Effective Date: June 27, 2017
4. Your Use of the Services
The Services contain copyrighted material, trademarks and other proprietary information, including, without limitation, animation, text, software, images, video, graphics, music and sound, and the rights to the contents of the Services under the United States copyright laws and other laws are owned or controlled by Tomorrow. While you may access, view, use and display the Services for your personal use, you may not modify, reproduce, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of the content will be permitted without the express written permission of Tomorrow and any relevant third party copyrights owners. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made and no ownership rights shall be transferred. The foregoing provisions of Paragraph 4 are for the benefit of Tomorrow, its subsidiaries, affiliated companies and its third party providers, contractors, licensees, and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Eligibility; Authorization
7. Restrictions on Use
You specifically agree not to do any of the following: (a) use the Services to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (b) intercept or attempt to intercept electronic mail not intended for you; (c) misrepresent an affiliation with any person or organization; (d) restrict or inhibit use of the Services by others; (e) upload or otherwise transmit files that contain a virus or corrupted data; (f) collect information about others (including online IDs, and e-mail addresses) without their consent; (g) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over the Services, or that you have a contractual obligation to keep confidential (notwithstanding its availability on the Services); (h) post or transmit through the Services any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violate any law; (i) post or transmit through the Services any material which contains advertising or any solicitation with respect to products or services; (j) use the Services to advertise or perform any commercial solicitation, including, without limitation, the solicitation of users to become subscribers of other services competitive with the Services; or (k) engage in any other conduct that in Tomorrow’s discretion restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by Tomorrow, may harm Tomorrow or users of the Services or expose them to liability.
Further, you agree that you will not (i) use any robot, spider or other automatic device, process or means to access the Services, (ii) use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without the prior written consent of Tomorrow, (iii) use any device, software or routine that interferes with the proper working of the Services, (iv) attempt to interfere with the proper working of the Services, (v) take any action that imposes an unreasonable or disproportionately large load on Tomorrow's infrastructure, or (vi) access, reload or "refresh" transactional pages, or make any other request to transactional servers, more than once during any three (3) second interval.
Tomorrow™ and all other Tomorrow slogans, logos, and product and service names used on the Services are trademarks owned by Tomorrow. Sleeptracker® is a registered trademark owned by Fullpower Technologies, Inc. and used under license. You agree not to display or use such trademarks, in any manner, without the written permission of Tomorrow. Names, brands and marks of third parties may be the trademarks or registered trademarks of their respective owners and are used by Tomorrow subject to license, or used for identification purposes only. Users are expressly forbidden to misuse the marks.
Copyright Tomorrow Sleep LLC 2017. All rights reserved.
All copyrightable text, audio, video, recordings, graphics, charts, photographs, icons, and the design, selection, and arrangement of content on the Services are the proprietary materials of Tomorrow or its third party licensors or suppliers, unless otherwise noted. The distinctive and original layout and presentation of the Website constitutes protectable trade dress under applicable federal law.
Tomorrow also uses proprietary algorithms to run certain software tools made available on the Services. These algorithms and all related software and technology are the sole and exclusive property of Tomorrow and/or its licensors.
Any unauthorized use, reproduction or distribution of any copyrighted materials, trade dress, marks, or any other intellectual property belonging to Tomorrow or any third party is strictly prohibited, and may be prosecuted to the fullest extent of the law.
10. Content Submitted or Posted
The Services contain functionality that allows users to upload content to the Services. By emailing, posting, uploading, inputting, providing, sending, or submitting any information connected to you or another person or any content to the Services (“Submitted Content”) you will be deemed to have made the following representations and warranties, upon which Tomorrow will have the right to rely:
- You have the sole and exclusive right to grant such rights to Tomorrow;
- You have obtained any and all necessary rights and where required, written releases, from any and all recognizable persons appearing in the content, and from any and all persons who provided art work or any other material appearing in the content;
- Tomorrow's exercise of the rights granted to Tomorrow by you under this Section will not infringe on any rights of any third party, including, but not limited to, copyright, trademark, privacy or publicity rights anywhere in the world;
- You hereby grant any other user of the Website the right to access, display, view, store and reproduce the Submitted Content for that user's personal use and any other use consistent with the use for which it was intended;
- You waive your rights to attribution, integrity, or any other moral right in the content in connection with its use by Tomorrow;
- You agree to allow use of your name, user name (if applicable), city and state in publicity or advertising without compensation; and
- You understand and agree that Tomorrow shall have no obligation to copy, publish, display or otherwise exploit the content, nor shall it be obligated to prevent, or have any liability for, any unauthorized copying, publishing, displaying or other exploitation of the content by others.
