Notice of Privacy Practices (HIPAA)

 

This notice describes how information about you may be used and disclosed and how you can get access to this information. Please review it carefully.

 

Commitment to Privacy

Somnics is dedicated to maintaining the privacy or your healthcare information and we are required by law to maintain the confidentiality of information that identifies you. Any use of healthcare information beyond the uses described below requires your individual written authorization. The Health Insurance Portability and Accountability Act (HIPAA) obligates Somnics to provide you with a copy of our Privacy Notice, outlining our privacy practices and how we safeguard your health information. Somnics abides by the terms of the Privacy Notice currently in effect, and reserves the right to revise or amend the notice, as needed.

Your Health Information Rights:

Although your health record is the physical property of the healthcare facility that compiled it, the information belongs to you. You have the right to:

  • Request a restriction on certain uses and disclosures of your information;

  • Obtain a paper copy of the notice of privacy practices;

  • Inspect and copy your healthcare record;

  • Obtain an accounting of disclosures of your health information;

  • Request confidential communication;

  • Amend your health record;

  • Revoke your authorization to use or disclose health information except to the extent that action has already been taken.

 

Our Responsibilities: Somnics is required to:

  • Maintain the privacy of your health information;

  • Provide you with a notice as to our legal duties and privacy practices with respect to information we collect and maintain about you;

  • Abide by the terms of this notice;

  • Notify you if we are unable to agree to a requested restriction;

  • Accommodate reasonable requests you may have to communicate health information by alternative means. 

 

Somnics reserves the right to change our practices and to make the new provisions effective for all protected health information we maintain. Should our information practices change, we will mail a revised notice to your address on file. We will not use or disclose your health information without your authorization, except for treatment, payment, and healthcare operations.

 

Examples of Disclosure for Treatment, Payment, and Healthcare Operations:

We will use your health information for treatment-Information obtained by our company will be documented in your healthcare record and will be used to provide you with durable medical equipment and/or supplies. The prescription that your physician has ordered will be part of the record and will determine the equipment and supplies that you receive.

We will use your health information for payment-In order to determine your eligibility for equipment and/or supplies, Somnics may contact your insurance company and disclose healthcare related information. Also, Somnics will bill you or may bill a third party payer for services that you receive from our company. The health information that identifies you, your diagnosis, equipment, and supplies may be included on this bill.

We will use your health information for healthcare operations-Somnics may use your health information to evaluate the quality of care you receive from us, to conduct cost management assessments, and to plan business activities. This information is used in an effort to continually improve the quality and effectiveness of the healthcare services we provide.

 

Other Uses of Disclosures:

Business Associates- There are some individuals who are under contract with Somnics and, from time to time, are engaged in the improvement or financial enhancement of our business. So that your health information is protected, however, we require any business associate to appropriately safeguard your information. 

Public Health-As required by law, we may disclose your health information to public health or legal authorities charged with preventing or controlling disease, injury, or disability.

Law Enforcement-We may disclose health information for law enforcement purpose as required by law, or in response to a valid subpoena.

Health Oversight Activities-We may disclose health information to health oversight agencies for activities authorized by law, including surveys, audits, and compliance inspections.

Worker’s Compensation-We may release your health information to the extent necessary to comply with laws relating to workers compensation or other similar programs established by law.

 

For More Information: 

Please contact Somnics’s Privacy Officer at 1.833.766.6427, if you require additional information and/or want to pursue your rights, including:

  • Requesting restrictions  and additional disclosures;

  • Inspecting and copying your record;

  • Securing an accounting of disclosures or revoking authorizations at any time;

  • Filing a complaint

If you believe your privacy rights have been violated, you may contact our company’s General Manager. You may also file a complaint with the Secretary of Health and Human Services (Office of Civil Rights). There will be no retaliation for filing a complaint.

 

REV: 08/14/2020

Privacy Policy

What type of information do we collect?

We receive, collect and store any information you enter on our website or provide us in any other way. In addition, we collect the Internet protocol (IP) address used to connect your computer to the Internet; login; e-mail address; password; computer and connection information and purchase history. We may use software tools to measure and collect session information, including page response times, length of visits to certain pages, page interaction information, and methods used to browse away from the page. We also collect personally identifiable information (including name, email, password, communications); payment details (including credit card information), comments, feedback, product reviews, recommendations, and personal profile.

