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This BetterSleep Services Agreement (the “Agreement”) is between Customer, an organization or employer on behalf of itself, and Ipnos Software Inc. (“BetterSleep”), with an effective date of when Customer accepts this Agreement through BetterSleep's website(s), mobile app(s), or web app(s), with reference to the following facts:
RECITALS:
WHEREAS, BetterSleep provides an application through which users may access audio content, including but not limited to sleep sounds, music, stories, guided meditations, and hypnotherapy (“Sound Content”), visual and written content such as articles and blog posts featuring information in the fields of sleep, mental health, meditation, and relaxation (“Written Content”), and sleep tracking services (“Services”);
WHEREAS, Customer desires to provide access to BetterSleep's Services for designated eligible individuals affiliated with Customer, as defined hereinafter in Section 1, to some or all its members;
NOW, THEREFORE, in exchange for the promises made hereunder and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and BetterSleep (individually referred to herein as a “Party” and collectively referred to herein as the “Parties”) agree to as follows:
1. Definitions
1.1. “Customer” means any group, organization, or employer to whom Services are being provided.
1.2. “Intellectual Property” means all of the following: (a) all inventions (whether patentable or un-patentable and whether or not reduced to practice) and all improvements thereto; (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, web domain names, other source identifiers, and telephone numbers, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith; (c) all copyrightable works; (d) all mask works; (e) all trade secrets and confidential, technical, and business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, pricing and cost information, and plans and proposals); (f) all computer software (including source code, executable code, data, databases, and related documentation); (g) all advertising and promotional materials; (h) all other proprietary materials and information; and (i) all copies and tangible embodiments thereof (in whatever form or medium).
1.3. “Intellectual Property Rights” mean all rights, title and interest in and to Intellectual Property in any jurisdiction throughout the world including, as applicable: (a) all patents, patent applications, and patent disclosures, together with all reissuances, continuations, divisions, continuations-in-part, revisions, extensions, and reexaminations thereof; (b) all copyrights, and all applications, registrations, and renewals in connection therewith; (c) all mask work applications, registrations, and renewals in connection therewith; and (d) all other proprietary rights.
1.4. “Participant” means any member of Customer who is eligible to use the Services and who has registered (as outlined in Section 2.5) for Services on the Platform using an invite link provided to members of Customer.
2. The BetterSleep Platform.
2.1. BetterSleep provides an online platform through which sleep content and sleep tracking may be provided (the “Platform”). The Platform is available via BetterSleep's website(s), mobile app(s), and web app(s).
2.2. Access to the Platform allows Participants to access audio content, including but not limited to sleep sounds, music, stories, guided meditations, and hypnotherapy, sleep tracking, and visual and written content such as articles and blog posts featuring information in the fields of sleep, mental health, meditation, and relaxation.
2.3. It is understood by the Parties that the Services are for informational purposes only and are not intended to be a substitute for medical advice or treatment.
2.4. Services shall be provided and conducted in English, with Services provided in other languages on an as-available basis.
2.5. Each member’s access to the Platform shall be subject to their completing enrollment through the online Platform located at https://www.bettersleep.com/ and agreeing to the terms and conditions set forth therein (the “Terms and Conditions”) as may be amended from time to time in BetterSleep's sole discretion. BetterSleep’s provision of the Services and all rights, obligations, and liabilities, therefore, including Participants’ continued access to the Services, shall be subject at all times to the Terms and Conditions, which includes the BetterSleep Privacy Policy located at https://www.bettersleep.com/legal/privacy-policy.
3. Services
3.1. BetterSleep agrees to provide Participants access to the Platform and Services according to the specific subscription cycle purchased by Customer.
3.2. BetterSleep agrees to provide Customer access to an internal dashboard wherein Customer can upload email addresses of members Customer wishes for BetterSleep to provide Services and view limited aggregated statistics regarding Participants’ usage of the Services and Platform (“Customer Dashboard”). Customer is solely responsible for updating the eligible list of members.
4. Customer Obligations
4.1. Customer represents and warrants it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder for the duration of the Term of the Agreement.
4.2. It is the responsibility of the Customer to obtain all legally required consents/provide all legally required disclosures to Customer's members in order to upload members’ email addresses to the Customer Dashboard for the purpose of BetterSleep administering the Services contemplated herein.
4.3. Customer represents and warrants that it has obtained authorization from Participants for BetterSleep to share any necessary limited information, including but not limited to aggregated usage statistics on the Customer Dashboard.
4.4. Customer represents and warrants that its and all its subcontractors’ creation, collection, receipt, access, use, storage, disposal, and disclosure of personal information does and will comply with all applicable privacy and data protection laws, as well as all other applicable regulations and directives.
