Terms and Conditions of Use

Last updated: January 26, 2024

 

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BIG HEALTH (THE “AGREEMENT”).

Downloading the Apps, completing our registration process, or otherwise accessing or using all or any part of the System will constitute acceptance of, and create a LEGALLY ENFORCEABLE CONTRACT under which You hereby agree to be bound by all of these Terms of Service, without modification.

Please be advised that this agreement contains provisions that govern how claims between You and Big Health can be brought, including the arbitration agreement. Please review the arbitration agreement below carefully, as it requires You to resolve all disputes with Big Health on an individual basis and, with limited exceptions, through final and binding arbitration. By entering into this agreement, You expressly acknowledge that you have read and understand all of the terms of this agreement and have taken time to consider the consequences of this important decision.

1. Certain Defined Terms

As used in these terms and conditions of use (“Terms of Service”):

Big Health is Big Health Inc., a corporation registered and incorporated in the United States, and/or Big Health Ltd, a private company registered and incorporated in England  and Wales under number 06780612, and its affiliates; Clinical Partners are hospitals, clinics, practices, researchers, universities or other medical groups or health care systems that have contracted with Big Health to permit use of the System (as defined below) by their respective Health Care Providers  and Participants; Health Care Providers are practitioners, patient advocates, coaches or other individuals who (as employees of or contractors to a Clinical Partner) provide health care or related services; Service Partners are service partners that have contracted with Big Health to facilitate the use of the System by their respective Health Care Providers and Participants; and Participants are individuals who use the System.  Healthcare Services are the furnishing of medicine, medical or surgical treatment, clinical and therapeutic services, the dispensing of drugs or medical devices or any other clinical services provided for treatment or prevention of disease, medical condition or disorder.

The terms “we”, “us”, “our” and “ours” when used in these terms mean Big Health, which includes any parent company, subsidiaries, branches or affiliates under common ownership or control of Big Health. The terms “you”, “your” and “yours” when used in these terms mean any Participant of the System. 

1a. Acceptance 

Big Health owns and operates websites, including www.trydaylight.com and www.sleepio.com, including all associated subdomains (the “Websites”).  Big Health also owns, develops, operates, distributes and sells digital therapeutics which are applications for mobile devices designed to improve outcomes (the “Apps”).

For ease of reference, all of the features and functionality of the Apps and the Websites, data collection, Feedback collection, Analytics collection, storage, analysis and reporting tools, functions and services, together with all of their content (whether accessible wirelessly, electronically or downloadable for printing), shall be referred to herein as the "System".

One of our Apps is Daylight®, a self-help worry and anxiety management program. Another one of our Apps is Sleepio®, a self-help sleep improvement program with associated expert articles, tools, and online community. All terms governing the System also apply to Daylight and Sleepio.

The System is offered and provided subject to acceptance without modification of the Terms of Service. The Terms of Service shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published by Big Health, from time to time, at the Websites or via the Apps (collectively, “Policies”), including without limitation, Big Health’s Privacy Policies found here: https://info.sleepio.com/privacy/ and here: https://www.trydaylight.com/privacy. By using the System, you acknowledge you have received this documentation.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE, AUTHORIZED, OR HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE SYSTEM.

The System (including any Apps) does not represent a substitution for your medication.  You should consult with your health care provider about your medication, medical condition, and any other medical questions.  

The Apps are not FDA-authorized for treatment of any disease and have not been evaluated for safety or effectiveness by FDA. Under the COVID-19 public health emergency policy, found here: https://www.fda.gov/media/136939/download. Daylight is temporarily being made available as a treatment for Generalized Anxiety Disorder (“GAD”) without a prescription and Sleepio is temporarily being made available as a treatment for Insomnia Disorder without a prescription.

The System may include a free text function that enables you to input information into the app. The System is not a monitoring tool.  The System does not include features that can send alerts or warnings to your Health Care Provider.  If you are experiencing a nonemergent medical condition or want to discuss anything with your Health Care Provider, you must contact your Health Care Provider directly.  DO NOT use the System to report a medical emergency or if you are experiencing a medical emergency.

In the event of a medical emergency, or if you have feelings or thoughts of harming yourself or others, please dial 911, the national suicide prevention lifeline at 1-800-273-8255, or the national poison control hotline at 1-800-222-1222. You acknowledge and agree that Big Health is not responsible for and expressly disclaims all liability for the actions or inactions of any Participant in the System.