- You will not use the Services for any purpose in violation of local, state, national, or international laws.
- You will not use the Services as a means to distribute advertising or other unsolicited material to any third party.
- You will not post material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity as determined by Tomorrow in its sole discretion.
- You will not impersonate another person.
- If you request that an email be sent to another person, you have the consent of the other person to allow us to use the person’s name and email for this purpose.
- If you request that a shipment be sent to another person, you have the consent of the other person to allow us to use of person’s shipping information for this purpose.
- You are solely responsible for the Submitted Content.
You will not email, post, upload, input, provide, send or submit any communications or content of any type protected by copyright, trademark, or other proprietary rights without the express permission of the owner of the copyright, trademark, or other proprietary rights in the material, and the burden of determining whether any material is protected by such rights rests with you. You shall be solely liable for any damage resulting from any infringement of copyright, trademark, or other proprietary rights, or any other harm resulting from such a submission.
Tomorrow will cooperate with any governmental authority in connection with any inquiry into any user or any Submitted Content and may disclose information pertaining to any user and any Submitted Content to any governmental authority as may be requested.
By submitting Submitted Content to Tomorrow or posting it to any area of the Services for good and valuable consideration, the sufficiency and receipt of which you hereby acknowledge,
- you automatically grant, or warrant that the owner of the Submitted Content has expressly granted, to Tomorrow, its subsidiaries, its affiliated companies, its contractors, and its licensees, the royalty-free, worldwide, perpetual, fully paid, irrevocable, non-exclusive right (including moral rights) and license to use, copy, reproduce, publicly perform, publicly display, prepare derivative works from, distribute, modify, adapt, publish, translate, edit, transmit, communicate to the public, and reformat the Submitted Content (in whole or in part, directly or indirectly) and/or to incorporate it in other works in any form, manner, media or technology now known or hereafter devised, and to grant and authorize sublicenses thereof (through multiple tiers);
- you waive your rights to attribution, integrity, or moral rights in Submitted Content in connection with their use by Tomorrow and other authorized parties;
- you agree to allow use of your name, city and state on the Services and in publicity or advertising without compensation; and
- you understand and agree that Tomorrow shall have no obligation to copy, publish, display or otherwise exploit the materials, nor shall Tomorrow be obligated to prevent, or have any liability for, any unauthorized copying, publishing, displaying or other exploitation of the Submitted Content.
Subject to Tomorrow's policies regarding privacy, any e-mails, notes, message/billboard/forum postings, animation, images, videos, ideas, suggestions, concepts or other material submitted by you will be treated as non-confidential and non-proprietary.
Through the Services, you may be able to access links to other websites that are not controlled by us. These links are provided solely as a convenience to you and not as an endorsement by Tomorrow of the contents on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk. Tomorrow is not responsible for the content on those other websites.
You shall be responsible for obtaining and maintaining all devices, wired or wireless communications means, telephone, computer software, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.
13. Disclaimers; NO WARRANTY
You acknowledge and agree that:
- YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. OTHER THAN THE TOMORROW SLEEP WARRANTY, TOMORROW, ITS AFFILIATED COMPANIES, AND ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS (COLLECTIVELY, “COVERED PARTIES”) EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICES, OR FROM THE INFORMATION CONTAINED THEREIN, OR AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICES. Because the Services are provided to you "AS IS," you agree that Tomorrow shall not be liable to you or to any third party for any delay in delivery of, or failure to deliver, any of your communications, or other information you submit using the Services. Because the Services are provided to you "AS AVAILABLE," you agree that Tomorrow shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or of your ability to access them.
