Terms of Use

Effective as of December 3, 2015

Welcome to Rythm! Rythm offers an innovative line of products designed to track your sleep patterns, stimulate the brain during sleep, and use data collected during sleep to improve cognitive performance (the “Products”). The products are offered by Rythm, Inc., and its parents and affiliates (collectively Rythm, “we”, “us”, or “our”).

These Terms of Use (“Terms”) cover your use and access to the website located at www.rythm.co, and all associated sites (collectively, the “Sites”), as well as all Products and services provided through the Sites (collectively, the “Services”), which are provided by Rythm. In addition to these Terms, our Privacy Policy, available here, explains how we collect and use your information. The terms of the Privacy Policy are hereby incorporated into these Terms by reference

By using the Services, you agree to be bound by these Terms and our Privacy Policy. If you are using the Services for an organization, you are agreeing to these Terms on behalf of that organization.

Your Rights and
Responsibilities

Acceptance of the Terms

These Terms set forth the entire understanding of the parties with respect to the use of the Services, and supersede all contemporaneous agreements, representations, warranties and understandings with respect to the Services. These Terms may be amended by us from time to time in accordance with the terms below. The latest Terms will be posted on the Sites, and you should review these Terms prior to using the Services. If you do not agree to the terms of this Agreement, you may not use the Services.

The Services are not directed to children, and may not be used by anyone under the age of 13. By using the Services, you represent and warrant that if you are an individual, you are at least 13 years old, you are of legal age to agree to these Terms or you have your parents’ permission to do so, and that all registration information you submit is accurate and truthful.

Content

The Services may allow you to post, submit, publish, display, or transmit to other users or persons certain content and materials including, without limitation, data and information generated by your use of the Services, comments, and messages to other users of the Services (collectively “Content”).

To the extent you post Content using the Services, you represent and warrant that (i) you own or control all the rights to the content and have the right to grant the license specified in these Terms; and (ii) all content shall comply with these Terms, including, without limitation, the Acceptable Use Policy.

We reserve the right to remove any Content which Rythm, in its sole discretion, believes (i) contains material which violates the Acceptable Use Policy; (ii) promotes illegal activity; (iii) impersonates another or misrepresents your identity; or (iv) is likely to lead to legal liability for Rythm.

Rythm’s License to Content

Except as limited by our Privacy Policy, we retain a non-exclusive, irrevocable, fully paid up, worldwide license to copy, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any Content posted or uploaded using the Services. This license is for the limited purpose of improving the Services, and shall continue even if you stop using the Services.

Your Responsibilities

You are responsible for your conduct while using the Services, and you must comply with our Acceptable Use Policy, as provided below. Content uploaded or posted using the Services may be protected by others’ intellectual property rights. You are expressly prohibited from knowingly or willfully copying, uploading, downloading or sharing any such content under these Terms unless you have the right to do so.

As more fully set forth below, you are responsible for safeguarding your own user account password, and ensuring that others do not have access to it.

Acceptable Use Policy

We expect you to use our Services responsibly. Accordingly, you shall not do, attempt to do, or encourage any third party to do or attempt to do any of the following when accessing and using the Services:

  • Use the Services for any purpose which is in violation of applicable federal, state, or local laws, or which Rythm, in its sole discretion deems to be threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
  • Reverse engineer, decompile, modify, alter, tamper with, disassemble, or create any derivative works of any software used to provide the Services;
  • Probe, monitor or otherwise test for vulnerabilities any network used to provide the Services;
  • Introduce to the Services any material, tangible, or intangible, that contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Rythm or any third party;
  • Breach or otherwise circumvent any security or authentication measures put in place by Rythm or its successors, affiliates, or assigns;
  • Take any action designed to disrupt the function of the Services;
  • Use manual or automated software, devices, or other processes to “crawl” or “spider” the Site;
  • Use the Services in any manner other than that expressly allowed by these Terms;
  • Promote or advertise products or services without express written authorization from Rythm;
  • Originate or otherwise send any spam or similar unauthorized advertisements; or
  • Use the Services to knowingly or willfully infringe the intellectual property rights of others, including, but not limited to, the rights of others in patent, copyright, trademark, trade secret, or any applicable moral rights, as such exist now or come to exist, throughout the world.

Violations of the Acceptable Use Policy

You agree that any violation of this Acceptable Use Policy shall cause Rythm to suffer special, unique, and extraordinary damages which cannot reasonably be compensated by damages at law. Accordingly, you expressly agree that Rythm, in addition to the rights and remedies that Rythm may possess, shall be entitled to injunctive or other equitable relief to prevent or remedy a violation of the Acceptable Use Policy by you.

Rythm reserves the right to block, suspend or restrict your access to the Services in connection with any actual or suspected violation of this Acceptable Use Policy.

