These Terms of Use (“Terms”) apply to all websites provided by Empower Sleep, Inc. (“Empower Sleep”, “we”, “us” or “our”), including the Site hosted on the domain [https://www.empowersleep.com] (collectively, “Sites”), and all services provided by us in connection with such Sites or otherwise, to you (“User,” “Users” “you” or “your”), as well as functionality or services we may choose to provide through some other mechanism (collectively the “Services”).
PLEASE READ THESE TERMS OF USE (THE “AGREEMENT”) CAREFULLY BECAUSE THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND EMPOWER SLEEP. IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE SERVICES. BY ACCESSING, UPLOADING INFORMATION TO, OR OTHERWISE USING, THE SERVICES, YOU AGREE (1) TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OLD, (3) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (4) YOU ACCEPT THIS AGREEMENT. THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES, WHICH (I) REQUIRES THAT YOU AND EMPOWER SLEEP ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT; AND (II) LIMITS CLASS ACTION CLAIMS.
Certain Critical Information and Disclaimers: Empower Sleep does not provide medical services or medical advice. Empower Sleep does not make any representations or warranties about the training or skill of any Providers (defined below) who provide services via the Services. You are ultimately responsible for choosing your particular Provider, if any. All Providers are independent of Empower Sleep. Any information or advice received from a Provider comes from the Provider alone, and not from Empower Sleep. Empower Sleep is not responsible or liable for any advice obtained from a Provider or any other user of the Services. You acknowledge that your reliance on any information provided by any Provider or any other user via the Services is solely at your own risk. No doctor-patient relationship is created by use of the Services. Information you receive via the Services is not a substitute for a formal diagnosis or physical examination, and should not be used to treat a medical condition. Do not ignore or delay obtaining professional medical advice because of information you obtain through the Services.
Providers. We are a technology platform that facilitates your ability to obtain products and services sold, offered or furnished by third-party medical providers or facilities (“Providers”). The Services may permit you to communicate with Providers through a variety of means, including video conferences and direct messaging. When you connect with a Provider, the Provider may require that you sign consent forms to permit the Provider to communicate with you through the Services, or to permit the Provider to provide medical advice or services to you. We do not recommend any particular Provider and we do not guarantee that any particular Provider will contact or provide any services to you, even if you contact such Provider through the Services.
No Healthcare Services - Communication Platform Only. We are a communication platform only: we do not control or take any responsibility for the practice of medicine, dentistry or other professional healthcare services by any Provider, each of whom is solely responsible for the medical, dental or other professional healthcare and treatment it provides to you. We make no representations or warranties about the suitability, reliability, timeliness or accuracy of the medical, dentistry or other professional healthcare and treatment provided by any Provider. You acknowledge and agree that we are not a healthcare provider and you are not entering into a doctor-patient, dentist-patient or other healthcare provider-patient relationship with us.
Eligibility to use the Services. You are not eligible to use the Services if (i) you do not live in one of the U.S. states in which we operate, as set forth on the Site from time to time, or (ii) you are under eighteen (18) years of age. You hereby represent and covenant to us that you satisfy these eligibility requirements, you are located in the same state as the shipping address you provide in your account, you will comply with all applicable laws in visiting, accessing, registering with our using the Services, and you will only use the Services for lawful purposes. Our Services are subject to state regulations and may change from time to time due to changes in applicable regulatory requirements.
Personal Representatives. Healthcare patients have the right to appoint a personal representative, who will then have the legal authority to act on a member's behalf in making decisions related to the member's healthcare. The use of our Service by your personal representative to seek third party medical services via our Services will bind you and your representative to these Terms of Use. We have no obligation to investigate the authority of our users to act on behalf of others.
Third Party Components. The Services may leverage third party services (which may include third party video conferencing platforms, third party messaging apps, third party databases, calendars, and the like) (“Third Party Components”). Empower Sleep has no responsibility or liability for any act, omission, or occurrence that is at all associated with any Third Party Component, and your use of any Third Party Component shall be subject to the terms and conditions applicable thereto.
Fees. Empower Sleep may charge fees in connection with your use of the Services (“Fees”), which shall be due and payable in such amounts and at such times as are described in the Services from time to time. A given Fee may be billed as a single amount, but that Fee may be an aggregate of our Services access fee, fees payable to an applicable Provider (for whom we act as a collection agent), and purchase price for prescription medications you obtain from a Provider or a separate third party pharmacy through use of the Services. Empower Sleep may use a third party payment service to process your payment of Fees. By submitting your payment account information, you grant us the right to store and process your information with the third party payment service and agree that we will not be responsible for any failures of the third party to adequately protect such information. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement.
