PLEASE REVIEW THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. THIS EULA IS A BINDING LEGAL AGREEMENT BETWEEN PULSEWEAR INC. AND/OR ITS AFFILIATES (“PULSEWEAR“) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU“) REGARDING THE SOFTWARE THAT YOU ARE INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING (INCLUDING ANY FUTURE UPDATES, UPGRADES OR VERSIONS OF THE SOFTWARE) (COLLECTIVELY, THE “SOFTWARE“), AND ANY ASSOCIATED PULSEWEAR SERVICES AND ACCOMPANYING DOCUMENTS, INFORMATION, MANUALS OR OTHER RELATED MATERIALS PROVIDED BY PULSEWEAR AS PAfRT OF, OR IN CONNECTION WITH THE SOFTWARE.

THE SOFTWARE AND THE SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.

THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE DREAMON DEVICE AND APP OR OTHER PULSEWEAR PRODUCTS UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.

TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).

EULA TERMS

BY INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING THE SOFTWARE, OR OTHERWISE ACCEPTING THIS EULA, OR ‘CLICKING’ ACCEPT (IF APPLICABLE), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT UNDERSTAND OR AGREE, YOU MUST NOT INSTALL, DOWNLOAD, COPY, ACCESS OR USE THE SOFTWARE.

1. LICENSE GRANT AND RESTRICTIONS.
License Grant. Pulsewear grants you a limited, personal, non-transferable, non-sub-licensable, and non-exclusive license to install and use a single copy of the Software for your information and non-commercial use as part of the product or hardware supplied by or on behalf of Pulsewear in which the Software is contained or for which it is provided, together with any applicable Pulsewear Services (the “License”).

Restrictions Including User-Generated Content.
With respect to the Software and Pulsewear Services, you will not (and will not allow any third party to): (a) exceed the scope and purpose of the License grant above; (b) remove or alter any copyright notice or any other notices, (c) modify or create derivative works; (d) reverse engineer or attempt to discover any source code or underlying ideas or algorithms; (d) provide, lease, lend, sublicense, use for time sharing or otherwise use or allow the use of it for the benefit of any third party (including minors, if applicable) unless you take full responsibility for ensuring that its use by anyone else will comply with the terms of this EULA; or (e) use, or allow the use, transfer, transmission, export, or re-export of it or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations.

For the purposes of this EULA, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you or anyone acting on your behalf submits to Pulsewear including, without limitation, through online and mobile services made available by or on behalf of Pulsewear from time to time including, but not limited to, certain websites, widgets, computer programs, platforms, and mobile applications (collectively, the “Pulsewear Services”). You represent that your User Generated Content: (a) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) will not violate any law, statute, ordinance or regulation; (c) will not be obscene or contain child pornography; and (d) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.

You agree to indemnify, hold harmless and defend Pulsewear and its licensors from and against any claims or suits, including attorneys’ fees and expenses, which arise or result from any breach of this EULA by you or by another who has access to or use of the Software, Pulsewear Services or User Generated Content through you.

License Grant – Personally Identifiable User Generated Data. For the purposes of this EULA, “Personally Identifiable User Generated Data” means User Generated Content that identifies you and is considered personal information in accordance with applicable privacy and data protection laws. For clarity, Personally Identifiable User Generated Data does not include de-identified and/or aggregated information. You own your Personally Identifiable User Generated Data; Pulsewear can’t use it without your consent. You grant to Pulsewear a revocable, non-exclusive, worldwide, royalty-free license to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use Personally Identifiable User Generated Data in any manner and at any time only so far as required to deliver Software, Pulsewear products and Pulsewear Services. You waive any rights of publicity, moral or other similar such right with respect to Personally Identifiable User Generated Data while used in accordance with the preceding sentence.

License Grant – Non-Personally Identifiable User Generated Data. For the purposes of this EULA, “Non-Personally Identifiable User Generated Data” means all User Generated Content except for Personally Identifiable User Generated Data. You grant to Pulsewear a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, with the right to sublicense, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit Non-Personally Identifiable User Generated Data in any manner and at any time. You waive any rights of publicity, moral or other similar such right with respect to the Non-Personally Identifiable User Generated Data that might require your permission for Pulsewear to use such Non-Personally Identifiable User Generated Data.

Intellectual Property. The Software and Pulsewear Services are protected by copyright laws, international copyright, patents, trademarks, trade secrets and other intellectual property rights. As between you and Pulsewear, Pulsewear retains all right, title, interest, ownership and intellectual property rights in and to the Software and Pulsewear Services. The License confers no title or ownership in the Software or Pulsewear Services and is not a sale of any rights in the Software or Pulsewear Services. The License does not grant you any right to any enhancement or update to the Software and Pulsewear Services. Pulsewear reserves any and all rights not expressly granted to you. The Software and/or Pulsewear Services may incorporate third party intellectual property or open source code.

Permitted Age. You represent and warrant that: a) you are of legal age to form a binding contract with Pulsewear, and b) are not barred from accessing the Software or Pulsewear Services under the laws of the United States, United States, or other applicable jurisdiction, including the country in which you reside or from where you download, install, copy, access or use the Software or Pulsewear Services. By accepting this EULA you represent that you understand and agree to the foregoing.

For Information Purposes Only. Content generated or found through Pulsewear Services, Software or Pulsewear products is for informational purposes only and is not intended to replace the relationship between you and your physician, healthcare provider or other professional you are working with (collectively, “Professional”). Pulsewear’s DreamOn device is not a medical device and Pulsewear is not a licensed medical or healthcare provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind. Further, you understand that any information generated from Pulsewear Services, Software or Pulsewear products is not medical information and you will ensure that medical information or other personal health information is not uploaded to Pulsewear Services or Software or Pulsewear products. You assume all liability for any medical or health information that is created or stored or uploaded on Pulsewear Services, Software or Pulsewear products, and you agree to fully indemnify and hold Pulsewear harmless from any liability, expense, suit, action or claim (including regulatory proceedings) related to your breach of this EULA including without limitation, any liability, expense, suit, action or claim that arises through your use of Pulsewear Services, Software or Pulsewear products.

Physical Symptoms. In rare cases, people experience seizures or blackouts due to exposure to flashing lights and patterns created by the display of certain applications on mobile or other such similar devices used in conjunction with the Software, Pulsewear Services or Pulsewear Products. If you have done so, or have experienced any nausea, involuntary movements, tingling, numbness, or vision issues while using such devices in the past, you should consult with your doctor before using similar applications and should immediately cease all such use of such applications should the symptoms recur. In any event you should avoid prolonged use of such applications to minimize any possible discomfort or fatigue, including any muscle, joint or eye strain and should closely monitor your children’s use of technology to avoid possible problems.

TERMINATION. This EULA is effective until terminated. You may terminate this EULA at any time by uninstalling the Software and destroying all copies of the Software in your possession or control and ceasing to use all associated Pulsewear Services. Pulsewear may terminate this EULA immediately upon notice to you for any or no reason. The EULA will terminate immediately without notice from Pulsewear if you fail to comply with any provision of this EULA (including breach for nonpayment, if applicable). Upon termination of this EULA, you agree to immediately uninstall the Software and destroy all copies of the Software and cease using all associated Pulsewear Services.

LIMITED WARRANTIES BY PULSEWEAR.

Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THIS AGREEMENT DOES NOT AFFECT YOUR STATUTORY RIGHTS.
Limited Warranty. PULSEWEAR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE. THE SOFTWARE AND PULSEWEAR SERVICES ARE PROVIDED “AS IS” AND PULSEWEAR DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND PULSEWEAR SERVICES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM PULSEWEAR GROSS NEGLIGENCE, PULSEWEAR, ITS SERVICE PROVIDERS AND ITS LICENSORS SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS ARISING FROM OR RELATED TO: (a) THE INSTALLATION, DOWNLOAD, COPYING, ACCESS TO OR USE OF THE SOFTWARE OR THE ACCESS TO OR USE OF ANY PULSEWEAR SERVICE(S); OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF THE SOFTWARE OR ANY PULSEWEAR SERVICE(S), IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF PULSEWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PULSEWEAR, ITS LICENSORS AND SERVICE PROVIDERS EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE, OR THE APPLICABLE PULSEWEAR SERVICE, IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM UNDER THIS EULA.

Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Pulsewear. You understand and agree that Pulsewear would not be able to economically or reasonably provide the Software or the Pulsewear Services to you without these limitations.

GENERAL.
Governing Law. Unless stated otherwise below, this EULA will be governed and construed in accordance with the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of the State of New York.
If you are domiciled in a country located in Europe, Middle-East or Africa, this EULA will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
If you are domiciled in a country located in Asia-Pacific, this EULA will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
If you are domiciled in the United States of America, this EULA will be governed and construed in accordance with the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York City, the State of New York, United States.
The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

Privacy Policy. You acknowledge and agree that you have read the Pulsewear Privacy Policy located at http://www.dreamon.co/legal (or otherwise made available to you through Pulsewear Services) and consent to the handling and processing of your data as described in the Pulsewear Privacy Policy.
Language. If this EULA is translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Changes to EULA. Pulsewear may change the terms and conditions of this EULA at any time and recommends that you review them on a regular basis. You can review the most current version of this EULA at: http://www.dreamon.co/legal or through the Pulsewear Services. If Pulsewear makes a change to the terms, it will post the revised version at the link above. You agree that your continued use of the Software after this EULA has been changed means that you have agreed to the changed terms.
Accounts and User Conduct. If Pulsewear determines that any user is not using the Software or Pulsewear Services responsibly, Pulsewear has the right (but not the obligation) to remove, edit block or delete such user’s transmissions, User Generated Content, or use of the Software and/or Pulsewear Services. If Pulsewear, in its sole discretion, believes that the user has engaged in or facilitated practices that: (i) are in breach of this EULA, (ii) are offensive, illegal or violate the rights of others or Pulsewear, (iii) violate any terms of use or guidelines established by Pulsewear, or (iv) could result in liability for Pulsewear, then Pulsewear has the right (but not the obligation), without notice, to terminate the user’s access to and/or use of all or a portion of the Software and/or Pulsewear Services, or delete information posted or stored to the Software and/or Pulsewear Services. In addition, Pulsewear reserves the right to limit the number of DreamOn accounts and the number of devices associated with an account. If Pulsewear suspects that any registration data provided is inaccurate or incomplete, Pulsewear may suspend or terminate the account without notice.

Entire Agreement; Amendment. This EULA is the entire agreement with respect to the Software and Pulsewear Services and supersedes any other agreements or discussions, oral or written.

Interpretation. If any provision, clause or term of this EULA is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of this EULA is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the EULA for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party to this EULA will be binding on the waiving party unless it is expressly made in writing by the waiving party.
Survival. The provisions of this EULA that under a commercially reasonable interpretation reveals that the parties would have such provisions survive the termination of this EULA, including without limitation, Sections 1.2, 1.3, 1.4, 1.5, 1.7, 1.8, 1.9, 2, 3, and 4 will survive the termination of this EULA.

Other Terms. Notwithstanding anything to the contrary contained herein or any products or services from Pulsewear, Pulsewear and you acknowledge and agree to the following terms for the benefit of Apple Inc. and its subsidiaries and affiliates (collectively, “Apple”): (a) “Made for iPod,” “Made for iPhone” and “Made for iPad” mean that an electronic accessory has been designed to connect specifically to iPod, iPhone, or iPad, respectively, and has been certified by the developer to meet Apple performance standards. Apple is not responsible for the operation of this device or its compliance with safety and regulatory standards. Please note that the use of this accessory with iPod, iPhone, or iPad may affect wireless performance; (b) the following is applicable for end users in all jurisdictions except Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc.; (c) the following is applicable for end users in Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. The trademark “iPhone” is used with a license from Aiphone K.K registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. All other trademarks and trade names are the property of their respective owners and other company and product names mentioned herein may be trademarks of their respective companies.
If you any information about the Software or Pulsewear Services, you may consult the user documentation that is provided with the Software or Pulsewear Services. If you wish to request customer support from Pulsewear for the Software or an Pulsewear Service, or if you wish to provide Feedback about the Software or Pulsewear Services to Pulsewear, you may do so by contacting Pulsewear at http://www.dreamon.co/support or at Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231.