2. Eligibility & Registration

2a. Eligibility

By using the System you confirm that you are 18 years of age or more, that any registration  information that you submit to the Apps is true, accurate and complete, that you will update such  information in order to keep it current, that you have read and agree to the terms and conditions  contained in this Agreement and our Privacy Policies found here: https://info.sleepio.com/privacy/ and here: https://www.trydaylight.com/privacy (which are hereby incorporated into this Agreement)  and that you shall be legally bound by such terms subject to all applicable laws and regulations.

If you do not qualify for eligibility, then you are prohibited from downloading, accessing, using and registering for the System. Big Health will not collect personally identifiable information from any person who is actually known to Big Health to be under the age of 13. If Big Health becomes aware that a person under 13 has provided personally identifiable information, Big Health will take steps to remove such information and terminate that individual’s account, access and use of the System.

2b. Registration

The System may be accessed: by visiting the Websites directly; or by using the Apps which may be available for download from Big Health or a Channel Partner, which then communicates with Big Health’s web servers. Channel Partner means any distribution platform operator or other third party who is authorized to make the Apps available for distribution pursuant to arrangements with Big Health. Our Channel Partners include, without limitation, Apple Inc. (“Apple”) via the App Store and Google Inc. (“Google”) via Google Play. Business Partners refers to and includes all Clinical Partners and Channel Partners.

Regardless of how you access the System, to ensure the integrity of the System, you must complete the account registration process and provide Big Health with current, complete and accurate information, as more specifically required by then-current registration procedures and operational prompts. Your registration information will be provided to Big Health by the Channel Partner or Service Partner; however, you will need to review and confirm accuracy of such information, and to maintain the complete or correct nature of your information.

Big Health may refuse to accept your application to register for the System, in its sole discretion. Upon acceptance, Big Health will activate the access credentials for your account. You alone are responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. This requires, among other prudent security practices, ensuring strong credentials to open your mobile device and updating your phone or tablet operating system as recommended by the vendor.  You hereby agree to notify your Health Care Provider and Big Health immediately of any unauthorized use or suspected unauthorized use of your Participant account or any other breach of security or suspected breach of security related to the System.

3. Understanding our Products

3a. For Daylight users with US or UK based access:  

You acknowledge and agree that Daylight is a digital therapeutic intended to provide Cognitive Behavioral Therapy (“CBT”) for the improvement of worry and anxiety and treatment of Generalized Anxiety Disorder (“GAD”) in adults aged 18 years and older. Daylight is appropriate for individuals with mild to severe GAD symptoms.

For adults diagnosed with GAD, you acknowledge and agree that Daylight should be used under the supervision of a Health Care Provider.

You also acknowledge and agree that for healthy adults who have difficulty with worry and anxiety, Daylight may be utilized as a non-prescription personalized self-help tool designed to help you improve your overall mental health and wellbeing and that if you choose to access the Daylight you are solely responsible for deciding which of the suggested techniques you put into practice and how to apply those techniques.

3b. For Daylight users in other countries and regions:  

You acknowledge and agree that Daylight is a personalized self-help system designed to help you improve your management of worry and anxiety and that if you choose to access the Daylight you are solely responsible for deciding which of the suggested techniques you put into practice and how to apply those techniques.

3c. For Sleepio users

You acknowledge and agree that Sleepio is a digital therapeutic intended to provide Cognitive Behavioral Therapy for Insomnia (“CBT-I”) for the improvement of sleep health and the treatment of Insomnia Disorder in adults aged 18 years and older. Sleepio is appropriate for individuals with mild to severe insomnia symptoms.

For adults diagnosed with Insomnia Disorder, you acknowledge and agree that Sleepio should be used under the supervision of a Health Care Provider.

For healthy adults who have difficulty sleeping, Sleepio may be utilized as a non-prescription personalized self-help tool designed to help you improve your sleep health. If you choose to access Sleepio you are solely responsible for deciding which of the suggested techniques, you put into practice and how to apply those techniques.

4. Grant of Right of Use

Certain content and features of the System are only available to individuals who pay an applicable fee or have the fee paid for by their employer or insurance plan (“Paid for Services”). Unless otherwise specified, we grant you a limited, non-exclusive, non-transferable, revocable right to make personal non-commercial use only of that Content (as defined below) and those features of the System in respect of which you have paid all applicable fees and charges, provided that you comply fully with the provisions of this Agreement, including Authorized Use (as defined below).

