These are the legally binding Terms & Conditions every Somnofy user has to agree to when using Somnofy products and services.
TERMS AND CONDITIONS
These Terms and Conditions ('Terms and Conditions') apply to any sale of physical products/hardware ('the Products') and any provision of apps, services and data analysis ('the Services') from VitalThings to a Comsumer Buyer ('the Consumer'), unless and only if VitalThings and the Consumer explicitly and in writing has agreed otherwise.
By using the Products or the Services, the Consumer accepts these Terms and Conditions.
Data: Information registered by the Product to be used as part of the Services.
The Consumer: Whoever buys the Products or the Services via VitalThings or VitalThings' partners for personal use, and not for resale or commercial purpose.
The Parties: VitalThings and the Consumer, when referred to jointly.
The Products: Physical product/hardware used to register Data to be used in the Services.
Somnofy App: App for presentation of Data, analyzes and advice.
The Services: Any service, Data and analysis provided by VitalThings to the Consumer by VitalThings’ App, VitalThings’ web-page, or by other means, provided.
Terms and Conditions: These General Terms and Conditions of Sale and Use.
VitalThings: VitalThings AS, a Norwegian company (company number 919 329 211) with business address Jarlsøveien 48, 3124 Tønsberg, Norway.
THE PRODUCTS AND THE SERVICES
3.1. The Products
VitalThings supplies the sleep monitor Somnofy with associated services. The monitor is fully automatic and contactless. It is put on the bedside table or mounted on the wall, and generates information related to sleep, movement, respiration and surroundings. Somnofy connects to WiFi and does cloud-based analyses. Data, analytics and advice are presented to the Consumer by an App.
3.2. The Services
VitalThings provides the Services related to the processing of various Data registered by and/or transmitted via the Products. The Services include, but are not limited to, reporting of Data, analytics and advice on a mobile device (app).
The Services are provided "as is" and may be modified or adapted by VitalThings from time to time without prior notice to the Consumer. VitalThings may also cease providing any portion of the Services at any time and in its sole discretion without prior notice to the Consumer. In the event of termination or cessation of any part of the Services, the Consumer is not entitled to claim any kind of compensation, including refunds or restitution for direct or indirect loss or damages, from VitalThings as long as the essential parts of the Services are maintained.
Automatic updates of the embedded software in the Products, of the Services, and in all related areas, such as in mobile apps, is accepted and is a condition for use of the Products and the Services.
The Technology is constantly evolving and changes/updates may be incompatible with earlier versions. VitalThings is not responsible for changes that violate backward compatibility with the Product and/or the Services.
VitalThings will notify the Consumer in due time before outdated technology standards are removed or no longer supported by the Services. VitalThings makes no warranties, but will make commercially reasonable efforts to make technology changes backward compatible in major version releases.
In order for the Products to be used for their purposes, including to record and present Data, analyzes and advice to the Consumer via the Somnofy App, the Consumer must subscribe for the Services.
VitalThings will provide the Consumer with a subscription for the Services. The length of the prepaid/included subscription period will depend on the program and subscription model chosen by the Customer upon purchasing the Product. The subscription period is effective from the date on which the Consumer first logs on to the Services by use of the App and creates a User Profile with VitalThings. Prior to the expiration of the subscription period, the Consumer shall have the opportunity to extend the subscription by paying the applicable Subscription fee, upon which the Subscription will remain in full force and effect until terminated by either party according to these Terms and Conditions. The parties shall have a mutual notice period of 1 months after the expiry of the initial included subscription period.
The subscription is paid by recurring prepayment. Payment shall be considered made in full only when the payable amount is received by VitalThings. All payments shall be made into VitalThing's bank account.
In case of late payment, reminder fees and statutory interest rates will incur. In the event of late payment, the invoice will be transferred to debt collection. VitalThings reserves the right to suspend the Services until payment has been made in full, including any accrued interest and expenses. If the Consumer subsequently pays the outstanding amount including accrued interest, VitalThings may restore access to the Services provided that the Data for the Consumer is still available.