 

TERMS OF SALE

 

This is a legal agreement between you (meaning you as an individual if acting on your own behalf, or the company that you represent if you are acting on behalf of such company) and Pulsewear Inc. and/or its affiliates (“Pulsewear”). By placing an order or acquiring devices or other hardware (“Product“) from Pulsewear’s websites (collectively and individually, the “Site“), you agree to these terms and conditions set out below, Pulsewear’s Privacy Policy and any Site terms of use (collectively “Terms“). The Terms may be updated by Pulsewear from time to time, and it is your responsibility to review the Terms each time you make a purchase from the Site.

BY CLICKING ON THE BUTTON TO SUBMIT AN ORDER, OR BY OTHERWISE CONTINUING WITH A PURCHASE/LICENSE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE WITH THE TERMS, YOU MUST NOT CLICK THE BUTTON TO SUBMIT AN ORDER OR OTHERWISE PROCEED WITH THE PURCHASE/LICENSE.

DREAMON SOFTWARE IS FOR INFORMATION PURPOSES ONLY / LANGUAGE
THE SOFTWARE AND SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.

THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY BE PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE DREAMON OR OTHER PULSEWEAR PRODUCTS, UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.

TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).

ORDERING
Application. These Terms will apply to all orders placed by you, or as otherwise referenced in a written agreement between you and Pulsewear. You acknowledge that the information contained on the Site may contain technical inaccuracies or typographical errors. The Site, all content available on or through the Site, and all related communications are provided on an “AS IS” basis. Pulsewear makes no representations or warranties as to the completeness, accuracy, adequacy or reliability of any information contained on or through the Site.
Requirements. To place an order, you must:
provide up-to-date, complete and accurate registration information as requested by Pulsewear on the Site, which may include, without limitation, your first and last name, institution name, mailing address, phone number and email address;
provide up-to-date, complete and accurate payment information (for example, credit card information for a credit card that is valid and legally registered to you);
be at all times in compliance with these Terms and applicable law including, without limitation, the requirement to be of the age of majority in your jurisdiction; and that Pulsewear will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Pulsewear.
General Sales are End User Sales Only. All Products available through the Site for general sale are intended for end user customers only. You are prohibited from purchasing Products for resale.

All Product purchases are subject to Pulsewear’s end user license agreement at http://www.dreamon.co/legal. We reserve the right to refuse or cancel your order, or to deny you any return or other rights, if we suspect you are not complying with these terms and conditions. You will ensure that you and any anyone representing you: (i) does not participate in any threatening, deceptive, tortious, offensive, misleading, obscene, illegal, or unethical practices that may be detrimental to Pulsewear or to any Pulsewear products and/or services; (ii) only make representations about Pulsewear and Pulsewear products and/or services that are fair and accurate; (iii) does not make any representations, warranties, or guarantees to end users concerning any Pulsewear products and/or services without Pulsewear’s prior express written authorization; (iv) comply at all times with all applicable federal, national, state, provincial and local laws and regulations including, without limitation, those relating to tax, foreign exchange, anti-corruption, transfer of money, marketing, consumer protection, data protection, anti-mafia, organized crime, anti-terrorism or maintenance of public order; (v) does not sell refurbished or used Pulsewear products, or any parts or materials associated therewith, in whole or in part; (vi) does not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of Pulsewear and/or its affiliates; (vii) upon receiving notice of removal of a product, forthwith stop marketing and distribution of Pulsewear products specified in such notice; (viii) does not modify any Pulsewear products or replace any software on any Pulsewear product or modify any point of sale packaging; and (ix) does not use any Pulsewear marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing, and/or promotional materials) without Pulsewear’s prior express written authorization and in compliance with the Pulsewear Branding Guidelines (which you must obtain from Pulsewear).

DELIVERY AND SHIPPING
Acceptance Required. All orders are subject to acceptance by Pulsewear, and any rejection of an order will be made in Pulsewear’s sole discretion, regardless of whether the order was confirmed through the Site or otherwise. If you have been charged for an order that is subsequently rejected by Pulsewear, Pulsewear will refund the amount of that order.
Delivery Requirements. Pulsewear will make commercially reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Pulsewear will therefore not be liable in any way for any delay or damage arising from Pulsewear’s failure to meet your delivery requirements or any specified delivery dates.

Shipping Terms. All shipments will be made FCA Pulsewear’s facilities (Incoterms 2010). Risk of loss for Products will pass to you in accordance with the FCA (Incoterms 2010) shipping. You are responsible for insuring the shipment and for pursuing the carrier for any loss occurring in transit.

Importer of Record. As you are the importer of record in the destination country, you are responsible for: (a) paying for all import fees such as import duties and customs taxes, and (b) ensuring that Products can be lawfully imported, and comply with all laws and regulations of the destination country. With respect to each item for which import fees have been calculated, you authorize Pulsewear to designate a carrier (“Designated Carrier“) to act as your agent with the relevant customs and tax authorities in the destination country, to clear your merchandise, and, if applicable, process and remit your actual import fees for such item. Your order may include an estimate (“Import Fees Estimate“) of some or all of the import fees that will be levied on the items in your order for shipment. By placing your order, you agree to allow Pulsewear to collect the Import Fees Estimate for the applicable items in your order. This amount will be used, on your behalf, to reimburse the Designated Carriers for the import fees that they have paid on your behalf to the appropriate authorities of the destination country. The Import Fees Estimate may or may not include customs duties. If they do not include customs duties, you will be responsible for making arrangements with the customs authorities for payment of duties. The Import Fees Estimate may be more or less than the final actual amount of import fees due and payable. Pulsewear has no control over the import fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to your purchase. You agree and acknowledge that: (a) the actual import fees may be more or less than the Import Fees Estimate; and (b) you will NOT receive any refund in the case that the actual import fees differ from the Import Fees Estimate.

Check Order. You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Pulsewear immediately. Please check the order carefully, as no claim for shortages or deficiencies will be accepted by Pulsewear after five (5) days from the delivery of the products.

PRICING AND PAYMENT
Currency. If the currency for your purchase is not expressly stated, then the prices are in US dollars.

Prices. Pulsewear reserves the right to change its standard prices without notice. Prices are exclusive of, and you will pay: (a) all applicable federal, state, provincial and local taxes (including all applicable sales, use, consumption, goods and services, value added, and withholding taxes), unless you have provided Pulsewear with an appropriate tax exemption certificate or number, and (b) all fees and charges related to customs, duties and brokerage. Pulsewear may charge sales tax for sales of Products through the Site. Any sales tax charged will be indicated during the checkout process.

Rejected Payments. Where your payment is rejected for any reason, you will be responsible for any fees and charges associated with such rejection, as well as interest on the amount owing. Interest will be the lesser of 1.5% per month or the maximum rate permitted by law, commencing on the date that your payment was rejected. Pulsewear may, in its sole discretion, delay shipment of, or cancel, your order where your payment is rejected.
TITLE, INTELLECTUAL PROPERTY, USE RESTRICTIONS AND LICENSE GRANTS
Title to Products. Title to any Products and any other products bought by you will pass to you upon your full payment for such Product in accordance with Section 4 (Pricing and Payment).

Title to Software. Notwithstanding the foregoing, title to software will not pass to you, and you are hereby put on notice that your use of any Pulsewear software supplied to you is governed by and subject to the EULA as provided to you with the software or otherwise located at http://www.dreamon.co/legal. The EULA may be included as a file with the software that you download for use with hardware acquired under this Agreement. Use of any third party software will be governed by and subject to your agreeing to the terms of all applicable third party agreements and licenses respecting such third party software.

Intellectual Property Rights. You do not acquire any intellectual property or other proprietary rights under these Terms including, without limitation, any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to any Pulsewear products, software and/or services, or any part thereof. Your only rights in relation to Pulsewear products, software and/or services, or any part thereof, will be those rights expressly licensed or granted to you under these Terms or in another separate written agreement between you and Pulsewear. Any rights not expressly granted under these Terms are reserved.

Restrictions/Representations. Except to the extent expressly agreed upon in writing by you and Pulsewear, you will not (and will not allow any third party to): (a) use Product for any purpose other than as authorized under these Terms, or use any associated software for any purpose other than as authorized under the applicable end user license agreement for the particular software; (b) remove or alter any copyright notice or any other notices that appear on Product or the associated software, or modify or create derivative works thereof; (c) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of Product or any associated software; (d) provide, lease, lend, sublicense, use for time sharing or otherwise use or allow the use of Product or the associated software for the benefit of any third party; or (e) use any Product or any associated software in violation of any laws or regulations, or use, transfer, transmission, export, or re-export of Product or any associated software or portion thereof in violation of any export control laws or regulations.

User Generated Content. For the purposes of these Terms, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you, or anyone acting on your behalf submits through the online and mobile services made available by Pulsewear from time-to-time including, but not limited to, certain websites including any Site, widgets, computer programs and mobile applications hosted by or on behalf of Pulsewear (collectively, the “Pulsewear Services”). You represent that your User Generated Content will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) violate any law, statute, ordinance or regulation; (c) be obscene or contain child pornography; and (d) be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate. You agree to indemnify, hold harmless and defend Pulsewear and Pulsewear’s affiliates, service providers and licensors from and against any claims or suits including, without limitation, attorney fees and expenses, which arise or result from any breach of this Section by you or by another who has access to or use of Product, Pulsewear Services, or User-Generated Content through you or products purchased through you.

Third Party Equipment, Software and Services. You are responsible for the selection, implementation, and performance of any and all third party equipment, software and services used in connection with Products, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of Products and any equipment, services or software used in conjunction with Product.

Compatibility. Before ordering Products, you should check to determine if the Product is designed to work with your smartphone or tablet or other third party equipment. Pulsewear assumes no responsibility with regard to the performance or use of your smartphone/tablet/other third party equipment with the Products.

Permitted Age. Pulsewear Services, software and products should only be used by individuals aged 13 years or older (“Permitted Age”). If the user is of the Permitted Age or older but under the age of majority in the jurisdiction in which the user is domiciled, the user should review these Terms and the applicable end user license agreements for any software with the user’s parent or guardian to make sure that the parent or guardian understands these Terms and the applicable end user license agreements.

Informational Purposes Only. Content generated or found through Pulsewear Services or products is for informational purposes only and is not intended to replace the relationship between you and your physician or other health-care provider. Pulsewear is not a licensed medical or health-care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind.

Reseller of Third Party Products. If Pulsewear is reselling any Third Party Products to you pursuant to these Terms, Pulsewear will pass through to you any transferable warranties and indemnities provided to Pulsewear by the provider of the Third Party Products including, without limitation, any warranties for the products and indemnities for intellectual property infringement. To the extent permitted by law, in connection with Third Party Products, notwithstanding anything to the contrary, Pulsewear provides no indemnities and makes no other warranties, express or implied including, without limitation, warranties of merchantability, fitness for purpose or non-infringement. For the purposes of these Terms, “Third Party Product(s)” means any software, application, technology, standard or specification, product or service developed by or on behalf of a third party.

CHANGES
Design. Pulsewear reserves the right to make changes in the design of Product and/or other Pulsewear Services and/or any associated software without the obligation to make equivalent changes to products that have previously been supplied to you.

Orders. Except as expressly set forth in these Terms, you will not be entitled to change or cancel any order that has previously been accepted by Pulsewear without the prior written agreement of Pulsewear. You shall not be entitled to any refund, except to the extent expressly stated in this Agreement.