Updates to the Services

We may update the Services at any time, or add or subtract features from the Services at any time; provided, however, that if we make any modifications to the Services which will materially affect your ability to use the Services, we will provide notification of such changes by sending you a notice to the email address associated with your account.

Application and Documentation

Use of some features of the Services may require you to download our mobile application (the “Application”). So long as you comply with these Terms, Rythm grants you a limited, a non-exclusive, worldwide, non-transferable, revocable license to use the Application to the extent necessary to access the Services.

Rythm may from time to time provide you with, or allow you to access, certain information and documents, including, but not limited to, data sheets, articles, and similar materials pertaining to the Services (the “Documentation”). Provided that you comply with these Terms, and do not (i) remove any proprietary notice language on such Documentation; (ii) do not publish or otherwise broadcast the Documentation or the information contained in such Documentation; (iii) do not modify such Documentation in any way; and (iv) do not make any representations and warranties pertaining to the Documentation, Rythm hereby grants you a limited, a non-exclusive, worldwide, non-transferable, revocable license to use the Documentation for your own personal, non-commercial purposes.

Using the Services

Heath and Safety Instructions and Warnings

  • Do not use this device if you are under 18 years of age.
  • Do not use this device if you have ever experienced any neurological disorder.
  • Do not use this device if you have ever experienced any sleep disorder (including without limitation insomnia, apnea, and somnambulism).
  • Do not use this device if you are pregnant.

The product should not be placed on an individual’s body in locations other than as directed.

  • Do not place your product on open wounds, sores or rashes, or over swollen, red, infected or inflamed areas and skin irritations. If any skin irritation occurs in using your product, you should stop using your product immediately.
  • Do not use your product if the Dreem headband has been damaged or altered.
  • Do not use any attachments and accessories for your product which are not approved by Rythm.
  • Do not use while plugged into a USB port for charging.

PHYSICAL SYMPTOMS: In rare cases, some people experience seizure or blackouts due to exposure to flashing lights and patterns created by the display of certain applications on mobile or other such similar devices. If you have experienced any of these symptoms, or have experienced any nausea, involuntary movements, tingling, numbness or vision issues while using these types of applications or devices in the past, you should consult with your doctor before using the product or any similar applications, and should immediately cease all such use of your product or any similar applications should the symptoms reoccur. In any event, you should avoid prolonged use of your product or any similar applications to minimize any possible discomfort or fatigue, including any muscle, joint or eye strain.

IF YOU EXPERIENCE ADVERSE SYMPTOMS OR REACTIONS AS A RESULT OF YOUR USE OF YOUR PRODUCT, YOU SHOULD IMMEDIATELY STOP USING YOUR PRODUCT AND CONSULT WITH YOUR PHYSICIAN. IN AN EMERGENCY, YOU SHOULD CONTACT YOUR LOCAL POLICE, FIRE OR EMERGENCY MEDICAL PERSONNEL.

Use the Services at Your Own Risk

THE SERVICES ARE NOT INTENDED TO DIAGNOSE, CURE, OR PREVENT ANY DISEASE. IF YOU HAVE A MEDICAL CONDITION, CONSULT YOUR DOCTOR BEFORE USING THE SERVICES.

USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. PLEASE READ AND COMPLY WITH ANY AND ALL SAFETY NOTICES THAT ACCOMPANY THE PRODUCTS OR ANY OTHER FEATURE OF THE SERVICES.

Registration

Certain features of the Services require you to download the Application. You may register to use the Services via the Application by providing us with your first and last name, a valid email address, and a password. While this registration is not mandatory, it is required to enable you to use certain features of the Product, which are part of the services.

Purchases

Our Services may allow you to purchase certain Products and Services offered by us or third parties. Such purchases may be governed by an additional terms of sale agreement with Rythm and/or the applicable third party. IN ADDITION TO, AND WITHOUT LIMITING, ANY OTHER TERM HEREOF, RYTHM MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE QUALITY, USEFULNESS, OR FUNCTIONALITY OF ANY PRODUCT OR SERVICE PURCHASED FROM ANY THIRD PARTY. Purchases of additional products and services through our Services shall not be refunded, except as specified by applicable third parties.

Necessary Equipment

Full use of the Services is dependent on your use of a computer or a supported mobile device with the Application, and Internet access. The maintenance and security of this equipment may affect the performance of the Services, and it is your responsibility to ensure the equipment’s functionality.

Termination

You are free to stop using the Services at any time. We also reserve the right to suspend or end the Services at any time, at our discretion and without notice, if you are not complying with these Terms, or if you use the Services in a manner that would cause us legal liability, disrupt the Services, or disrupt other users’ use of the Services. We reserve the right to terminate and delete your account if you have not accessed the Services for twelve (12) consecutive months. Rythm will provide you with notice via the email address associated with your account before we do so.