5. Updates; Changes to the Agreement

Big Health may modify, suspend or terminate the System (including without limitation, the Websites or the Apps) and/or vary or amend the Terms of Service, in whole or in part, at any time in its sole discretion. The System and/or the Terms of Service may change at any time upon written notice to you.

6. Medical Disclaimers; Your Health

Under the COVID-19 public health emergency policy, found here: https://www.fda.gov/media/136939/download Daylight is temporarily being made available as a treatment for GAD without a prescription and Sleepio is temporarily being made available as a treatment for Insomnia Disorder without a prescription.

Big Health does not provide any stand-alone therapeutic, psychological or medical services to Participants. Big Health has no direct control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any provision of Healthcare Services, excluding for the avoidance of doubt, the System. Being enrolled in the System is not a substitute for the care you receive from your Health Care Provider; therefore, you should continue to receive usual care from your Health Care Provider. Your refusal to accept these Terms of Service or to participate in the System will not affect your ability to obtain services from your Health Care Provider.

You hereby agree to release Big Health from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the provision of Healthcare Services by your Clinical Partner or Health Care Provider.

Big Health does not recommend or endorse any specific Clinical Partner, Health Care Provider or Healthcare Service.

If you have been previously diagnosed with GAD or Insomnia Disorder, please contact your doctor prior to using Daylight or Sleepio, respectively.

Daylight includes a technique called “Tense & Release” that involves tensing and relaxing your muscles. If you experience pain while tensing your muscles, you can modify this exercise (for example, by skipping the tensing of muscles) or skip it altogether.  

The Apps may contain sensitive medical information. Please protect your privacy by password protecting your computer, tablet, or phone and ensure that nobody else can access the device.  Please do not leave your computer, tablet, or phone unattended when unlocked to ensure that nobody else can accidentally see your medical information. If you choose to receive text messages on your phone from the Apps, consider setting your text message notifications to private when your phone is locked to ensure that nobody else can accidentally see the text messages you receive from the Apps.

Big Health is responsible for health information provided on the System and contained within the Apps. Care has been taken to confirm that the information presented within the System is accurate and describes generally accepted practices. If we find, or are alerted to, a mistake, we will correct it as quickly as possible. However, to the fullest extent permitted by applicable laws, the authors, editors and publishers are not responsible for errors or omissions, or for any consequences arising from application of the information on the System, and make no warranty, express or implied, with respect to the contents, completeness or accuracy of the material published.

7. Privacy

Big Health’s current Privacy Policies are accessible here: https://info.sleepio.com/privacy/ and here: https://www.trydaylight.com/privacy. It is important that you read and understand the Privacy Policy, especially because the nature of the System necessarily involves the collection and use of personally identifiable information (“PII”) and likely involves the collection and use of protected health information (“PHI”). Personal Data refers to and includes PII and PHI.

The most current Privacy Policy will apply to any and all use of the Websites, the Apps, and other aspects of the System. Big Health will not intentionally edit, modify, delete or disclose the contents of your Personal Data in connection with the System unless (a) reasonably necessary for Big Health (or its Service Providers) to operate the System, (b) to communicate with Participants, (c) otherwise permitted under the Privacy Policy or elsewhere in the Terms of Service, (d) Big Health reasonably believes that such action is necessary to conform or comply with any authorized legal, regulatory, law enforcement or similar requirement or investigation, (e) to protect or defend the rights or property of Big Health or any third party or to enforce the Terms of Service, or (f) otherwise authorized by you.  In order to access the Paid for Services, you may be required to register personal information and establish unique usernames and passwords. You are responsible for maintaining the confidentiality of any passwords and are fully responsible and liable for all activities that occur under your password and username, whether by you or by anyone else using your identity. Should your password be compromised by breaches of security such as, but not limited to, loss, theft and unauthorized disclosure, it is your responsibility to immediately notify us of the need to change or deactivate the password. Until we are so notified you will remain liable for any unauthorized use of your account.

8. Intellectual Property Rights

The System and all content, materials, data and other information created by or for Big Health (or its affiliates or licensors) and made available via the System (collectively, “Content”) are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws (collectively, “Intellectual Property Rights”), and Big Health (and its applicable affiliates and licensors) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Big Health, you hereby agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the System or Content. However, unless the System states or implements a different restriction, you may download, reproduce or transmit a reasonable number of copies of Content solely for your Authorized Use; provided, that you retain all copyright and other proprietary notices contained therein. Your systematic retrieval of data or other Content from the System to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Big Health’s express prior written permission.  You must not modify the copies you have displayed or printed in any way, and you may not use any illustrations, photographs, videos or audio sequences or any graphics separately from any accompanying text.

