s vendors, customers, suppliers, licensors, licensees, partners, or collaborators (“Associated Third Party(ies)”) which may be subject to a duty on SleepTestCRM’s part to maintain the confidentiality of such Associated Third Party’s Confidential Information and to use it only for certain limited purposes. Subscriber agrees that it shall owe SleepTestCRM and its Associated Third Parties a duty to hold all such Associated Third Party’s Confidential Information in the strictest confidence, and not to use it or to disclose it to any person, firm, corporation, or other third party except as necessary in carrying out the terms of this Agreement.
Notice of Dissemination.
If Subscriber receives notice of a request enforceable by law requiring that Subscriber disclose or produce any Confidential Information to a court, other governmental agency, private litigant or the like, Subscriber shall provide SleepTestCRM with prompt written notice of such requirement sufficiently in advance of such required disclosure to allow SleepTestCRM an opportunity to seek a protective order or other appropriate relief prohibiting or limiting such disclosure, and Subscriber shall provide such assistance as SleepTestCRM may reasonably request in obtaining such order or other relief. Subject to compliance with the foregoing sentence, Subscriber may furnish that portion (and only that portion) of the Confidential Information that Subscriber is legally compelled or is otherwise legally required to disclose.
To protect SleepTestCRM’s Confidential Information, Subscriber shall adopt security measures commonly observed in industries that rely on Confidential Information. These measures shall include, but are not limited to, restricted access to such information, marking such information as confidential, and the selective destruction of sensitive materials. Upon termination of this Agreement, Subscriber shall return or destroy all documents or materials embodying SleepTestCRM’s Confidential Information.
If future patent, trademark or copyright protection is obtained for the Portal, Subscriber shall cooperate with SleepTestCRM in enforcing or policing such protection and by taking all reasonably appropriate measures including marking trade secrets and other Confidential Information as required and taking other reasonable measures as mutually agreed to by SleepTestCRM and Subscriber.
- PROHIBITED ACTIVITIES.
You may not access or use the Portal for any purpose other than that for which We make the Portal available. You may not use the Portal in any manner that could damage, disable, overburden, or impair Our servers, the Portal, or otherwise interfere with any other party’s use of the Portal. You may not attempt to gain unauthorized access to any part of the Portal, another user of the Portal, computer systems or networks connected to the Portal, or any other software application developed and/or published by SleepTestCRM, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Portal. In connection with using or accessing the Portal You will not: (i) systematically retrieve data or other content from the Portal to create or compile directly or indirectly, a collection, compilation, or database, without written permission from Us; (ii) make any unauthorized use of the Portal, including collecting usernames and/or e-mail addresses of users by electronic or other means for the purpose of sending unsolicited e-mail, or creating user accounts by automated means or under false pretenses; (iii) circumvent, disable, or otherwise interfere with security-related features of the Portal, including features that prevent or restrict the use or copying of any Proprietary Content or Confidential Information or enforce limitations on the use of the Portal and/or the content contained therein; (iv) engage in unauthorized framing of or linking to the Portal; (v) trick, defraud, or mislead Us and other users, especially in an attempt to learn sensitive account information such as user passwords; (vi) use any information obtained from the Portal in order to harass, abuse, or harm another person; (vii) upload or transmit (or attempt to upload or transmit) viruses, or Trojan horses; (viii) disparage, tarnish, or otherwise harm, in Our opinion, Us, another user of the Portal, and/or the Portal; (ix) take any action that may undermine Our feedback or ratings systems; (x) infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights which belong to Us or any third-party; and (xi) use the Portal or the information obtained from a Patient in a manner inconsistent with any federal, state, or local laws or regulations which are applicable to SleepTestCRM, You, the Portal, or the existence or activities of any of them (the “Applicable Laws”).
- SUBSCRIBER REPRESENTATIONS.
If Subscriber is an entity, Subscriber is duly organized, authorized and is in good standing under the laws of the state of its organization, and is duly authorized to do business in each other state in which Subscriber does business.
The Person executing this Agreement has the full authority, right and power to enter into and execute this Agreement, and the execution and delivery of this Agreement to SleepTestCRM has been expressly authorized and approved.