4.5. Customer and all its subcontractors shall implement administrative, physical, and technical safeguards, pursuant to written information security and privacy policies, to protect personal information from unauthorized access, acquisition, disclosure, destruction, alteration, accidental loss, misuse, or damage, that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which personal information is created, collected, accessed, received, used, stored, processed, disposed of, and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement.
4.6. Upon BetterSleep’s request, subject to reasonable scope and frequency, Customer will provide BetterSleep with a copy or a written summary of its information security and data privacy programs, including answers to relevant questionnaires and information requests, and any relevant audit or assessment reports.
5. Term and Renewal
5.1. This Agreement shall continue on an ongoing basis until terminated by Customer or BetterSleep or as otherwise agreed-upon based on the amount of Services agreed to.
5.2. All subscriptions for Services purchased under this Agreement shall be for one (1) year terms, commencing on the date of purchase by Customer (“Subscription Term”). Upon expiration of the Subscription Term, all subscriptions shall automatically renew for successive one (1) year periods (each a “Subscription Renewal Term”). Customer acknowledges and agrees that all fees for each Renewal Term shall be automatically charged to the payment method saved on Customer’s account.
5.3. BetterSleep reserves the right to modify the pricing for its Services at the end of any Subscription Term or Subscription Renewal Term. Any such changes shall become effective upon the commencement of the subsequent Subscription Renewal Term. BetterSleep will provide Customer with at least thirty (30) days written notice of any pricing changes.
6. Termination
6.1. Either Party may terminate this Agreement for convenience at any time with thirty (30) days’ written notice to the other Party.
6.2. Either Party may also terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within five (5) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; or (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law or has a receiver, trustee custodian appointed to manage its property and/or its affairs.
6.3. In the event of termination for convenience by Customer, Customer shall not be entitled to any refund of any fees paid to BetterSleep prior to the date of termination. All payments made under this Agreement are non-refundable. This clause shall survive termination of this Agreement.
7. Marketing, Sales, and Promotion
7.1. Subject to the terms of this Agreement, BetterSleep may disclose its partnership with Customer in promotional or marketing materials. Customer hereby grants BetterSleep a limited, non-exclusive, non-transferable license to use its trade names, service marks, trademarks and logos in connection with marketing and promoting its partnership with Customer.
7.2. To the extent Customer promotes its partnership with BetterSleep, Customer must, at all times, clearly, conspicuously, and accurately disclose its material connection with BetterSleep as required under applicable advertising regulations.
7.3. To the extent Customer promotes its partnership with BetterSleep, all copy, content, or promotional materials related to this partnership must be pre-approved by BetterSleep prior to promotion.
7.4. Customer's failure to obtain pre-approval for promotional materials and/or properly disclose the partnership under Section 7 of this Agreement, will constitute a material breach of this Agreement.
7.5. Customer acknowledges and agrees that it will not issue any public statement regarding the Parties’ business relationship without the prior express written consent of BetterSleep.
8. Intellectual Property Rights
8.1. BetterSleep shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Services and Platform. The transactions and other matters set forth in this Agreement are not intended to constitute, and are not, a sale of any tangible or intangible property, and this Agreement is not intended to, and does not, convey to Customer any right of ownership in or related to the Platform, Services or the Intellectual Property Rights now or hereinafter owned by BetterSleep.
8.2. Except as expressly permitted in this Agreement, Customer shall not, directly or indirectly: (a) use any BetterSleep Confidential Information (as defined hereinafter in Section 9) to create any software or documentation that contains features or functionality that is similar to the Platform; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying ideas, algorithms or organization of the Platform (except and only to the extent these restrictions are expressly prohibited by applicable law); (c) encumber, sublicense, transfer, sell, export, re-export, distribute or otherwise commercially exploit the Platform for the benefit of any third party; (d) copy, create derivative works of or otherwise modify the Platform; (e) use the Platform in a manner that unreasonably interferes with any other BetterSleep user’s use thereof; or (f) permit any third party to do any of the foregoing. Customer will promptly notify BetterSleep in writing of any unauthorized use, reproduction or distribution of the Platform that it becomes aware of.
9. Confidentiality
9.1. For purposes of this Agreement, “Disclosing Party” shall mean the Party that discloses any Confidential Information, as defined below, to the other Party to this Agreement, and the “Receiving Party” shall mean the Party that receives any Confidential Information, as defined below, from the other Party to this Agreement.