LIMITED WARRANTIES, EXCLUSIONS AND SUPPORT BY PULSEWEAR
Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THESE TERMS DO NOT AFFECT YOUR STATUTORY RIGHTS.

Limited Warranty. Pulsewear and/or its affiliates have provided you with a limited warranty (which can be found at http://www.dreamon.co/legal) relating to defects in materials or workmanship for the DreamOn device. This limited warranty sets out certain situations when Pulsewear and/or its affiliates will, or will not, provide a remedy for the DreamOn device. You may have legal (statutory) rights that are in addition to those set out in the limited warranty (such as consumer laws in the country in which you live) (“Consumer Rights”). None of your Consumer Rights are limited or excluded. You must follow Pulsewear’s return process described in the limited warranty in order to make a claim under the limited warranty.

EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THE LIMITED WARRANTY, DREAMON DEVICES AND ANY OTHER PRODUCTS/SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND PULSEWEAR DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO DREAMON AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS INCLUDING, BUT NOT LIMITED TO: (A) THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS; (B) PROVISION, DELAY OF OR FAILURE TO PROVIDE SUPPORT OR SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE DREAMON DEVICES AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS OR OTHERWISE ARISING OUT OF THE USE OF THE DREAMON DEVICES AND/OR ANY OTHER PRODUCTS OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; (C) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND/OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.

Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM PULSEWEAR GROSS NEGLIGENCE, PULSEWEAR AND PULSEWEAR’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OF PRODUCTS OR SERVICES OR FUNCTIONALITY, BUSINESS INTERRUPTION, LOSS, INACCURACY, INTERRUPTION OR CORRUPTION OF INFORMATION (INCLUDING DATA OR OTHER PECUNIARY LOSS)) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS INCLUDING, WITHOUT LIMITATION, ARISING FROM OR RELATED TO: (a) USE OF DREAMON deviceS AND/OR ANY OTHER PRODUCT AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF DREAMON DEVICES AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS, IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF PULSEWEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PULSEWEAR AND PULSEWEAR’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS EXCEED THE NET PURCHASE PRICE PAID BY YOU TO PULSEWEAR FOR AFFECTED PRODUCTS AND SERVICES ACQUIRED BY YOU UNDER THESE TERMS IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Pulsewear. You understand and agree that Pulsewear would not be able to economically or reasonably provide the products and services to you without these limitations.
Support. Pulsewear will not be obligated to provide any support or maintenance services for DreamOn devices and any other products and services unless otherwise expressly agreed upon in writing by you and Pulsewear. However, this provision does not relieve Pulsewear of its warranty obligations described in Section 7.b. (Limited Warranty).

CANCELLATION AND TERMINATION
Termination Rights. Pulsewear may terminate these Terms upon notice to you, and may also stop any products in transit to you and suspend the delivery of products and/or services to you, without penalty, if you: (a) fail to make any payment due under these Terms; or (b) commit a breach of these Terms (other than payment) and fail to remedy such breach within thirty (30) days of receiving notice of such breach.

Effect of Termination. Upon termination of these Terms for your breach: (a) all of Pulsewear’s performance obligations hereunder will cease immediately, (b) your license to use any software provided to you hereunder will cease immediately, and you will either return all such software to Pulsewear or confirm, upon request from Pulsewear, that such software has been destroyed and (c) any payments then due to Pulsewear become immediately payable in full.

ACCOUNTS AND USER CONDUCT
If Pulsewear determines that any user is not using Pulsewear Services responsibly, Pulsewear has the right (but not the obligation) to remove, edit block or delete such user’s transmissions, User Generated Content, or use of the Pulsewear Services. If Pulsewear, in its sole discretion, believes that the user has engaged in or facilitated practices that: (i) are in breach of these Terms, (ii) are offensive, illegal or violate the rights of others or Pulsewear, (iii) violate any terms of use or guidelines established by Pulsewear, or (iv) could result in liability for Pulsewear, then Pulsewear has the right (but not the obligation), without notice, to terminate the user’s access to and/or use of all or a portion of the Pulsewear Services, or delete information posted or stored to the Pulsewear Services. In addition, Pulsewear reserves the right to limit the number of accounts that may be created from Products and the number of Products associated with an account. If Pulsewear suspects that any registration data provided is inaccurate or incomplete, Pulsewear may suspend or terminate the account without notice.

GENERAL
Third-party Service Provider. In certain regions or for certain products, a third-party service provider may fulfill orders made on Pulsewear’s online store. In such regions, the terms and conditions contained in these Terms will still apply.
Product Information. Please refer to product safety and regulatory information and trademark attribution statements located at http://www.dreamon.co/legal.

Privacy Policy. You acknowledge and agree that you have read Pulsewear’s Privacy Policy located at http://www.dreamon.co/legal (or otherwise made available through Pulsewear Services) and consent to the handling and processing of your data as described in the

Pulsewear Privacy Policy.
Interpretation. If any provision, clause or term of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the Terms for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party under these Terms will be binding on the waiving party unless it is expressly made in writing and signed by the waiving party.

Governing Law. Unless stated otherwise below, these Terms, and all Product requirements, will be governed by, and construed in accordance with, the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of the State of New York, United States
If you are domiciled in a country located in Europe, Middle-East or Africa, these Terms will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
If you are domiciled in a country located in Asia-Pacific, these Terms will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
If you are domiciled in the United States of America, these Terms will be governed and construed in accordance with the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, the State of New York, United States.
The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.

Survival. The provisions of these Terms that under a commercially reasonable interpretation reveal that the parties likely would have such provisions survive termination or expiration of these Terms including, without limitation, Sections 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Terms.
Contact. If you have any questions or inquiries regarding these Terms or any order or purchase, please contact Pulsewear through http://www.dreamon.co/support or Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231. Please note that e-mail communications will not necessarily be secure, so please do not include credit card information or other sensitive or personal information in your e-mail correspondence with Pulsewear.
Language. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.
Electronic Communications. For contractual purposes, you consent to receive communications electronically from Pulsewear and you agree that all agreements, notices, disclosures and other communications that Pulsewear provides to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
Entire Agreement. These Terms constitute the entire agreement between the parties and supersedes all previous agreements relating to the subject matter hereof. These Terms may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.

 

DREAMON – TERMS OF SERVICE

 

PLEASE CAREFULLY REVIEW these DreamOn – Terms of Service (the “Terms”). The Terms are a binding legal agreement between Pulsewear Inc. and/or its Affiliates (“Pulsewear”, “we” or “us”), a State of New York, United States corporation located at 98 4th st suite 414, Brooklyn New York 11231, and you or, if applicable, the company or other legal entity you represent (collectively, “you”, “your”, or “Researcher”). The Terms govern your access to the Software. You and Pulsewear are each a “Party” and collectively the “Parties”.

THE SOFTWARE IS FOR INFORMATION PURPOSES ONLY AND IS NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.

THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, MAY ONLY BE PROVIDED IN ENGLISH. DO NOT DOWNLOAD, INSTALL, ACCESS, REGISTER OR USE THE SOFTWARE, OR OTHER PULSEWEAR PRODUCTS, UNLESS YOU CAN READ AND UNDERSTAND THIS AGREEMENT.

ACKNOWLEDGMENT OF TERMS OF SERVICE:

By downloading, installing, accessing, registering or using the Software you agree to be bound by the Terms. If you are using the Software on behalf of an organization (such as an organisation you have identified as part of the registration process), you are agreeing to the Terms for that organization (in which event, “you”, “your” or “Researcher” will refer to that organization) and promising to us that you have the authority to bind that organization to the Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MUST NOT DOWNLOAD, INSTALL, ACCESS, REGISTER OR USE THE SOFTWARE.

Notwithstanding anything to the contrary, we reserve the right to update and revise the Terms at anytime. We will make sure that the “Last Updated” date at the top of this page is changed so you can tell if the Terms have changed since your last visit. In addition, we may in our sole discretion, notify you about the modification of the Terms via other forms of notice which may include by email, on our website, as part of the Software or within a third party application store. By continuing to access and/or use the Software, you agree to any such modifications. In addition, when using particular services or features of the Software, you will be subject to any guidelines or policies applicable to such services or features that may be notified from time to time, including but not limited to the Privacy Policy as noted below. All such guidelines or policies are hereby incorporated by reference into the Terms.

If you: (a) have any comments or questions regarding the Terms, (b) wish to report any violation of the Terms, or (c) encounter content or activity you find inappropriate or otherwise believe to be a violation of the Terms, please contact us at http://www.dreamon.co/support.

DEFINITIONS
Capitalized terms used but not defined elsewhere in the Terms shall have the following definitions:

“Affiliate” means any party directly or indirectly controlling, controlled by or under common control with Pulsewear.

“Branding Guidelines” means our then-current branding guidelines and which may include terms and conditions applicable to the use of our trademarks, trade names, service marks, and logos, as they may be modified or amended by us from time-to-time. The Branding Guidelines shall be deemed to be incorporated by reference into the Terms.

“Intellectual Property Rights” means all intellectual property and proprietary rights of any nature or kind, whether protected, created, or arising under any applicable law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith, including but not limited to trademarks, copyrights, patents, domain names, and trade secrets.

“DreamOn Content” means any data or signals generated by you, your clients or on your behalf through or as a result of your use of the Software.

“Payment Processor” means one or more payment processors used by us from time to time to facilitate payments for the amounts specified in each form of invoice or subscription order.

“Payment Processor Services Agreement” means the Payment Processor’s service agreement in effect from time to time.

“Privacy Policy” means our then-current privacy policy which applies to your use of our websites, hardware, software, and/or services and amongst other things, describes the kinds of personal information that is collected about you, how we use it, how we protect it, and under what circumstances we share it with third parties. The Privacy Policy also describes the decisions you can make about your personal information and can be viewed at http://www.dreamon.co/legal (or may otherwise be made available to you through the Software from time to time). The Privacy Policy shall be deemed to be incorporated by reference into the Terms.

“Sensor Device” means any device or system of devices designed and/or developed by or on behalf of Pulsewear, in whole or in part, which includes sensors which monitor biodata and other data including without limitation motion, muscle activity, heart rate, heart rate variability, respiration rate, eye movement and other signals. Sensor Devices may include sensing devices such as devices.
“Software” means our proprietary software commercially known and referred to as the DreamOn mobile app including any updates and upgrades to such software that we may make available from time to time. The Software is designed to allow you, amongst other things, to extract data from Sensor Devices, and to collect and record that data.

License Grant
In accordance with these Terms, we grant you a limited personal, non-transferable, non-sublicensable and non-exclusive license during the Term to download, install, access, register and use a single copy of the Software only for your research, information and non-commercial use with the Sensor Devices (the “License”). Unless otherwise specified in the invoice, subscription or Pulsewear product description, you may terminate and/or cancel the Terms by providing us written notice of termination and/or cancellation to support@dreamon.co (such notice must include your contact information and account identification) or if available, by cancelling the subscription through the Software and we may terminate and/or cancel the Terms in accordance with Article 8. You shall not be entitled to any refund.

Scope of Use
You may use the Software only for your internal business purposes.

The Software may incorporate and/or use third party software and/or services and you acknowledge and agree that you will comply with any license agreements and restrictions applicable to such third party software and/or services.

We may impose certain limitations on the use of the Software, including, but not limited to, restricting the number of accounts you may register or restricting the volume or time we may store data. You agree to use the Software only for purposes as permitted by these Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. We reserve the right to modify or impose any limitations on the use of the Software at any time, with or without notice to you.

