User Terms

Praesidium Inc. (together with its subsidiaries, divisions, and brands, collectively, "Praesidium," "we," "us," or "our," as the context may require) is an innovator in the intelligent sleep market, specializing in non-contact vital sign detection sensor technology. The following terms and conditions ("User Terms") apply to your access to and use of our website(s) (the "Site"), as well as our mobile and computer applications (together, the "App"), software, APIs, products and services (collectively, along with the App and Site, the "Services").

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Please read these User Terms carefully before you start to use the Services. By registering, accessing or using the Services, or by clicking "I accept" or "I agree" to the User Terms when this option is made available to you, you accept and agree to be bound and abide by these User Terms. If you do not agree to all of these User Terms, you must click "I do not accept" or "I do not agree." If you do not accept or agree to the User Terms, you must not access or otherwise use the Services. 

 

1. READ OUR PRIVACY POLICY. 

 

For information about our data practices, please see our privacy policy ("Privacy Policy") which can be found here: Privacy Policy. By accessing or using the Services, you agree that we can collect and use your information in accordance with the Privacy Policy and you consent to all actions we take with respect to your information consistent with our Privacy Policy. 

 

2. CHANGES TO THE TERMS OF USE. 

 

We may revise and update these User Terms from time to time in our sole discretion. We will notify you before we make material changes to these User Terms. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised User Terms means that you accept and agree to the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you. 

 

3. USE OF AN ACCOUNT. 

 

Full use of the Services requires that you use an account, which requires that you provide certain registration details or submit other information (collectively, "Registration Information"). It is a condition of your use of the Services that all of the Registration Information and any other information you provide on the Services is correct, current and complete. You represent and warrant that if you are an individual, you are at least 13 years old.

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If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You acknowledge and agree that your account is personal to you and you agree not to provide any other person or entity with access to the Services or portions of it using your user name, password or other security information. You are responsible for all activity that occurs in association with your account. Praesidium is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. You agree to notify us immediately of any unauthorized access to or use of your user name or password, or any other breach of security.

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We have the right to disable any user name or password, whether chosen by you or provided by us, at any time in its sole discretion for any or no reason. We further reserve the right to restrict your access to all or part of the Services at any time in its sole discretion for any or no reason.

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4. USE OF THE SERVICE. 

 

Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the Service unless their parent has consented in accordance with applicable law. Additionally, you cannot access or use the Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Service.

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You may only connect to the Service using (i) a device that is manufactured, distributed, or sold by Praesidium itself or through its authorized resellers or agents; (ii) our mobile applications and software, or approved third-party applications, software, or devices; or (iii) our websites.

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You may not connect to the Service with any device that is not manufactured, distributed, or sold by Praesidium itself or through its authorized resellers or agents (such as a knock off or counterfeit version of a Praesidium device); otherwise intends to resemble or purports to be a Praesidium device; or any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the Service. If you have questions about whether a product or application qualifies as an authorized connection, please contact us at legal@biofi.com.

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5. NECESSARY EQUIPMENT; NOTIFICATIONS.

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Full use of the Services is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Services and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.

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As part of your use of the Services, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Services by using your accounts setting. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.

 

6. USER CONTENT; CONTENT STANDARDS. 

 

Praesidium may enable you to post, upload, store, share, send, or display photos, images, video, data (vital sign data and other date), text, food logs, comments, and other information and content ("User Content") to and via the Services. Any User Content you post to the Services will be considered non-confidential and non-proprietary. By making Your Content available on or through the Services you hereby grant to Praesidium a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media, in every case, without compensation to you. The rights you grant us in this Section 6 are only for the limited purpose of offering and improving the Services.

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You understand and acknowledge that you are personally responsible for Your Content. Praesidium is not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Services You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these User Terms.

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You covenant and agree that your User Content shall not: 

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• Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable to any other person or entity. 

• Contain nudity, sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age. 

• Violate or infringe on the intellectual property rights of any person or entity, including without limitation, any patent, trademark, trade secret, confidential information, copyright, right of publicity or other proprietary rights. 

• Violate, or encourage any conduct that would violate, the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these User Terms. 

• Be fraudulent or false or be likely to deceive or mislead any person or entity. 

• Promote any illegal activity, or advocate, promote or assist any unlawful act. 

• Impersonate any person or entity, falsely state or otherwise misrepresent your identity or your affiliation with any person or entity. 

• Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising. 

• Give the impression that it emanates from or is endorsed by Praesidium or any other person or entity, if this is not the case. 

• Constitute unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming"). 

