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Last Modified: Apr 7, 2014

PLEASE READ THESE TERMS OF USE CAREFULLY.

The following terms and conditions (collectively, the “Terms of Use”) apply to your use of www.samialert.com and any other websites and mobile applications owned or controlled by HiPass Design LLC (“HiPass,” “we” or “us”).  We refer to these websites, individually or together, as the “Site” for short.  By accessing the Site in any manner (whether automated or otherwise), you accept and agree to be bound by these Terms of Use and our Privacy Policy, incorporated herein by reference.  If you do not agree to these Terms of Use or the Privacy Policy, immediately cease all use of the Site.

HiPass may, at any time, revise or modify these Terms of Use or impose new conditions for use of the Site.  Such changes, revisions, or modifications shall be effective immediately upon notice to you, which may be given by any means including, without limitation, posting on the Site or by email.  Any use of the Site by you after such notice shall constitute your acceptance of such changes, revisions, or modifications.

PRIVACY POLICY AND ADDITIONAL TERMS

All information we collect on the Site is subject to our Privacy Policy.  By using the Site, you consent to all actions taken by us with respect to your information in compliance with our Privacy Policy.  Your use of certain products and/or software you purchase or license from us (such as SAMi™), may be subject to additional terms and conditions.  If you do not agree to be bound by such additional terms and conditions, you should not use such products or software or otherwise indicate your acceptance of such additional terms and conditions.

OWNERSHIP AND SCOPE OF USE

The Site and the content available on or through the Site are protected by copyright, trademark, and other applicable United States and international laws.  Without limiting the foregoing, the trademarks, service marks, and logos displayed on the Site are registered and unregistered marks of HiPass and its licensors.  Nothing contained in these Terms of Use should be construed as granting, by implication, estoppel, or otherwise, any license or right in or to such trademarks, service marks, or logos.

HiPass grants you a limited license to access and use the Site for your own personal, non-commercial use solely in accordance with these Terms of Use.  Notwithstanding the foregoing, you may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works of, exploit, or distribute in any manner or medium (including by email or other electronic means) any content available on the Site (including, without limitation, text, design, graphics, icons, images, audio clips, downloads, interfaces, code, and software) unless explicitly authorized by HiPass.  However, from time to time you may download and/or print one copy of certain items available for free on the Site for your own personal, non-commercial use; provided that you do not modify or delete any copyright, trademark or other proprietary notices that appear in the content.

RULES OF CONDUCT

By using the Site, you represent that you are at least eighteen (18) years old or the age of majority in your jurisdiction.  You agree to comply with all applicable laws and contractual obligations when you use the Site, and agree not to:

  • “harvest” (or collect) information from the Site using an automated software tool or manually on a mass basis, including, but not limited to, information about our offerings, products, services, and promotions;
  • use automated means to access the Site, or gain unauthorized access to the Site or to any account or computer system connected to the Site;
  • obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you;
  • “flood” the Site with requests or otherwise overburden, disrupt, or harm the Site or our systems; or
  • restrict or inhibit other users from using or enjoying the Site.

ELECTRONIC COMMUNICATIONS

The communications between you and HiPass via the Site use electronic means, whether you visit the Site or send us an email, or whether we post notices on the Site or communicate with you via email.  For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

CHANGES TO THE SITE

HiPass reserves the right to make changes to, or to suspend or discontinue (temporarily or permanently), the Site or any portion of the Site.  You agree that we will not be liable to you or to any third party for any such change, suspension or discontinuance.

SUSPENSION OR TERMINATION OF ACCESS

HiPass has the right to deny access to, and to suspend or terminate your access to, the Site, or to any features or portions of the Site, at any time and for any reason, including if you violate these Terms of Use.  In the event that we suspend or terminate your access to and/or use of the Site, you will continue to be bound by the Terms of Use that were in effect as of the date of your suspension or termination.