If you desire to access or use the System or Content for any purpose other than Authorized Use, then you must first secure permission from Big Health or other owner of that Content. Reproducing, copying or distributing the Apps, or any Content, or any design elements from the Websites or the Apps, for any other purpose is strictly prohibited without Big Health’s express prior written permission. Attempting to access or use the System or Content for any purpose not expressly permitted in the Terms of Service is prohibited.

If you print off or download any material from the System in breach of these Terms of Service, your right to use the System and the access to the Apps will cease immediately and you must at our option return or destroy any copies of the materials you have made. All rights not expressly granted in these terms or any express written license are reserved.

Daylight, the Daylight logo, Sleepio, the Sleepio logo, Big Health and the Big Health logo are trademarks owned by Big Health. Any use, including, but not limited to, framing, meta tags or other text using Big Health trademarks displayed, is strictly prohibited without our prior written consent.

Apple and the Apple logo are trademarks of Apple Inc., registered in the U.S. and other countries.  App Store is a service mark of Apple Inc.

Google Play and the Google Play logo are trademarks of Google LLC.

The names and logos of companies, products or services mentioned on the Websites and in the Apps may be the trademarks or service marks of their respective owners and shall not be deemed to create any endorsement or association between Big Health and such owners. All rights not expressly granted herein are reserved.

9. Feedback

If you provide Big Health with any idea, recommendation or other suggestion regarding possible corrections, changes, improvements or extensions related to the System or Content (collectively, “Feedback”), in any form or by any means (whether through Business Partners, the Service, or by direct communication (e.g., e-mail) with Big Health or any of its officers, directors, employees, representatives, or agents), then you:

• represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information;
• acknowledge and agree that Big Health is under no obligation of confidentiality, express or implied, with respect to the Feedback; and
• agree to grant and do hereby grant to Big Health and its affiliates and licensees a non-exclusive, transferable (including the right to sublicense), perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.

10. Analytics

Analytics means certain information relating to your browser or device type, the time and date you use the System, operating system, identification of Websites or the App page views, use of particular System features, geographic location and other statistical information relating to your use of the Apps or the System. The System collects, stores, processes, analyzes and produces Analytics. Accordingly, whenever you interact with the System, a variety of technologies are employed to automatically or passively collect Analytics. Big Health uses Analytics to develop, improve, extend and test the System (and underlying technology platforms) and to market and promote Big Health and the System. Big Health may disclose, distribute and transmit Analytics to Business Partners and Service Partners for their use, which includes, but is not limited to, a review of the functionality and effectiveness of treatment.

11. Electronic Communications

Big Health (or the Service Partner) may need to contact you about your use of the Websites and/or the Apps. These communications are part of the System, and you may not opt out from receiving them while using the System.

Some of these communications may be offered via SMS text message (the “Text Message Service”). If you would like to take advantage of the Text Message Service, you will be required to opt in. Neither Big Health nor the Service Partner will charge you for the Text Message Service. However, your mobile carrier may charge you message and data rates in accordance with your wireless customer agreement, and you will be responsible for any such charges.

Big Health and its contracted third parties (acting on Big Health’s behalf) may contact you to provide you with helpful information about treatments, services, and for marketing purposes, along with information regarding your participation in any user experience research or other Big Health offerings.  You understand that Big Health will not sell or transfer your name to any other third party for its own marketing use.  You can opt out from receiving these other communications from Big Health by contacting privacy@bighealth.com.

12. Authorized and Prohibited Uses

If you elect to use the System or register for an account with Big Health (a “Participant Account”), you are responsible for maintaining the confidentiality of your account login information and the security of your mobile device and are fully responsible for all activities that occur under your account. You are solely responsible for all content and material that you provide to the System. You hereby agree that Big Health will not be held liable for any harm, loss or damage incurred as the result of any such activities or from your failure to comply with the above requirements.

Big Health reserves the right, but has no obligation, to track any Participant’s use of the System, including a Participant’s registration attempts. Accordingly, Big Health also reserves the right to disable any Participant’s use of or access to the System or terminate any Participant’s account, for any reason and without any notice. Big Health reserves the right to refuse access to any Participant, for any reason and without any notice.