• Contain software viruses or any other computer codes, files, worms, logic bombs or programs that are designed or intended to disrupt, disable, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Praesidium or any third party. 

• Include anyone's identification documents or sensitive financial information. 

• Breach the Privacy Policy. 

 

You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Services in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Services, or which may expose us or our users to any harm or liability of any type.

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Praesidium may, in its sole discretion, alter, remove, or refuse to display any of Your Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the Services.

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Praesidium cannot guarantee the authenticity of any User Consent or data which users may provide. You acknowledge that all User Content accessed by you using the Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom.

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7. PRAESIDIUM'S RIGHTS.

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"Praesidium Content" includes any the Services and their entire contents, features and functionality, including any and all software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the Services (including, but not limited to, photos, images, graphics, video, audio, data, text, music, exercise regimens, food logs, recipes, comments). The Praesidium Content, including the Services, and their underlying technology are owned by and are the property of Praesidium (its affiliates and its licensors) and are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You acknowledge and agree that you do not acquire any ownership rights therein by using the Services.

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If you print, copy, modify, download or otherwise use or provide any other person or entity access to any part of the Services in breach of the User Terms, your rights to use the Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. Nothing contained in these User Terms shall be construed as conferring any right, title or interest in or license to the Services or any other Praesidium Content. All rights not expressly granted are reserved by Praesidium.

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Any use of the Services not expressly permitted by these User Terms is a breach of these User Terms and may violate copyright, trademark and other laws. Unauthorized use, reproduction or rebroadcast of any Praesidium Content or other content on our Services is prohibited and shall be considered an infringement and/or misappropriation of our proprietary rights. Modification of the Praesidium Content or use of the Praesidium Content made available through any part of the Services for any purpose other than your own personal, non-commercial use is a violation of our copyright and other proprietary rights, and can subject you to legal liability.

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You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services. Our logos and any other trademarks that may appear on the Services, and the overall look and feel of the Services (including page headers, graphics, icons, and scripts) may not be copied, imitated or used, in whole or in part, without our prior written permission.

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Other trademarks, product, and service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.

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8. YOUR LIMITED RIGHTS. 

 

The Services are intended for your personal, noncommercial use.

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Praesidium grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (i) access and use the Services, (ii) access and view the Praesidium Content, (iii) access and use the software and mobile applications provided by the Services, and (iv) use the software that is embedded into our devices as authorized in these User Terms. With respect to items (iii) and (iv), this limited license includes any third-party software embedded in any Service. This limited license is provided solely for your personal, noncommercial use and enjoyment of the Service as permitted in these User Terms.

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You agree that you will not copy, store, use, sublicense, adapt, modify, translate, disclose, reproduce, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publish, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Praesidium Content, Service or any portion thereof (including any third-party software), except as expressly permitted in these User Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Praesidium or its licensors, except for the licenses and rights expressly granted in these User Terms.

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Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Services: (1) use, display, mirror, or frame the Service or any individual element within the Service, including the layout and design of any page, without Praesidium's express written consent; (2) use Praesidium's name, any Praesidium trademark or logo, or any Praesidium proprietary information without Praesidium's express written consent; (3) access or tamper with non-public areas of the Service, Praesidium's computer systems, or the technical delivery systems of Praesidium's providers; (4) test the vulnerability of any Praesidium system or breach any security or authentication measures; (5) circumvent any technological measure implemented by Praesidium or any of Praesidium's providers or any other third party (including another user) to protect the Service; (6) access the Service or Praesidium Content through the use of any mechanism other than through the use of a Service; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Praesidium provides to you or any other part of the Service.

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9. HYPERLINKS. 

 

You are granted a limited, nonexclusive, and nontransferable right to create a text hyperlink to the Services for noncommercial purposes, provided that such link does not portray us or any of our products or services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time in Praesidium's sole discretion.

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10. OUR ENFORCEMENT RIGHTS 

 

We reserve the right (but are not required) to remove or disable access to the Service, any Praesidium Content, or User Content at any time and without notice, and at our sole discretion, if we determine that the Praesidium Content, User Content, or your use of the Service is objectionable or in violation of these User Terms.

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We have the right to:

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• Disclose your identity or other information about you to any third party who claims that material posted by you, or through your user name, violates such third party's rights, including its intellectual property rights or its right to privacy. 

 

• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services. 

 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Application. YOU WAIVE AND HOLD PRAESIDIUM AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

 

Praesidium cannot review all material before it is posted on the Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, Praesidium assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. Praesidium has no liability or responsibility to you or any third party for performance or nonperformance of the activities described in this Section 10.

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11. USE THE SERVICES AT YOUR OWN RISK. 