There is no Applicable Law or any agreement to which Subscriber is presently bound, or any pending or contemplated litigation to which Subscriber is a party, that would in any way affect Subscriber’s ability to enter into or perform this Agreement. Subscriber agrees to comply with SleepTestCRM’s policies and procedures and the Applicable Laws, which are incorporated into this Agreement by reference. Subscriber has obtained all necessary approvals to conduct its business. Subscriber is not aware of and has not been threatened with any action, claim, or allegation that Subscriber has violated any Applicable Law.
This Agreement constitutes, or will constitute, a legal, valid and binding obligation of the Subscriber, enforceable against Subscriber in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
That Subscriber will comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and shall obtain those certifications required for Subscriber to conduct its business, or otherwise to utilize the Portal for the purposes identified herein. Furthermore, Subscriber shall take the necessary actions that may be required to qualify SleepTestCRM as a “Business Associate” pursuant to HIPAA standards. Subscriber shall further obtain the consent of each Patient to obtain and review that Patient’s Sleep Study results.
That each Patient referred to SleepTestCRM for a Sleep Study has received a valid and lawful prescription to receive the Sleep Study and that all information uploaded by Subscriber to the Portal, including the Patient Information and the content set forth in the Referral Form, is truthful and accurate.
No representation or warranty of Subscriber in this Agreement or any other information furnished by Subscriber pursuant to this Agreement contains any untrue statement of material fact or fails to state any fact necessary in order to make the statements not misleading in any material respect.
By agreeing to the Terms of this Agreement, You acknowledge and agree that SleepTestCRM may contact and communicate with You via phone, email, and text message.
You hereby agree that We may provide You with communications about Your use of the Portal electronically. Communications can include, but shall not be limited to, written communications, documents, notices, agreements, amendments to agreements, disclaimers, and/or disclosures which are provided in connection with Your use of the Portal. We will provide these communications to You by posting information on the Portal or by emailing them to You at the primary email address You provide Us. Any electronic communications will be considered to be received by You within twenty-four (24) hours of the time We transmit such an electronic communication to You. Any notice sent to You by postal mail will be considered to be received by You three (3) business days after We send it.
You may withdraw Your consent to receive communications electronically by writing to 30011 Ivy Glenn Dr. #222, Laguna Niguel, CA 92677 or sending an e-mail to info@SleepTest.com. If You withdraw Your consent to receive communications electronically, We reserve the right to restrict, suspend, or terminate Your access to the Portal.
It is Your responsibility to keep Your email address, as provided to SleepTestCRM, functional and up to date so that We can communicate with You electronically. You understand and agree that if We send You an electronic communication that You do not receive because Your e-mail address on file is incorrect, blocked, or otherwise not functioning properly, We will be deemed to have properly provided You with the electronic communication as of the day it is sent.
In order to receive electronic communications, You will need: (i) a computer with an Internet connection; (ii) a current web browser; (iii) a valid e-mail address; (iv) sufficient storage space to save the electronic communications; and (v) to disable any applicable spam filters which block or re-route e-mails from senders.
- TERM AND TERMINATION.
Subscriptions are offered on a monthly or annual basis. Should You obtain a Monthly Subscription, You may terminate this Agreement by providing SleepTestCRM thirty (30) days prior written notice of Your desire to terminate Your Subscription. Your Monthly Subscription will continue to renew automatically, for successive one (1) month periods, until such time as You terminate Your Subscription.
Should You obtain an Annual Subscription, You may terminate this Agreement by providing SleepTestCRM written notice of Your desire to terminate Your Subscription thirty (30) days prior to the conclusion of Your Annual Subscription. Otherwise, Your Annual Subscription will continue to renew automatically, for additional one (1) year periods, until such time as You terminate Your Subscription.
Notwithstanding the above, SleepTestCRM reserves the right to, in its sole discretion and without notice to You, and without any liability, terminate this Agreement, and/or suspend or terminate Your access to the Portal (including blocking IP addresses), for any reason or for no reason, including without limitation, for breach of these Terms, any representation, warranty, or covenant contained in these Terms or of failure to adhere to any Applicable Laws.