The Websites, the Apps and all other aspects of the System are provided only for your personal, noncommercial use in compliance with the Terms of Service (the “Authorized Use”). Any unauthorized use of the System (including without limitation, accessing any aspect of the System for which you are not authorized, or any commercial use by you, such as, for example, reselling the Apps or marketing Healthcare Services) is expressly prohibited. You alone are responsible for all acts or omissions that occur under your Participant Account, username and password.

As a condition of use, you hereby agree not to use the System for any purpose that is unlawful, or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Big Health. You hereby agree to abide by all applicable local, state, national and international laws, regulations and rules when using the System.

By way of example, and not limitation, you hereby agree not to take any action or provide any information using any communications service, survey, feedback, the Apps or other aspect of the System, in any manner, that: 

• Is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another’s privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service.
• Reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public Personal Data about another individual.
• Uploads, posts, emails or otherwise transmits (collectively “Transmits”) any content or materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, at our sole and absolute discretion.
• Harms minors in any way or solicits or otherwise attempt to gain any information from a minor.
• Impersonates any person or entity, including, but not limited to, any user of this System, a director, officer, employee, shareholder, agent or representative of Big Health or our affiliates, or any other person or entity, or falsely state or otherwise misrepresent your affiliation with Big Health, our affiliates or any other person or entity.
• Forges headers or otherwise manipulate identifiers in order to disguise the origin of any Postings or other materials transmitted to or through the System.
• Transmits any materials that are not your own, or that you do not have a right to upload, post, email or otherwise transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
• Transmits any content or other materials that infringe upon any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary rights of any party.
• Transmits any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of commercial solicitation except in the areas, if any that are specifically designated for such purpose.
• Transmits any content or other materials that contain software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or obtain unauthorized access to any system, data or other information of Big Health or any Participant or other third party.
• imposes an unreasonable or disproportionately large load on Big Health’s computing, storage or communications systems and networks, or attempts to gain unauthorized access to the Websites, the Apps or other aspect of the Service (including the underlying technology platform), any other person’s or entity’s information, accounts, computer systems or networks connected to the Service, through password mining or otherwise.
• Disrupt the normal flow of dialog, cause a screen to "scroll" faster than other users of the System are able to type, or otherwise act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of this System.
• Interfere with or disrupt the System or servers or networks connected to the System, or disobey any requirements, procedures, policies or regulations of networks connected to the System.
• Intentionally or unintentionally violate any applicable laws and/or regulations; "Stalk" or otherwise harass another user of the System and/or any employee of Big Health.
• Harvest, scrape or collect any information from the System.
• Disguise the source of any inputs.
• Register for or creates Participant Accounts by any automated means or under false or misleading pretenses, including, but not limited to, using a false, misleading or disguised e-mail address; or
• Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users of the Websites from the Websites (including usernames or passwords) or about any other third party; and/or
• Access or attempt to access another user’s account without their consent.
• Knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

You also agree not to:

• reproduce, duplicate, copy or re-sell any part of the System in contravention of the provisions of this Agreement.
• resell access to the System.
• frame the System or any part of it.
• copy any material obtained from the System to peer-to-peer networks or other web sites or web services.
• access without authority, interfere with, damage or disrupt any part of the System; any equipment or network on which the System is stored; any software used in the provision of the System; or any equipment or network or software owned or used by any third party.

Big Health may, at its sole discretion, immediately suspend or terminate your access to the System should your conduct fail (or appear to fail) to strictly conform to any provision of the Terms of Service.

Big Health has no obligation to track the System or anyone’s use thereof. However, Big Health reserves the right at any time and without notice to record, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).

13. Breach of the Agreement

We will determine, in our absolute discretion, whether there has been a breach of this Agreement through your use of the System. When a breach of this Agreement has occurred, we may take such action as we deem appropriate, which may include all or any of the following actions:

• Immediate, temporary or permanent withdrawal of your right to use the System and/or the Apps.
• Immediate, temporary or permanent removal of any posting or material uploaded by you to the System and/or the Apps.
• Issue a warning notice to you to immediately cease and/or remedy such breach and following receipt such action should be taken immediately.
• Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
• Any further legal action against you.
• Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.

We exclude liability for actions taken in response to breaches of this Agreement. The possible actions we may take on breach of this Agreement are not limited to those described here, and we may take any other action we reasonably deem appropriate.