How do we collect information?

When you conduct a transaction on our website, as part of the process, we collect personal information you give us such as your name, address and email address. Your personal information will be used for the specific reasons stated above only.

Why do we collect such personal information?

We collect such Non-personal and Personal Information for the following purposes:

  1. To provide and operate the Services;

  2. To provide our Users with ongoing customer assistance and technical support;

  3. To be able to contact our Visitors and Users with general or personalized service-related notices and promotional messages;

  4. To create aggregated statistical data and other aggregated and/or inferred Non-personal Information, which we or our business partners may use to provide and improve our respective services; 

  5. To comply with any applicable laws and regulations.

How do we store, use, share and disclose your site visitors' personal information?

Our company is hosted on the Wix.com platform. Wix.com provides us with the online platform that allows us to sell our products and services to you. Your data may be stored through Wix.com’s data storage, databases and the general Wix.com applications. They store your data on secure servers behind a firewall. 

All direct payment gateways offered by Wix.com and used by our company adhere to the standards set by PCI-DSS as managed by the PCI Security Standards Council, which is a joint effort of brands like Visa, MasterCard, American Express and Discover. PCI-DSS requirements help ensure the secure handling of credit card information by our store and its service providers.

How do we communicate with our site visitors?

We may contact you to notify you regarding your account, to troubleshoot problems with your account, to resolve a dispute, to collect fees or monies owed, to poll your opinions through surveys or questionnaires, to send updates about our company, or as otherwise necessary to contact you to enforce our User Agreement, applicable national laws, and any agreement we may have with you. For these purposes we may contact you via email, telephone, text messages, and postal mail.

How can our site visitors withdraw their consent?

If you don’t want us to process your data anymore, please contact us at contact.us@somnics.com.

Privacy policy updates

We reserve the right to modify this privacy policy at any time, so please review it frequently. Changes and clarifications will take effect immediately upon their posting on the website. If we make material changes to this policy, we will notify you here that it has been updated, so that you are aware of what information we collect, how we use it, and under what circumstances, if any, we use and/or disclose it. 

 

Patient Consents and Disclosures

Patient Consents 

  • Consent to Treatment- Somnics facilitates The iNAP® Sleep Therapy System on behalf of prescribing physicians. I understand that I have a choice when selecting providers and therapy options.  I hereby authorize and consent to the use of telemedicine in the course of my treatment   I acknowledge that I have been informed about the use of telehealth, which is a mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management and self-management of a patient's health care while the patient is at the originating site and the health care provider is at a distant site. 

  • Consent to Ongoing Care- After the first 90 days post-set up, Somnics can assess your usage of the INAP system via uploading usage on the iNAP Lab+ app as it will help determine compliance and need for replacement supplies.  Every 90 days thereafter and upon your approval, Somnics will ship a new INAP Mouthpiece, Tubing, and Drypads. I authorize payment for supplies by credit card on file at the time of shipment.  Somnics accepts VISA or MasterCard.  Should I cancel or change my credit card, I will inform Somnics as soon as possible.   The INAP Mouthpiece, Tubing, and Filter are for single-patient use only and may not be resold. 

 

Patient Disclosures

 

  1. I authorize Somnics and its staff to provide me with the iNAP® Sleep Therapy System, a Durable Medical Equipment (DME) item that has been prescribed by my physician.  My physician has explained the nature of this treatment and I will learn to use this therapy via training as provided by Somnics as well as through demonstration by telemedicine.  

  2. I have freely chosen Somnics as my provider.

  3. I have been screened by my physician for appropriateness of this therapy.  I do not knowingly have any serious respiratory disorder, advanced periodontal disease or loose teeth that has not been disclosed to Somnics.

  4. I understand and have been /or am scheduled to be instructed on the prescribed usage of the iNAP® Sleep Therapy system.  I take full responsibility for its safe use and care within my home or when traveling.  If I choose to discontinue its use, I will do so after advising my physician.  I shall not hold Somnics responsible for any adverse consequences related to any misuse, failure to use or discontinuation of the treatment provided to me. 

  5. No warranty or guarantee has been made as to the results of this therapy. I understand that it is a long term therapy and not a cure for my diagnosed sleep disorder.

