By accessing this Site, you are agreeing that you have read, and agree to comply with and be bound by, the terms of this Agreement in their entirety without limitation or qualification as well as all applicable laws and regulations. If you do not agree to be bound by the terms and conditions of this Agreement and to follow all applicable laws, do not access or use this Site or the Materials.
This Agreement contains an agreement to arbitrate, under which: (1) you will only be permitted to pursue claims against OneCare on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
THE SERVICES PROVIDED BY ONECARE ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, PSYCHOTHERAPY, COUNSELING, OR PHYSICAL OR MENTAL HEALTH SERVICES. ALL INFORMATION PROVIDED BY ONECARE IS FOR INFORMATIONAL PURPOSES ONLY, AND YOU HEREBY ASSUME ALL OF THE RISK IN USING ONECARE’S SERVICES, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, ANY RISKS THAT MAY ARISE FROM THE ONECARE’S NEGLIGENCE. ONECARE STRONGLY ADVISES THAT YOU SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION RECEIVED FROM ONECARE.
IF YOU BELIEVE YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR, GO TO YOUR LOCAL EMERGENCY ROOM, OR CALL THE LOCAL EMERGENCY PHONE NUMBER SUPPORTED BY GOVERNMENTAL AUTHORITIES (EXAMPLE 911 IN THE UNITED STATES) IMMEDIATELY.
WE DO NOT EXAMINE, DETERMINE, OR WARRANT THE COMPETENCE OF ANY HEALTH CARE PROVIDER OR ANY OTHER TYPE OF SERVICE PROVIDER LISTED ON THIS SITE. WE DO NOT WARRANT THAT THE HEALTH CARE PROVIDERS OR ANY OTHER TYPE OF SERVICE PROVIDERS LISTED ON THE SITE ARE CURRENTLY OR PROPERLY LICENSED. UNDER NO CIRCUMSTANCES SHOULD THIS SITE BE USED TO VERIFY THE CREDENTIALS OF MEDICAL PROVIDERS OR ANY OTHER TYPE OF SERVICE PROVIDERS. WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES OR TREATMENTS, AND WE DO NOT RECOMMEND OR ENDORSE ANY INDIVIDUAL HEALTHCARE PROFESSIONAL OR TREATMENT REGIMEN. YOUR RELIANCE ON ANY INFORMATION AVAILABLE THROUGH THIS SITE OR IN THE MATERIALS IS SOLELY AT YOUR OWN RISK.
ON BEHALF OF YOUR EXECUTORS, ADMINISTRATORS, HEIRS, NEXT OF KIN, SUCCESSORS, AND ASSIGNS, YOU HEREBY: (A) WAIVE, RELEASE, AND DISCHARGE FROM ANY AND ALL LIABILITY FOR YOUR DEATH, DISABILITY, PERSONAL INJURY, PROPERTY DAMAGE, PROPERTY THEFT, OR ACTIONS OF ANY KIND WHICH MAY HEREAFTER OCCUR TO YOU, THE FOLLOWING ENTITIES OR PERSONS: ONECARE, ITS AFFILIATED ENTITIES, ITS AND THEIR DIRECT AND INDIRECT OWNERS, AND EACH OF ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, VOLUNTEERS, REPRESENTATIVES, AND AGENTS; AND (B) INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE THE ENTITIES OR PERSONS MENTIONED ABOVE FROM ANY AND ALL LIABILITIES OR CLAIMS MADE AS A RESULT OF YOUR USE OF ONECARE’S SERVICES. THIS RELEASE SHALL BE CONSTRUED BROADLY TO PROVIDE A RELEASE AND WAIVER TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
1. License Grant
Subject to the terms and conditions of this Agreement, OneCare hereby grants you a limited, non-exclusive, non-transferable, license to access the Site and download the Materials solely for your own use. The license granted herein is expressly conditioned on your continued compliance with the terms and conditions of this Agreement.
This Agreement permits you to use the Site for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the content on the Site, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (collectively, the “Content”) on the Site, except as follows:
- You may temporarily store copies of such Content on your computer incidental to your accessing and viewing those materials;
- You may store files that are automatically cached by your web browser for display enhancement purposes;
- You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution; and
- You may download a single copy of the Materials to your computer or mobile device solely for your own personal, non-commercial use.
You must not:
- Modify copies of any Materials from this Site;
- Use any Content on the Site separately from the accompanying text; or
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of Materials from this site.
If you wish to make any use of the Content or Materials other than that set out in this section, please address your request to the contact information provided below.
2. Restrictions on License Grant
Your use of the Site is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Site other than as provided herein. You acknowledge that the Site constitutes a valuable asset of OneCare. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
1. You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Site or the Materials or use the Site to run, or as part of, a service bureau, outsourced, or managed services arrangement;
2. You shall not copy, reproduce, republish, upload, post, transmit or distribute the Site or the Materials in any way;
3. You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Site or the Materials;
4. You shall not knowingly or negligently permit other individuals or entities to use or copy the Site, or create Internet “links” to the Site or “frame” or “mirror” the Site on any other server or wireless or Internet-based device;
5. You shall not access the Site for any reason, including without limitation, in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Site, (iii) copy any ideas, features, functions or graphics of the Site, (iv) monitor its availability, performance or functionality, or (v) for any other benchmarking or competitive purposes;
6. You shall not attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of OneCare or any of its customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
7. You shall not attempt to probe, scan or test the vulnerability of a system, account or network of OneCare or any of its customers or suppliers;
8. You shall not interfere, or any attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the software which operates the Site;
9. You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to OneCare or the Site, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
10. You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Site (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
11. You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Site or any OneCare (or OneCare supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any OneCare (or OneCare vendor) facilities used to deliver the Site; and
12. You shall not create or use any program, tags, markers, bots, mousetraps, hijackers or other similar computer routines or sub-routines to automatically access or manipulate the Site.
