TERMS AND CONDITIONS
BY CLICKING THE BUTTON “AGREE”, “I ACCEPT”, “SUBMIT SIGNATURE” OR OTHERWISE INDICATING ACCEPTANCE, BY REGISTERING FOR OR USING THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE “AGREEMENT”), WHICH GOVERNS YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE BUTTON “SUBMIT SIGNATURE” WHICH WILL INDICATE THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
NO PROVISION OF MEDICAL ADVICE. Nesting Owl does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Services are not intended to be a substitute for professional medical advice, diagnosis, or treatment and are offered for informational and communicative purposes only. The Services are not intended to be, and must not be taken to be, the practice of medicine, nursing, pharmacy or other healthcare advice by Nesting Owl. The Services are not meant to diagnose or treat any conditions – only your or the child’s medical professional can determine the right course of treatment for you or the child and determine what is safe, appropriate and effective based on your or the child’s needs. Reliance on any information provided by Nesting Owl or in connection with the Services is solely at your own risk. You are solely responsible for any decisions or actions you take based on the information and materials available through the Services. You acknowledge that although some Content (defined below) may be provided by individuals in the medical profession, the provision of such Content does not create a medical professional/patient relationship between you (or the child under your care) and Nesting Owl or between you (or the child under your care) and any other individual or entity, and does not constitute an opinion, medical advice, or diagnosis or treatment. THE SERVICES SHOULD NEVER BE USED AS A SUBSTITUTE FOR EMERGENCY CARE. IF YOU OR THE CHILD UNDER YOUR CARE HAVE A MEDICAL OR MENTAL HEALTH EMERGENCY, ARE THINKING ABOUT SUICIDE OR TAKING ACTIONS THAT MAY CAUSE HARM TO YOU OR TO OTHERS, YOU SHOULD SEEK EMERGENCY TREATMENT AT THE NEAREST EMERGENCY ROOM OR DIAL 911. Nesting Owl makes no representations, and has no obligation with respect to (a) the appropriateness of your or the child engaging in a sleep program; (b) the results (or lack of results) obtained by your or the child’s use of the Services; and (c) any health-related matters arising in connection with your or the child’s use the Services.
Definitions. For the purposes of this Agreement, except as otherwise defined herein, the following words and phrases will have the following meanings:
“Claims” means all claims, suits, demands, judgments, losses, injuries, obligations, liabilities, costs, damages, and expenses of whatever form or nature, including, without limitation, legal fees, experts’ and consultants’ fees, and other costs of legal defense.
“Improvements” means any modifications, enhancements, changes or new proprietary information that is developed in relation to the Services.
“Privacy Policy” means Nesting Owls privacy policy set forth as Exhibit “A” attached hereto which explains how Nesting Owl collects, uses and shares your personal information.
“Services” means the following services provided by Nesting Owl:
Sleep Intake Form;
Sleep Report;
Sleep Education;
Follow-up Assistance; and
Creation of an individualized sleep plan.
“SIDS Information Outline” means the American Academy of Pediatrics guidelines on sudden infant death syndrome (SIDS) attached hereto as Exhibit “B”.
“Taxes” means any consumption, excise, goods and services, retail sales, social services, use, value added taxes and any other tax, duty, governmental fee or other like assessment or charge of any kind whatsoever imposed by any federal, state, county, municipal or other governmental authority in any jurisdiction.
“Nesting Owl” is a Utah limited liability company with a principle place of business in Salt Lake City, Utah which is providing the Services.
CHILDREN’S ONLINE PRIVACY PROTECTION ACT
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. Our Services are intended for use by adults and are not intended for use by people under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at nestingowlsleep@gmail.com.Payments. You are obligated to pay in advance for the Services. You order through Nesting Owl’s website. Nesting Owl accepts payment through the use of third party payment facilitators such as PayPal, Stripe, Venmo, etc. By accepting this Agreement, You are giving Nesting Owl (or a third-party payment processor on Nesting Owl’s behalf) permission to charge You for fees that You owe Nesting Owl. All information that You provide in connection with a purchase must be accurate, complete, and current. You are responsible for and must pay any and all applicable Taxes.
Agreement Term for the Services. Unless earlier terminated pursuant to the terms of this Agreement, Nesting Owl will provide the Services until both parties agree, through an email acknowledgement, that You have met the goals listed in Your initial sleep report (“Agreement Term”).