14. No Warranty

THE USE OF THE SYSTEM AND THE APPS (INCLUDING BUT NOT LIMITED TO THEIR CONTENT AND FEATURES) IS AT YOUR OWN RISK. THE SYSTEM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BIG HEALTH GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, CONTENT AND AVAILABILITY OR FITNESS FOR A SPECIFIC PURPOSE OF THE SYSTEM OR THE APPS OR TO THE ACCURACY OF THE INFORMATION CONTAINED IN ANY OF THE MATERIALS ON THE SYSTEM OR THE APPS. BIG HEALTH SHALL NOT BE LIABLE TO ANY PERSON FOR ANY LOSS OR DAMAGE OF ANY KIND, WHICH MAY ARISE, DIRECTLY OR INDIRECTLY FROM THE USE OF OR INABILITY TO USE ANY OF THE INFORMATION CONTAINED IN ANY OF THE MATERIALS ON THE SYSTEM. THERE IS NO GUARANTEE OF AVAILABILITY OF INFORMATION ON THE SYSTEM AT ANY TIME, NOR THAT IT IS UP TO DATE OR ERROR FREE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM BIG HEALTH SHALL CREATE ANY WARRANTY ON BEHALF OF BIG HEALTH IN THIS REGARD. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR DISCLAIMER OF CERTAIN WARRANTIES.  ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. YOUR STATUTORY RIGHTS AS A CONSUMER, IF ANY, ARE NOT AFFECTED HEREBY.

15. Limitation of Liability

YOU HEREBY AGREE THAT BIG HEALTH (AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PARTICIPANT’S CONDUCT OR FOR ANY PARTICIPANTS VIOLATONS OF ANOTHER PERSON’S RIGHTS, INCLUDING RIGHTS OF PUBLICITY OR PRIVACY.

TO THE FULLEST EXTENT APPLICABLE PERMITTED BY APPLICABLE LAWS, BIG HEALTH, ITS AFFILIATES, OFFICERS,  DIRECTORS, EMPLOYEES, LICENSORS OR ANY THIRD PARTIES EXCLUDE LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL,  SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF DATA, SERVICE INTERRUPTION,  COMPUTER FAILURE OR PECUNIARY LOSS, LOSS OF INCOME OR REVENUE, LOSS OF BUSINESS, LOSS OF PROFITS OR  CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, WASTED MANAGEMENT OR OFFICE  TIME AND FOR ANY OTHER LOSS OR DAMAGE OF ANY KIND, HOWEVER ARISING AND WHETHER CAUSED BY TORT  (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE) ARISING OUT OF THE USE OF  OR INABILITY TO USE THE SYSTEM OR THE APPS, EVEN IF YOU HAVE ADVISED BIG HEALTH ABOUT THE POSSIBILITY OF  SUCH LOSS, AND INCLUDING ANY DAMAGES RESULTING THEREFROM. COMMENTARY AND OTHER MATERIALS POSTED ON THE SYSTEM BY OTHER USERS ARE NOT INTENDED TO AMOUNT TO ADVICE ON WHICH RELIANCE SHOULD BE PLACED. WE, THEREFORE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY ANY VISITOR TO THE SYSTEM, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF BIG HEALTH (INCLUDING ANY OF ITS AFFILIATES, SERVICE PROVIDERS AND LICENSORS) UNDER SUCH CIRCUMSTANCE FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED, SHALL NOT EXCEED THE MAXIMUM SINGLE PURCHASE PRICE OF THE APP AT ISSUE.

APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU HEREBY AGREE THAT BIG HEALTH’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
NOTHING IN THIS SECTION AFFECTS OUR OR OUR AFFILIATES’ LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM OUR (OR THEIR) NEGLIGENCE NOR OUR (OR THEIR) LIABILITY FOR FRAUDULENT MISREPRESENTATIONS OR MISREPRESENTATION AS TO A FUNDAMENTAL MATTER NOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER AN APPLICABLE LAW.

16. Technology Limitations and Modifications

Big Health will make reasonable efforts to keep the System operational. However, certain technical difficulties, maintenance, or any other cause beyond our reasonable control (including (but not limited to) failure of the internet, natural disaster, labor shortage or dispute, or governmental act) may, from time to time, result in interruptions. Big Health reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the System with or without notice. You agree not to hold us liable for any such failure or delay in performance and we agree to make all reasonable efforts to restore the System (or any part thereof) as soon as practicable. Following any disruption within Big Health’s reasonable control we shall extend your access to the Paid for Services for at least the duration for which those Paid for Services were inaccessible on written request to the below address.