If payment is not received within 30 days of the due date according to the invoice, VitalThings reserves the right to cancel the subscription for the Services with immediate effect (immediate termination).
NOT A MEDICAL SERVICE
The Consumer understands and accepts that neither the Products nor the Services is a medical service. This means that neither the Products nor the Data gathered using the Products or the Services should be used as basis for diagnosis, treatment of health problems, medication or other medical assessments, without this happening in consultation with a doctor.
Accordingly, use of the Products or the Services may not replace the treatment or consultation of certified healthcare professionals or other medical advice. If the Consumer wants such services or advice, the Consumer must obtain adequate service and advice from health care providers.
VitalThings is not responsible and cannot be held liable for other people's use of the Services or Data.
VitalThings can under no circumstances be held liable for the use of the Products or the Services, either direct or indirect loss or damage, including consequential and consequential damages.
VitalThings' products and services are not reviewed or certified by the United States Food and Drug Administration (USFDA).
VitalThings' products and services do not have European medical CE approval and are not approved to diagnose, treat, cure or prevent disease.
The agreement between the Parties consists of these Terms and Conditions, information provided in the order solution and any other agreed terms. In the event of conflict, what is specifically agreed between the Parties precedes. The agreement is supplemented by relevant legal provisions.
Unless otherwise agreed between the Parties, the Products and the Services are ordered via Vitalthing's website.
The Consumer will receive an order confirmation from VitalThings when the order is accepted. Upon receipt of the order confirmation, a binding agreement has been entered into between the Parties unless VitalThings has rejected the order or the Consumer has cancelled it prior to this.
Price and payment terms
The stated price for the Products and the Services is the net price the Consumer must pay. VAT and/or applicable sales taxes and additional costs may occur, according to law.
Orders placed on www.somnofy.com are prepaid in full by use of the The Consumer’s credit card at the time of ordering.
Terms of delivery
The Products are delivered Ex Works in USA (EXW, INCOTERMS at any time the latest version) and DAP (INCOTERMS at any time the latest version) to other countries unless otherwise agreed in writing. Risk and ownership of the Products is transferred to the Consumer at the time of delivery.
The stated delivery time is tentative, unless otherwise explicitly stated and provided that the Consumer provides the correct delivery information. VitalThings is under no circumstances responsible for, or in breach of its obligations to the Consumer, for delivery that takes place within a reasonable time before or after the notified delivery date.
VitalThings reserves the right to carry out partial deliveries if such partial delivery will not affect the customer unreasonably.
VitalThings is under no circumstances liable for the Consumers loss or damages, either directly or indirectly, including consequential damages, caused by delay in delivery or non-delivery of the Products.
The Services will be available and considered delivered once the Consumer has fully paid, assembled and connected the Products to the Services.
10.1. Limited warranty for the Products
The Product is delivered with a twelve (12) month warranty. VitalThings warrants that the Product shall substantially comply with the stated specifications. The validity of the warranty is dependent on the Consumer using the Product in accordance with normal use and in accordance with specifications and instructions provided by VitalThings.
The Limited Warranty for the Product does not include damages occurring as a result of any event, action or omission for which the Consumer is responsible, including but not limited to events such as improper use or installation/assembly of the Product; modification of the Product; accidents; abuse, neglect or misuse; inadequate handling; defective components used for installation/assembly, operation or other use of the Product; use of components not designed for the Product, including third party equipment or installations; wear and tear; unauthorized modifications or modifications to the Product; Force Majeure events cf. section 12; or any other events that have not been caused by VitalThings.
VitalThings reserves the right to make its own assessment of whether the damage is covered by the Limited Warranty or not.
The Limited Warranty does not cover the Consumer’s perception of the Product or its scope of use, regardless of whether such use or purpose is specified by the Consumer or VitalThings.