Force Majeure. In the event that Nesting Owl is delayed in or prevented from performing its obligations under this Agreement due to a Force Majeure Event then, upon written notice to You: (a) the affected obligations under this Agreement will be suspended to the extent necessary during the period of the Force Majeure Event, and (b) Nesting Owl will not have any liability to You or any other person in connection with such suspended obligation. For purposes of this Agreement, a “Force Majeure Event” means an event beyond Nesting Owl’s reasonable control, including an act of God, fire, flood, explosion, public health emergencies, communicable disease outbreak, general Internet outages, civil disorder, strike, lockout or other labour trouble, material shortages of utilities, delay in transportation, destruction or damage to production facilities breakdown or accident, any law, ruling, judgment, demand or requirement of any governmental authority, riot, war, or other cause beyond the reasonable control of Nesting Owl.
Termination. This Agreement and the Services may be terminated as follows:
by Nesting Owl immediately, with cause, if: (1) Nesting Owl does not receive any payment hereunder when due and such non-payment continues for five days following Nesting Owl’s demand for payment in writing; (2) in Nesting Owl’s sole and absolute discretion, You have been verbally abusive or confrontational or do not follow the agreed upon sleep plan; (3) You miss two or more scheduled calls with Nesting Owl any time during the Agreement Term without giving Nesting Owl at least one (1) hour advance prior notice; (4) You request a suspension of the Services for greater than 1.5 weeks; (5) You fail to initiate the sleep plan within one week of Nesting Owl’s sleep education session; (6) You fail to inform Nesting Owl about any major changes in Your family’s routine (including, but not limited to, prolonged vacations, changes to daycare or nanny arrangements, living accommodations or relocations, career changes, etc.); or (7) You fail to respond to two emails from Nesting Owl over the course of one week;
by Nesting Owl, by giving You written notice, if Nesting Owl is delayed in or prevented from performing an obligation under this Agreement for a period longer than one (1) month in duration due to a Force Majeure Event; or
by either party, for convenience and without cause on one week prior written notice to the other party.
Effect of Termination.
If the Services are terminated or cancelled by You, for any reason, You will not be entitled to any refund. You will pay for all actual costs, including time spent by Nesting Owl incurred to complete activities associated with the termination and close-out of the Services.
If the Services are terminated by Nesting Owl pursuant to Section 7(a), Nesting Owl will not be obligated to refund to You any portion of the purchase price paid by You (if any).
If Nesting Owl terminates the Services for convenience pursuant to Section 7(b) or Section 7(c), Nesting Owl will refund a pro-rated portion of the purchase price (if any) to You to account for the unused portion of the Services based upon Nesting Owl’s hourly rate posted on Nesting Owl’s website.
Nothing in this Section gives you any right to a refund from Nesting Owl except as stated herein.
Your Representation and Warranties. You acknowledge and agree that:
You have read the SIDS Information Outline attached hereto as Exhibit “B” and You agree to follow the sage sleeping practices recommend by the SIDS Information Outline.
You are at least 18 years old, are at least of the legally required age in the jurisdiction in which You reside, and are otherwise capable of entering into binding contracts.
You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that You will so abide.
You consent to the collection, use, sharing and transfer of Your data as outlined in the Privacy Policy as updated from time to time.
You agree to immediately contact Your physician, pediatrician or qualified health care provider if You or Your baby or You family have any medical conditions which prevent them from receiving sleep support services.
You agree to disclose any medical condition(s) to Nesting Owl that You or Your baby or family has.
You acknowledge that Your use of the Services are voluntary and that injuries, accidents, or other complications may result from participation.
You acknowledge and agree that it is Your responsibility to follow instructions for any service provided or purchases You make, and to seek help from Nesting Owl if You have any questions.
You acknowledge and agree that injuries, accidents, or other complications associated with the Services may result from Your use of the Services. You agree to consult with Your physician if You are concerned about any of the risks to You or Your baby or Your family’s health or well-being that may result from the Services.
You acknowledge and agree that if You request a “baby-led” versus a “parent-led” sleep solution as a part of the Services, You understand that the baby-led solution requires additional time.