  6. I understand that all new iNAP Consoles come with a 2-year limited warranty, and the INAP mouthpiece and tubing carry a 30-day warranty. Somnics will replace or repair all equipment that is under warranty free of charge. Any modifications made by me to the product may void the warranty.  Somnics shall not insure or be responsible to patient or caregiver for any personal injury or property damage related to any product, including that caused by improper use or function thereof, the act or omission of any third party, or by any criminal act or activity, fire or act of God.

  7. The cost for the system excludes any costs associated with your appointments with sleep physicians or any additional testing recommended by a physician.

  8. Somnics’s Customer Service Team is available between 8AM – 5PM, Pacific Time at 1-833-SOMNICS (1-833-766-6427). Should you have a life-threatening medical emergency, contact your local emergency services number for assistance as we do not provide emergency services.

 

Patient Financial Responsibilities and Purchase Agreement

 

  1. Somnics sells the iNAP® Sleep Therapy System directly to patients as “self-pay” and accepts payment through VISA and MasterCard.  Somnics does not submit claims on behalf of the patient to their insurance company. I accept full and complete financial responsibility for all charges for the indicated therapy(s). 

  2. I understand I may cancel my membership in the iNAP Club and return the iNAP Console to Somnics after being a member for 90 days. If I’m interested in returning the device, I will contact the customer service department at 1-833-766-6427 and obtain a Return Authorization with instructions for returning the device. 

  3. After set up, every 3 months and upon confirmation of my need, Somnics will ship a new iNAP Mouthpiece, Tubing, and Drypads to me.  I authorize payment by VISA or MasterCard with card on file at the time of shipment.  The INAP Mouthpiece, Tubing, and drypads are for single-patient use only and cannot be returned for a refund.

  4. I agree to notify Somnics of any change in my status such as residence, email address, contact information and credit card on file.

  5. I authorize Somnics personnel to be involved in my care.

 

Patient Selection

  • 18 years or older

  • Previously diagnosed with OSA

  • Has been screened for appropriateness of therapy.

 

Patient Rights - you have the right to:

 

  • Be given timely, appropriate, and quality professional home care services without discrimination.

  • Receive products in proper operating condition according to the manufacturer’s specifications.

  • Be provided with proper products and services as ordered by a qualified health care professional

  • Receive fair treatment, including honoring cultural, spiritual, and personal preferences.

  • Request a detailed explanation of your bill for products and services.

  • Be communicated with in a way that you can reasonably understand.

  • Refuse equipment and services, accepting full responsibility for that refusal.

  • Choose your provider of home care services.

  • Be assured of confidentiality, to review your records, and to approve or refuse the release of records.

  • Have competent and qualified people carry out the services for which they are responsible.

  • Voice your grievances and recommend changes without fear of reprisal.

  • Report concerns about patient safety without fear of reprisal.

  • Be given reasonable notice of discontinuation of service.

REV: 08/14/2020

 

Financial Information Privacy Notice


We are committed to maintaining the confidentiality of your personal financial information. For the purposes of this notice, “personal financial information” means information that identifies the individual, is not generally publicly available and is collected from the individual or is obtained in connection with providing products or services to the individual.


Information We Collect
We collect personal financial information about you from the following sources:

  • Information we receive from you such as name, address, age, credit card information and health information;

  • Information about your transactions with us, our affiliates or others, such as payment history;

 

Disclosure of Information
We do not disclose personal financial information about customers to any third party, except as required
or permitted by law. For example, in the course of our general business practices, we may, as permitted

Notice of privacy policy for website by law, disclose the personal financial information that we collect about you, without your authorization, to the following types of institutions:

  • To nonaffiliated companies for our everyday business purposes, such as to process your transactions, maintain your account(s), or respond to court orders and legal investigations; and

  • To nonaffiliated companies that perform services for us, including sending promotional communications on our behalf. 

 

Confidentiality and Security
We maintain physical, electronic and procedural safeguards, in accordance with applicable state and federal standards, to protect your personal financial information against risks such as loss, destruction or misuse. These measures include computer safeguards, passwords, encryption, secured files and offices and restrictions on who may access your personal financial information. We use Payment Card Industry (PCI) transaction compliance service provided by Stripe. The PCI Data Security Standard (PCI DSS) is a set of requirements designed to ensure that all companies that process, store or transmit credit card information maintain a secure environment.