Our Policy; Applicable Law
Your registration of, access to or use of the Software indicates your acceptance of the terms of the Privacy Policy. We will not use any DreamOn Content or other personally identifiable information for any purpose other than those expressly permitted by the Terms and the Privacy Policy. You covenant and warrant that your use of the Software and the DreamOn Content will be in compliance with all applicable laws and regulations, including without limitation, applicable privacy and export laws, and that you shall obtain all necessary consents from individuals (including, without limitation, all users of the Sensor Devices) to the End User License Agreement for the Sensor Device and for the collection and use of any DreamOnContent or other personally identifiable information. You hereby agree to indemnify and hold us harmless from and against any claims, actions, judgments, damages (whether foreseeable or unforeseeable, contractual or tortious), fines, penalties, costs, duties, levies and other expenses (including any registration fees, penalty fees, reasonable legal and third party professional fees and disbursements), any regulatory enforcement proceedings advanced against, made against and/or incurred by Pulsewear and any Pulsewear Parties, and/or settlements agreed to by you in connection with any claim or action that arises from an alleged or actual violation of the Terms or otherwise from use of the Software by you or anyone else acting on your behalf. Although we have no obligation to monitor your use of the Software, we may do so and may prohibit any use of the Software we believe may be (or is alleged to be) in violation of the Terms. You further grant us the right to audit your compliance with the Terms during normal working hours.

Informational Purposes Only
You acknowledge that you are aware that: (a) content generated or found through the Software and the Sensor Devices is for informational purposes only; (b) the Sensor Device is not a medical device; (c) the Sensor Device and associated applications are not designed to treat or diagnose any disease or medical condition; and (d) we are not a licensed medical or health-care care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. Further, you acknowledge and understand that the information generated by the Sensor Device is not medical information, as at the Last Updated Date, our products and services are not Health Insurance Portability and Accountability Act (HIPAA) compliant.

OBLIGATIONS
Service Level Terms
Subject to the Terms, we will use commercially reasonable efforts to provide you access to the Software. We do not make any commitment that the Software will be available at all times or during any down time (and you agree that you are not eligible for any refunds, credits or other compensation): (a) caused by outages to any public Internet backbones, networks, servers or other telecommunication services, (b) caused by any failures of your equipment, systems or local access services, (c) for scheduled maintenance, (d) caused by any third party vendor or our service providers, or (e) relating to events beyond our (or our licensors’ or service provider’s) reasonable control including without limitation, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, failure of suppliers, regulatory or legal restrictions, or interruptions in Internet or other services.

Updates
From time to time, we may provide upgrades, patches, enhancements, or fixes for the Software to our users generally without additional charge (“Updates”), and such Updates will become part of the Software and subject to these Terms. Not withstanding the foregoing, we shall have no obligation under the Terms or otherwise to provide any such Updates. You understand that we may cease supporting old versions or releases of the Software at any time in our sole discretion.

USE OF THE SOFTWARE
Account
You may be required to establish an account and have the ability to pay any fees through Payment Processors in order to use the Software and/or take advantage of certain features. If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Software; and (b) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or we have reasonable grounds to suspect that such information is false, inaccurate, outdated, or non-compliant with the Privacy Policy, we have the right to suspend or terminate and/or cancel your account and/or prohibit any and all current or future use of the Software by you. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account. We advise against sharing your password with anyone and if you do lend your password, then you are responsible for any actions taken by anyone you lent your password to, including indemnifying us for any loss. If you access your account via a third-party site or service, you may have additional or different sign-in protections via that third-party site or service and there might be terms and conditions associated with such third-party site or services you must comply with. You need to prevent unauthorized access to your account by selecting and protecting your password and/or other sign-in mechanism appropriately and limiting access to your computer, browser, or mobile device by signing off after you have finished accessing your account. Your account is meant to be private and you shall not share accounts for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Software and shall indemnify us for any losses we suffer due to your use or misuse of the Software, including charges resulting from any unauthorized use of your account.

Storage and Retention of Content
We recommend that you create and maintain regular backups of all DreamOn content and associated data. We reserve the right to place service limits (including as to volume of data and time) on the DreamOnContent and associated data stored or retained by or on behalf of Pulsewear.

Unlawful and Restricted Uses
You will not:

(i) except as expressly permitted under Section 2.1 (Evaluation License) or Section 2.2 (License Grant), reproduce, copy, duplicate, license, rent, trade, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software (or any part thereof);

(ii) modify or make derivative works based upon the Software;

(iii) directly or indirectly: (a) reverse engineer, decompile, disassemble, debug, hook, spoof, pirate or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or any software, documentation or data related to Software; (b) modify, translate, or create derivative works based on the Software (except to the extent expressly and in writing permitted by us or expressly authorized within the Software); or (c) remove any proprietary notices or labels;

(iv) access the Software in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, or (c) copy any ideas, features, functions or graphics of the Software;

(v) interfere with or disrupt the integrity or performance of the Software;

(vi) attempt to gain unauthorized access to the Software or its related systems or networks;

(vii) use the Software in any manner that interferes with its normal operation or with any other user’s use of the Software; or

(viii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures.

We reserve the right to interrupt, terminate and/or cancel, or restrict access to the Software without notice to you and without any liability if you fail to comply with any obligation under the Terms or any other agreement with us or if we suspect illegal, fraudulent, or abusive activity. You agree to cooperate with us in any investigation and use reasonable measures prescribed by us from time to time to address any issues or concerns identified by us.

You agree to ensure that the Software is only used for lawful purposes.

If we, in our sole discretion, believe that you have engaged in or facilitated practices that: (i) are in breach of the Terms, (ii) are offensive, illegal or violate our rights or the rights of others, (iii) violate any terms of use or guidelines or policies, or (iv) could result in liability for us, then we have the right (but not the obligation), without notice, to terminate and/or cancel your access to and/or use of all or a portion of the Software, all without any recourse against us. In addition, if we suspect that any registration data provided is inaccurate or incomplete, we may suspend or terminate and/or cancel the account without notice or recourse against us. Notwithstanding anything to the contrary, you acknowledge and agree that we may access, use, preserve and/or disclose your account information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce the Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect our rights, property or safety of the rights, property or safety of our users or the public as considered necessary by us or permitted by law.

COMPENSATION
Compensation Collection
Payment processing services for you on our Software are provided by a Payment Processor and are subject to the applicable Payment Processor Services Agreement. By agreeing to the Terms or continuing to use the Software, you agree to be bound by the Payment Processor Services Agreement, as it may be modified by the Payment Processor from time to time.

Changes to Fees
We will not increase the fee for the Initial Term, however, subject to your agreement to pay additional amounts, incremental fees may be charged where new or additional functions are added or become available to you.

INTELLECTUAL PROPERTY RIGHTS
Ownership
As used herein, “Pulsewear Materials” means:
all materials that were created by Pulsewear including the Software and the layout and flow of the Software;
any our websites; and
any other materials created under the scope of the Terms or subsequent to the Terms, excluding those portions of any materials which comprise DreamOn Content, but including without limitation:
all originally created or licensed audio or visual assets, computer software, code, routines, tools, application engines, algorithms, inventions and other technology contained in or used by us in the development of the Software;
the technical documentation, if any, of or concerning the Software;
any analytics data generated from the use of the Software; and
any training or other materials made available pursuant to the Terms.
As between you and us, we shall at all times be and remain, the sole and exclusive owner of the Pulsewear Materials and all Intellectual Property Rights pertaining thereto. Without limiting the generality of the foregoing, nothing in the Terms shall be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to Software, Pulsewear Materials or any derivatives of such, other than the license rights specifically set forth herein.

Permitted Activity
Notwithstanding anything to the contrary, you acknowledge that we may develop and distribute software and applications using Pulsewear Materials and that nothing in the Terms shall prevent the foregoing.

Marks and other Intellectual Property
All trademarks, service marks, trade names, domain names, slogans, logos, screenshots including screenshots of the Sensor Device, sounds, and other indicia of origin that appear on or in connection with any aspect of the Software or the Pulsewear websites including, without limitation: “PULSEWEAR”, “DREAMON DEVICE”, “DREAMON BAND”, “DREAMON APP”, “DREAMON” and all related branding elements, the status indicator of the Sensor Device (or similar status indicator), are either our property or the property of OUR Affiliates or licensors. We retain the right to rescind and terminate and/or cancel the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by us to you are fully reserved by us, our Affiliate and licensors. Each time you wish to use any of our Branding Elements, you shall ensure that you have the then-current version of the Branding Guidelines from us and comply with such Branding Guidelines. As between you and us, we shall at all times be and remain, the sole and exclusive owner of the Branding Elements and all Intellectual Property Rights pertaining thereto. Without limiting the generality of the foregoing, nothing in the Terms shall be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to Branding Elements or any derivatives of such.

REPRESENTATIONS AND WARRANTIES: INDEMNITY; LIMITATION OF LIABILITY
Our Representations and Warranties
We represent, warrant, and undertake as follows:

We are free to enter into and fully perform the Terms.
The entering into of the Terms by us does not violate any agreements, rights or obligations existing between us and any other person, firm or corporation.
Your Representations and Warranties
You represent, warrant, and undertake as follows:

You are free to enter into and fully perform the Terms.
The entering into of the Terms by you does not violate any agreements, rights or obligations existing between you and any other person, firm or corporation.
You are of legal age to form a binding contract or have the authority to form a binding contract (including, if applicable, on behalf of the organisation you represent); all registration information you submit is accurate and truthful; you will maintain the accuracy of such information; and you are legally permitted to use and access the Software, and you take full responsibility for compliance with these Terms and the selection and use of and access to the Software.

Warranty and Disclaimer
YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, OUR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, “PULSEWEAR PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PULSEWEAR PARTIES MAKE NO WARRANTY THAT: (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE SOFTWARE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF THE SOFTWARE WILL MEET YOUR EXPECTATIONS OR NEEDS; (V) ANY DATA STORED OR RETAINED BY PULSEWEAR WILL BE FREE FROM LOSS OR CORRUPTION OR AVAILABLE INDEFINITELY; OR (VI) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

Exclusion of Damages
PULSEWEAR PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO ANY DATA OR THE USE OF OR INABILITY TO USE THE SOFTWARE AND THE ASSOCIATED MATERIALS AND CONTENT, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE PLATFORM OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF TRANSMISSIONS OR DATA; OR (IV) FOR ANY OTHER MATTER RELATING TO THE SOFTWARE, OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION: (a) END USERS OF THE SENSOR DEVICE; AND (b) OUR LICENSORS, SERVICE PROVIDERS AND PAYMENT PROCESSORS). THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES PULSEWEAR PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SOFTWARE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY PULSEWEAR TO ANY THIRD PARTY (INCLUDING END USERS), DIRECTLY OR AS A THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.

Limitation of Liability
NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF PULSEWEAR PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE FEES PAID BY YOU DIRECTLY TO PULSEWEAR FOR THE SOFTWARE LICENSE GRANTED SOLELY AND DIRECTLY TO YOU PURSUANT TO THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRIOR TO SUCH CAUSE OR CLAIM ARISING. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.

WITHOUT LIMITING THE FOREGOING, PULSEWEAR PARTIES SHALL NOT BE LIABLE FOR: (i) CLAIMS ASSOCIATED WITH MODIFICATIONS OR ADAPTATIONS PERFORMED BY ANYONE OTHER THAN PULSEWEAR; OR (ii) USE OF THE SOFTWARE WITH PRODUCTS OR SERVICES THAT ARE NOT PROPRIETARY TO PULSEWEAR (EVEN IF SUCH PRODUCTS OR SERVICES DISPLAY PULSEWEAR BRANDING ELEMENTS).