17. Third parties

You may be able to use the Apps, access the System, and/or communicate with the System from, and you may be able to link or communicate from the System to, applications, devices, distribution platforms and websites owned and operated by Channel Partners and Clinical Partners or other third parties. These other applications, devices, platforms and websites are not operated or controlled by Big Health, and you hereby agree that Big Health is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.

Description of or reference to any organization, product, practitioner, publication or link to an external website does not imply endorsement by Big Health. Equally the omission of any such names does not necessarily indicate a lack of endorsement by Big Health.

Your correspondence or participation in promotions, or business dealings with advertisers found on or through the System, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertisers. You agree that we shall not be responsible or liable for any direct or indirect loss or damage of any sort incurred, or alleged to have been incurred, as the result of any such dealings, or as the result of the presence of such advertisers on the System.

Certain hypertext links on the Websites may lead to other third-party websites, which are not under the control of Big Health. When you activate any of these you will leave the System and Big Health has no control over and will accept no responsibility or liability for the material on any website which is not under the control of Big Health. Big Health does not make any representations or give any guarantee or warranties of any kind, expressed, implied or otherwise about the content of on any external website link.

18. Indemnity

You agree to indemnify and hold Big Health and its officers, directors, employees and licensors harmless from any claim or demand (including but not limited to reasonable legal fees) made by a third party due to or arising out of or related to your violation of the terms and conditions of this Agreement or your violation of the System (and all related materials) or any applicable laws, regulations or third-party rights.

19. Assignment by Big Health

Big Health may assign (or otherwise transfer) this Agreement or any part of it without restrictions.  You may not assign (or otherwise transfer) this Agreement or any part of it to any third party.

20. Entire Agreement; Severability and Waiver

The Terms of Service (including all then-current Policies) constitute the entire agreement between you and Big Health with respect to access, use and operation of the System, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Big Health with respect to the System.

If any provision of the Agreement is held by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in full force and effect.

If we fail to insist that you perform any of your obligations under these terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

21. Term and Termination

This Agreement is between you and us only and will become effective when you start using the System and will remain effective until terminated by you or Big Health. Big Health reserves the right to terminate your access to the System or any part of the System at any time, with or without cause (including without limitation, upon instruction from the applicable Service Partner, or Business Partner), with or without notice. If Big Health terminates this Agreement, or suspends your App account, for any of the reasons set out in this section, Big Health shall have no liability or responsibility to you whatsoever, and Big Health shall not refund any amounts that you have paid.

Upon any termination, all rights and obligations of the parties under the Terms of Service shall cease, and you shall immediately stop accessing and using the System and Content, except that:

(a) all obligations that accrued prior to the effective date of termination (including payment obligations, if any) and all remedies for breach of the Terms of Service shall survive, (b) Big Health may retain and use Analytics in the manner described herein, and (c) the provisions of those sections of the Terms of Service that should reasonably be understood to continue in effect shall survive in accordance with Section 27 herein. After termination, and except as otherwise required by applicable law, Big Health has no obligation to maintain any information.

22. Governing Law and Disputes

The System is controlled by Big Health from its offices in the United Kingdom and the United States.  Access to, or use of, the System, including the Apps and any related information and materials, may be prohibited by law in certain jurisdictions. You are responsible for compliance with all applicable laws of the jurisdiction from which you are accessing the System. We make no representation that the information contained herein is appropriate or available for use in other locations.

Except as otherwise set forth in the Arbitration Agreement immediately below, this Agreement and any contract between us, whether for use of the System or other purpose, and any non-contractual obligations (if any) arising out of or in connection with these terms and conditions or any such contract will be governed by the laws of the state of Delaware. In the event of any conflict between U.S. and foreign laws, regulations and rules, U.S. laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service. The parties agree that the courts of Delaware have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement). Notwithstanding the foregoing, we reserve the right to bring legal proceedings in any jurisdiction where we believe a breach of this Agreement has originated.

A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

23. Arbitration Agreement

By agreeing to the Terms of Service, you agree that you are required to resolve any claim that you may have against Big Health on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against Big Health, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Big Health by someone else.  YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND BIG HEALTH ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION.

23a. Agreement to Binding Arbitration Between You and Big Health

You and Big Health agree that any dispute, claim or controversy arising out of or relating to (a) these Terms of Service or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the System at any time, whether before or after the date you agreed to the Terms of Service, will be settled by binding arbitration between you and Big Health, and not in a court of law. 
You acknowledge and agree that you and Big Health are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Big Health otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Big Health each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

23b. Rules and Governing Law

The arbitration will be administered by the American Arbitration Association (AAA) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the AAA Rules) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (Arbitrator), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms of Service, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of Delaware.