You acknowledge and agree that after Nesting Owl reviews Your intake form, Nesting Owl may notice or identify potential medical issues, nutritional sensitivities or maternal health issues that, in Nesting Owl sole opinion, require treatment before Nesting Owl will commence the Services. If this is the case, You acknowledge and agree that Nesting Owl will not provide the Services and will recommend other experts for You to meet with prior to initiating the Services.
No Warranties. Nesting Owl and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Nesting Owl and all such parties together, the “Nesting Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the Nesting Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Nesting Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY NESTING OWL (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH NESTING OWL THE CANCELLATION OF YOUR ACCOUNT. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE NESTING PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION OR MEDICAL MALPRACTICE OR NEGLIGENCE OF HEALTHCARE PROVIDERS UTILIZED THROUGH USE OF THE SERVICES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU, IF ANY, TO NESTING IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
INDEMNITY. You agree to indemnify and hold the Nesting Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
ASSIGNMENT. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Nesting Owl's prior written consent. Nesting Owl may transfer, assign, or delegate these Terms and our rights and obligations without consent.
CHOICE OF LAW. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Utah, without regard to the conflicts of laws provisions thereof.
ARBITRATION AGREEMENT. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Nesting Owl and limits the manner in which you can seek relief from Nesting Owl. Both you and Nesting acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Nesting Owl's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Salt Lake City, Utah. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees.
(c) Small Claims Court; Infringement. Either you or Nesting Owl may assert claims, if they qualify, in small claims court in Salt Lake City, Utah. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any 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.
(d) Waiver of Jury Trial. YOU WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Nesting Owl over whether to vacate or enforce an arbitration award, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Nesting is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to nestingowlsleep@gmail.com within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Nesting Owl to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Nesting Owl agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Salt Lake City, Utah, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Nesting Owl.
Response to Court Orders: Notwithstanding any other provision herein, You hereby consent to Nesting Owl providing any information relating to You and the Services, and any other information related thereto, as may be requested at any time by way of subpoena or other court order, and agree to indemnify and hold harmless Nesting Owl from all costs, liabilities, losses, or expenses arising in connection therewith.
Feedback and Improvements. You understand and agree that any Improvements, feedback, input, suggestions, recommendations, troubleshooting information or other similar information that You provide or which is made available to Nesting Owl (including in the course of utilizing support or the Services) may be used by Nesting Owl to modify, enhance, maintain and improve Nesting Owl and shall become Nesting Owl’s exclusive property without any obligation or payment to You.
Notices. Any notice required or otherwise given pursuant to this Agreement will be in writing and emailed, faxed, mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to the address set forth in Nesting Owl’s intake form. Any such notice, if delivered or sent by electronic transmission, will be deemed to have been given or received on the day on which it was transmitted, if sent by postage prepaid or delivered by overnight delivery service, will be deemed to have been given or received on the second business day following the day on which it is sent. The address at which notice may be given to a party may be changed by the giving of notice of such change by that party to the other party as provided for in this Section.
Waiver. No party is to be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing. No waiver made with respect to any instance involving the exercise of any such right is to be deemed to be a waiver with respect to any other instance involving the exercise of the right or with respect to any other such right.
Severability. If any part or parts of this Agreement are held unenforceable for any reason, the remainder of this Agreement will continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision will be deemed to be construed as so limited.
Amendments. You agree that Nesting Owl may change the terms of this Agreement from time to time by notifying You via email or other means. You agree to accept, and You hereby accept, any changes to the terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on You. If a change imposes commercially unreasonable disadvantages on You and Nesting Owl receives a written objection from You within 30 days of the date when You received notice or You should have noticed the change, Nesting Owl may, at Nesting Owl’s sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Agreement will continue to apply to You, or (b) terminate this Agreement and Your use of the Services and refund to You any prepaid services fees for time periods after the effective date of the change to which You objected in accordance with this Agreement.
Entire Agreement. This Agreement contains the whole agreement between the parties relating to the subject matter herein and supersedes any and all promises, representations, warranties, undertakings or other statements whether written or oral made by or on behalf of the one party to the other of any nature whatsoever or contained in any document given by one party to the other.
BY AGREEING TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, YOU UNDERSTAND THESE TERMS AND CONDITIONS, AND YOU AGREE TO BE BOUND BY THIS AGREEMENT