PLEASE READ THE FOLLOWING END USER LICENSE AND AGREEMENT BEFORE USING THE Navien Sleep Plus APPLICATION. BY DOWNLOADING THE Navien Sleep Plus APPLICATION, ACCEPTING THIS AGREEMENT, AND/OR USING THE SERVICES, YOU ARE ACKNOWLEDGING AND AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF USE CONTAINED HEREIN.
1.1 As used herein, the following terms shall have the following meanings:
1.1.1 “Agreement” means this End User License and Agreement between the Company and you.
1.1.2 “Navien Sleep Plus Application” means the software application to be installed in mobile telecommunication terminal including smartphone of User Customer for using the Service.
1.1.3 “Company” means Navien, Inc., a California corporation.
1.1.4 “Product” means the series of bed warming mattress pads of Navien Mate which are purchased from the Company and used by the user customers
1.1.5 “Service” or “Services” means the Navien Sleep Plus Remote Control Service and all the additional services related thereto which provides the functions including remote control and personalized features, such as AI-based sleep stage detection using breathing sounds, by interlocking the Product installed in the house of User Customer with Navien applications. The details of the Service are as set forth in Section 9 hereof.
1.1.6 “User Customer” means the person using the Product of Company who joins this application account and provides his/her personal information to the Company and use the Service provided by Company hereunder.
1.1.7 “Your” or “your” means the end user who will have access to and use the Navien Sleep Plus Application in conjunction with the Product.
1.2 As used herein, the terms other than those as set forth in the foregoing Paragraph 1.1 shall mean as prescribed in applicable laws, regulations and other customary practices.
This Agreement governs your access to and use of the Navien Sleep Plus Application and Service in conjunction with the use of the Product. The Navien Sleep Plus Application is software which is proprietary to the Company and has been licensed to you for inclusion in the Services being provided to you. The intellectual property utilized in the Navien Sleep Plus Application and Service shall remain the sole property of the Company, and its use shall be subject to all terms and condition set forth in this Agreement. In addition to remote control, the Service also includes AI-powered features, such as sleep stage detection using breathing sound analysis and automatic mattress pad temperature adjustment tailored to the user’s sleep cycle.
3.1 Your use of and access to the Services are conditioned upon your acceptance of the terms and conditions of this Agreement, your log-in and registration using the Navien Sleep Plus Application, and compliance with all applicable laws, rules, and regulations. By accepting this Agreement, you acknowledge and agree to be legally bound by the terms and conditions of use contained herein. If you do not accept the terms of this Agreement and do not desire to be legally bound thereby, you will not be granted any license to use the Services, you may not use the Services, and you must delete all existing copies of the Navien Sleep Plus Application, if any, without retaining any copies thereof. YOUR SIGNATURE (THROUGH ELECTRONIC ACCEPTANCE) OF THIS AGREEMENT CONSTITUTES ACCEPTANCE OF ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT.
3.2 The technology related to the Services is constantly changing and further developing. As such, the Company reserves the right to change the terms in this Agreement at any time. The Company will notify of any such changes by publishing the updated terms and conditions on its website and/or through the Navien Sleep Plus Application. If you do not agree with the modification, then you may not use the Services; your continued access or use of the Services after notice indicates your acceptance of the modified terms. Changes shall take effect immediately upon publication. The Company reserves the right to change the look and feel of the Navien Sleep Plus Application as well as the way any data is displayed.
This Agreement commences as of the date on which you have purchased the Product, electronically signed and submitted to the Company this Agreement, and completed the registration process using the Navien Sleep Plus Application (“Effective Date”).
5.1 From the Effective Date, the Company grants to you a limited, revocable, non-exclusive, non-transferable license to use the Services for the duration of this Agreement, subject to the terms and conditions as set forth herein (“License”). The License does not grant you the right to use the Services in any manner not expressly permitted in this Agreement, and all rights not expressly granted to you in this Agreement are retained by the Company. The License shall automatically terminate upon termination of this Agreement or as otherwise set forth in this Agreement. You agree not to access (or attempt to access) any of the Services by any means other than through the interfaces that are provided by the Company. You agree that you will not engage in activity that interferes with or disrupts the Services.