No Insurance. At this time the Providers who provide medical services over our platform do not accept insurance. Therefore, you will be personally responsible for all of the fees charged by the Providers for their services and for the cost of prescription medications that you may purchase or obtain from a Provider or pharmacy as facilitated by the Services.
Certain Restrictions. You shall not (i) impersonate any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (ii) harass or threaten any person; (iii) access or use another user’s account without permission, or solicit another user’s login information; (iv) “frame”or “mirror” any portion of the Services; (v) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent any aspect of the Services; (vi) harvest or collect information about or from Providers or other users of the Services; or (vii) use the Services on behalf or for the benefit of any third party.
Privacy Policy. Our Privacy Policy (“Privacy Policy”) www.empowersleep.com/privacy-policy, describes our collection, use and disclosure of data and information in connection with the Services. We may update our Privacy Policy from time to time, in accordance with its terms. Our Privacy Policy is incorporated into this Agreement, and by using the Services you agree to the collection, use and disclosure practices in our Privacy Policy.
User Information. You may provide to Empower Sleep or to Providers information about yourself in connection with your use of the Services (collectively the “User Information”). You acknowledge and agree that you are free to share—or not share—User Information in connection with your use of the Services, and that to the extent you choose to provide User Information to us or to Providers, you do so with full understanding of (i) our rights to use such information under this Agreement and (ii) the fact that we do not control Providers.
HIPAA. You may provide individually identifiable health information about yourself (“Protected Information”) through our Service to facilitate your connection with (and your receipt of services from) Providers. Empower Sleep is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations and amendments from time to time (collectively, “HIPAA”), but Providers may be “covered entities” under HIPAA, and we may in some cases be a “business associate” of a covered entity Provider. To the extent that HIPAA or similar state data protection law applies, we will secure, use and disclose your Protected Information pursuant to the terms of such laws.
Communication Acknowledgement. By disclosing User Information over our Service, you acknowledge and agree that you may receive emails, phone calls, text messages, push notifications, or other communications from us or from Providers regarding the Services or about your use of our Services, and you may also receive marketing materials from us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically shall be deemed to satisfy any legal communication requirements to the extent permitted under applicable law. These communications may contain User Information or information from Providers. To opt out of receiving any marketing communications from us, please follow the unsubscribe link in the applicable correspondence. Note that you may continue to receive communications related to the Services. Contact care@empowersleep.com to request modified or alternate means of communications.
Confidentiality. Empower Sleep agrees to keep the User Information confidential and not to disclose it to any third party (other than Providers and certain third party vendors that support our ability to provide the Services, to the extent such disclosure is necessary or reasonably useful to provide the Services), except to the extent the User Information is or becomes generally available to the public through no act or omission of Empower Sleep; was in Empower Sleep’ lawful possession prior to the disclosure; is lawfully disclosed to Empower Sleep by a third party without restriction on disclosure; or is disclosed by operation of law. Empower Sleep has the right to use for any purpose (other than sale to a third party) any aggregated, anonymized information that it derives from the combination of your User Information with the information from other users (provided that, for clarity, such information cannot be used to identify any User and cannot be connected to any User).
Use of Information. You hereby grant to Empower Sleep a perpetual, irrevocable, royalty-free, worldwide right and license to copy, display, make derivative works of and otherwise use your User Information to provide the Service and to develop or improve any Empower Sleep product or service(subject in all respects to Empower Sleep’s confidentiality obligations, and to Empower Sleep’s obligation under applicable law with respect to any Protected Information).
Materials. The Services are owned and operated by Empower Sleep. All content and all other elements (whether written or otherwise) of the Services (collectively, the “Materials”), as well as their selection and arrangement, and all intellectual property and other rights relating to Materials, are the property of Empower Sleep. You agree not to directly or indirectly sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
SUSPENSION; VIOLATIONS; TERMINATION. You agree that Empower Sleep may suspend or terminate your use of any Services or any portion thereof at any time, for any or no reason, and you agree that Empower Sleep will not be liable to you or any third party for any such termination. You acknowledge and agree that Empower Sleep has invested in finding and engaging Providers as part of the Services, and therefore that use of the Providers outside of the Services (or other contact with the Providers that is intended to, or has the effect of, avoiding Fees that would otherwise be payable) will cause substantial harm to Empower Sleep for which monetary damages may be assessed, but for which monetary damages alone may not be sufficient. Any suspected inappropriate, fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Empower Sleep may have at law or in equity.