Questions about this notice and effective date
If you have questions about this notice, please call 833-766-6427. This Financial Information Privacy Notice is effective Oct 1, 2020.
This website is intended for a United States Audience.


Copyright, ©2020 Somnics Health, Inc. All rights reserved.

 

iNAP Club Subscription Agreement

 

Somnics Health, Inc.

 (833) 766-6427  •  inapsleep.online

 

After you accept this iNAP Club Subscription Agreement, Somnics Health will send you the iNAP Sleep Therapy System  and quarterly replacement supplies as detailed below

 

What your iNAP Club Subscription includes:

At Membership Subscription Starting Date below, we will send you the iNAP Sleep Therapy System, including first three (3) months of supplies for this Initial Membership Phase.

Every three (3) months after the Initial Membership Phase, we will send you the following Quarterly Replacement Supplies Package for your iNAP® Sleep Therapy System:

  • One (1) mouthpiece,

  • One (1) piece of tubing; and

  • Three (3) bags of DryPad or 93 pieces.

Your Replacement Supplies Package will be sent to your shipping address we have on file via our standard shipping method (UPS, FedEx ground, or USPS), unless you notify us of a change of address or shipping method at least 10 days before the shipment date.

  • Membership Subscription Starting Date: 

 

  • Initial Membership Phase Fee of three (3) months is mandatory and paid in one upfront payment of $299.00.Discounted Membership Subscription Price after Initial Membership Phase: $84.00 per month after completion of the Initial Phase including standard shipping and handling.

 

  1. By signing below, you request Somnics Health to send you an iNAP Sleep Therapy System with 3 months DryPad supply beginning on the Starting Date above and continuing after the Initial Membership Phase by sending Quarterly Replacement Supplies Package.

  2. You agree to execute a Recurring Payment Authorization for the above Initial Membership Phase Fee and Discounted Replacement Supplies Subscription Price. If you already have a Recurring Payment Authorization in effect, you hereby authorize us to add the above Membership fees to your previously authorized recurring charge amount. We will charge your card for your Membership dues at the beginning of each membership month. If you request a non-standard shipping method that costs more than our standard one, you authorize us to charge your card for this cost. You authorize us, at our discretion, to make separate charges for any authorized amounts on your Recurring Payment Authorization.

  3. This Subscription Agreement will remain in effect until you notify us that you wish to terminate your subscription, or your Recurring Payment Authorization is terminated. The Discounted Subscription Price quoted above will remain in effect until we notify you of a change.  At that time, you may either give us a new payment authorization or terminate your subscription.

        

 
 

 

Terms and Conditions of Sale

Effective: Oct 23, 2020

UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING, ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

 

1. GENERAL

Somnics Health, Inc. ("Seller") hereby offers for sale to the buyer named in the order ("Buyer") the products listed on the face thereof (the "Products") on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein. Any provisions contained in any document issued by Buyer are expressly rejected and if the terms and conditions in this Agreement differ from the terms of Buyer's offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Buyer's document. Buyer's receipt of Products or Seller's commencement of the services provided hereunder will constitute Buyer's acceptance of this Agreement. This is the complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer's purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding on Seller unless in writing and signed by Seller and Buyer. Notwithstanding the foregoing, Seller reserves the right to make changes to these Terms and Conditions of Sale at any time by posting such changes here, and such changes shall apply to orders of Products made by Buyer thereafter. Seller's failure to object to terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Seller. Seller reserves the right to reject any order for any reason. By purchasing products from Seller, Buyer agrees that it is purchasing the Products only for its own use and not for purposes of resale. Products purchased pursuant to these Terms and Conditions may not be sold or transferred to any person or entity for purposes of resale. Seller reserves the right to take any action it deems necessary to address Buyer’s violation of these terms, including, but not limited to, the suspension of Buyer’s ability to purchase Products.

2. PRICE

All prices published by Seller or quoted by Seller's representatives may be changed at any time without notice. All prices quoted by Seller or Seller's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation. List prices may vary from the price displayed on the website for certain products. 

3. TAXES AND OTHER CHARGES

Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must by paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

4. TERMS OF PAYMENT 

Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller's rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer's financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars.