The Limited Warranty only applies to the Consumer and does not include third parties or other successors.
The Limited Warranty only applies to Products that are fully paid by the Consumer.
Within the Warranty Period, VitalThings may at its own option either repair, replace or cancel delivery of Products which, in the opinion of VitalThings, are covered by the warranty. The Consumer may not make any other claims to VitalThings under the warranty.
10.2. Claims and Warranty Service
The Consumer shall, without undue delay, notify VitalThings of all circumstances that the Consumer assumes to be covered by the warranty cf. section 6.1. Complaints shall be reported via VitalThing’s customer service via VitalThing's website. The Consumer will receive a merchandise authorization (RMA) after the complaint has been reported.
The Consumer bears the risk and cost of the return of the Products to VitalThings. If the claim is accepted by VitalThings, VitalThings will arrange the return of the Products to the Consumer. The Consumer bears all costs associated with returns outside of Norway, including shipping costs, taxes, fees and other excise duties.
10.3. Limited Warranty for the use of the Services
VitalThings makes no warranties, explicit or implied, with regards to the functionality or the use of the Services, including, but not limited to; the availability of the Services; accuracy of Data gathered and presented by the Services; merchantability; the Consumer’s use of the Services and Data; or non-infringement of intellectual property rights. This also applies to any information that may be communicated directly from VitalThings or the Consumer.
VitalThings shall under no circumstances be liable to the Consumer, the User, third parties or successors for the functionality or the use of the Services, not even in case of incorrect Data or other errors in the Services.
VitalThings shall under no circumstances, regardless of cause, be liable for indirect or consequential damages of any kind, hereunder, but not limited to, loss of profits or savings; loss of reputation or goodwill; and/or claims by third parties or successors; whether or not such loss or damages are incurred by the Consumer, third parties or successors, and regardless of whether such claims are made based on these Terms and Conditions, other contract, or statutory law.
VitalThings shall under no circumstances, for any reason, be liable for any loss or damage to Data stored by the Consumer or through the Consumer’s use of the Service, including a non-limited deletion; destruction; damage or loss of the Consumer’s or the Consumer’s third party Data; defects or technical issues with the Services and/or the app.
These provisions apply regardless of whether VitalThings can be blamed.
The Consumer shall also protect and hold VitalThings harmless from any claim from third parties or successors, including but not limited to violations of law or regulation in connection with the Consumer’s and third parties’ use of the Services or the Products.
VitalThing’s maximum liability to the Consumer shall in any case, whether it’s based on these Terms and Conditions, applicable law, statutes, tort or otherwise, and regardless of whether VitalThings may be blamed for the breach or not, limited to the Consumer's payment for the Services over the past 12 months.
VitalThings cannot be held responsible for delayed or defective Products, or for any other non-performance of its obligations under these Terms and Conditions and/or the Agreement, that is due to unforeseen circumstances beyond VitalThings' control. This includes but is not limited to any strike; exclusion; labor conflict; inability to obtain labor, tools or services; application of applicable laws; hostile acts; sabotage; war; blockades; riots or riots; epidemics/pandemics; floods or other extraordinary weather conditions; fall-out; civilian disturbances; fire or explosions; casualties, or otherwise. VitalThings shall promptly notify the Consumer of the occurrence of such an incident.
In the event of such delay, defect or failure to fulfil an obligation, the performance of the obligation concerned may be stopped for a period of time until the obstruction ceases. VitalThings will be freed from their fulfillment responsibilities if the obstacle does not lapse within a reasonable time.
The Consumer defaults
If the Consumer defaults on its obligations under the Agreement, VitalThings may withhold the Products and/or the Services, demand fulfillment of the agreement, demand termination of the agreement, and demand compensation from the Consumer. VitalThings will also be able to charge interest in case of delayed payment, debt collection fee and a reasonable fee for unclaimed goods.