LINKING POLICIES

The Site may contain links to other websites operated by third parties. Such links are provided for your convenience only, and if you access any other websites linked to the Site you do so at your own risk.  We are not responsible for the content of any such websites, or the products and services sold on them, nor are we responsible or liable for any loss or damage that may arise from your use of such websites.  When you visit a linked website you should read the terms of use and privacy policy that govern that particular website.  Links to other websites do not imply our endorsement of any content, advertising, products, services, or other materials on or available through such websites.

Unless otherwise set forth in a written agreement between you and HiPass, you must adhere to the following linking policy:  (i) the appearance, position, and other aspects of the link may not be such as to damage or dilute the goodwill associated with HiPass or its trademarks, service marks, or logos; (ii) the link must “point” to the root domain name of the Site and not to other pages within the Site; (iii) the appearance, position, and other attributes of the link may not create the false appearance that your website or organization is sponsored by, affiliated with, or associated with HiPass; and (iv) when selected by a user, the link must open the Site in a new browser window which displays the full-screen version of the Site, not within a “frame” on the linking website.  HiPass reserves the right to revoke its consent to the link to the Site at any time and in its sole discretion.[A1] 

DISCLAIMER OF WARRANTIES

THE SITE AND ITS CONTENT ARE PROVIDED TO YOU ON AN "AS IS" "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, AND HIPASS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.  NEITHER HIPASS NOR ANY PERSON ASSOCIATED WITH HIPASS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE OR ITS CONTENT.  WITHOUT LIMITING THE FOREGOING, NEITHER HIPASS NOR ANYONE ASSOCIATED WITH HIPASS REPRESENTS OR WARRANTS THAT THE SITE OR ITS CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE OR ITS CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.

LIMITATION OF LIABILITY

IN NO EVENT WILL HIPASS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE OR ANY CONTENT ON THE SITE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.  USE OF THE SITE AND ITS CONTENT IS AT YOUR SOLE RISK.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  IN SUCH STATES, THE LIABILITY OF HIPASS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SERVICE PROVIDERS IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

INDEMNIFICATION

You agree to indemnify, defend, and hold HiPass and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from your use of the Site or your violation of these Terms of Use or applicable law.  We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, in which event you agree to cooperate with us in defending such action.  Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Site and/or these Terms of Use.

GEOGRAPHIC RESTRICTIONS

HiPass is based in the state of Colorado in the United States.  We do not represent that the Site or its content, or any products or services available on or through the Site, are accessible or appropriate in other locations.  If you access the Site from other locations, you do so on your own initiative and are responsible for compliance with applicable local laws.

GOVERNING LAW; JURISDICTION AND VENUE

These Terms of Use and any dispute or claim arising out of or related to these Terms of Use, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action, or proceeding arising out of or related to these Terms of Use or the Site shall be instituted exclusively in the state courts located in the Boulder County, Colorado or, if such courts would not have jurisdiction over the matter, then only in the United States District Court for the District of Colorado.  You further agree that such courts shall have in personam jurisdiction and venue with respect to you, and you hereby submit to the in personam jurisdiction and venue of such courts and waives any objection.  You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

WAIVER AND SEVERABILITY

Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision.  If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms of Use will continue in full force and effect.

ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES

 These Terms of Use, together with our Privacy Policy and any additional terms and conditions that are referenced herein or otherwise may apply to specific areas of the Site, constitute the sole and entire agreement between you and HiPass with respect to the Site, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Site.  These Terms of Use are not intended to benefit any third party, and do not create any third-party beneficiaries. Accordingly, these Terms of Use may only be invoked or enforced by you or HiPass.

MESSAGING TERMS & CONDITIONS

Sami - the sleep activity monitor (hereinafter, "Sami - The Sleep Activity Monitor," "We," "Us," "Our") is offering a mobile messaging program (the "Program"), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Messaging Privacy Policy. By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the "Dispute Resolution" section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts (including those in the "Other Terms and Policies" section below). Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program.