5.2 You understand and agree that the Services are being provided to you for your personal use only and are intended to be used only in conjunction with your use of the Product. You acknowledge and agree that you shall use the Services for lawful purposes, and in a manner that complies with all applicable federal, state, and local laws, regulations, and this Agreement.
5.3 You may begin use of the Service by providing the requested Customer User information through the Navien Sleep Plus Application and thereafter by logging into your Customer User account. In order to use the Services, you will need to be equipped with a functional and compliant mobile telecommunications terminal and have access to Wi-Fi.
5.4 You acknowledge and agree that you shall not commit any of the following acts in connection with your use of the Navien Sleep Plus Application or Services: (i) access or log in to, or attempt to access or log in to, any account or data that is not associated with your account or use of the Services; (ii) use any data obtained through your use of the Services for any unlawful purpose or in violation of any federal, state, or local law, regulation, or term or condition of this Agreement; (iii) willfully tamper or interfere with, or breach or attempt to breach, any of the Company’s security or authentication measures; (iv) copy the Navien Sleep Plus Application, in whole or in part; (v) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Navien Sleep Plus Application; (vi) lend, sell, sublicense, assign, distribute, publish, or transfer the Navien Sleep Plus Application to any person other than end users, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service except as part of the Services; (vii) utilize the Services or Navien Sleep Plus Application to reverse engineer, disassemble, decompile, decode or adapt the Services or Navien Sleep Plus Application, or otherwise attempt to derive or gain access to the source code of the Navien Sleep Plus Application, in whole or in part; (viii) reverse engineer, disassemble, decompile, decode, or adapt the Navien Sleep Plus Application, or otherwise attempt to derive or gain access to the source code of the Navien Sleep Plus Application, in whole or in part; (ix) bypass or breach any security device or protection used for or contained in the Navien Sleep Plus Application or documentation; (x) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Navien Sleep Plus Application or documentation; (xi) use the Services or Navien Sleep Plus Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law; (xii) use the Services or Navien Sleep Plus Application other than for the permitted use or in any manner or for any purpose or application not expressly permitted by this Agreement; or (xiii) assign, sell, lease, license, transfer, encumber or pledge as security, permit liens against or otherwise convey any rights therein.
5.5 You are responsible for the use of the Services. You agree to comply with all applicable laws, ordinances, rules and regulations, including without limitation traffic rules and regulations, of each applicable federal, state, local or foreign government and any agency or public authority thereof, and to indemnify and hold the Company harmless from liability or loss by reason of any asserted or established violation of said laws, ordinances, rules, or regulations by you or anyone you authorize to use the Services.
5.6 The Navien Sleep Plus Application may be subject to updates from time to time which you hereby agree to accept with or without notice. Such updates may either be automatically download and installed in your mobile telecommunication terminal or you may be provided with instructions to complete such updates whereupon you will promptly comply with such instructions. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and complete new versions. You agree to receive such updates, and authorize the Company to provide you with any updates, as part of your use of the Services.
6.1 The Service may be used free of charge. The Company reserves the right to charge for the Services upon advanced written notice to you, by e-mail, SMS or in any other written form, and subject to further terms and conditions as may be established by the Company.
6.2 This Agreement commences as of the Effective Date and will continue unless terminated earlier under the terms of hereof. Controlling over all inconsistent or contrary provisions which may appear in this Agreement, the Company shall have the right to suspend or terminate this Agreement or the Services at any time with or without cause by giving you written notice of such termination, to be effective upon the Company sending of such notice to your email address, SMS or mailing address on the Company’s record. You will maintain the sole obligation to keep all of your User Customer information updated through the Navien Sleep Plus Application.
6.3 Notwithstanding the foregoing and controlling over all inconsistent or contrary provision which may appear in this Agreement, the Company shall have the right to immediately terminate this Agreement and/or Services with or without notice to you in the event of your breach of any of the terms and conditions of this Agreement.
6.4 Upon termination, your User Customer account will be deleted and any rights granted to you under this Agreement will be immediately revoked, including, but not limited to, your right to access any data produced in connection with your use of the Services in any manner, and you agree to promptly and permanently delete any and all copies of the Navien Sleep Plus Application that are in your possession or control.