5. DELIVERY; CANCELLATION OR CHANGES BY BUYER

The Products will be shipped to the destination specified by Buyer, F.O.B. Seller's shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer's control may be placed in storage by Seller at Buyer's risk and expense and for Buyer's account. Orders in process may be canceled by Buyer only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed by Buyer except with Seller's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Seller.

6. TITLE AND RISK OF LOSS

Notwithstanding the trade terms indicated above and subject to Seller's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.

7. WARRANTY

Seller warrants that the Products will operate or perform substantially in conformance with Seller's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package inserts. If a period of time is not specified in Seller's product documentation, published specifications or package inserts, the warranty period shall be two (2) years from the date of shipment to Buyer for equipment and thirty (30) days for all refill products (the "Warranty Period"). Seller agrees during the Warranty Period, to repair or replace, at Seller's option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Buyer shall (a) promptly notify Seller in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Seller's review, Seller will provide Buyer with service data and/or a Return Material Authorization ("RMA"), which may include biohazard decontamination procedures and other product-specific handling instructions, then, if applicable, Buyer may return the defective Products to Seller with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Seller's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Seller elects to repair defective medical device instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired.

Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.

In no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by Seller. If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller's then prevailing time and materials rates. If Seller provides repair services or replacement parts that are not covered by this warranty, Buyer shall pay Seller therefor at Seller's then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

8. INDEMNIFICATION BY SELLER

By Seller

Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret; provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt written notice of any third party claim covered by Seller's indemnification obligations hereunder. Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section.

Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.

By Buyer

Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.

9. SOFTWARE

With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder.

Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, immediately to return to Seller all software products and related documentation provided hereunder and all copies and portions thereof.

Certain of the software products provided by Seller may be owned by one or more third parties and licensed to Seller. Accordingly, Seller and Buyer agree that such third parties retain ownership of and title to such software products. The warranty and indemnification provisions set forth herein shall not apply to software products owned by third parties and provided hereunder.

10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.

11. EXPORT RESTRICTIONS

Buyer acknowledges that each Product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively "Items"), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Buyer shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents, or customers.

12. AUTHORIZED USE OF PRODUCTS

Products sold by Seller are intended solely for the use(s) specified by the manufacturer and are not to be used for any other purposes including, but not limited to, unauthorized commercial purposes. Buyer warrants and represents that it will properly test, use, and, to the extent authorized, manufacture and market any final articles made from Seller’s Products in accordance with the practices of a reasonable person who is an expert in the field, and in strict compliance with all applicable national, state and local laws and regulations. Buyer acknowledges and understands that the purchase of Products only conveys to Buyer the non-transferable right for only the Buyer to use the Products purchased in compliance with the applicable manufacturer's Published Restricted User Statement, Limited User Statement, Limited License, if any. All such statements or licenses are incorporated by reference herein and in any Order as if set forth therein in their entirety. Buyer is solely responsible for conducting any research necessary to learn the hazards involved for any of its intended uses of the Products purchased from Seller and to properly warn its customers, employees and other personnel who may be exposed to such Products of any risks involved in using or handling the Products.

13. MISCELLANEOUS

(a) Buyer may not delegate any duties nor assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment shall be void. (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Allegheny County, Pennsylvania, USA, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise. (c) In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose. (d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain. (f) Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision. (g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for research only and is not to be used for any other purpose, including without limitation, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. (h) Seller shall cooperate with Buyer to monitor invoicing accuracy and will conduct appropriate internal reviews upon request. Reviews shall be limited to once per year and shall cover the prior twelve month period. Reasonable credit shall be given to undercharges and overcharges. If Buyer engages external consultants to review invoice accuracy, Seller reserves the right to charge a reasonable fee for support provided to such party. (i) Buyer agrees that all pricing, discounts and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Buyer's internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. (j) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other. (k) Seller may, in its sole discretion, provide (1) applicable Product training to Buyer or its employees, or (2) samples of Products to Buyer for distribution to patients of Buyer. Buyer agrees that any such samples shall be distributed to patients for patient use or, if not so distributed, returned to Seller. Buyer shall not use such samples to provide care to patient and shall not bill patients or third party payers for the provision of such samples.