9.2. For purposes of this Agreement, “Confidential Information” shall include information: (i) that is not known by actual or potential competitors of the Disclosing Party or is generally unavailable to the public; (ii) that has been created, discovered or developed by, or otherwise become known to, the Disclosing Party or in which property rights have been assigned or otherwise conveyed to the Disclosing Party; and (iii) that has material economic value or potential material economic value to the Disclosing Party's present or future business. Confidential Information shall include trade secrets which include all discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, negative know-how, data, research, technical data (whether or not patentable or registerable under patent, copyright or similar statutes, and including all rights to obtain, register, perfect, and enforce those proprietary interests) and any other Intellectual Property, customer and supplier lists, price lists, business plans, and any modifications or enhancements of any of the foregoing, and all program, marketing, sales, or other financial or business information disclosed to the Receiving Party by the Disclosing Party, either directly or indirectly, in writing or orally or by drawings or observation, which has actual or potential economic value to the Disclosing Party, any other information that is treated as confidential, regardless of whether it is marked as such, and any other information that a reasonable party would conclude is confidential or proprietary in nature. Confidential Information shall also include, without limitation, employee identifiable information (“PII”) and employee health information (“Health Information”), analyses, forecasts, studies, summaries, marketing plans, financial data, business statistics, property, contracts, methods, transactions, affairs, concepts, ideas, services, products, images, graphics, text, phone, video, software and other data, knowledge, content or information in written, oral, visual and/or physical/sample form.
9.3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent that it: (i) is or becomes a part of the public domain through no act or omission on the part of the Receiving Party; (ii) is disclosed to third parties by the Disclosing Party without restriction on such third parties; (iii) is in the Receiving Party's possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement; (iv) is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto; (v) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (vi) is released from confidential treatment by written consent of the Disclosing Party.
9.4. Notwithstanding the foregoing, portions of Confidential Information may be disclosed pursuant to the request of a governmental agency or third party if such disclosure is required by operation of law, regulation or court order, provided the Receiving Party gives the Disclosing Party prompt written notice of such proposed disclosure in order to enable the Disclosing Party to obtain an appropriate protective order, if it so desires.
9.5. The Receiving Party shall hold and maintain the Confidential Information of the Disclosing Party in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information of the Disclosing Party.
9.6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information of the Disclosing Party in violation of this Agreement may cause the Disclosing Party irreparable harm, and that monetary damages may not be a sufficient remedy. Thus, the Receiving Party agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such disclosure or misappropriation and for such other relief as the Disclosing Party shall deem appropriate, and the Receiving Party expressly agrees that the Disclosing Party shall be entitled, in addition to any other remedy provided by law, to seek an injunction or other equitable remedy respecting such violation or continued violation. Such right is to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. If any action at law or in equity is brought to enforce or interpret the provisions of this Section, the prevailing Party in such action shall be entitled to reasonable attorneys' fees.
9.7. Upon request, the Receiving Party shall promptly return to the Disclosing Party any and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information of the Disclosing Party. Alternatively, the Receiving Party shall erase or destroy any and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information of the Disclosing Party in the Receiving Party’s possession, and certify in writing to the Disclosing Party that it has complied with the requirements of this Section 9.7.
10. Relationship of the Parties
10.1. Customer and BetterSleep are and shall at all times function as independent contractors under this Agreement. Neither BetterSleep nor the Customer is an employee, joint venturer, principal, agent (except to the extent otherwise specifically contemplated herein), or partner of the other Party. Neither BetterSleep or Customer is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other Party, except to the extent otherwise specifically contemplated herein. The employees, agents, representatives, providers, methods, facilities and equipment of a Party shall at all times be under the exclusive direction and control of that Party.
11. Disclaimers
11.1. Customer acknowledges and agrees that the Platform and Services are being provided on an “as is” and “as available” basis. Except as may be explicitly set forth in this Agreement, BetterSleep makes no representations and expressly disclaims to the maximum extent permitted by law, all warranties or representations of every kind or nature, either implied or statutory, as to the Platform and Services, including without limitation, any implied warranties of merchantability, non-infringement, security, fitness for a particular purpose, or title.
11.2. BetterSleep does not warrant that the Services or Platform will be uninterrupted, timely, or error free. Customer acknowledges that BetterSleep does not give any advice on the taxation treatment of this Agreement or the provision of Services hereto.
12. Compliance with Laws
12.1. Each Party is responsible for compliance with all applicable federal, state and local laws, rules and regulations (“Applicable Law”) related to the performance of its rights and obligations under the Agreement. Each Party shall take all measures necessary to promptly remedy any violation(s) of Applicable Law for which it is responsible, and shall promptly notify the other Party of any violation(s) thereof. Customer shall obtain at its own cost any and all necessary consents, licenses, approvals and permits required for the provision of the Services via the Platform.
12.2. Both Parties agree to comply with all federal, state and local laws relating to its respective activities under this Agreement (including but not limited to the CAN-SPAM Act, Telephone Consumer Protection Act, and Federal Trade Commission Act).