Upon the termination or suspension of Your Subscription: (i) We have the right to prohibit Your access to the Portal, including without limitation by deactivating Your username and password; (ii) all restrictive covenants and conditions set forth herein, including but not limited to such restrictions regarding Proprietary Content and Confidential Information, shall survive the termination of Your use of the Portal; and (iii) SleepTestCRM shall be entitled to retain any and all Subscription Fees paid, except in the case of SleepTestCRM’s termination of Your access to the Portal for convenience or without cause, in which case, SleepTestCRM will refund that portion of the Subscription Fees consisting of the remainder of the term of the Monthly or Annual Subscription, whichever is applicable.
If We terminate or suspend Your access to the Portal, You are prohibited from registering and creating a new username and password to access the Portal. In addition to terminating or suspending Your use of the Portal, We reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
THE PORTAL IS PROVIDED ON AN AS-IS, WHERE-IS, AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE PORTAL WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PORTAL OR YOUR USE OF THE PORTAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SLEEPTESTCRM MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF: (i) THE PORTAL; (ii) THE INFORMATION DERIVED FROM THE PORTAL; OR (iii) THE CONTENT LOCATED ON THE SLEEPTEST WEBSITE OR ANY LINKS ON THE SLEEPTEST WEBSITE. THERE MAY BE INFORMATION IN THESE TERMS OR ON THE SLEEPTEST WEBSITE THAT CONTAIN TYPOGRAPHICAL ERRORS, INACCURACIES, OR OMISSIONS, INCLUDING DESCRIPTIONS, PRICING, AVAILABILITY, AND VARIOUS OTHER INFORMATION. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS, INACCURACIES, OR OMISSIONS AND TO CHANGE OR UPDATE THE INFORMATION IN THESE TERMS OR ON THE SLEEPTEST WEBSITE AT ANY TIME, WITHOUT PRIOR NOTICE.
SLEEPTESTCRM WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS; (ii) Your inability to access THE portal, any portion thereof or any related data or information; (iii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR USE OF THE PORTAL; (iv) ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR INFORMATION AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR HEALTH INFORMATION STORED THEREON; (v) ANY FAILURE BY A PROFESSIONAL OR PHYSICIAN PERFORMING INTERPRETATIONS TO OBTAIN THE PROPER LICENSURE; (vi) ANY FAILURE OR REFUSAL BY PROFESSIONALS TO SHARE YOUR INFORMATION AND/OR INTERPRETATION(S) WITH YOU; (vii) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PORTAL OR THE SLEEPTEST WEBSITE; AND/OR (viii) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PORTAL OR THE SLEEPTEST WEBSITE.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL SLEEPTESTCRM AND/OR SLEEPTESTCRM’S AFFILIATES WHO HAVE DEVELOPED, LICENSED, IMPROVED OR HAVE OTHERWISE ASSISTED US IN THE PROVISION OF THE PORTAL, BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE PORTAL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SLEEPTESTCRM AND ITS AFFILIATES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE ACTUAL ECONOMIC DAMAGES THAT HAVE BEEN SUSTAINED AS A DIRECT AND PROXIMATE RESULT OF SUCH HARM.
IN ANY CASE, YOU HEREBY AGREE THAT THE MAXIMUM AMOUNT OF DAMAGES THAT WILL BE ASSESSED AGAINST SLEEPTESTCRM FOR ANY ACT OR OMMISSION RESULTING IN HARM TO YOU, SHALL BE THE AMOUNT THAT SLEEPTESTCRM HAS RECEIVED, OR IS OWED, BY YOU, FOR YOUR USE OF THE PORTAL. YOU ACKNOWLEDGE AND AGREE THAT ESTIMATING ANY DAMAGES THAT MIGHT BE OCCASIONED TO YOU AS A RESULT OF THE CONDUCT OR OMMISSION OF SLEEPTESTCRM OR ITS AFFILIATES WOULD BE DIFFICULT TO ASCERTAIN. YOU ACKNOWLEDGE THAT THE LIMITATION SET FORTH HEREIN IS A FAIR AND REASONABLE ESTIMATE OF ANY SUCH DAMAGES.