- THE COVERED PARTIES ALSO DISCLAIM ANY WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES’ OPERATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND (III) ANY INFORMATION OR COMMUNICATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE (AND THE COVERED PARTIES DISCLAIM ANY LIABILITY FOR DAMAGES THAT MAY ARISE FROM YOUR RELIANCE ON ANY SUCH INFORMATION OR COMMUNICATION).
- YOU ASSUME THE FULL RESPONSIBILITY AND RISK FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER CONSEQUENCES THAT RESULT FROM YOUR DOWNLOADING ANY INFORMATION, SOFTWARE, OR OTHER MATERIALS THROUGH THE SERVICES. THE COVERED PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER, INCLUDING LOSS OF DATA THAT RESULTS FROM YOUR DOWNLOADING ANY SUCH MATERIALS.
Some states do not allow the disclaimer of implied warranties, so this provision may not apply to you.
14. Limitation of Liability
YOU AGREE THAT IN NO EVENT WILL COVERED PARTIES OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES BE LIABLE FOR ANY DAMAGES, CLAIMS, OR INJURY WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATIONS, DAMAGES FOR LOST PROFITS OR LOSS OF GOODWILL, USE, OR DATA (EVEN IF TOMORROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR PERSONAL OR BODILY INJURY, ARISING OUT OF (A) YOUR USE OF OR INABILITY TO USE THE SERVICES; (b) ACCESS TO OR ALTERATION OF YOUR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION IN AN UNAUTHORIZED MATTER; (c) REPRESENTATIONS OR CONDUCT OF ANY THIRD PARTY RELATED TO THE SERVICES; OR (d) ANY OTHER MATTER RELATING TO THE SERVICES.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY), NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. THIS DOES NOT AFFECT ANY STATUTORY RIGHTS WHICH MAY NOT BE DISCLAIMED. YOU SPECIFICALLY ACKNOWLEDGE THAT TOMORROW IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES OVER WHICH IT HAS NO CONTROL
Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to you.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL TOMORROW'S LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO TOMORROW FOR THE SERVICE, INFORMATION OR PRODUCT ON WHICH SUCH CAUSE OF ACTION IS BASED. THIS DOES NOT AFFECT ANY STATUTORY RIGHTS THAT MAY NOT BE DISCLAIMED.
You agree to defend, indemnify and hold harmless Tomorrow and its affiliated companies, third party information providers, suppliers, service providers, licensors, contractors, and others involved in the Services or the delivery of services or information over the Services, and their respective directors, officers, agents, contractors, partners and employees, from and against any and all claims, actions, demands, damages, costs, liabilities, losses and expenses (including reasonable attorneys' fees and costs) arising out of, relating to, or in connection with (a) your use of the Services, (b) any content or materials that you submit or upload to or through the Services, (c) your unauthorized use of the Services or content or material obtained through the Services, (d) any violation of any law or regulation by you, and (e) your breach of this agreement. Some jurisdictions restrict the use of indemnification clauses. Accordingly, some or all of this paragraph may not apply to you.
16. Third Party Content.
Tomorrow is not a publisher of content supplied by third parties and users of the Services. Accordingly, Tomorrow has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of Tomorrow. In many instances, the content available through the Services represents the opinions and judgments of the respective information provider or user. Tomorrow neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Services by anyone other than authorized Tomorrow employee spokespersons while acting in their official capacities.
Tomorrow also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Services or your downloading of any materials, data, text, images, video, or audio from the Services.
18. Export Control.
Software and other materials from the Services may also be subject to United States Export Control. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from the Services may be downloaded or exported (1) into (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan or any other country to which the United States has embargoed goods; or (2) anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Tomorrow does not authorize the downloading or exportation of any software or technical data from the Services to any jurisdiction prohibited by the United States Export Laws.
19. Business Associates.
The business associates of Tomorrow identified on the Services are independent contractors of Tomorrow. The business associates are not joint venturers or partners of Tomorrow. No employee or representative of the business associates is under the control of Tomorrow.
Tomorrow Sleep LLC
3560 Lenox Road, Suite 1100
Atlanta, GA 30326
Attn: General Counsel