12.3. Customer is and will remain in full compliance with the terms of use/terms and conditions and privacy policy for any and all websites used by Customer in endorsing, promoting, and/or advertising the partnership.
12.4. Customer shall comply with all laws in collecting, processing, and using email addresses of Participants hereunder and shall ensure that all email addresses are scrubbed and cleaned against all do not contact lists and telemarketing regulations.
13. Indemnification and Limitation of Liability
13.1. Each Party agrees that it is solely liable for any breach, misrepresentation, error or omission by its employees, agents and representatives concerning the Services or otherwise made by such Party in fulfilling its obligations under this Agreement. Each Party agrees to indemnify and hold harmless the other Party and its affiliates, and their directors, officers, employees, agents, representatives, successors and assigns, from and against any loss, cost, damage or expense, including reasonable attorneys’ fees and court costs, arising out of any error, omission or malfeasance of such breaching Party.
13.2. Each Party’s total liability (including the liability of any of its officers, employees, or agents) relating to claims for damages arising from or relating to the performance of this Agreement shall be limited to direct (reasonably foreseeable) damages and shall in no event exceed the amounts paid by Customer to BetterSleep in the twelve (12) month time period preceding the claim.
13.3. Each Party expressly waives any right to seek consequential, indirect, punitive, or special damages for claimed losses arising from or relating to the performance of this Agreement from the other Party including, without limitation, claims for loss of business, data, revenue, profits, or goodwill, even if the Parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable.
13.4. To the extent that applicable law does not allow the limitation of liability as set forth in this Section 13, the limitation will be modified solely to the extent necessary to comply with applicable law.
14. Assignment
14.1. Customer shall not directly or indirectly transfer, delegate, or assign any of its rights or obligations under this Agreement, in whole or in part, including by change or control, merger, operation of law, or any other matter, without BetterSleep’s express prior written consent. Any purported assignment or delegation without such consent shall be null and void.
15. Notices
15.1. All notices relating to this Agreement shall be in writing.
15.2. Notices to Customer will be deemed given by BetterSleep when sent by email to the email address provided by Customer during account creation. Customer consents to receive notices by email and agrees that any such notices sent by BetterSleep electronically will satisfy any legal communication requirements.
15.3. Notices to BetterSleep shall be delivered in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and addressed to Ipnos Software Inc., Attn: Legal, 1010-615 René-Levesque Blvd. W., Montreal, Quebec, H3B 1P5, Canada, with an email copy to [email protected]. Notices sent in accordance with this Section 15.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the 5th day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
16. Entire Agreement, Amendment, and Severability
16.1. This Agreement (including any Exhibits or attachments hereto) constitutes the entire agreement by and between BetterSleep and Customer relating in any manner of its subject matter, and any representation, warranty, covenant, understanding or agreement not contained or incorporated in it by reference shall be of no force or effect. This Agreement supersedes all prior proposals, discussions, writings, and agreements between the Parties relating to the subject matter hereof. This Agreement may be modified by the BetterSleep at any time in its sole discretion. In the event any provision of this Agreement shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly.
17. Waiver
17.1. Any failure on the part of a Party to comply with any of its obligations, agreements, or responsibilities under this Agreement may be waived by the other Party to whom such compliance is owed. No waiver of any provision of such agreements shall be deemed a waiver of any other provision, nor shall any waiver constitute a waiver of any failure other than that waived.
18. Force Majeure
18.1. Neither Party shall have liability to the other as a result of a Force Majeure Event; provided, however, that the non-performing Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and restores performance as soon as such causes are removed. For purposes of this Agreement, “Force Majeure Event” means an event not reasonably foreseeable, beyond a Party’s reasonable control, and occurring without its fault or negligence, including, without limitation (a) an act of nature, such as fire, flood, earthquake, storm, tornado, lightning, landslide, sink hole, pandemic or outbreak of disease, (b) a service failure caused by third parties, such as a power or utility outage or a labor dispute affecting suppliers or subcontractors, (c) a civil disruption such as war, invasion, insurrection, trade embargo, or activities by terrorists or public enemies, or (d) action by a governmental body that enjoins or prevents performance by a Party.
19. Governing Law, Jurisdiction, and Venue
19.1. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to any choice or conflict of law provision or rule. Jurisdiction and venue for any and all disputes under this Agreement shall be the courts of the Province of Quebec.
20. Survival
20.1. Section 6.3, Section 8 (Intellectual Property Rights), Section 9 (Confidentiality), Section 13 (Indemnification and Limitation of Liability), Section 19 (Governing Law, Jurisdiction, and Venue), and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, shall survive any expiration or termination of this Agreement.