YOU AGREE THAT IN THE EVENT OF ANY DISPUTE RELATED TO THESE TERMS, YOUR USE OF THE PORTAL, OR ANY OTHER INTERACTION WITH SLEEPTESTCRM AND/OR ITS AFFILIATES, YOU SHALL NOT BE ENTITLED TO REIMBURSEMENT FOR OR ANY AWARD OF ATTORNEYS’ FEES OR COSTS, EVEN IF YOU PREVAIL.
You agree to defend, indemnify, and hold SleepTestCRM harmless, including Our subsidiaries, affiliates, and all of Our directors, officers, agents, partners, and employees from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, in connection with, arising out of or related to: (i) Your use of the Portal; (ii) any other person’s use of the Portal who is given or gains access to the Portal due to Your action or inaction; and/or (iii) Your breach of these Terms or the representations or warranties set forth herein.
- ALTERNATIVE DISPUTE RESOLUTION.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU AGREE TO SUBMIT ALL DISPUTES WITH SLEEPTESTCRM AND ITS AFFILIATES WHICH ARISE OUT OF, ARE RELATED TO, OR ARE IN ANY WAY CONNECTED WITH, THESE TERMS, THE PORTAL OR OTHER SERVICES PROVIDED BY SLEEPTESTCRM, AND/OR ANY DEALINGS BETWEEN YOU AND SLEEPTESTCRM, TO FINAL AND BINDING ARBITRATION BEFORE JAMS ADR SERVICES (“JAMS”) OR ITS SUCCESSOR IN ORANGE COUNTY, CALIFORNIA. THE ENFORCEMENT OF THIS AGREEMENT TO ARBITRATE SHALL BE PURSUANT TO THE FEDERAL ARBITRATION ACT.
Except as otherwise provided herein, the arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures which are in effect at the time of Your execution of these Terms (the “Rules”). Discovery may be taken by the parties only in the manner prescribed by the Rules. In the discretion of the arbitrator(s), pre-arbitration conferences and hearings may be telephonic. You can find the Rules on JAMS’ website: www.jamsadr.com. You can also obtain copies of the Rules and information concerning current administrative and arbitrator fees by calling JAMS at 800-352-5267. You should review the Rules, and the arbitration fees which the parties will be charged. You should also be aware that the Rules and the arbitration fees may change from time to time, and that arbitration fees at the time of any dispute may be higher than at the time You agree to these Terms.
The parties agree that a single arbitrator shall be selected to adjudicate all disputes unless otherwise provided for in these Terms. The selection and replacement of an arbitrator or arbitrators shall be in accordance with the rules of the selected arbitration forum and that each arbitrator shall be a retired judge of either the California Superior Court or a United States District Court located in California. The arbitrator shall render his or her ruling in accordance with California law. The arbitration shall be final, conclusive and binding on the parties and the award of the arbitrator(s) shall be enforceable in any court of competent jurisdiction. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims.
The arbitrator shall not have the discretion to commit errors of law or legal reasoning, and any arbitration award may be vacated on appeal to a court of competent jurisdiction, which the parties acknowledge and agree will provide the right of appellate review outside the forum of arbitration.
Arbitration Fees/Attorney’s Fees.
Each side (i.e., claimant(s) on the one hand and respondent(s) on the other) will share equally in all arbitration organization administrative and arbitrator fee costs. Each party to the arbitration shall be responsible for their own arbitration fees, attorney’s fees, and costs and the arbitrator shall not have discretion to award the prevailing party in any such arbitration their attorney’s fees, costs, or portion of arbitration fees.
No Class Certification.
You agree that You may bring claims against Us only on an individual basis and not as a class member in any purported class, or representative or private attorney general action or proceeding. You agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding.
If it is determined that the foregoing provision is unenforceable for any reason, and that a party’s claims may proceed as a class or representative action, then the parties further agree that all subsequent matters, including but not limited to, issues of class representation, class certification, class notice and a decision on the merits, shall be determined in arbitration before JAMS, as chosen by You, according to the chosen arbitration organization’s rules and applicable procedures, and by an arbitration panel of three arbitrators selected in accordance with the other provisions of these Terms.
Waiver Of Jury.