DISCLAIMERS; NO WARRANTIES. THE SERVICES ARE MADE AVAILABLE “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EMPOWER SLEEP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. EMPOWER SLEEP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
INDEMNIFICATION. You agree to indemnify, defend, and hold Empower Sleep (and its affiliated companies, contractors, employees, director, officers, and agents) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (i) your use or misuse of the Services generally;(ii) any violation of the rights of any other person or entity by you; (iii) any breach or violation by you of this Agreement. Empower Sleep reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
Limitation. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL EMPOWER SLEEP (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF EMPOWER SLEEP OR A EMPOWER SLEEP AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL EMPOWER SLEEP (OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, DIRECTORS, OFFICERS, OR AGENTS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED THE GREATER OF (I) THE FEES PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR (II) ONE HUNDRED U.S. DOLLARS ($100).
Exceptions. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT EMPOWER SLEEP’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
RELEASE. You hereby release and forever discharge us(and our directors, officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any interactions with, or act or omission of the Services; or(ii) any Third Party Component. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
BENEFIT OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT EMPOWER SLEEP HAS OFFERED THE SERVICES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS, THE LIMITATIONS OF LIABILITY, AND THE RELEASE SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS, THE LIMITATIONS OF LIABILITY AND THE RELEASE SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EMPOWER SLEEP, AND THAT THE FOREGOING FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EMPOWER SLEEP. EMPOWER SLEEP WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THE FOREGOING.
Applicable Law. This Agreement, and any dispute between you and us, shall be governed by the laws of the State of California without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that this section is found not to apply to you or to a particular claim or dispute you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state court located in Orange County, CA or a federal court located in Orange County, CA, except that you or we are permitted (i) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (ii) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (iii) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
Arbitration. Except for items (i)-(iii) set forth in the above Paragraph, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to this Agreement, our Services and/or our Privacy Policy shall be finally resolved by arbitration conducted in the English language in Orange County, CA, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA) and you and we hereby expressly waive trial by jury. You and we shall appoint one arbitrator mutually agreed upon by you and us or, if you and we cannot agree within thirty (30) days of either party’s request for arbitration, such arbitrator shall be selected by the AAA upon the request of either party. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys’ fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with this Agreement.
No Class Action. Any claims brought by you or us must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor us will participate in a class action or class-wide arbitration for any claims covered by this Agreement. You hereby waive any and all rights to bring any claims related to this Agreement and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties hereby agree that: (i) the prevailing party shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
Changes to Arbitration Procedures. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any change to the arbitration procedures (other than a change to any notice address or link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to remove the arbitration procedures from this Agreement, such removal shall not be effective until thirty (30) days after the version of this Agreement not containing the arbitration procedures is posted to our Site, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal. This agreement to arbitrate will survive the termination of your relationship with us.
Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
Notices. Empower Sleep may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings provided through any Services. You must provide notice to Empower Sleep by email or regular mail using the information on the Site.
Assignment. This Agreement and any rights and licenses granted hereunder may not be transferred or assigned by you. Empower Sleep may at any time, for any reason and without restriction, transfer or assign this Agreement and the obligations contained in this Agreement to a third party. You hereby acknowledge and agree that if another company acquires Empower Sleep or substantially all of our assets (by sale, merger, or otherwise), that transaction may include a sale or transfer of your User Information and you agree to such transfer without further action or confirmation.
Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification, as well as any other provisions which by their nature are intended to survive expiration or termination of this Agreement, do and hereby survive any expiration or termination of this Agreement or any termination of your use of access to any Services.
Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. The word “including” means “including without limitation”. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both you and Empower Sleep, or by a change to this Agreement.
Claims. YOU AND EMPOWER SLEEP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Modification. We may change, modify, add or remove portions of this Agreement (each, an “Update”) at any time and in our sole discretion upon notice to you, and such Updates will be effective immediately. If we make Updates to this Agreement, we will change the “Last Updated” date above, which shall constitute notice to you. Your continued use of the Services is deemed to confirm your acceptance of the Update. We encourage you to frequently review this Agreement to ensure you understand the latest terms and conditions associated with use of the Services. If you do not agree to the Update, you must discontinue using the Services.