Because of the difficulty associated with quantifying damages, in addition to any other damages to which OneCare may be entitled, if actual damages cannot be reasonably calculated then you agree to pay OneCare liquidated damages of $250 for each violation of this Section 2 or the maximum liquidated damages permitted under law, whichever is greater; and you agree to pay OneCare’s actual damages, to the extent such actual damages can be reasonably calculated.
4. Intellectual Property Ownership
All right, title and interest in the Site, the Content and the Materials, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to OneCare or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that information on the Site may constitute a valuable trade secret and/or is the confidential information of OneCare or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Site, the Content or the Materials, in whole or in part. All Content is copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and OneCare owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Content, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause OneCare and its licensors irreparable injury, which may not be remedied at law, and you agree that OneCare and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The names ONECARE, SLEEP FOUNDATION, THE SLEEP DOCTOR and other common law or registered trademarks used on this Site by OneCare, along with their associated logos, related names, design marks, product names and feature names are trademarks of OneCare and may not be used, copied or imitated, in whole or in part, without the express prior written permission of OneCare. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of OneCare and may not be copied imitated or used, in whole or in part, without the express prior written permission of OneCare.
6. Term; Termination; Suspension of Access
The term of this Agreement commences the first time you access the Site and continues through any subsequent use of the Site thereafter. Any unauthorized use of the Site will be deemed a material breach of this Agreement. OneCare, in its sole discretion, may terminate your password, account or use of the Site if you breach or otherwise fail to comply with this Agreement.
7. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SITE IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ONECARE, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “ONECARE PARTIES”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SITE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING NON-INFRINGEMENT AND ACCURACY; (B) NEITHER ONECARE NOR ANY ONECARE PARTY WARRANTS THAT THE SITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF ONECARE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) ONECARE AND THE ONECARE PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF THE INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SITE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK AND NEITHER ONECARE NOR ANY OF THE ONECARE PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL ONECARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF ONECARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. ONECARE SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF ONECARE IN CONNECTION WITH THE SITE AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED $100. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SITE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
You knowingly, and voluntarily do hereby indemnify, release, acquit, waive, forever discharge, and covenant not to sue OneCare and the OneCare Parties from and against any and all liabilities, costs and expenses (including without limitations, any reasonable fees and expenses of its attorneys and consultants) relating to or arising out of any claims, demands or causes of action of every kind and character as a result of the information and Materials offered by OneCare through the Site.
10. Account Access
If use of all or any part of the Site is contingent on you and your users accessing an “account” and/or inserting a “user-identification” and/or “password”, you agree that you will be solely responsible for the user-ids and passwords that are provided to you (as such passwords may be changed from time to time in accordance with features of the Site) to log-in to the password protected Site. If non-authorized individuals have access to your systems or to your users’ user-id and password, they may be able to use the Site. You shall keep any correspondence you receive relating to or through the use of the Site (including, but not limited to, your user-id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your user-ids, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent.
11. Modification to Terms
OneCare may revise and update this Agreement from time to time in its sole discretion. All changes are effective immediately when posted, and apply to all access to and use of the Site thereafter. However, any changes to the dispute resolution provisions set out below will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Site. Your continued use of the Site following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
12. Notice for California Residents
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to the email address provided below or my mail to the mailing address provided below. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
13. Governing Law and Arbitration
This Site is controlled by OneCare from its corporate offices in Seattle, Washington, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these jurisdictions have laws that may differ from the laws of the State of Washington, by accessing Site both you and OneCare agree that the statutes and laws of Washington, without regard to the conflicts of laws principles thereof, will apply to all matters relating to use of this Site.
OneCare and you agree to arbitrate all disputes and claims between us except for (i) claims seeking injunctive relief in connection with the intellectual property of OneCare, and (ii) claims for amounts less than $10,000. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of this Agreement.
You agree that, by entering into this Agreement, you and OneCare are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If OneCare and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or OneCare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by OneCare or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or OneCare is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless OneCare and you agree otherwise, any arbitration hearings will take place in Seattle, Washington. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The payment of arbitration fees will be governed by the AAA rules.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND ONECARE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OneCare agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
If your claim is for $10,000 or less, you agree that any such disputes will be resolved through the courts located in Seattle, Washington.
- This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Site, with the exception of claims for injunctive relief, shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington.
- If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.
- It may be necessary for OneCare to perform scheduled or unscheduled repairs, maintenance, or upgrades and such activities may temporarily degrade the quality of the Site or result in a partial or complete outage of the Site. OneCare provides no assurance that you will receive advance notification of such activities or that access to the Site will be uninterrupted or error-free.
- No joint venture, partnership, employment, or agency relationship exists between you and OneCare as a result of this agreement or use of the Site. The failure of OneCare to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by OneCare in writing.
- If you have not entered into another agreement with OneCare regarding the subject matter contained herein, then this Agreement comprises the entire agreement between you and OneCare and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. However, if you and OneCare have entered into another agreement regarding the subject matter set forth herein that is a written and signed agreement between you and OneCare, then this Agreement should be read and interpreted in conjunction with such agreement and, in the event of a conflict between this Agreement and a written, signed agreement between the parties, the written, signed agreement shall govern and control.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected], send mail to OneCare a 1414 NE 42nd Street, Suite 400, Seattle, Washington 98105, or call OneCare at (855) 584-2799.