 

If you rely on any Praesidium Content or the Services, you do so solely at your own risk. YOUR USE OF THE SERVICES, ITS CONTENT AND ANY SERVICES OR INFORMATION OBTAINED THROUGH THE SERVICES IS ENTIRELY AT YOUR OWN RISK.

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Our goal is to provide helpful and accurate information on the Service, but we make no endorsement, representation, or warranty of any kind about any Praesidium Content, information, or services. The accuracy of the data collected and presented through the Service is not intended to match that of medical devices or scientific measurement devices.

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WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, AVAILABILITY, EFFECTIVENESS, OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE SERVICES. Praesidium Content and the Service may change from time to time or vary by geographic location. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate, or incomplete.

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Use of the Services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of the Service.

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12. CONSULT YOUR DOCTOR BEFORE USING THE SERVICE. 

 

You expressly agree that the Services do not involve the provision of medical advice by Praesidium or any other party. The Services are not intended to diagnose, treat, cure, or prevent any disease or other medical condition. If you have a medical or heart condition, consult your doctor before using the Services, engaging in an exercise program, or changing your diet or sleep patterns. If you experience a medical emergency, stop using the Services and consult with a medical professional. We are not responsible for any health or other problems that may result from programs, consultations, products, or events you learn about through the Services. If you engage in any program (whether sleep, exercise or otherwise) you receive or learn about through the Services, you agree that you do so at your own risk and are voluntarily participating in these activities.

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13. DMCA/COPYRIGHT POLICY. 

 

We respect the intellectual property rights of others and we expect our users to do the same. It is our policy to respond expeditiously to claims of intellectual property infringement. We will promptly process and investigate notices of alleged infringement and take appropriate actions under the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act and other applicable intellectual property laws. If you are aware of or experience any circumstances that appear to be a violation of these User Terms, please inform us by contacting us via e-mail to: legal@biofi.com.

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Any such notice must include: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark interest; (b) a description of the copyrighted work or trademark that you claim has been infringed; (c) a description of the location on the Services of the claimed infringing material; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the claimed infringing use is not authorized by the copyright or trademark owner, its duly authorized agent, or the law; and (f) a statement by you that the information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright or trademark owner's behalf.

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Upon receipt of such notice, we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will terminate access for a registered user who is a repeat infringer.

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14. TERMS OF SALE, RETURNS AND WARRANTY, AND PAID SERVICES. 

 

Terms of Sale and Returns and Warranty 

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Praesidium's Terms of Sale and Limited Warranty Policies apply to purchases of physical goods from Praesidium. The Terms of Sale are incorporated into and made a part of these User Terms. All orders placed are subject to Praesidium's acceptance. We may accept, decline, or place limits on your order for any reason.

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Paid Services

 

Your purchase and use of any of our paid services are subject to the Terms for Paid Service, which are incorporated into these Terms. 

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15. IDEAS AND FEEDBACK. 

 

Please do not submit any unsolicited ideas in any form to Praesidium or any of its employees, service providers or other agents. This policy is necessary to avoid potential misunderstandings or disputes that may arise if our new products or services or marketing campaigns were to appear similar to an idea submitted by you.

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If, despite our policy, you still submit an idea to us, then regardless of anything contained in your submission you agree that the following shall apply: (a) we shall have no obligation to review the submission; (b) the submission and its contents shall automatically become the property of Praesidium, without any compensation to you; (c) we may consider the submission and its contents to be non-confidential and non-proprietary; and (d) we may redistribute or use (for commercial purposes or otherwise) the submission and its contents for any purpose and in any way, without any compensation to you.

 

If you or any other user provides us (at our request or otherwise) a comment or suggestion regarding our products or services through any means (including help forums or via any social network) the immediately preceding two paragraphs shall also apply thereto.

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16. CONTESTS AND GIVEAWAYS. 

 

Additional terms and conditions may apply to surveys, contests, giveaways, and other promotions sponsored by Praesidium or its partners. It is your responsibility to carefully review those terms and conditions.

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17. THIRD-PARTY SERVICES. 

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The Services may display or permit linking or other access to or use of third-party content, promotions, websites, apps, services and resources (collectively "Third-Party Services") that are not under Praesidium's control. This may include the opportunity for you to link your Praesidium account, data, or the Services with Third-Party Services. We provide these links only as a convenience and are not responsible for the products, services, or other content that are available from Third-Party Services.

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You acknowledge that any Third-Party Services that you use in connection with the Services, such as third party applications accessed on our devices, are not part of the Services and are not controlled by Praesidium. You take sole responsibility and assume all risk arising from your interaction with or use of any Third-Party Services. You also acknowledge that these User Terms and our Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.