7.1 All copyrights, patents, trademarks, or other proprietary rights provided by the Company or its affiliates in connection with the Navien Sleep Plus Application and/or the Services belong to the Company or its affiliates, and such proprietary rights are protected from unauthorized copying or dissemination by applicable copyright and trademark laws, international conventions, and other intellectual property laws. You understand that you may not use, reproduce, republish, transmit, or distribute the name of the Company or any of its proprietary rights without obtaining the Company’s express prior written consent, and that you may not attempt to modify, translate, reverse engineer, disassemble, decompile, or otherwise try to discover any of the underlying ideas of any portion of the Navien Mate Product and/or Services.
7.2 At the Company’s request, you may be asked to provide a review or evaluation of the Navien Sleep Plus Application and/or Services for the Company’s internal use. You hereby acknowledge and agree that any comments or feedback relating to the Navien Sleep Plus Application or Services will become the property of the Company upon receipt and may be used by the Company for business and/or related purposes.
7.3 Controlling over any contrary provisions herein, you acknowledge that any breach of any provision of this Section will cause immediate and irreparable injury to the Company or its affiliates, and in the event of such breach, the Company and/or its affiliates shall be entitled to seek injunctive relief in a court of law in addition to any and all other remedies available at law or in equity.
8.1 The Navien Sleep Plus Application is provided to you on an "AS IS" and "AS AVAILABLE" basis. You acknowledge that the Company has no obligation whatsoever to provide any maintenance or support relating to the Navien Sleep Plus Application during the term of your use of the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
8.2 IN ADDITION AND WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO: (1) THE ACCURACY, ADEQUACY, CORRECTNESS, OR COMPLETENESS OF THE INFORMATION WITHIN THE Navien Sleep Plus APPLICATION OR SERVICES; OR (2) THE SECURITY, UNINTERRUPTION, AVAILABILITY, OR ERROR-FREE BASIS OF THE Navien Sleep Plus APPLICATION OR SERVICES, OR ABILITY TO MEET YOUR REQUIREMENTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
8.3 You acknowledge and understand that your ability to obtain the Services through the Navien Sleep Plus Application is dependent upon Wi-Fi signals and other applicable technologies. You further understand that the Services may be temporarily interrupted, or otherwise become inaccessible, inoperable, or delayed due to reasons beyond the Company’s control, including, but not limited to, the following: (i) lack of wireless network coverage in a geographic area or restrictions on wireless coverage; (ii) geographic, atmospheric, or terrain conditions, or other natural or artificial environmental conditions beyond the Company’s control, including, but not limited to, electrical storms, floods, fires, or power failures; (iii) equipment malfunctions or damage; (iv) network traffic or congestion; (v) interruptions in or unavailability of internet connection; (vi) modifications, upgrades, repairs, or other interference with or to the network transmissions or services; (vii) obstruction of satellite signal transmissions; (viii) any third party communication provider’s unilateral decision to discontinue, suspend, or terminate its provision of communication and/or Wi-Fi services; or (ix) any other reason beyond the Company’s control. You understand that the Services are limited to usage within the United States, and may be further limited if outside the network coverage area provided by the wireless carriers. You agree that the Company shall not have any responsibility with respect to the third-party communication providers, cellular telephone networks or wireless carriers, or any data transmitted thereby or therein. In addition, you acknowledge and agree that the Company shall not, in any manner, be liable or responsible for any interruptions, disruptions, or delays in the Services for any reason whatsoever, or for any costs, losses, or damages, including indirect, consequential, punitive, special, or incidental or other damages, that may result for any such interruptions, disruptions, or delays in the Services. You further agree that you will not be entitled to any discounts or refunds as a result of any such interruptions in the Services.
8.4 You acknowledge and agree that the Company cannot warrant or guarantee the security of the wireless signal transmissions that are made to or from third party communications providers or the information transmitted therein, and that the Company shall not be liable or responsible for any lack of security relating to your use of the Navien Sleep Plus Application and/or Services.