You acknowledge that You have read and understood the above alternative dispute resolution provision, and that by agreeing to these Terms, You are waiving a trial by jury in any action or proceeding to which You and SleepTestCRM may be parties, arising out of or in any way pertaining to Your use of the Portal. Your waiver is knowingly, willingly, and voluntarily made and You represent and warrant that no representation of fact or opinion has been made to induce this waiver of trial by jury or to in any way modify or nullify its effect.
Notwithstanding the foregoing, You understand, agree, and acknowledge that, in addition to any other rights or remedies which We may possess, We shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of these Terms by You.
These Terms, the Portal, and any other dealings between You and SleepTestCRM, and its officers, directors, members, employees, agents, and affiliates (“Affiliates”) are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.
These Terms and other documents, including but not limited to, any policies or procedures currently or subsequently published, referenced in or linked to these Terms, which are hereby incorporated herein and made a part hereof by this reference, contains the entire agreement between You and SleepTestCRM regarding Your access to the Portal, use of the SleepTest website, and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between You and Us, written or oral, to the extent they relate in any way to the subject matter hereof.
In the event that the performance of the obligations under these Terms are prevented or hindered in consequence of any act of God (including fires, explosions, earthquakes, drought, tidal waves, and floods), war, invasion, rebellion, riot, or acts or threats of terrorism (each, a “Force Majeure Event”), then such performance or obligations shall wholly or partially be suspended during the period and no liability shall accrue or be incurred during such period owing to such circumstances.
SLEEPTESTCRM RESERVES THE RIGHT TO CHANGE THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS FROM TIME TO TIME. SUCH CHANGES WILL BECOME EFFECTIVE WHEN SLEEPTESTCRM POSTS THE REVISED TERMS OF SERVICE ON THE WEBSITE, AND/OR WHEN SLEEPTESTCRM TRANSMITS THE REVISED TERMS TO YOU VIA COMMUNICATION AS FURTHER SPECIFIED HEREIN. Your continued use of the portal subsequent to the posting of any revisions to these Terms means You accept any such revisions. ANY MODIFICATIONS TO THESE TERMS OF SERVICE SHALL SUPERSEDE ALL PREVIOUS VERSIONS. We reserve the right to, in our sole discretion, alter, suspend or discontinue YOUR ACCESS TO THE PORTAL, INCLUDING, BUT NOT LIMITED TO, YOUR ACCESS TO THE STUDY INFORMATION FOR YOUR PROFESSIONAL(S) AND/OR YOU.
In the event that one or more of the provisions, or portions thereof, of these Terms is determined to be illegal or unenforceable, the remainder of these Terms shall not be affected thereby, and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. If any part of these Terms or any part of any provision hereof, is adjudicated to be invalid or void, then the remaining provisions shall be executed insofar as the remaining provisions are capable of execution.
The waiver by Your breach of these Terms do not constitute a waiver of any subsequent breach by You.
These Terms and Your use of the Portal will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between You and SleepTestCRM.
You may not assign these Terms, Your right to use the Portal, or any of its rights or obligations hereunder, without Our prior written consent in the form of a written instrument signed by a duly authorized representative of SleepTestCRM. Notwithstanding the restriction on assignment, these Terms shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, successors, representatives, and assigns.
To the maximum extent allowed under Applicable Law, You waive the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party and shall not be employed in the interpretation of these Terms. You understand and agree that these Terms shall be construed fairly as to all parties and not in favor of or against any of the parties, regardless of which party prepared these Terms, such that the application of California Civil Code Section 1654, providing “[i]n cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist,” (or other comparable law in other jurisdictions) is hereby waived.
Consent to Terms/Digital Signature.
By logging on to the Portal, You are deemed to have read, understood, and agreed to these Terms electronically, effective on the date You log on to the Portal.
SleepTestCRM may also require You to consent to these Terms when You access the Portal. You will be prompted to read these Terms and asked to click a box that prompts You to “Agree” that You have read and agree with these Terms. By clicking the “I Agree” box, You are acknowledging that You read and understood these Terms, and You are agreeing to be irrevocably bound by these Terms. Your continued use of the Portal shall be regarded as Your acknowledgment that You have agreed to be bound by these Terms and any amendments or revisions made to these Terms.