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Terms of Use

Last updated: March 6, 2021

SleepFlexTM offers a patented program developed to reduce obstructive sleep apnea and snoring. The program is designed to use the mobile app to guide You through exercises using the SleepFlexTM devices and to provide progress tracking as You complete the exercises in the SleepFlexTM program.

These Terms of Use constitute a legal agreement (the “Agreement”) between you, as the end-user (“You” and “Your”), and Berendo Scientific, LLC, a Delaware limited liability company, providing the SleepFlexTM service (“We,” “Us,” “Our” and “SleepFlex”) for the use of the SleepFlex mobile app (the “App”), the SleepFlex devices for performing the exercises in the SleepFlex patented program (the “Devices”), the computer systems and files used by the App, and all related services, features and content provided by SleepFlex within the App or otherwise. This Agreement, in addition to the Research Subject Consent Form and any other agreements you may have signed, also applies to your participation in the research study evaluating whether the SleepFlex™ program is safe and effective in the treatment of mild to moderate obstructive sleep apnea (the “Study”).

Acceptance of Terms

Please read this Agreement carefully. By using SleepFlex’s services, including but not limited to downloading the App, using the Devices, performing the exercises or participating in the Study, You acknowledge Your acceptance of and agreement to the terms and conditions in this Agreement.

We may make modifications to this Agreement from time to time and reserve the right to do so. Continued use of the App after the effective date of the updated version will indicate Your acceptance of any new Agreement.

Nothing in this Agreement should be interpreted to restrict third-party terms. When using the App, You must ensure that You comply with applicable third-party terms and conditions.

Medical Services Disclaimer

SleepFlex is not a medical device and is not intended to replace professional medical advice and/or diagnosis. SleepFlex is not guaranteed to make any changes to snoring, obstructive sleep apnea or sleep quality. SleepFlex is not intended to diagnose or treat obstructive sleep apnea or any other illness/medical condition. Please consult with a licensed physician before making any decisions, participating in the Study or taking any actions that may affect Your health, safety and wellbeing. Do not disregard professional advice because of anything You have seen, heard or read in the SleepFlex App, website, social media channels or from SleepFlex personnel or agents. If You have any questions or concerns about Your snoring, obstructive sleep apnea or general health, or any contraindications to performing head and neck exercises, always consult with a healthcare professional.

We make no representations or assurances that the SleepFlex program and App comply with industry-specific rules and regulations (i.e., Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.).

Creating an Account and Your Eligibility

If You are under 18 years of age, Your parent or guardian must read and accept the terms of this Agreement. By using the App, You confirm that Your parent or guardian has read and accepted the terms.

Your Use of The App, Website and Other Communication Channels

You are responsible for all Your activity within the App. If You submit feedback via the App or directly via the support email channels, You are responsible for these communications as outlined in SleepFlex’s Privacy Policy.

We collect certain information when You use Our App or website, answer questionnaires, engage with Us via email, and visit with the Study team. The collected information and use of these channels are not to be considered private. You agree that We may access, store, process, and use any information and personal data that You provide pursuant to the terms of Our Privacy Policy. Information as to what this data includes, why it is collected and how it is handled by Us and others, including the Study team, can be found in Our Privacy Policy.

Breaches of The Terms of Use

You agree that if You do any of the following, You are in breach of this Agreement:

1.      Share or make the App available to third parties, sell, rent, lease, loan, sublicense, transfer or otherwise redistribute the App or any associated content or rights related to the App;

2.      Modify, reverse engineer, decompile, disassemble, adapt, integrate, translate, combine, remove, create derivative works or updates of, or attempt to derive the source code of the App or any portions thereof without Our consent, which We may withhold in Our sole and absolute discretion;

3.      Copy the App or any portions thereof (excluding when expressly authorized by this Agreement);

4.      Permit others to use the App in a manner that is in breach of the terms of this Agreement;

5.      Permit unauthorized third parties to gain access to the App or any authorized copies thereof;

6.      Disable any measures in the App that are designed for the protection of intellectual property or remove any intellectual property notices;

7.      Attempt to navigate around measures adopted to control access to content protected by copyright;

8.      To compile data in a way that is usable by a competitor product/service;

Violations of the obligations mentioned above, as well as the attempt of such infringement, may be subject to prosecution and damages.

Termination

If You are in breach of any terms in this Agreement, We reserve the right, in Our sole discretion, to terminate immediately Your right to access or use the App. We are not responsible for any loss, damage or harm related to Your inability to access or use the App based on such termination.

Required Equipment; Technical Requirements

Full use of the SleepFlex program requires the use of a mobile device or tablet computer with internet access and adequate software and hardware specifications. The maintenance and security of Your device may impact the performance of the App. It is Your responsibility to check Your equipment’s suitability to deliver the App’s features. SleepFlex reserves the right to modify the technical specifications required to use the App as SleepFlex sees appropriate at any time.