8.5 You acknowledge and agree that you are solely responsible for any risk that you take in subscribing to the Services. IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, SUBSIDIARIES, PARTNERS, LICENSORS INCLUDING BUT NOT LIMITED TO CALAMP, BRAND LICENSEES OR SUPPLIERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LEGAL REPRESENTATIVES, AGENTS, SUCCESSORS, OR ASSIGNS (COLLECTIVELY "COMPANY PARTIES"), BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL OR OTHER DAMAGES, COSTS OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF PROFITS, DATA, GOODWILL, OR OTHER TANGIBLE LOSSES RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE Navien Sleep Plus APPLICATION AND/OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE INABILITY TO ACCESS OR USE THE SERVICES CAUSED BY INTERFERENCE, OBSTRUCTION, OR INTERRUPTION IN SERVICES, EVEN IF THE COMPANY PARTIES, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES.
8.6 NOTWITHSTANDING THE ABOVE, UNDER NO CIRCUMSTANCES WILL THE MAXIMUM AGGREGATE LIABILITY OF THE COMPANY PARTIES, EITHER INDIVIDUALLY OR COLLECTIVELY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE Navien Sleep Plus APPLICATION AND/OR SERVICES, EXCEED THE TOTAL PRICE PAID BY YOU FOR YOUR USE OF THE SERVICES AND/OR THE PRODUCT, NOR SHALL ANY ACTION BE BROUGHT AGAINST THE COMPANY PARTIES FOR ANY BREACH HEREOF MORE THAN TWELVE (12) MONTHS FOLLOWING THE ACCRUAL OF SUCH CAUSE OF ACTION.
8.7 The Company will have no liability for a failure to provide, or for delay in providing the Services due directly or indirectly to certain technological and other limitations as described herein or as may otherwise occur. If the Company is unable to wholly or partially perform the Services because of any cause beyond its control, the Company may terminate this Agreement without any liability to you. Technological limitations may include but are not limited to the following: (a) Complete wireless coverage of the service area at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services at times. Service interruptions may also be caused by network congestion, roaming and similar access issues; and (b) Your use of the Services and the Navien Sleep Plus Application are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses or interceptors. You acknowledge and agree, and undertake to inform any users of the Services and that the Company will not be liable for any lack of privacy or security resulting from use of the Services.
You agree to defend, indemnify and hold harmless the Company, its affiliates, subsidiaries, parent company, brand licensees, other partners and suppliers, and each of their respective officers, directors, employees, shareholders, legal representatives, agents, successors, and assigns, from and against any demands, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees, expert fees, and litigation costs), or causes of action of any kind or character that arise out of, result from, or are otherwise connected with your use of the Navien Sleep Plus Application and/or Services, or any breach or violation of the terms of this Agreement. This provision and the obligations contained herein shall survive the termination of this Agreement.
10.1 You acknowledge that the Navien Sleep Plus Application and Services contain proprietary and confidential information of the Company, which the Company considers to constitute valuable trade secrets. “Confidential Information” shall include the Navien Sleep Plus Application, any data, features, results, graphs, systems, designs, or output produced by, or other information relating to, the Navien Sleep Plus Application, any business or technical information of the Company, and any trade secret or proprietary information concerning the Company. You agree that you will keep and maintain all Confidential Information of the Company in strict confidence, using such degree of care as you would use to protect your own confidential information, that you will not use any such Confidential Information for your own purposes, and that you will not use or disclose any Confidential Information of the Company to any third party unless you obtain the prior written consent of the Company.
10.2 “Confidential Information” shall not include any information that is lawfully in your possession at the time of disclosure, is or later becomes generally known to the public through no fault of your own or breach of this Agreement, is independently developed by you without reference to any Confidential Information provided by the Company, or is lawfully obtained from a third party who is not in breach of any confidentiality obligations owed to the Company. If you are required to disclose Confidential Information pursuant to law or legal order, you agree to promptly provide the Company with written notification of such requirement, and cooperate with the Company such that it will be able to take appropriate action to protect its Confidential Information.