14. ACCEPTABLE PAYMENT METHODS

The Seller prefers to receive payment via credit card (Visa or MasterCard). The Seller also accepts ACH or other electronic interface methods that directly exchange funds between the Buyer's and Seller's bank accounts. The Seller also accepts checks mailed to its office address. 

 

 

Website Terms of Use

PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SOMNICS HEALTH, INC. (“SOMNICS HEALTH”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE VARIOUS WEBSITES OWNED AND OPERATED BY SOMNICS HEALTH, INCLUDING, WITHOUT LIMITATION, THE WWW.INAPSLEEP.ONLINE AND DOMAIN NAME (“SITES”), AND ANY OTHER FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY SOMNICS HEALTH IN CONNECTION THEREWITH (COLLECTIVELY, THE “SERVICE”). BY USING THE SITES OR SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE SITES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT APPLIES TO ALL USERS OF THE SITES OR SERVICE, INCLUDING USERS WHO ARE ALSO CONTRIBUTORS OF CONTENT, INFORMATION, AND OTHER MATERIALS OR SERVICES ON THE SITES.​

Acceptance of Terms.
The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Sites by Somnics Health. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Somnics Health from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.

 

The Service is available only to individuals who are at least 18 years old. You represent and warrant that if you are an individual, you are at least 18 years old, you are of legal age to agree to these terms and conditions or you have your parents’ permission to do so, and that all registration information you submit is accurate and truthful. Somnics Health may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.


Modification of Terms of Use.
Somnics Health reserves the right, at its sole discretion, to modify or replace any of the Terms of Use, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Sites or by sending you an email. Somnics Health may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.


Privacy.
Somnics Health’s current Sites privacy statement is located below (the “Privacy Policy”) and is incorporated into these Terms of Use. For inquiries in regard to the Privacy Policy, or to report a privacy-related problem, please contact contact.us@somnics.com.


Rules and Conduct.
As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Use. The Service (including, without limitation, any Content, or User Submissions (both as defined below)) is provided only for your own personal, non-commercial use. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Use, the term “Content” includes, without limitation, any advertisements, advice, suggestions, videos, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Somnics Health or its partners on or through the Service.

 

By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, that:


• infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
• is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
• constitutes unauthorized or unsolicited advertising, junk, spam or bulk e-mail (including without limitation any postings to third party social media sites which are linked to the Site or the Service);
• involves commercial activities and/or sales without Somnics Health’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
• contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, 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 Somnics Health or any third party; or
• impersonates any person or entity, including any employee or representative of Somnics Health.


Additionally, you shall not: (i) take any action that imposes or may impose (as determined by Somnics Health in its sole discretion) an unreasonable or disproportionately large load on Somnics Health’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Somnics Health may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (iv) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Sites.


You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.


Somnics Health reserves the right to remove any Content from the Sites or Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Somnics Health is concerned that you may have violated the Terms of Use), or for no reason at all.


Registration.
As a condition to using certain aspects of the Service, you will be required to register with Somnics Health and select a password and screen name (“Somnics Health User ID”). You shall provide Somnics Health with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your Somnics Health account. You shall not (i) select or use as a Somnics Health User ID a name of another person with the intent to impersonate that person; (ii) use as a Somnics Health User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a Somnics Health User ID a name that is otherwise offensive, vulgar or obscene.


Somnics Health reserves the right to refuse registration of, or cancel a Somnics Health User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Somnics Health password. You shall never use another user’s account without such other user’s express permission. You will immediately notify Somnics Health in writing of any unauthorized use of your account, or other account related security breach of which you are aware.


Fees and Payment.
Somnics Health reserves the right to require payment of fees for certain features of the Service. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Sites in connection with such features. Somnics Health reserves the right to change its price list and to institute new charges at any time, upon ten (10) days prior notice to you, which may be sent by email or posted on the Sites. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges.

 

Third Party Sites.
The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Sites. When you access third party websites, you do so at your own risk. These other websites are not under Somnics Health’s control, and you acknowledge that Somnics Health is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Somnics Health or any association with its operators. You further acknowledge and agree that Somnics Health shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.


