Terms of the ReST Service

 

ReST® designs products, services and tools that help you sleep better.

 

These Terms of Service (“Terms”) apply to your access and use of the “ReST Service”. The “ReST Service” includes our products and associated firmware, applications, software, websites, APIs, and services.

 

You must accept these Terms to create a ReST account and to access or use the ReST Service. If you do not have an account, you accept these Terms by using any part of the ReST Service. If you do not accept these terms, do not create an account or use the ReST Service.

 

  1. READ OUR PRIVACY POLICY

 

For information about our data practices, please see our Privacy Policy, including our Cookie Use statement. By accessing or using the ReST Service, you agree that we can collect and use your information in accordance with the Privacy Policy.

 

ReST will never sell or use your personal information for any purpose without your approval. However, by using our service you are allowing us to use your anonymized data (sleep data without your personal information such as your name) to help us make our products work better for sleepers everywhere.

 

  1. CREATING AN ACCOUNT

 

Full use of the ReST Service requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. ReST is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact Customer Support if you discover or suspect any security breach related to the ReST Service or your account.

 

  1. NECESSARY EQUIPMENT

 

Full use of the ReST Service is dependent upon your use of a device with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the ReST Service 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.

 

  1. POSTING YOUR CONTENT ON THE ReST SERVICE

 

By making Your Content available on or through the ReST Service you hereby grant to ReST a non-exclusive, transferable, sub licensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute anonymized forms (e.g. without your name and address) of Your Content, in whole or in part in any media.

 

You are responsible for Your Content. You represent and warrant that Your Content does not include the property of others and will not (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading, or deceptive; (d) be defamatory, obscene, pornographic, vulgar, or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.

 

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 ReST Service in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the ReST Service, or which may expose us or our users to any harm or liability of any type.

 

ReST 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 ReST Service.

 

  1. REST’S CONTENT

 

“ReST Content” includes any images, graphics, video, audio, data, text, comments, 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 ReST Service.

 

ReST Content, the ReST Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. We reserve all rights not expressly set forth in these Terms.

 

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

 

  1. WHAT YOU CAN DO ON THE REST SERVICE

 

The ReST Service is intended for your personal, noncommercial use.

 

ReST grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the ReST Service, (2) access and view the ReST Content, (3) access and use the software and mobile applications provided by the ReST Service, and (4) use the software that is embedded into ReST devices as authorized in these Terms. With respect to items (3) and (4), this license includes any third-party software embedded in any ReST Service. This license is provided solely for your personal, noncommercial use and enjoyment of the ReST Service as permitted in these Terms.

 

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

 

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 ReST Service: (1) use, display, mirror, or frame the ReST Service or any individual element within the ReST Service, including the layout and design of any page, without ReST’s express written consent; (2) use ReST’s name, any ReST trademark or logo, or any ReST proprietary information without ReST’s express written consent; (3) access or tamper with non-public areas of the ReST Service, ReST’s computer systems, or the technical delivery systems of ReST’s providers; (4) test the vulnerability of any ReST system or breach any security or authentication measures; (5) circumvent any technological measure implemented by ReST or any of ReST’s providers or any other third party (including another user) to protect the ReST Service; (6) access the ReST Service or ReST Content through the use of any mechanism other than through the use of an Authorized Connection, ReST Service, or ReST API; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that ReST provides to you or any other part of the ReST Service.

 

  1. HYPERLINKS

 

You are granted a limited, nonexclusive, and nontransferable right to create a text hyperlink to the ReST Service 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 ReST’s sole discretion.

 

  1. OUR ENFORCEMENT RIGHTS

 

We reserve the right (but are not required) to remove or disable access to the ReST Service, any ReST Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the ReST Content, Your Content, or your use of the ReST Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the ReST Service, and in response may take any action we may deem appropriate.

 

  1. USE THE REST SERVICE AT YOUR OWN RISK

 

If you rely on any ReST Content or the ReST Service, you do so solely at your own risk.

 

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

 

We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the ReST Service. ReST Content and the ReST 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.

 

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

 

  1. CONSULT YOUR DOCTOR BEFORE USING THE REST SERVICE

 

The ReST Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the ReST Service. If you experience a medical emergency, stop using the ReST Service and consult with a medical professional. We are not responsible for any health problems that may result from using ReST products and services. You agree that you do so at your own risk and are voluntarily participating in using these products and services.

 

Consult your doctor prior to use of such products if you (1) have a medical or heart condition, (2) are taking any photosensitive medicine, (3) have epilepsy or are sensitive to flashing lights, (4) have reduced circulation or bruise easily, or (5) have tendonitis, carpal tunnel syndrome, or other musculoskeletal disorders.

 

  1. ALERTS AND NOTIFICATIONS

 

As part of your use of the ReST Service, you may receive notifications, text messages, alerts, emails, and other electronic communications which you agree to receive. You can control most communications from the ReST Service by using your account settings.  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.

 

  1. THIRD-PARTY SERVICES

 

The ReST Service 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 ReST’s control. This may include the opportunity for you to link your ReST account, ReST data, or the ReST Service 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. You acknowledge that any Third-Party Services that you use in connection with the ReST Service, such as third party applications accessed on ReST devices, are not part of the ReST Service and are not controlled by ReST, and 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 Terms and the ReST 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.

 

  1. CHANGES TO THE REST SERVICE

 

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

 

 

 

  1. TERMINATION

 

We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the ReST Service, or to terminate these 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 customer support.

 

 

  1. INDEMNITY

 

You will indemnify and hold harmless ReST or 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 ReST Service, (ii) Your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. 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.

 

  1. LIMITATION OF LIABILITY

 

NEITHER REST, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE REST SERVICE WILL BE LIABLE 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 TERMS OR FROM THE USE OF OR INABILITY TO USE THE REST SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT REST 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.

 

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

 

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

 

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.

 

  1. 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.

 

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

 

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

 

Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against ReST, you agree to try to resolve the Dispute informally by contacting info@restperformance.com. 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 ReST may bring a formal proceeding.

 

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

 

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

 

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, Atlanta, Georgia, or any other location we agree to.

 

Arbitration Fees: The AAA rules will govern payment of all arbitration fees. ReST will pay all arbitration fees for claims less than $75,000. ReST will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

 

Exceptions to Agreement to Arbitrate: Either you or ReST may assert claims, if they qualify, in small claims court in Atlanta, GA 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 ReST products or ReST Service, 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.

 

No Class Actions: You may only resolve Disputes with ReST 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.

 

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 ReST agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Atlanta, Georgia. Both you and ReST consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

 

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 ReST products or ReST Service 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.

 

  1. GENERAL TERMS

 

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

 

We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the ReST Service. When you use the ReST Service after a modification becomes effective, you are telling us that you accept the modified Terms. You can review previous versions of these Terms in our archive.

 

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

 

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

 

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

 

ReST’s failure to enforce any right or provision of these 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 ReST. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.