23c. Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879.)  The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

23d. Location and Procedure

Unless you and Big Health otherwise agree in writing, the arbitration will be conducted in San Francisco, California U.S.A. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Big Health submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.  The proceedings shall be in English, and all evidence shall be in English (or translated into English).

23e. Arbitrator's Decision

The Arbitrator will render a written decision within the timeframe specified in the AAA Rules.  The Arbitrator’s decision shall comply with all terms and conditions in the applicable version of the Terms of Service.  Judgment on the Arbitrator’s decision may be entered in any court having competent jurisdiction to do so. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The prevailing party in arbitration may be entitled to an award of attorneys' fees and expenses in the Arbitrator’s discretion, to the extent provided under applicable law. The parties acknowledge and agree that this Arbitration Agreement and any award rendered pursuant hereto shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

23f. Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

23g. Severability

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms of Service; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

24. General Provisions

Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sub-licensable by you except with Big Health’s prior written consent. No agency, partnership, joint venture, or employment relationship is created as a result of the System or the Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English, and will be deemed to have been duly given either when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested, or when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

25. Copyright Compliance

It is Big Health’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). In addition, Big Health will promptly terminate without notice the accounts of Participants that are determined by Big Health to be Repeat Infringers. A Repeat Infringer is a Participant who has been notified by Big Health of infringing activity violations more than twice.

If you are a copyright owner or an agent thereof, and you believe that any content hosted on the System infringes your copyrights, then you may submit a notification pursuant to the DMCA by providing Big Health’s Designated Copyright Agent (contact information below) with the following information in writing:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the System are covered by a single notification, a representative list of such works on the System;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Big Health to locate the material;
4. Information reasonably sufficient to permit Big Health to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law (for example, “I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law.”); and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, “I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.”).

The Big Health Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:

Big Health Inc. 
Attention: Big Health Designated Copyright Agent
548 Market St 
PMB 72279
San Francisco, CA 94104

Big Health Copyright Agent Email: legal@bighealth.com

Only DMCA notices should go to the Big Health Designated Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

26. Channel Partner Terms

In the event that you obtain an App from Apple or Google, then the following shall apply:

1. Both you and Big Health acknowledge that the agreements in the Terms of Service are between you and Big Health only, and not with Apple and/or Google, and that Apple and Google are not responsible for the App or Content;
2. You will only use the App in connection with an iOS or Android device that you own or control;
3. You acknowledge and agree that Apple and Google have no obligation whatsoever to furnish any maintenance or support services with respect to the App;
4. In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple or Google (as the case may be) of such failure; upon notification, their sole warranty obligation to you will be to refund to you the purchase price, if any, paid to them for the App;
5. You acknowledge and agree that Big Health, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to the App;
6. You acknowledge and agree that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Big Health, and not Apple or Google, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
7. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
8. Both you and Big Health acknowledge and agree that, in using the App and Content, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

Both you and Big Health acknowledge and agree that Apple, Google and their subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple and Google (as applicable) will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third-party beneficiary hereof.

27. Survivorship

The following provisions shall survive termination of this Agreement: Section 6 (Medical Disclaimers; Your Health), Section 7 (Privacy), 8 (Intellectual Property Rights), Section 9 (Feedback), Section 10 (Analytics), Section 11 (Electronic Communications), Section 12 (Authorized and Prohibited Uses), 14 (No Warranty), Section 15 (Limitation of Liability), Section 18 (Indemnity), Section 20 (Entire Agreement; Severability and Waiver) and Section 22 (Governing Law and Disputes), Section 23 (Arbitration Agreement), Section 24 (General Provisions), and 25 (Copyright Compliance), and Section 26 (Channel Partner Terms).

28. Contact

If you have any questions regarding the Terms of Service, you can contact us via the following details:

Big Health Inc.
Legal Department 
548 Market St 
PMB 72279
San Francisco, CA 94104
legal@bighealth.com 

Please note that we are unable to answer any enquiries requesting medical advice. Such enquiries should be addressed to an appropriate, qualified health practitioner.

29. Privacy Policy

Please also visit the applicable Privacy Policy, found here: https://info.sleepio.com/privacy/ and here: https://www.trydaylight.com/privacy, which establish the basis on which any Personal Data we collect from you, or that you provide to us, will be processed by us and how you can get access to Personal Data about you.