No Emergency Services.
You expressly agree and understand that the Service is not intended to support or carry emergency or time-critical calls or communications to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency or time-critical service (“Emergency Services”). Somnics Health, its affiliates or staff are in no way liable for such emergency calls or communications. By agreeing to these Terms of Use you understand that additional arrangements must be made to access Emergency Services. To access Emergency Services, you acknowledge and accept your responsibility to purchase, separately from the Service, traditional wireless or wireline telephone service and other means of communication intended for access to Emergency Services. You recognize and agree that Somnics Health is not required to offer Emergency Services or access thereto pursuant to any applicable local and or national rules, regulation or law. You further acknowledge that Somnics Health is not a replacement for your primary telephone service or any other means of communication.


Somnics Health and Site Content.
You agree that the Service contains Content specifically provided by Somnics Health or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by all copyright notices, information, and restrictions contained in any Content accessed through the Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.


You may, to the extent the Sites expressly authorize you to do so, download or copy the Content, and other items displayed on the Sites for download, for personal use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Somnics Health, or from the copyright holder identified in such Content’s copyright notice.


User Submissions.
The Service may provide you with the ability to upload, submit, disclose, distribute or otherwise post (hereafter, “posting”) data, text, photographs, graphics, visualizations, videos, audio clips, written forum comments, software, scripts, works of authorship or other information or content, to the Services (“User Submissions”). By submitted User Submissions to Somnics Health, by posting User Submissions on or at any of the Sites or otherwise through the Service, or displaying, publishing, or otherwise posting any content on or through the Sites or the Service:


• you hereby do and shall grant Somnics Health a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Sites, the Service, and Somnics Health’s (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Sites (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites). You also hereby do and shall grant each user of the Sites and/or the Service a non-exclusive license to access your User Submissions through the Sites and the Service, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Sites and the Service and under these Terms of Use. For clarity, the foregoing license grant to Somnics Health does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing;
• you represent and warrant that you own or otherwise control all rights to such User Submissions and that disclosure and use of such User Submissions by Somnics Health (including without limitation, publishing content on or at the Sites) will not infringe or violate the rights of any third party; and
• you acknowledge and agree that: (i) without limiting the licenses granted by you to Somnics Health with respect to your User Submissions, Somnics Health shall have the right to reformat, excerpt, or translate your User Submissions; (ii) all information publicly posted or privately transmitted through the Sites is the sole responsibility of the person from which such content originated; (iii) Somnics Health will not be liable for any errors or omissions in any content; and (iv) Somnics Health cannot guarantee the identity of any other users with whom you may interact in the course of using the Service.


You hereby grant Somnics Health a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback that you provide to Somnics Health relating to the operation of the Service.
Somnics Health does not endorse and has no control over any User Submission. Somnics Health cannot guarantee the authenticity of any data which users may provide about themselves. You acknowledge that all Content accessed by you using the Service and all User Submissions provided by you are at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.


Somnics Health has no obligation to monitor the Site, Service, Content, or User Submissions. Somnics Health may remove any User Submission at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Submission), or for no reason at all.
Under no circumstances will Somnics Health be liable in any way for any Content or User Submissions, including, but not limited to, any errors or omissions in any Content or User Submissions, or any loss or damage of any kind incurred in connection with use of or exposure to any Content or User Submissions posted, emailed, accessed, transmitted or otherwise made available via the Service. Somnics Health is not responsible for any data which is deleted (either intentionally or unintentionally) at the direction of any user.

 

Termination.
Somnics Health may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. If you wish to terminate your account, you may do so by following the instructions on the Sites. Any fees paid hereunder are non-refundable. All provisions of the Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.


Warranty Disclaimer.

Somnics Health has no special relationship with or fiduciary duty to you. You acknowledge that Somnics Health has no control over, and no duty to take any action regarding: which users gains access to the Website; what Content you access via the Website; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Somnics Health from all liability for you having acquired or not acquired Content through the Sites. The Sites may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Somnics Health makes no representations concerning any content contained in or accessed through the Sites, and Somnics Health will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Sites.


THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SOMNICS HEALTH, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT: (A) THAT THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) THAT ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (D) THE INTEGRITY OR SECURITY OF ANY USER SUBMISSION OR OTHER DATA PROVIDED TO THE SERVICE; OR (E) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.


ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): SOMNICS HEALTH MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITES OR ANY WEBSITE LINKED TO THE SITES.


Somnics Health will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Somnics Health’s equipment, transmitted over networks accessed by the Sites, or otherwise connected with your use of the Service.
 

Indemnification.
You shall defend, indemnify, and hold harmless Somnics Health, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Sites, Service, Content or otherwise from your User Submissions, (ii) your violation of the Terms of Use, or (iii) infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Somnics Health reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Somnics Health in asserting any available defenses.

 

General Content Disclaimer.
Somnics Health makes no representations or warranties concerning the appropriateness, accuracy, reliability, usefulness, completeness, or timeliness of any Content, and you should not rely on the Content for any purpose. No Content is intended to substitute for personal advice from a qualified professional. When applicable, always seek the advice of a qualified professional, and never disregard professional advice or delay in seeking it because of any Content.

 

By using the Service, you agree that Somnics Health shall not be responsible for (1) any Content, (2) any person’s reliance on any such Content, whether or not correct, current and complete, or (3) the consequences of any action that you or any other person takes or fails to take based on any Content or otherwise as a result of your use of the Service.
 

Limitation of Liability.
IN NO EVENT SHALL SOMNICS HEALTH, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR YOUR RELIANCE ON THE SERVICE OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE-HUNDRED U.S. DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

 

International/Non-California Use.
Somnics Health makes no representation that the Content is appropriate or available for use in locations outside of California, and accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws.

 

Dispute Resolution.
A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Somnics Health agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.


The Terms of Use shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.


Integration and Severability.
The Terms of Use are the entire agreement between you and Somnics Health with respect to the Service and use of the Sites, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Somnics Health with respect to the Sites. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

 

Miscellaneous.
Somnics Health shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Somnics Health’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. The Terms of Use are personal to you, and are not assignable, transferable or sublicensable by you except with Somnics Health’s prior written consent. Somnics Health may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.


Copyright and Trademark Notices.
Unless otherwise indicated, the Terms of Use and all Content provided by Somnics Health are copyright © 2020 Somnics Health, Inc. All rights reserved.


Somnics and iNAP are either trademarks or registered trademarks of Somnics, Inc. The names of any actual companies and products mentioned at the Sites may be the trademarks of their respective owners.


Digital Millennium Copyright Act Notice.
As Somnics Health asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that any material located on or linked to by or through the Service violates your copyright, you may notify Somnics Health in accordance with the following policy. The address of Somnics Health’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this policy.


It is Somnics Health’s policy to (1) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.


A. Procedure for Reporting Copyright Infringements:
If you believe that Content residing on or accessible through the Site or Service infringes a copyright, please send a written notice of copyright infringement containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the owner of the copyright that has been allegedly infringed, or a person authorized to act on such person’s behalf;
2. Identification of the copyrighted works or materials allegedly being infringed;
3. Identification of the Content that is claimed to be infringing including information regarding the exact location of the Content that the copyright owner seeks to have removed, with sufficient detail so that Somnics Health is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, e-mail address;
5. A statement that the notifier has a good faith belief that the use of the allegedly infringing Content is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is the copyright holder or is authorized to make the complaint on behalf of the copyright owner.


B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Somnics Health’s policy:
1. to remove or disable access to the infringing Content;
2. to notify the Content provider, member or user that it has removed or disabled access to the Content; and
3. that repeat offenders will have the infringing Content removed from the system and that Somnics Health will terminate such content provider’s, member’s or user’s access to the service.


C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the Content provider, member or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider, member or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the Content provider, member or user;
2. Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
3. A statement that the Content provider, member or user has a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
4. Content provider’s, member’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the Content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Somnics Health is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Somnics Health’s may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Somnics Health’s discretion.
Please contact Somnics Health’s Designated Agent to Receive Notification of Claimed Infringement at the following address:

 

Designated Agent to Receive Notification of Claimed Infringement:
Olivier Lauzeral
Somnics Health, Inc.
870 Convention Way

Redwood City, CA 94063
p.1-833-706-6427
f. 1-833-847-2009
inapteam@somnics.com


Contact.
You may contact Somnics Health at the following address:
Legal Department
Somnics Health, Inc.
870 Convention Way
Redwood City, CA 94063
Effective Date: Oct 2020