If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Indemnification
You (on behalf of the organisation you represent (if applicable) and users of the Software and the Sensor Devices) agree to indemnify, defend and hold harmless Pulsewear Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the Software, any activity related to your account by you or any other person permitted by you, your breach of the Terms, your infringement or violation of any rights of another, or termination and/or cancellation of your access to the Software. We reserve the right to assume the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

TERMINATION AND/OR CANCELLATION
Term
Subject to earlier termination and/or cancellation in accordance with these Terms, these Terms will continue for the initial term as specified in the applicable form of invoice or subscription (“Initial Term”) and, unless otherwise specified in the applicable invoice or subscription, these Terms will be automatically renewed for additional periods of the same duration as the Initial Term, on the same terms and conditions as the Terms, except for any changes to fees, unless either Party terminates and/or cancels the Terms prior to the end of the then-current term. The Initial Term and any subsequent renewals will collectively be referred to as the “Term”.

Termination and/or Cancellation
We can terminate and/or cancel the Terms and your access to and use of the Software at any time, without penalty, with or without cause, and with or without notice. We reserve the right to modify, suspend, or end all or any part of the services at any time, without penalty, with or without cause, and with or without notice. Upon termination and/or cancellation of the Terms, you agree to cease accessing and using the Software. For clarity, if you are participating in a trial, the first day of your Initial Term will start on the first day following the end of the Trial Period.

Effect of Expiration or Termination and/or Cancellation
Upon expiration or earlier termination and/or cancellation of the Terms, unless otherwise specified in the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party, including, but not limited, to the license, with the following consequences:

Any compensation accrued but not paid will become immediately due and payable.
Upon termination and/or cancellation of the Terms, your right to access and use the Software shall immediately terminate and/or cancel, you shall immediately cease all use of the Software, and you shall destroy or return to us and make no further use of any proprietary materials, or other items (and all copies thereof) belonging to us. All sections of the Terms which by their nature should survive termination and/or cancellation will survive termination and/or cancellation, including, without limitation, accrued rights to payment, confidentiality obligations, governing law, disclaimers, and limitations of liability. Further, you will have no right to receive any refund of any prepaid amounts if you terminate and/or cancel during the Term or if we terminate and/or cancel for cause.
Payments Due before Termination and/or Cancellation
Payments due before the termination and/or cancellation of the Terms will still be payable by you at the time of such termination and/or cancellation. In addition if you breach any of the Terms including, without limitation, failing to pay any sum that is due, in addition to any other remedies, you will reimburse us for all attorneys’ fees, court, collection, and other costs incurred by us in the enforcement of our rights under the Terms.

MISCELLANEOUS
Notice
All notices, requests, demands, approvals, requests for approvals or other communications under the Terms shall be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested if confirmed by return receipt, (iii) upon delivery when delivered by Federal Express or other recognized international overnight courier, (iv) upon receipt when sent by fax with confirmation, provided, however, that it shall be deemed delivered the next business day if sent on a non-business day or after 5pm New York time on a business day; and (vi) by email to you if sent by us to any email address provided to us. Notwithstanding anything to the contrary, notice will be sufficiently given to you, if provided by us to you via any email address provided to us or through the Software. Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription order. Copies of any notice given by you to us must also be delivered to: Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231. A party’s address for notice may be changed by that party providing notice to the other party in accordance with this Section 9.1 (Notice).

Merger/Modification
Each Party acknowledges that it has read the Terms, it understands them, and agrees to be bound by them, and further agrees that this is the complete and exclusive statement of the Terms between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the Terms. The Terms may not be modified or altered except by written instrument duly executed by both Parties. Further, we are not, and will not be, bound by any provision of your purchase order, correspondence, or otherwise.

Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the State of New York, United States. Parties agree that any litigation arising out of or related to the Terms must be brought in a court located in the State of New York, United States as the exclusive and mandatory venue and jurisdiction for any litigation arising out of or related to the Terms. No action arising out of the Terms or your use of the Software, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

Severability
If any provision of the Terms is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Assignment by Us
We may assign the Terms in whole or in part.

Assignment by You
You may not assign the Terms in whole or in part.

Waiver
A waiver by either Party of any terms or conditions of the Terms in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in the Terms shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.

Relationship of Parties
The Parties are not employees, agents, partners or joint venturers of each other. Neither Party shall have the right to enter into any agreement on behalf of the other.

Headings and Titles
The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not intended to define, limit or construe the contents of the various sections.

Entire Terms
The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations or undertakings hereto except as expressly provided herein.

English Only
It is the express wish of the parties that the Terms and all related documents have been drawn up in English. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Survival
Notwithstanding any termination, cancellation or expiration of the Terms, the provisions hereof that are intended to continue and survive, shall continue and survive, including, but not limited to Sections 4, 5, 6, 7, and 9.

Expenses
Except as otherwise specified in the Terms, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Terms and the transactions contemplated in the Terms shall be paid by the Party incurring such costs and expenses.

 

Website Terms of Use

 

These terms and conditions of use (“Terms of Use”) comprise a legal agreement between Pulsewear Inc. (“Company”) and you, the person accessing and using this website (“you”). These Terms of Use set forth the legally binding terms and conditions for the use of the Company’s website at www.dreamon.co, interaxon.ca, DreamOn.ca, professionals.DreamOn.co (collectively and individually, “Website”) that is owned, operated and maintained, directly or indirectly, by Company, and all other sites owned and operated by Company that redirect to the Website, all subdomains provided through such other site or the Website, and all downloadable applications, features, functionality, content or information that is made available or provided on this Website.

BY USING THE WEBSITE YOU ARE DEEMED TO HAVE READ AND ARE INDICATING YOUR ACCEPTANCE OF, AND YOU AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THESE TERMS OF USE WHICH SHALL GOVERN YOUR ACCESS AND USE OF THE WEBSITE.

IF YOU DO NOT AGREE WITH ONE OR MORE OF THESE TERMS OF USE YOU MAY NOT ACCESS OR USE THE WEBSITE AND MUST EXIT THE WEBSITE. IF YOU DON’T WISH TO USE THE SITE AND WISH TO ACQUIRE SOMETHING THAT IS ONLY AVAILABLE THROUGH THE SITE, PLEASE CONTACT CUSTOMER CARE AT http://www.dreamon.co/support TO MAKE ALTERNATIVE ARRANGEMENTS.

In consideration of the mutual promises and agreements contained in these Terms of Use and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), you and Company agree as follows:

Purpose and Website Services
The Website is made available to you for the purpose of providing you with information. From time to time, the Website may provide certain services, which may include, without limitation, the ability to acquire products (each a “Service”), which Services, and said acquired products, may be subject to the acceptance of the terms and conditions of use specific to that Service or product (“Service Terms”) and all other operating rules, policies, and procedures that may be published on the Website by Company from time to time and which will be made known to you prior to your use of any such Services. In the event of any inconsistency between these Terms of Use and any applicable Service Terms, these Terms of Use shall prevail, but only to the extent of such inconsistency. Company reserves the right to change the Website or change, eliminate or interrupt any of the Services.

Acceptance and Modification of Terms
The Website, Services and products acquired through the Website, are offered subject to acceptance of all of the terms and conditions contained in these Terms of Use. Company reserves the right to modify or replace the Terms of Use, including the sections 3 to 27, with or without notice to you, and recommends that you review the Terms of Use on a regular basis. You may access the current version of these Terms of Use at: http://www.dreamon.co/legal. If Company makes a change to the Terms of Use, it will post the revised version at the link above. If you use the Website after the coming into effect of any such modification or replacement, you are deemed to have read and are indicating your acceptance of, and you agree to be bound by, the modified or replaced terms of use, which modified or replaced terms of use shall be the Terms of Use.

Void Where Prohibited
The Company operates its main Website from the State of New York, United States. Although the Website is accessible worldwide, not all features, products and services discussed, referenced, provided or offered through or on the Website are available to all persons in all geographic locations, or appropriate for use in all jurisdictions. Company reserves the right to limit in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on this Website is void where prohibited by law. If you choose to access the Website from anywhere or any feature, product or service which is prohibited by law, you do so on your own initiative and you are solely responsible for complying with applicable laws.

Accounts and Passwords
To access and use certain features of the Website, you will need to create an account. As part of the process to create, register and maintain your account you must provide Company with certain current, complete, and accurate registration information, including your e-mail address and other data or information that has been requested by Company during the client account registration or renewal process (“Registration Data”). In these Terms of Use, “Personal Information” means any information about an identifiable individual, such as your name, e-mail address, mailing addresses, gender, date of birth, any data about you that you elect to provide electronically through the Website and any other information that identifies who you are. Registration Data and Personal Information will be used by Company solely in accordance with these Terms of Use and Company’s privacy policy (the “Company’s Privacy Policy”).

You agree that you will: (a) maintain and update such Registration Data as necessary in order to keep such information current, complete, and accurate; (b) maintain the confidentiality of any passwords or other account identifiers which you choose or that are assigned to you as a result of any registration or account creation with the Website: and (c) be responsible for all activities that occur under such password or account. Further, you agree to immediately notify Company of any unauthorized use of your password or account in the event that the confidentiality of your password or your account is compromised. Failure to comply with this paragraph may result in immediate termination of your account. Except to the extent this limitation is prohibited by applicable law, Company shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this section.

License
Company hereby grants you a limited, non-exclusive, personal, non-transferable, non-sub-licensable and revocable right and license to: (a) access the Website for the purpose of receiving the Services in accordance with these Terms of Use and (b) access, view and print any information and documentation (such as data sheets, knowledge base articles, and similar materials) purposely made available by Company for downloading from the Website, provided that you: (1) not remove any proprietary notice language in all copies of such documents; (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media; and (3) make no modifications to any such information . Except for the limited licenses and rights expressly granted to you in the Terms of Use, these Terms of Use do not grant you any other right or license, whether express or implied, by estoppel, or otherwise in or under any patent, trademark, copyright, or other intellectual property or proprietary right of Company or any third party. Company may terminate this license at any time for any reason whatsoever.

Suspension and Termination of Access
Company may suspend or terminate your access to the Website immediately without prior notice and without further obligation or liability to you if, in Company’s sole discretion, it determines you have breached these Terms of Use. Company may also suspend your access to the Website or terminate these Terms of Use at any time without written notice to you for any reason whatsoever. If the Terms of Use are terminated for any reason, you are still bound by the Terms of Use as set out herein. Company has no liability of any kind or any nature whatsoever to you solely by reason of any change, modification, suspension or discontinuance of the Website or any or all of the Services in accordance with its terms. Except to the extent this limitation is prohibited by applicable law, you agree that you shall not make any claim against Company, including with respect to any lost revenue, profits or opportunities as a result of such change, modification, suspension or discontinuance or on account of any expenditures made or actions taken in reliance on the expected continuation of the Website, the Services or these Terms of Use.

Content
All text, data, content, audio files, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, layout, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on or available through the Website is owned, controlled or licensed by or to Company, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided herein, no part of the Website and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Company’s express prior written consent.

The Website may include Content that is owned by third parties (“Third Party Content”). You agree that all of the terms and conditions of these Terms of Use relating to the Website apply to your access to and use of any Third Party Content and you further agree to comply with any terms and conditions that are specific to the Third Party Content, including the terms and conditions specified under these Terms of Use. Company is not responsible, and assumes no liability, for any Third Party Content.

If you make any information, data or content available to Company on or through the Website, including by contacting us, or providing comments or ideas about the Services or the Website (“User Content”), you are deemed to grant Company a non-exclusive, transferable, sub-licensable, irrevocable, royalty-free, perpetual, worldwide license to store, use, copy, reproduce, modify, adapt, edit, translate, publish, perform and display any such User Content that you make available on, through, or in connection with the Website without any payment or restriction. You are solely responsible and liable for any User Content you make available on or through the Website or that is made available using your Website account. If you make User Content available, you represent that you have the right to do so.