In addition to the App, the SleepFlex program requires the use of the Devices as assigned to You by the Study team.

SleepFlex attempts to keep the App updated so that it complies with modified or new versions of the firmware and new hardware. You are not granted rights to claim such an update.

You may create and store copies of the App only on devices that You own or control for backup keeping under the terms of this Agreement and any other terms and conditions that apply to the device or software used.

Use of Mobile Devices

Please note that Your mobile provider’s normal data charges apply when using SleepFlex on a mobile device.

Children’s Privacy

By its nature, Our App is unlikely to attract children under eighteen (18) years of age, and We do not intentionally market to or interact with them. If You believe that a child under eighteen (18) years of age has provided personal data to SleepFlex, please contact Our support team at contact@sleepflex.com, and We will aim to delete this information.

Intellectual Property Rights

Subject to Your agreement to and compliance with the terms of this Agreement, We are granting You a non-exclusive, non-transferable, non-sharable, revocable, limited license to use the App and the SleepFlex service solely for personal, non-commercial use in accordance with the terms of this Agreement.

Any rights that are not granted to You within this Agreement are reserved by SleepFlex. If You wish to use any features of SleepFlex’s App or program for non-personal purposes, including but not limited to software, name, logo, domain name, unique terminologies or any feature associated with the SleepFlex brand, You must obtain prior written permission from SleepFlex, which SleepFlex may withhold in its sole and absolute discretion. You can request this by contacting Us at contact@sleepflex.com.

License to User Content

By using the App and providing Us with statistical content, You allow SleepFlex to use this data worldwide and royalty-free, with permission to distribute, copy, modify and publicly display this content in a de-identified fashion with a view to providing and operating the App and for SleepFlex’s research and promotional purposes. You acknowledge that SleepFlex will be able to access and adjust Your downloaded licensed App content and Your personal information. The App does not offer users to submit or post content. All content outlined here is subject to the details within Our Privacy Policy.

Use at Your Own Risk

Our goal is to help You perform exercises to reduce Your snoring and obstructive sleep apnea, however SleepFlex cannot guarantee any improved outcomes. We make no assertions as to the efficacy of Our program. You agree that the SleepFlex program is not intended to serve the same purpose as a medical device and should not be substituted for consulting with medical professionals. Your use of the App and the SleepFlex program and any information provided are at Your sole risk. SleepFlex takes no accountability or responsibility for any damages or claims arising from the use of the SleepFlex App or program.

Providing Feedback

We read every feedback message sent and are committed to the continued improvement of the SleepFlex App and program. Any communications You send to Us are submitted on a non-confidential basis unless You explicitly request otherwise. You agree that We may disseminate this communication at Our own discretion and that We may utilize this content, which can include revising, modifying and contextually changing as appropriate. By submitting suggestions or other feedback regarding the SleepFlex App or program, You agree that We can use and share such feedback for any purpose without compensation to You.

Changes to the App

We are always looking to improve the service SleepFlex provides, hence, occasionally and without prior notice We may change, expand or improve the App and program. We may also at any time cease operating part or all of the App or selectively disable certain features. Your use does not entitle You to continued availability of all features in the App. This Agreement will govern any changes or updates to the SleepFlex program and App unless separate terms of use are provided for any such updates, in which case those terms of use will govern.

Indemnity

You agree to hold SleepFlex and its managers, officers and employees harmless from any claims, actions, demands, damages and liabilities, including but not limited to any reasonable legal or accounting fees, resulting from Your violation of this Agreement.

Legal Compliance

You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties.

Applicable Law

This Agreement is governed by the laws of the State of California, without giving effect to conflict of law principles.

Copyright Notice and Takedown Procedures

If You believe that any content within the App infringes Your copyright, You may request that it be removed from the App by providing the following information:

1.      Identification of the copyrighted material You believe to be infringed. This requires a description of the material and its location.

2.      Identification of the material You believe to be infringing and its location. Provide a description and a URL or any information that can help Us locate the material.

3.      Your details including a name, address, telephone number and email address if available.

4.      A statement that You have reasonable certainty that the use of such material was not authorized by the copyright owner.

5.      A statement that the information You have supplied is accurate and that You are the copyright owner or are authorized to act on behalf of the copyright owner.

6.      A signature of the copyright owner or an authorized representative.

Questions

If You have any questions or comments about anything within this Agreement or any general inquiries or questions, please contact Us at contact@sleepflex.com.

Miscellaneous

If any of the terms of this Agreement should be or become invalid, the validity of the remaining provisions shall not be affected. Invalid terms will be replaced by valid ones formulated in a way that will achieve the primary purpose.

Collateral agreements, changes and amendments to this Agreement are only valid if set forth in writing. The preceding clause can only be waived in writing.