Liability & Warranties

Accuracy of Information

OUR GOAL IS TO PROVIDE YOU WITH HELPFUL AND ACCURATE INFORMATION REGARDING YOUR SLEEP PATTERNS VIA THE SERVICES. HOWEVER, WE MAKE NO ENDORSEMENT, REPRESENTATION, OR WARRANTY OF ANY KIND ABOUT AND INFORMATION OR RECOMMENDATIONS FURNISHED BY THE SERVICES. THE ACCURACY OF THE DATA COLLECTED AND PRESENTED THROUGH THE SERVICES IS NOT INTENDED TO MATCH THAT OF MEDICAL OR SCIENTIFIC MEASUREMENT DEVICES. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY OR EFFECTIVENESS OF ANY INFORMATION PROVIDED BY THE SERVICES.

Services Offered “As Is”

RYTHM PROVIDES THE SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS. ACCORDINGLY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RYTHM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS.

No Other Warranties

We strive to provide the best possible Services, but there are certain things that we can’t guarantee.

EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RYTHM DOES NOT MAKE ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR ANY OTHER SUBJECT MATTER OF THESE TERMS. BOTH YOU AND RYTHM SPECIFICALLY EXCLUDE AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Some states don’t allow the disclaimers in this paragraph, so they may not apply to you.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL RYTHM, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OR DESTRUCTION OF DATA, LOSS OF ACTUAL OR ANTICIPATED PROFITS OR BENEFITS, OR THE COST OF PROCURING A REPLACEMENT SERVICES OR SOLUTIONS, WHETHER OR NOT RYTHM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING IN ANY WAY OUT OF THESE TERMS OR IN CONNECTION WITH THE SERVICES, OR ANY UNDERTAKING OR PERFORMANCE THAT MAY BE PROMISED, PERFORMED, OR EXECUTED TO IMPLEMENT THESE TERMS.

IN NO EVENT SHALL RYTHM’S LIABILITY PURSUANT TO THESE TERMS EXCEED THE GREATER OF (I) ANY AMOUNTS PAID TO RYTHM BY YOU IN THE PAST SIX (6) MONTHS, EXCLUDING THE PURCHASE PRICE OF THE PRODUCT; OR (II) ONE HUNDRED DOLLARS ($100.00).

Some states don’t allow the types of limitations in this section, so they may not apply to you.

Resolving Disputes

Initial Dispute Resolution

We want to address your concerns without a formal legal claim. Before filing a claim against Rythm, you agree to try to resolve the dispute informally by contacting legal@rythm.co. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within thirty (30) days of submission, either you or Rythm may begin formal legal action, subject to these Terms.

Choice of Law

The validity, performance, construction, and interpretation of this Privacy Policy shall be governed by the laws of the State of California, without regard to conflicts of law principles. Both you and Rythm expressly disclaim from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

Venue & Jurisdiction

With respect to any disputes which cannot be resolved by our internal processes, you agree that jurisdiction for any legal action will be the state and federal courts located in San Francisco County, California. The parties hereby consent to the personal jurisdiction of such courts as described above, except as expressly provided herein.

If you are a consumer based in the European Union, the above provision regarding venue does not apply to you. In the event that you are a citizen of the European Union, you may make a claim in the courts of the country where you reside.

Time to File Claims

The parties expressly agree that any and all disputes arising under these terms must be brought within one (1) year after the conduct underlying such claim arising, or the claim shall be barred.

Attorneys’ Fees and Costs

In any legal action hereunder, the prevailing party shall be entitled to attorney’s fees and costs.

Money Damages Sufficient

You expressly agree that money damages are sufficient to compensate you for any dispute arising under these Terms. Accordingly, you expressly disclaim any right to non-monetary relief, including, but not limited to, equitable or injunctive relief, that you may have in connection with a dispute arising under these Terms.

Miscellaneous

No Legal Advice

Information contained on or made available through the Services or in these Terms is not intended to and does not constitute legal advice, recommendations, mediation or counseling under any circumstance and no attorney-client relationship is formed thereby. You are advised that you have the right to seek independent counsel in connection with these Terms.

Waiver, Severability & Assignment

Any failure on the part of Rythm to enforce a provision under these Terms does not constitute waiver of any rights under these Terms, including the right to take action at a later date. If any provision of these Terms is found unenforceable by any court or administration body of competent jurisdiction, such provision shall be excluded from these Terms and the balance of the Terms shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with the intent of these Terms to the fullest extent permitted by law. You may not assign any of your rights under these Terms, and any such attempt will be null and void. Rythm may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Modifications

We may revise these Terms from time to time, and will always post the most current version on our Site. If a revision meaningfully reduces your rights, we will notify you by sending you a notice to the email address associated with your account. To avoid any disputes which may arise, you expressly agree to allow Rythm to determine when a revision to these Terms meaningfully reduces your rights. By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Terms.