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18. CHANGES TO THE SERVICE. 

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Praesidium may change or discontinue, temporarily or permanently, any feature, component, or content of the Service at any time without notice. Praesidium is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the Services. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by our products without prior notice to you.

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19. TERMINATION 

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We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Service, or to terminate these User Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation, or termination, we may delete or remove Your Content and other information related to your account. You may close your account at any time by contacting us at legal@biofi.com. Upon any termination of these User Terms or suspension, termination, or discontinuation of the Service or your account, the following provisions of these User Terms will survive: Sections 1, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25.

 

20. DISCLAIMER OF WARRANTIES. 

 

THE SERVICES, PRAESIDIUM CONTENT AND ANY OTHER SERVICES OR INFORMATION OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.

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WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PRAESIDIUM, ITS OFFICERS, MANAGERS, MEMBERS, LICENSORS, EMPLOYEES, AFFILIATES, AGENTS, DIRECTORS AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL WARRANTIES RELATING TO THE ACCURACY, SECURITY, RELIABILITY, QUALITY, TIMELINESS, PERFORMANCE, AVAILABILITY OR COMPLETENESS OF THE SERVICES, ITS CONTENT OR ANY SERVICES OR INFORMATION OBTAINED THROUGH THE SERVICES.

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WITHOUT LIMITING THE FOREGOING, NEITHER PRAESIDIUM NOR ANY PERSON OR ENTITY ASSOCIATED WITH PRAESIDIUM REPRESENTS OR WARRANTS THAT THE SERVICES, THE PRAESIDIUM CONTENT, OR ANY SERVICES OR INFORMATION OBTAINED THROUGH THE APPLICATION WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE WILL BE CORRECTED; THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICES, THE PRAESIDIUM CONTENT OR ANY SERVICES OR INFORMATION OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

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21. INDEMNITY. 

 

You will indemnify and hold harmless Praesidium and its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Service, (ii) any of your User Content and any your use of any Praesidium Content or other User Content obtained from the Service, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these User Terms, or (iv) your violation of any law or the rights of a third-party (including intellectual property rights). We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

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22. LIMITATION OF LIABILITY. 

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NEITHER PRAESIDIUM, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PRAESIDIUM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

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IN NO EVENT WILL PRAESIDIUM'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO PRAESIDIUM FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO PRAESIDIUM, AS APPLICABLE. 

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THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRAESIDIUM AND YOU. 

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SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 

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23. DISPUTE RESOLUTION. 

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

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You agree that any dispute between you and Praesidium arising out of or relating to these User Terms, the Services, or any other Praesidium products or services (collectively, "Disputes") will be governed by the arbitration procedure outlined below.

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Governing Law: Except as otherwise required by applicable law, the User Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws principles.

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Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Praesidium, you agree to try to resolve the Dispute informally by contacting us at our mailing address in the Contact Us section of the User Terms below, and providing us with your email address. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Praesidium may bring a formal proceeding.

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We Both Agree To Arbitrate: You and Praesidium agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

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Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@biofi.com within 30 days of first accepting these User Terms and stating that you (include your first and last name) decline this arbitration agreement.

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Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Washington County, Utah, or any other location we agree to.

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Arbitration Fees: The AAA rules will govern payment of all arbitration fees. You and Praesidium will split 50-50 all arbitration fees for claims less than $40,000. Praesidium will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

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Exceptions to Agreement to Arbitrate: Either you or Praesidium may assert claims, if they qualify, in small claims court in Washington County, Utah or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Praesidium products or Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

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No Class Actions: You may only resolve Disputes with Praesidium on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.

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Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Praesidium agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Delaware. Both you and Praesidium consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

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Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Praesidium products or Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

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24. GENERAL TERMS. 

 

Except as otherwise stated herein, these User Terms constitute the entire and exclusive understanding and agreement between Praesidium and you regarding the Services, and these User Terms supersede and replace any and all prior oral or written understandings or agreements between Praesidium and you regarding the Services and Praesidium Content. 

If for any reason a court of competent jurisdiction finds any provision of these User Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these User Terms will remain in full force and effect.

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You may not assign, delegate, or transfer these User Terms, by operation of law or otherwise, without Praesidium's prior written consent. Any attempt by you to assign or transfer these User Terms, without such consent, will be null. Praesidium may freely assign or transfer these User Terms without restriction. Subject to the foregoing, these User Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

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Any notices or other communications provided by Praesidium under these User Terms, including those regarding modifications to these User Terms, will be given: (i) via email or (ii) by posting to the Services. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

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Praesidium's failure to enforce any right or provision of these User Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Praesidium. Except as expressly set forth in these User Terms, the exercise by either party of any of its remedies under these User Terms will be without prejudice to its other remedies under these User Terms or otherwise.