11.1 The parties agree that any and all disputes, disagreements, controversies, claims, or other causes of action which may arise between the parties in relation to or in connection with this Agreement shall be submitted to arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”) in Orange County, California, before a single arbitrator. AAA shall provide the parties with a list of at least three (3) neutral arbitrators from which the parties shall mutually select the arbitrator. Should the parties fail to agree upon an arbitrator, AAA shall make the selection for them. Arbitration shall be held and conducted before the selected arbitrator, whose decision shall be final and binding upon both parties. The costs and fees of the arbitrator shall be borne equally between the parties, and each party shall thereafter bear their own legal fees and costs regardless of whether there is a prevailing party. Any arbitration proceeding shall be completed expeditiously and without undue delay or expense. In no event shall the demand for arbitration be made after the date upon which the institution of legal or equitable proceedings based upon the dispute, disagreement, controversy, claim, or other cause of action giving rise to the arbitration proceeding would be barred by the applicable statute of limitations. In the event either party commences litigation regarding any matter arising out of or in connection with this Agreement, the other party shall have the absolute right to have such litigation dismissed, and shall have the right to either request that the court refer the matter to arbitration or institute an arbitration proceeding which shall supersede and take precedence over any court proceedings. All attorneys’ fees and costs incurred by either party in opposing and/or obtaining a dismissal of such non-arbitration proceedings shall be recoverable against the party initiating such proceedings.
11.2 YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF A CLASS IN A CLASS ACTION.
11.3 YOU HEREBY AGREE THAT ANY CLAIM OR DISPUTE WILL BE DECIDED BY BINDING ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL. YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE YOUR RIGHT TO HAVE ANY CLAIM OR DISPUTE RESOLVED BY A JURY.
Upon downloading of the Navien Sleep Plus Application and/or during your use of the Services, the Company may collect, use, process, and store certain personal, diagnostic, usage, and other related data from your mobile device and Product. This includes, but is not limited to, breathing sound patterns collected during sleep, which are used for sleep stage analysis and personalized mattress pad temperature control. All such data is subject to the Navien Sleep Plus Privacy Policy, which can be viewed at https://comfort-mate.com/pages/privacy-policy and is hereby incorporated by reference.
13.1 Waiver. No failure on the part of the Company to enforce any part of this Agreement shall constitute a waiver of any of the Company’s rights herein, whether for past or future actions on the part of any person. Neither the receipt of any funds by the Company nor the reliance of any person on the Company’s actions shall be deemed to constitute a waiver of any part of this Agreement. No waiver of this Agreement will be deemed effective or enforceable unless in a writing signed by the party to be bound by the waiver.
13.2 Assignment. You may not assign this Agreement, in whole or in part, without the Company's prior written consent which consent may be withheld by the Company in its sole and absolute discretion. Any attempt to assign or delegate any rights, duties or obligations arising under this Agreement in contravention of the above shall be deemed null and void. Notwithstanding the foregoing, this Agreement, or any portion thereof, is fully assignable or transferable by the Company to any person or entity and shall inure to the benefit of such assignee or successor.
13.3 Severability. In the event that any provision in this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be replaced by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions shall remain in full force and effect.
13.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles.
13.5 Headings. The headings of the sections contained herein are inserted for convenience only, and shall not constitute a part hereof or affect in any way the meaning or interpretation of the terms of this Agreement.
13.6 Survival. All provisions hereof relating to restrictions on use and representation, privacy policy and disclosures, ownership, proprietary rights, limitation of liability, indemnification, confidentiality, dispute resolution, and general terms shall survive the termination of this Agreement.
13.7 Entire Agreement. This Agreement constitutes the entire agreement between you and the Company regarding your use of the Services, and supersedes and replaces any prior or contemporaneous agreements and understandings regarding the subject matter hereof, whether written or oral.
13.8 Force Majeure. Without limiting the limitation of liabilities set forth in this Agreement, in no event shall the Company be responsible for any damage, loss, injury or harm resulting from matters beyond the Company's reasonable control including but not limited to strike, lockout or labor dispute, lack or failure of customary sources of supply of fuel, labor and materials, national emergency, any law or governmental rule, order or regulation, war, civil commotion, riot, interference by civil or military authorities, fire, weather conditions, utility interruptions, other casualty or act of God.
BY ACCEPTING THIS AGREEMENT, DOWNLOADING THE Navien Sleep Plus APPLICATION, AND/OR USING THE SERVICES, YOU ARE REPRESENTING TO THE COMPANY THAT YOU HAVE FULLY READ AND UNDERSTOOD ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU ACKNOWLEDGE AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND ALL SUCH TERMS AND CONDITIONS CONTAINED HEREIN.