Use Restrictions
You agree that when using the Website you will not: (a) post or transmit any files which contain viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties; (b) post or transmit data or content which violates or infringes any third party rights, is false, misleading or inaccurate or is injurious to a third party or defames, libels or disparages any third party; (c) except as expressly permitted by these Terms of Use, provide, disclose, sublicense, distribute, transfer, assign or otherwise permit any third party to access, use, read or otherwise gain access to the Website; (d) use the Website to provide the benefit of the use of your account, if any, to or for any other person; (e) to the maximum extent permitted by applicable law, interfere with or circumvent any copyright or other technical protection mechanism or reverse engineer, decompile, disassemble, or otherwise in any manner deconstruct all or any part of the Website or any software or technology or content forming part thereof; (f) post or transmit data which constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters; (g) post or transmit data or content which would be considered a criminal offence, give rise to civil liability, or would otherwise violate the law; (h) use the Website or Services to harvest addresses, send spam or otherwise breach these Terms of Use or the Privacy Policy; (i) use any spider, robot or other automated or electronic agent to monitor or copy web pages or any content from the Website or for any other purpose in connection with your access to and use of the Website; (j) take any action or use any program or device that may result in or is intended to interfere with the operation and functioning of the Website or to shut down, overload or overwhelm the Website; or (k) copy, republish or redistribute any part of the Website, including by caching, framing or similar means, without the prior written consent of Company.

Personal Information
You agree that your use of the Website and the Services is subject to the terms of our Privacy Policy, as set out from time to time at http://www.dreamon.co/legal which is hereby incorporated by reference into, and forms an integral part of, the Terms of Use. By agreeing to the Terms of Use or by using the Website, you expressly consent to the collection, storage, use and disclosure of your information, including your Personal Information, according to our Privacy Policy. You represent and warrant to Company that you are at least 18 years of age and that you have the full, unrestricted right and authority and have been fully authorized to provide to Company any and all Registration Data (including any Personal Information) for the purposes of these Terms of Use and that Company is authorized and permitted to use such data as and to the extent provided in these Terms of Use.

Use of Cookies
You agree that Company has the right to monitor and review your use of the Website and Services from time to time, and to use “cookies”, “log files” and your “browsing data” in accordance with our Privacy Policy.

Subscription Fees and Charges
Your use of certain Services may be subject to subscription charges for those Services which are disclosed to you during your initial registration or renewal for such Services, and which are payable in accordance with the terms and conditions of special terms of use applicable to those Services.

Support
Company may in its discretion, without any obligation to do so and subject to the limitations of these Terms of Use (or as may be posted on the Website from time to time), provide you with troubleshooting support concerning your use of the Website and any Services.

Website and Services Provided “AS IS”
YOU UNDERSTAND AND AGREE THAT THE WEBSITE, THE SERVICES, ANY COMPANY CONTENT AND OTHER INFORMATION, DATA AND MATERIALS AVAILABLE ON THE WEBSITE OR PROVIDED AS PART OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN AND PERMITTED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, TITLE OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND ANY CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

COMPANY DOES NOT OFFER ADVICE OR RECOMMENDATIONS CONCERNING INFORMATION OR DATA CONTAINED IN ANY SERVICES OR COMPANY CONTENT AND ANY ACTIONS TAKEN, OR FAILURES TO ACT, IN RELIANCE ON ANY COMPANY CONTENT (OR OTHERWISE ON THE SERVICES) BY YOU OR ANY OTHER PERSON IS YOUR SOLE RESPONSIBILITY AND LIABILITY. COMPANY SPECIFICALLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE OR ANY OF THE SERVICES (INCLUDING THE PROVISION OF ANY COMPANY CONTENT) WILL BE ACCURATE, RELIABLE, COMPATIBLE WITH YOUR COMPUTER, OR COMPLETE OR WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT ANY ERRORS CAN OR WILL BE CORRECTED OR THAT ANY SERVICES, COMPANY CONTENT, DATA OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL ELEMENTS.

YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THE WEBSITE. EXCEPT AS OTHERWISE AGREED IN WRITING, COMPANY AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE WEBSITE.

IF YOU ARE DISSATISFIED WITH THE WEBSITE, THE SERVICES OR WITH ANY OF THE TERMS, CONDITIONS, GUIDELINES, PRACTICES OR POLICIES OF COMPANY IN OPERATING THE WEBSITE AND IN PROVIDING THE SERVICES YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USING THE WEBSITE AND SERVICES.

Limitation of Liability
CONSUMER PROTECTION LAWS IN YOUR JURISDICTION MAY PROHIBIT ANY STIPULATION THAT WOULD RELIEVE A MERCHANT FROM THE CONSEQUENCES OF HIS OR HER OWN ACTION. IF YOU ARE A CONSUMER IN SUCH A JURISDICTION, THIS SECTION 14 DOES NOT APPLY TO THE EXTENT THAT IT WOULD RELIEVE THE COMPANY OR ITS REPRESENTATIVE(S) OF LIABILITY FOR ANY ACTION OF THE COMPANY.

UNDER NO CIRCUMSTANCES SHALL COMPANY, BE LIABLE TO YOU, OR TO ANY OTHER PARTY, FOR ANY LOSSES, COSTS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF (OR THE INABILITY TO USE) THE WEBSITE, SERVICES, OR ANY COMPANY CONTENT OR THIRD PARTY CONTENT (REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, EQUITY, STRICT LIABILITY, BY STATUTE OR OTHERWISE AND REGARDLESS OF THE OCCURRENCE OF A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE) THAT EXCEEDS, IN THE AGGREGATE, ANY AMOUNTS THAT YOU HAVE PAID COMPANY IN RESPECT OF THE SERVICES IN THE THIRTY (30) DAY PERIOD THAT IMMEDIATELY PRECEDED THE DATE OF YOUR CLAIM.

IN NO EVENT WHATSOEVER SHALL ANY OF THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD-PARTY CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY THE “COMPANY PARTIES”) BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF WEBSITE OR THE PROVISION OF THE SERVICES (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE WEBSITE OR THE USE OF, OR RELIANCE ON, ANY COMPANY CONTENT OR OTHER INFORMATION OR DATA CONTAINED ON OR PROVIDED THROUGH THE WEBSITE OR SERVICES, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY DIRECT OR INDIRECT BUSINESS INTERRUPTION OR DIRECT OR INDIRECT LOSS OF REVENUE OR PROFIT OR ANY OTHER DIRECT OR INDIRECT ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE COMPANY PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.

THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE WEBSITE, SERVICES AND ANY PROVIDED SUPPORT IS ASSUMED BY YOU.

Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation.

The terms and conditions of these Terms of Use that limit liability reflect an informed voluntary allocation of risk; such allocation represents a material part of these Terms of Use. You agree that the limitations of liabilities set out in these Terms of Use are fair and reasonable in the circumstances.

Indemnity
Except to the extent if you reside in a jurisdiction which prohibits such a provision, you agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions, demands, losses, liabilities, damages, costs and expenses suffered by such persons, including without limitation, reasonable legal and accounting fees, alleging or resulting, directly or indirectly, from your: (a) breach of these Terms of Use; (b) access to the Website or use of the Services; and (c) provision of User Content, Registration Data or other disclosure to Company of any other information or data and the use of same by Company or other Company Party as contemplated hereunder.

Trade-marks
All product, brand and company names, logos and registered or unregistered trade-marks, displayed on the Website or used in connection with the Services or products including, without limitation: “PULSEWEAR”, “DREAMON”, “DREAMON BAND”,“DREAMON APP” and all related branding elements, are the trade-marks of Company (or its suppliers, partner businesses or third party licensors, as applicable). Any use of any of the marks appearing on the Website or in connection with the Services or Company products without the express written consent of Company or the owner of the mark, as appropriate, is strictly prohibited.

Company provides links on the Website to other websites or resources, including those operated by parties other than Company. These links are provided for your convenience and Company is not responsible for the availability of such websites or resources and does not endorse or accept responsibility for the content of such external websites or resources and has no responsibility for or control over the terms of use or privacy policy (if any) of the operators of the external websites or resources. Your access and viewing of any third party websites or resources is conducted at your own risk. You are strongly advised to check the terms of use and the privacy policies of these external websites or resources before making use of them. You acknowledge that Company may remove any link to an external website or to resources at any time for any reason whatsoever.

Jurisdiction
The Website is administered by Company from a site that is located in the State of New York, United States. You acknowledge and agree that your use of the Website and all of the communications, transmissions and transactions associated with the Website and the provision of the Services shall be deemed to have occurred in the State of New York, United States. You agree that these Terms of Use shall be exclusively governed by, construed and interpreted in accordance with the laws of the State of New York, United States and those federal laws of the United States applicable therein is the proper law. You irrevocably attorn to the exclusive jurisdiction of the State of New York, United States in respect of all matters and disputes arising hereunder. The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.

You expressly agree that, in the event that there is a dispute under these Terms of Use and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial and you hereby waive any right to trial by jury.

Waiver
No delay or omission by Company to exercise any right or power it has under these Terms of Use or to object to the failure of any covenant of you to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waivers by Company must be in writing and signed by an authorized representative of Company.

Entire Agreement
These Terms of Use, together with any applicable Service Terms, constitute the entire agreement between you and Company as it relates to the access to, and use of, the Website and Services and the subject matter of these Terms of Use and supersede all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral between Company and you.

Interpretation
In these Terms of Use: (a) words denoting the singular include the plural and vice versa; (b) all usage of the word “including” means “including, without limitation,” throughout these Terms of Use; (c) all dollar amounts are expressed in US currency unless expressly provided otherwise; (d) the division of these Terms of Use into separate sections, subsections and the insertion of headings are for convenience only and shall not affect the construction or interpretation of these Terms of Use; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; and (f) you and the Company agree that these Terms of Use shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms of Use. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of these Terms of Use, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of these Terms of Use shall be valid and enforceable to the extent permitted by law.

Electronic Communications
For contractual purposes, you consent to receive communications electronically from us and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.

Conformance with Law
In addition to complying with these Terms of Use, you agree to use the Website and Services for lawful purposes only and in a manner consistent with all applicable local, national or international laws and regulations, including all privacy and personal information laws. The Website and any Services shall not be used where, and to any extent, such use is prohibited by law. Your use of the Website from any location is subject to your compliance with all applicable laws and regulations that may be applicable to you. You agree, and confirm, that your use of the Website is in full compliance with the laws of the jurisdiction(s) to which you are subject, and that you are not prohibited from using the Website due to any restriction whatsoever and that you have obtained all necessary consents and approvals required or reasonably necessary.

Termination
Company may terminate these Terms of Use and your use and access of the Website and/or Services if you fail to comply with any provision of these Terms of Use. To the extent permitted by applicable law, the disclaimers, limitations on liability, termination, interpretative provisions, and your warranties and indemnities shall survive any termination of these Terms of Use. Company shall not be required to refund to you any amounts prepaid, if any, for use of the Website or any Services if Company has terminated your account or your use of, or access to, the Website and/or any of the Services for breach of these Terms of Use. Notwithstanding anything to the contrary, Company may also terminate your access to the Website without notice at any time for any reason whatsoever, and any fees or charges paid by you in advance, if any, shall be refunded on a pro rata basis.

Contact / Notices
If you have any questions about the Terms of Use please contact us through http://www.dreamon.co/support. If you need to provide any legal notice you should deliver the notice in person, by courier or by mail, to Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231. Company may provide notices or communications to you on the Website, with any products, or through the Services, and you agree that such notices shall constitute notice to you whether or not you actually access the notice.

Assignment
These Terms of Use are personal to you, and are not assignable, transferable, or sublicensable by you except with Company’s prior written consent. Company may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.

© 2019 Pulsewear Inc. All rights reserved.

 

Limited Warranty For The DreamOn device

 

Dead on Arrival Products. If you are the original purchaser of a DreamOn device from Pulsewear or an authorised Pulsewear retailer and the DreamOn device is Dead on Arrival (namely, when you first attempted to use the product after opening the box, it demonstrated hardware failure, preventing even basic operability), the DreamOn device may be returned by you to us within thirty (30) days of your original purchase.