VitalThings shall at all times ensure that security procedures have been implemented to protect the Services from security attacks. Nevertheless, VitalThings does not warrant that the security procedures are flawless or unassailable, or that transfers of the Consumer's Data are always secure, and that unauthorized third parties will never be able to threaten VitalThings or VitalThings' third-party suppliers' security.
The Consumer is responsible for maintaining the safety of the Consumer and the Consumer’s accounts, including but not limited to the Consumer's username and password. The Consumer may, if necessary, ask VitalThings for export of their own Data.
DATA PROCESSING AND PRIVACY
VitalThings is regarded as the Data controller for collected personal Data. Unless the Consumer agrees otherwise, VitalThings may only collect and store the personal Data necessary for VitalThings to carry out its obligations under the agreement. The Consumer's personal Data will only be disclosed to others if it is necessary for VitalThings to carry out its obligation under the agreement, or in a statutory case.
More information about VitalThing's collection and use of personal Data can be found by clicking on the attached https://resources.somnofy.com/legal/us/privacy-policy
INTELLECTUAL PROPERTY RIGHTS
The purchase of the Product or the Services, or the Consumer's access to and use of the Services does not imply the transfer or licensing of intellectual property rights from VitalThings unless otherwise explicitly stated in these Terms and Conditions.
The Consumer is obliged to comply with all applicable intellectual property rights and/or limitations related to the use of the Product, and/or the Services, including Data. This includes proprietary content or information that the Consumer may access through the Services. The Consumer does not have the right to use, copy, reproduce, modify, publish, distribute, license, sell or otherwise exploit Data or other information related to the Products or the Services not owned by or originated from the Consumer himself.
VitalThings retains all rights and ownership to the Products and the Services, and neither the Consumer nor any third party nor successors may modify, transmit, sell, reproduce or create derivative works based on, or otherwise exploit, any of the Products or the Services in any other way than described in these Terms and Conditions.
DURATION AND TERMINATION
These Terms and Conditions apply as long as the Consumer has the right to use the Products and/or the Services. Upon termination of the Services, either upon notice or due to default either by VitalThings or the Consumer (including but not limited to cases where by the Consumer has not paid for the Services), the Terms and Conditions cease and any agreement is terminated. However, this does not apply to provisions intended to regulate the obligations of the Parties beyond the duration of the Agreement, such as provisions on confidentiality and intellectual property rights.
VitalThings has the right to terminate the Consumer's use of the Services with immediate effect if the Consumer is in a material breach of its obligations under the provisions of the Terms and Conditions or any other agreement with VitalThings.
TRANSFER OF PRODUCT OR SERVICE
If the Consumer transfers a Product to a new owner, the Consumer’s right to use the Services will be terminated automatically. The new owner of the Product will not be permitted to use the Product or the Services registered to the ConsumerAccount(s) until the new Customer has registered his own account with VitalThings and accepted these Terms and Conditions.
VitalThings may freely choose to assign or set the operation of the Services to a third party without the consent of the Consumer. However, VitalThings remains responsible for the performance of the Services by such third party.
If one or more of the above clauses are, in whole or in part, legally invalid, the validity of the other points of these Terms and Conditions shall remain unaffected. Any failure to exercise or delay the exercise of rights arising from these Terms and Conditions does not change this.
VitalThings reserves the right to change, facilitate or remove any portion of these Terms and Conditions at any time. In the event of significant changes to the Terms and Conditions, VitalThings will notify the Consumer. If the Consumer continues to use the Products or the Services after receiving such notice, the Consumer agrees to the change.
The latest version of the Terms and Conditions can at all times be found on our website www.somnofy.com.
JURISDICTION AND DISPUTE RESOLUTION
This agreement and any dispute related to or derived from the agreement, these Terms and Conditions, the Product and/or the Services, whether in or out of contract, shall be governed by Norwegian law, and finally resolved by the Norwegian courts. The agreed legal venue shall be Sør-Trøndelag District Court, Trondheim, Norway.
Version 1.1, 30.08.20