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Additional terms may apply to certain Praesidium products or services. In the event that there is a conflict between these User Terms and any additional terms, the additional terms will control.

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25. CONTACT US. 

 

PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.

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You may contact us at our mailing address below:

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Praesidium 

150 N 200 E Suite 200, 

St. George, UT 84770

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PRAESIDIUM TERMS FOR PAID SERVICES 

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These Praesidium Terms for Paid Services (the "Paid Service Terms") apply to your purchase and use of any paid Praesidium services, including automatically renewing subscription services such as digital sleep programs ("Programs") and one-time purchases (collectively the "Paid Services"). These Paid Service Terms only apply to services we offer for purchase, and do not apply to the sale of our physical goods ("Products"). For payment terms related to the sale of Products, please see our User Terms.

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By purchasing or using a Paid Service, you agree to be bound by the [User Terms], which incorporate these Paid Service Terms and include a mandatory arbitration provision, and any separate terms and conditions presented to you in conjunction with your use of the Paid Services. If you do not accept these terms, do not purchase, access, or use our Paid Services. 

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1. PAID SERVICES.

 

Paid Services include content and personalized, interactive services. They may be one-time purchases or automatically renewing subscription services, like our Programs ("Subscriptions"). Please see the product page for your specific Paid Services for more information. We may make changes to, suspend, or discontinue Paid Services at any time for any reason, and we have the sole discretion to determine which portions of the Service require payment. 

 

2. SUBSCRIPTIONS. 

 

Automatically Renewing Subscriptions. Your Subscription term may vary, for example, with monthly or annual automatic renewal terms (a "Subscription Term"), as described in the course of your transaction. Your Subscription will automatically renew for additional Subscription Terms as long as your Subscription continues, until you cancel it or we suspend or stop providing the Subscription in accordance with our User Terms. Unless otherwise indicated by us, you will be charged prior to, or at the beginning of, each renewal term. Before charging you for a Subscription Term, we will notify you of the applicable fees, and the renewal will occur at the price then in effect for the Paid Service.

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Subscription Cancellation. You may cancel your Subscription at any time. Your cancellation will take effect at the end of the current Subscription Term. In the event you cancel your Subscription, note that we may still send you promotional communications about Praesidium, unless you opt out of receiving those communications by following the unsubscribe instructions provided in the communications.

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No Refunds on Subscriptions. When you cancel a Subscription, you cancel only future charges for your Subscription. You will not receive a refund for the current Subscription Term you paid for, but you will continue to have full access to that Subscription until the end of that current Subscription Term. At any time for any reason, we may provide a refund, discount, or other consideration (“credits”) to some or all of our users. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future.

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Free Trials. From time to time, we may offer free trials of certain Subscriptions for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial. Once your free trial ends, we (or our third-party payment processor) will begin billing your designated payment method on a recurring basis for your Subscription (plus any applicable taxes and other charges) for as long as your Subscription continues, unless you cancel your Subscription prior to the end of your free trial. Instructions for canceling your Subscription are described in the sections above. To avoid any charges, you must cancel your Subscription before the end of your free trial period. Before charging you at the end of the your free trial period, we will notify you of the applicable fees. 

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Price Changes. We reserve the right to adjust pricing for our Paid Services or any components thereof in any manner and at any time. Any price changes will take effect following notice to you.

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3. ONE-TIME PURCHASES. 

 

Certain Paid Services are one-time purchases, and not subscription-based. One-time purchases may not be canceled and you are not entitled to a refund for such services. 

 

4. PAYMENT AND BILLING.

 

You authorize Praesidium to charge your chosen payment method for the Paid Services. By providing a payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Paid Service may be suspended or canceled. You must resolve any problem we encounter in relation to the payment method you select in order to proceed with your use of the Service. 

 

Please note that if you accept a promotional offer or make changes to your Paid Services, the amount billed may vary. It may also fluctuate due to changes in applicable taxes or currency exchange rates. You authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount. 

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5. REPRESENTATIONS, WARRANTIES, AND COVENANTS.

 

Any Paid Services are personal to you and may not be used by any other person. You will not allow anyone else to use your Paid Services, and you will not transfer any Subscription or disclose your password to any other person. You will report to Praesidium any unauthorized or prohibited use of your Paid Services.