If we verify that you were the original purchaser of the product and the product was Dead on Arrival, we will offer you the following options at our expense:

(a) ship you a replacement product; or

(b) service the product, in which case you will not have the right of replacement.

To be eligible to return any Dead on Arrival product to us, you must follow the warranty claim process set out below.

Manufacturer Defects. Your DreamOn device is warranted by Pulsewear Inc. and/or its affiliates (“Pulsewear”) to be free of defects in materials or workmanship, under normal use, for a period of one (1) year from the date of your original purchase of the new DreamOn device except to the extent a longer period is required by applicable law (the “Warranty Period”). This limited warranty excludes damage resulting from: (i) improper care or handling (including, without limitation, user abuse or proximity to moisture or heat), (ii) accidents, (iii) modification, (iv) unauthorized repairs, (v) use of the DreamOn device with accessories, products, services or software applications not expressly approved or provided by Pulsewear, (vi) use of the DreamOn device in a manner contrary to, or not in accordance with, the documentation, guidelines or instructions provided by Pulsewear or (vi) other causes which are not defects in materials or workmanship of the DreamOn device.

This warranty does not cover: (a) used or refurbished products; (b) products provided as a “sample”, “AS IS” or “complimentary”; (c) any third party products Pulsewear sells; or (d) any accessories for the DreamOn device.

The warranty only extends to new DreamOn devices purchased by you from Pulsewear or an authorised Pulsewear retailer.

If there is a covered defect with the DreamOn device, Pulsewear will, at its discretion, repair (with new or refurbished parts) or replace (with new or refurbished product) your DreamOn device free of charge, or will issue you with a refund. The Warranty Period for the repaired or replaced DreamOn device will expire upon the expiration of the original Warranty Period (except to the extent Pulsewear is expressly required by law to provide you a longer Warranty Period for the repaired or replaced DreamOn device).

This warranty is a hardware only warranty that is limited to the DreamOn device and does not cover any software made available, shipped, pre-loaded, or distributed by Pulsewear or any third party, even if the software is packaged or sold with the product, or available for the product at a later time. Software license agreements apply to your use of the software associated with the DreamOn device. The software license for Pulsewear proprietary software to be used with the DreamOn device is described in the applicable Pulsewear end user license agreement.

To be eligible to return any defective DreamOn device to us, you must follow the warranty claim process set out below.

Warranty Claim Process. To be eligible to return any DreamOn device to us, you must have a Dead on Arrival product or a DreamOn device with a manufacturer’s defect and you must:

(1) prior to shipping the DreamOn device to us, contact us through http://www.dreamon.co/support and obtain a Return Material Authorization (RMA) number, shipping address and other instructions. The RMA number must be included with your DreamOn device return

(2) provide us with valid proof of your original purchase

(3) package the DreamOn device in the original, unmarked packaging together with all accessories, manuals, and documentation (unless otherwise requested by Pulsewear)

(4) include a description of the reason for the DreamOn device return.

If we determine that there was no valid reason for returning the DreamOn device to us (i.e. it was not Dead on Arrival or did not have a manufacturer’s defect), we may, at our discretion, refuse to accept the DreamOn device or return the DreamOn device to you and charge you a USD$100 handling fee.

Limitation of Liability. The DreamOn device is provided “AS IS AND WITH ALL FAULTS”, and Pulsewear hereby disclaims all other warranties, conditions and the provision of or failure to provide support or other services, information, software, and related content through the DreamOn device or otherwise arising out of the use of the DreamOn device. This limited warranty is in place of all other express and implied warranties, conditions, representations, or guarantees of any kind (including, without limitation, implied warranties of merchantability, satisfactory quality and/or fitness for a particular purpose) which are all hereby excluded and shall have no effect. In no event shall Pulsewear or anyone acting on behalf of or with Pulsewear (including, without limitation, in relation to the manufacture, supply, distribution, sale, repair or return of the product) be liable for any direct, indirect, incidental, special or consequential loss or damages whatsoever (including, without limitation, damages for loss of profits, loss of use of the products or functionality, business interruption, loss or corruption of information (including data), or other pecuniary loss) arising out of the use or inability to use the DreamOn device even if Pulsewear or anyone acting on behalf of Pulsewear has been advised of the possibility of such damages. This limitation is intended to apply and does apply without regard to whether such damages are claimed, asserted or brought in an action or claim in tort, contract, on the warranty, or under any other legal theory. The liability of Pulsewear (and any one acting on behalf of or with Pulsewear) to you for loss or damage arising under this warranty shall not exceed in aggregate the net purchase price you paid for the product or the cost of replacing the DreamOn device, whichever is greater. The foregoing shall not in any way restrict any liability in relation to death or bodily injury or statutory liability for intentional and gross negligent acts or omissions. No other person or company is authorized to change this warranty.

Some states and countries do not allow limitations on how long an implied warranty lasts, or the exclusion of all or certain types of damages, so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may also have other additional statutory rights, which vary from state to state or within a particular country. The foregoing is without prejudice to other legal rights that may arise under applicable mandatory legislation. This warranty extends only to new DreamOn device purchased by you from Pulsewear or an authorized Pulsewear retailer.

Governing Law. Unless stated otherwise below, this limited warranty will be governed by, and construed in accordance with, the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of the State of New York, United States.

i. If you are domiciled in a country located in Europe, Middle-East or Africa, this limited warranty will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.

ii. If you are domiciled in a country located in Asia-Pacific, this limited warranty will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.

iii. If you are domiciled in the United States of America, this limited warranty will be governed and construed in accordance with the laws of the State of New York, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of the State of New York, United States.

The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

Privacy and Consent. Information received by Pulsewear will be used, processed, transmitted, and disclosed in accordance with Pulsewear Privacy Policy (available at http://www.dreamon.co/legal) in order to perform the warranty services described in this limited warranty. This may include obtaining your information and the product from service providers, retailers, resellers and distributors involved in the chain of custody of the product upon which warranty services are performed, and transferring your information and the product to Pulsewear service providers. You agree that Pulsewear and its affiliates, agents and providers may collect and use the information gathered in any manner as part of services related to the product.

Language. If this Warranty is translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Miscellaneous. If there is any conflict between this limited warranty and any other warranty provided to you including, without limitation, in the packaging of the product, the provisions of this warranty shall be applied by Pulsewear to the extent of such conflict. If any term, provision or sub-section of this warranty is held to be void, illegal or unenforceable, the validity or enforceability of the remainder of such term, provision or subsection and this warranty will not be affected.

 

Privacy Policy

 

Pulsewear’s Commitment to Privacy

At Pulsewear, our vision is to empower personal transformation to improve lives and change the world. Our goal is to be industry leaders in the protection of users’ privacy.

We are committed to the following privacy principles:

Your personally identifiable information belongs to you, and at all times you retain complete ownership of your personally identifiable information collected by us during your use of Pulsewear products and services.
You decide in accordance with our privacy policy if and when your personally identifiable information is shared. At any time, you may request the removal of your personally identifiable information from our possession and control.
When we store your personally identifiable information, we take security measures that meet or exceed industry standards.
Please read our privacy policy below to learn more about the kinds of personally identifiable information we collect about you, how we use it, how we protect it, and under what circumstances we share it with third parties and to learn more about the decisions you can make about your personally identifiable information. Contact us at support@dreamon.co if you have any questions or if any aspect of this policy doesn’t make sense.

Pulsewear Privacy Policy

Effective Date of the Privacy Policy: March 28th 2019

Pulsewear Inc. and its affiliates (individually and collectively, “Pulsewear”, “we”, “our” or “us”) value our customers, including you (you or your) and we respect your privacy and your Personally Identifiable Information. Personally Identifiable Information (PII) is information that includes a personal identifier such as your name, email or address, or data that could reasonably be linked back to you. This privacy policy applies to all our products, services, and websites, including the DreamOn device and associated mobile software, and our websites located at www.dreamon.co and www.pulsewear.co (individually a Product and collectively Products).

If this policy changes in the future, we will post an updated version on our website at www.dreamon.co and/or www.pulsewear.co. We recommend that you check these websites periodically in order to review our current policy. You can tell if this policy has changed by checking the effective date that appears at the top of the policy. Depending on the circumstances, we may also decide to send you a notice in other ways in our discretion, such as via email or other contact information you have provided that the policy was changed. If you continue to use our Products after the policy changed or notice of the change has been given, you will be deemed to have accepted such changes.

INFORMATION WE COLLECT

WHEN YOU CREATE AN ACCOUNT WITH US
To use our Products, you may be asked to download our mobile or desktop application, and you may need to create an account with us. In order to create an account, you may need to provide us with information such as your login credentials (e.g. your email address, name and/or password), geographic region, handedness, gender, and year of birth.

WHEN YOU USE OUR PRODUCTS

When you use our Products, we may collect technical properties of the hardware and software used in conjunction with our Products. For example, when you are accessing certain web pages and/or features of our Products, we may collect the type and model of hardware and/or web browser you are using, how long you use our Products, and the operating system version you are using in conjunction with our Products.

DATA SYNCED WITH THE CLOUD

Data about your activity is automatically transferred from your device to our cloud. This data is stored and used to provide the Products. Each time a sync occurs, we also log data about the transmission. Some examples of the log data are the sync time and date, your device’s battery level, and the Internet Protocol (IP) address used when syncing. Such logged data may include your access date and time, duration of access, the specific web and/or application service used.

WHEN YOU MAKE PURCHASES FROM US

While payments made through or for our Products are processed through a third party payment processor, information to administer, manage, and fulfill the purchases you make may be collected by us or on our behalf. Such information may include your name, email address, account information, what is ordered, the date and time of the order, the quantity and price of the order, whether payment was made, method of payment, purchase history, and if you re-ordered.

WHEN YOU CONTACT US FOR HELP

Your customer service telephone calls, emails and other communications with us and our service providers, if any, may be recorded, logged, and/or monitored for quality assurance, and/or product and service enhancement purposes such as to assist in addressing your inquiries, troubleshooting, training and analytics to identify trends and make improvements to our products and services. As part of the recording and logging of the calls and emails, we may collect information like the identity of the caller or sender of email, the date and time of the call or email, and the subject and resolution of the issue.

WHEN YOU ACTIVATE LOCATION FEATURES

When you use our Products, we may collect your IP address. Our application may ask you to enable location sharing in order to provide you with location features, and if you enable it we may store your location on our cloud. If enabled, you may deactivate these location features at any time and we will stop collecting this type of information. Such deactivation may restrict your use of the Products on certain platforms due to limitations applicable to those platforms. For example, access to Bluetooth low energy on Android requires that location features be active.

COOKIES

In addition, when you visit our website, we collect information about your activity on our website, as described below under the heading “Our Use of Cookies, Log Files, Web Beacons, and Embedded Scripts”.

HOW WE USE YOUR INFORMATION

We use your information to help you make the most of your experience using our Products, and to improve our Products and protect Pulsewear. For example, we may use your information:

to understand and meet your needs and preferences, and/or to provide you with our Products, for example:
for purposes related to the billing, activation, provision, maintenance, support, troubleshooting, resolving disputes, deactivation, upgrade, or update of Products;
to process and fulfill your order, send you emails to confirm your order status and shipment, send you Products you order, and allow you to pay for Products you order;
to check if Products are technically functioning as intended and to help identify and troubleshoot issues;
to fulfill or enforce any agreements or notices we provide (“Notice(s)”);
to manage or respond to your inquiries;
to develop new and enhance existing Products including to communicate with you about them using various means, for example to make available or send to you upgrades or updates, or notices of upgrades or updates of Products;
to inform you of our product and service offerings including new features, functionality, and/or learning opportunities;
to manage and develop our business and operations, for example;
to detect, monitor, investigate, mitigate or attempt to prevent fraud and technical or security issues or to protect our property;
to allow for business continuity and disaster recovery operations;
to enforce our legal rights; and
for statistical purposes;
to meet legal and regulatory requirements and to respond to what we consider emergency situations, for example:
to respond to court orders, warrants or other lawful requests or legal processes;
to provide emergency assistance in situations that may threaten the life or physical safety of you or others;
to protect our legal rights; or
for any other purposes for which you have consented, such as those that may be set out in notice, and other purposes as permitted or required by any applicable law.
We will retain your PII as long as necessary for the fulfillment of the identified purposes or as otherwise necessary to comply with applicable laws.