1. User Opt In. You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from Sami - The Sleep Activity Monitor, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. By providing your phone number, you represent and warrant that you are providing your own phone number, and not someone else’s, and that you are a legally-authorized user of this phone number. Consent to receive automated marketing text messages is not a condition of any purchase. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system ("ATDS" or "autodialer"). Message and data rates may apply. Message frequency varies.

2. User Opt Out. If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Sami - The Sleep Activity Monitor and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

3. Other Terms and Policies. You also agree to our Messaging Privacy Policy, Sami - The Sleep Activity Monitor Terms of Service and Sami - The Sleep Activity Monitor Privacy Policy.

4. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, customer support, delivery (including order confirmations, tracking information, and shipping updated via email), other transactional-related messages and sale of our products. Messages may include checkout reminders.

5. Message Frequency, Cost and Changes. Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. We reserve the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. We also reserve the right to change the short code or phone number from which Our messages are sent.

6. Support Instructions. For support regarding the Program, text "HELP" to the number you received messages from or email us at info@samialert.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

7. MMS Disclosure. The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

8. Our Disclaimer of Warranty. The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

9. Supported Devices. The Program is offered on an "as-is" basis. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Sami - The Sleep Activity Monitor, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.

10. Contact. This Program is a service of Sami - The Sleep Activity Monitor, located at 1193 Old Tale Road, Boulder CO 80303, United States.

11. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

12. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

  • - Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • - Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • - Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • - Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • - Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act ("HIPAA") or the Health Information Technology for Economic and Clinical Health Act ("HITEC" Act); and
  • - Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

13. Dispute Resolution. In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Boulder , CO before one arbitrator. No class actions. YOU UNDERSTAND AND AGREE THAT, BY AGREEING TO THIS AGREEMENT, YOU AND Sami - The Sleep Activity Monitor ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT (the "FAA"). The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Sami - the sleep activity monitor Company’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the FAA. The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. Notwithstanding anything to the contrary in this Agreement, if Sami - The Sleep Activity Monitor makes any future change to this arbitration provision, you may reject the change by sending Us written notice within 30 days of the change to 1193 Old Tale Road, Boulder CO 80303, United States, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Sami - The Sleep Activity Monitor.

If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

14. State Law:

  • Florida: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
  • Washington: To the extent the law is relevant and applicable to the Program, we endeavor to comply with the commercial telephone solicitation requirements pursuant to the Revised Code of Washington (RCW) (including but not limited to sections 80.36.390, 19.158.040, 19.158.110 and 19.158) as applicable to Washington residents. For purposes of compliance, you agree that we may assume that you are a Washington resident if, at the time of opt-in to the Program, the area code for the phone number used to opt-into the Program is a Washington area code.
  • Oklahoma: We endeavor to comply with the Oklahoma Telephone Solicitation Act of 2022 as applicable to Oklahoma residents.  For purposes of compliance, you agree that we may assume that you are an Oklahoma resident if, at the time of opt-in to Program, the area code for the phone number used to opt-into the Program is an Oklahoma area code.  You agree that the requirements of the Oklahoma Telephone Solicitation Act do not apply to you, and you shall not assert that you are an Oklahoma resident, if you do not meet the criteria or, in the alternative, do not affirmatively advise us in writing that you are an Oklahoma resident by sending written notice to Us.  Insofar as you are an Oklahoma resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Oklahoma Statutes Title 15 (including but not limited to sections 775C.1, 775C.2, 775C.3, 775C.4 and 775C.5), to the extent the law is otherwise relevant and applicable.

 

16. Miscellaneous. You warrant and represent to Us that you have all necessary rights, power, and authority to agree to the terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the terms of this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to these terms unless explicitly stated otherwise in writing. We reserve the right to change these terms from time to time. Any updates to this Agreement shall be communicated to you. Prior to such communication, the terms of this Agreement in effect as last made available to you immediately prior to your receipt of the notice will continue to govern our relationship. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

CONTACT US

If you have any questions about the Site or these Terms of Use, you may email us at info@samialert.com or write to us at:

HiPass Design Ltd.
Attn: Charles Anderson
4440 Arapahoe Ave, Suite 100
Boulder, CO 80303 USA