VOLUNTARY RESEARCH PROGRAMS

Developing new algorithms for the classification of data requires intense research. The most useful tool in advancing science is data from users like you.

While using the Products, we may, from time to time, ask you to participate in research programs aimed at improving our understanding of sleep, developing new algorithms, improving our ability to deliver products and services, and/or advancing scientific research.

Participation in such programs is entirely voluntary, and the choice to participate will always be presented to you clearly. We will inform you, when presenting the choice, what types of data will be collected as part of the research program and what additional rights we may have with respect to the use of such data.

You can choose at any time to withdraw your consent to participate in any voluntary research program. Should you withdraw your consent, your non-aggregated PII will not be used by us in any future research or reports.

INFORMATION THAT COULD IDENTIFY YOU

We will only share your PII data with the following parties and/or under the following circumstances:

within Pulsewear and/or with our service providers such as a cloud service provider;
with our financial, insurance, legal, accounting or other advisors that provide professional services to us or with our investors;
if you have consented or if you direct us to share it with third parties. For example, you might direct us to share PII with a professional as part of a wellness program;
with third parties involved in providing Products to you or monitoring the use of our Products which may include authorized resellers, distributors, and merchants of record or payment processors. Once you direct us to share your PII with a third party, that PII is governed by the third party’s privacy policy;
if you are participating in a corporate program, any and all information about your use of the Products with your employer or its agents, if your employer has confirmed that you have authorized such disclosure;
as necessary to complete any transactions while using our Products;
respond to a subpoena, order, legal process, or governmental request;
protect, establish or exercise our legal rights or defend against legal claims;
investigate, detect, suppress, prevent or take action regarding illegal or prohibited activities, suspected fraud, situations involving potential threats to the reputation or physical safety of anyone;
as otherwise required by law;
if we are to be sold, merged, or amalgamated or substantially all of its assets are to be sold or disposed of, your personal information may be transferred to a potential purchaser if, and to the extent necessary, it is required for the purposes of deciding whether to proceed with the proposed transaction and completing it. If such a sale, merger, acquisition, or disposal is completed, we will use reasonable efforts to direct the transferee to use personal information you have provided to us in a manner that is consistent with this Policy. Following such a sale or transfer, you may contact the entity to which we transferred your personal information with any inquiries concerning the processing of that information; or
if you have authorized us to share it in accordance with any voluntary research program terms and/or and terms and conditions you have agreed to or a Notice.

INFORMATION THAT DOES NOT IDENTIFY YOU (DE-IDENTIFIED DATA)
Some of the information shared by you through our Products may not by itself identify you to us or be personally identifiable and therefore may not be considered PII. If we combine any such non-personally identifiable information with other PII available to us, the combined information will be treated as PII in accordance with this policy.

You own all your PII and have control over how you share it in accordance with this policy. However, notwithstanding anything to the contrary contained in this policy, we may remove personal identifiers from your information and maintain and use it in a de-identified form that may be combined with other information to generate aggregated information. Such de-identified and/or aggregated information will be deemed to be owned by us and we shall have unrestricted title, rights, and interest to the de-identified and/or aggregated information which may include, without limitation, the right to use, distribute, transmit, transfer, license, trade, rent, share, assign, and sell the de-identified and/or aggregated information.

OTHER WAYS YOU MIGHT SHARE YOUR INFORMATION

SOCIAL TOOLS

We may provide you with ways for you to share PII with other Product users. When you interact with others, you may be displaying your PII based upon the visibility settings in your user account privacy settings. Always check your user account privacy settings to understand what PII will be visible to others.

CONTESTS AND GIVEAWAYS

Pulsewear may also ask you to participate in surveys that help us understand your use of our products and services. Any PII you provide to us in these surveys will only be used in relation to that survey and in accordance with this privacy policy.

SURVEYS

Pulsewear may offer opportunities to participate in contests, giveaways and other promotions. Any PII you submit in connection with these activities will be treated in accordance with this privacy policy, unless the rules for those offers note otherwise.

HOW TO DEACTIVATE YOUR USER ACCOUNT

You can deactivate your user account by contacting us at support@dreamon.co. When you do, your PII will be removed from the Products. Backup copies of this data will be removed from our cloud based upon an automated schedule, which means it may persist in our archive for a short period. Pulsewear may continue to use your de-identified data and aggregate information.

PULSEWEAR POLICIES FOR CHILDREN

Our Products are not directed at persons under the age of 13. We do not knowingly collect any PII from children under 13. If we become aware that we have unknowingly collected PII from a child under the age of 13, we will make commercially reasonable efforts to delete such PII from our records. If you are aware of a user under the age of 13 using our Products, please contact us at support@dreamon.co.

OUR USE OF COOKIES, LOG FILES, WEB BEACONS, AND EMBEDDED SCRIPTS

When you visit our website, we collect certain information by automated means, such as through server log files, cookies (text files sent to and stored on your device when you access the website), web beacons (also known as clear GIFs and pixel tags, which may be used to transmit information back to the website), and embedded scripts (programming code that is designed to collect information about your interactions with the website, such as the links you click on, and which is active only when you are accessing the website).

The information we collect in this manner may include details about the computer, mobile phone, or other device used to access the website (such as browser type, operating system, and IP address), referring URLs and information on actions taken or interaction with our digital assets.

We may use third party web analytics services to help us analyze how visitors use the website. We may permit these third parties to operate directly on the website, use their own technology (such as cookies or web beacons), and collect information about you on our behalf.

The information we collect in this manner is collected to enhance your user experience. For example, this information allows us to pre-fill form fields as well as provide you with contextual recommendations while using the website.

When you visit our website, we may allow some third parties (such as advertising networks and data analytics companies) to collect information about your online activities over time and across different websites. Your browser settings may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. However, there is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, we currently do not alter our practices when we receive a “Do Not Track” signal from a visitor’s browser.

In some instances, we may also combine information we receive about you from third parties with information we collect through the website.

HOW DOES PULSEWEAR KEEP YOUR INFORMATION SAFE?

We aim to provide you with a safe experience. We have in place certain physical, technical, and administrative safeguards designed to appropriately protect the security and privacy of your PII against loss, theft, and unauthorized access, disclosure, copying, use, or modification. Please note, however, that we cannot guarantee that the measures we maintain will guarantee the security of the information.

We limit access to your PII within Pulsewear to individuals with a need to know.

Your PII may be collected, used, processed, transferred, and retained in multiple countries including United States, Canada, and the European Economic Area which may be outside the region in which you are situated and may have different privacy or data protection legislation, and may therefore be subject to the laws of these countries. If you are a resident of the European Economic Area or a country which restricts data transfers outside of that jurisdiction or region without your consent, by using our Products, you consent to your PII being transferred outside of the European Economic Area or your country for processing or storage by or on behalf of us.

THIRD PARTIES

We may provide links on our Products to third party websites we think you will enjoy. These websites operate independently of us and may have established their own privacy and security policies. Any PII you provide on linked pages or other websites is subject to that third party’s privacy policy. In addition, if you direct or authorize us to share your PII with a third party, that PII is governed by the third party’s privacy policy. This privacy policy does not apply to third parties, or third party linked pages or websites, and we are not responsible for such third party content, policies or practices.

YOUR DECISIONS ABOUT YOUR INFORMATION

At any time you can contact us to: stop receiving emails from us; review the PII held by us in connection with your account; deactivate your account, which will stop any use and disclosure of your PII; and amend your PII, by writing to us at support@dreamon.co. You can unsubscribe from receiving promotional emails from us by simply clicking the “unsubscribe” link provided at the bottom of promotional emails from us. Opting-out of these emails will not end transmission of important service-related emails that are necessary to your account maintenance.

If you contact us to do any of the things listed above, we may require you to provide sufficient PII to allow us to identify you and tell you about the existence, use, and disclosure of your PII and this PII will only be used for this purpose. If you contact us about your PII, we will respond to your request within a reasonable time and at minimal cost or no cost to you in accordance with applicable laws.

Generally, you may withdraw at any time your consent for us to collect, use, and disclose your PII in accordance with this privacy policy, subject to legal or contractual restrictions and reasonable notice. As such, we may continue to collect, use, and disclose your PII as may be required to provide you with our Products, and to the extent that we are contractually obligated to do so or as necessary to enforce any contractual obligations you may have with us. If you refuse to provide us with the information we require or later contact us to withdraw your consent for us to use and disclose your PII, we may no longer be able to provide you with our Products.

CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS

California Civil Code Section § 1798.83 permits users who are California residents to request certain information, including the categories of personal information disclosed to third parties for their marketing purposes and the names and addresses of those third parties, regarding our disclosure of personal information to third parties for their direct marketing purposes, if any. If you are a California resident and you have questions about our practices with respect to sharing information with third parties and affiliates for their direct marketing purposes, please send your request by email to support@dreamon.co or write to us at Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231. You must put the statement “Your California Privacy Rights” in the subject field of your email or include it in your writing if you choose to write to us at the designated mailing address. You must include your name, street address, city, state, and ZIP code. We are not responsible for notices that are not labeled or sent properly, or do not have complete information.

QUESTIONS OR COMMENTS

If you have any questions or comments or wish to make a complaint about this privacy policy, please feel free to contact us by delivery in person, by courier or by mail, to us at Pulsewear LLC, 98 4th st suite 414, Brooklyn New York 11231 or by emailing us at support@dreamon.co. If you contact us about your PII, we will respond to your request within a reasonable time and at minimal cost or no cost to you in accordance with applicable laws. Depending on the circumstances and applicable laws, we may refuse to process certain access requests (for example, access requests that are unreasonably repetitive or systematic, would be extremely impractical or require disproportionate technical effort).

 

Hardware Warnings

 

(a) Do not dispose of the DreamOn device into fire or hot oven, or mechanically crush or cut the DreamOn or the battery contained within as this may result in an explosion.

(b) Do not expose the DreamOn device to an extremely high temperature environment as this may result in an explosion or the leaking of flammable liquid or gas.

(c) Do not expose the DreamOn device to extremely low air pressure as that may result in an explosion or the leakage of flammable liquid or gas.

30 Day Return Policy

(a) Subject to you complying with Pulsewear’s return procedures, if purchased directly from Pulsewear, any undamaged DreamOn device may be returned to Pulsewear provided you have used it for no more than twenty (20) days from delivery and Pulsewear receives it within thirty (30) days from delivery. To return the DreamOn device, you must contact Pulsewear via www.dreamon.co/support to obtain a Return Material Authorization (RMA) number, shipping address, and instructions. You must: (i) ensure that the DreamOn device is not damaged, (ii) comply with the requirements of this Policy, (iii) provide proof of purchase, (iv) package the DreamOn device in the original, unmarked packaging including, accessories, manuals, and documentation, (v) include the RMA number on and in the packaging, and (iv) prepay all shipping charges. Shipping fees, handling fees, and customs duties are at your expense and will not be refunded to you. Pulsewear reserves the right to refuse or return devices not sent in compliance with this Policy and charge you processing, shipping and handling charges.

(b) Except for the return rights set out set out in this Section a., all sales are final and you have no right to return products unless there is a defect in the DreamOn device that is covered under Pulsewear’s Limited Warranty and the DreamOn device is returned to Pulsewear in compliance with Pulsewear RMA procedures.