Terms of Use

Last Updated: July 31, 2023

These terms of use (“Terms of Use”) are a legal agreement between you and Wakefully, Inc. (“Wakefully,” “we,” “us,” or “our”). These Terms of Use govern your use of our mobile application (the “App”) and the services provided through the App (such services collectively with the App, the “Service”). By accepting the Terms of Use, accessing or using the Service, or otherwise manifesting your assent to these Terms of Use, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Notice, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to (or cannot comply with) all of the terms of this Agreement, you may not access or use the Service.

THE SECTIONS BELOW TITLED “PERSONAL RELEASE,” “BINDING ARBITRATION,” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

THESE TERMS OF USE ARE EFFECTIVE AS OF THE LAST UPDATED DATE STATED AT THE TOP. WE MAY CHANGE THESE TERMS OF USE FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. ANY SUCH CHANGES WILL BE POSTED ON THE SERVICE. BY ACCESSING THE SERVICE AFTER WE MAKE ANY SUCH CHANGES TO THESE TERMS OF USE, YOU ARE DEEMED TO HAVE ACCEPTED SUCH CHANGES. PLEASE REFER BACK TO THESE TERMS OF USE ON A REGULAR BASIS.

1. OUR SERVICE AND OUR USERS

The Service provide dream analysis and mindfulness-related content in the health & wellness space.

In order to become a registered user (“Registered User”) of the Service you must establish an account with us (an “Account”). When creating an Account, you must provide true, accurate, current, and complete information. We are under no obligation to accept any individual or entity as an Account holder, and may accept or reject any registration in our sole and complete discretion.

In order to become a Registered User, you must create a user name (“User Name”) and a password (“Password”), and you may be required to provide certain additional information that will assist in authenticating your identity during log-in, including your date of birth (“Unique Identifiers” and together with the User Name and Password, the “Credentials”). Each User Name and corresponding Password can be used by only one individual. You are solely responsible for the confidentiality and use of your Credentials, as well as for any use, misuse, or communications entered through the Service using your Credentials. You will promptly inform us of any need to deactivate or change your Credentials. We reserve the right to delete or change your Credentials at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. We will not be liable for any loss or damage caused by any use of your account using your Credentials.

By becoming a Registered User, you opt-in to receiving occasional special offer, marketing, survey and Service-based communication emails from us. You can easily unsubscribe from these commercial emails by following the opt-out instruction in the emails.

2. SUBSCRIPTION; SUBSCRIPTION FEES

We offer a one-week free trial period for Registered Users to access and use the Service at no cost (the “Introductory Trial Period”). After the Introductory Trial Period ends, Registered Users have the ability to continue access to and use of the Service through a paid subscription (“Subscription”). Subscription package options and applicable fees (the “Subscription Fees”) will be made available to you for selection through during registration. If you do not wish to pay the Subscription Fee for continued use, then your access to and use of the Service will end immediately upon expiration of the Introductory Trial Period. We may add new fees and charges, or amend fees and charges, at any time in our sole discretion.

You are required to maintain a valid payment method (the “Payment Method”) on file with us, which we will automatically charge for Subscription Fees due as those Subscription Fees become due. You warrant and represent that all information relating to the Payment Method is true and accurate and that you are authorized to use the Payment Method. You will promptly notify us of any changes to the Payment Method. If you fail to maintain a valid Payment Method on file with us, we will have the right to suspend your access to and use of the Service until a valid Payment Method is provided and all Subscription Fees due have been paid. Collection of your Payment Method information and the processing of payment of Subscription Fees will be performed by our third party payment processors (the “Payment Processors”). You will tender payment to the applicable Payment Processor, and Subscription Fees will be processed by the applicable Payment Processor. You are bound by the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processor Terms”). Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. We are not responsible for the performance of any Payment Processor.

By purchasing a Subscription, you acknowledge that your Subscription has an initial and recurring payment charge at the then-current Subscription Fee, and you agree that we may submit monthly charges, in advance, to your Payment Method without further authorization from you, until you provide notice to us that you wish to cancel your Subscription or change your Payment Method. You further accept responsibility for all recurring charges prior to cancellation, including, where applicable, any charges processed by us after the expiration date of any payment card provided as your Payment Method.

You may change or terminate your Subscription by emailing us at hello@Wakefully.com. If you terminate your Subscription, you may use your Subscription until the end of the then-current billing cycle, and the Subscription will not be renewed after that period expires. We do not refund any pre-paid portion of the Subscription fee. We may immediately terminate or suspend Subscriber’s Subscription for any reason or no reason in accordance with these Terms of Service. If we terminate or suspend Subscriber’s Subscription, Subscriber’s license to use any software or content provided in connection with the Subscription is also terminated or suspended (as applicable).

3. USER CONTENT

The Service allows you to post, upload, or transmit content such as voice recordings, text, photos, images, graphics, videos and other materials (collectively, “User Content”). User Content that you provide to us for dream-analysis purposes, including but not limited to content transmitted via voice recordings or through verbal or written communications with a live Wakefully team member shall be referred to herein as “User Dream Content.”

You retain all right, title and interest in and to your User Content. You do, however, hereby grant us a non-exclusive, royalty-free license to use, record, copy, transmit, format, distribute, publicly display, and otherwise use your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised, for the purpose of providing the Service; provided, however, that we will only use your User Dream Content for purposes of providing you with your Wakefully Analysis or otherwise providing services directly to you, and we will not share your User Dream Content with any third party other than service providers who we use as necessary to provide your Wakefully Analysis or other services directly to you. “Wakefully Analysis” means a dream analysis created for you by us based upon your User Dream Content, and written or verbal feedback provided to you by Wakefully employees or contractors (collectively, the “Wakefully Analysis”).

If you submit User Content to us, each such submission constitutes a representation and warranty by you to us that (i) you either own the User Content or have all rights necessary to provide the User Content for use as set forth herein; and (ii) the User Content and use thereof as set forth herein does not and will not infringe, misappropriate, or otherwise violate the intellectual property rights, moral rights, or rights of privacy or publicity of any person, or contain any libelous, defamatory, or obscene material, or otherwise violate the Community Guidelines set forth below.

THE SERVICE INCLUDES FUNCTIONALITY THAT ALLOWS YOU TO CONNECT WITH OR MAKE USER CONTENT AVAILABLE TO OTHER USERS OF THE SERVICE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IF YOU ELECT TO CONNECT WITH OR MAKE ANY OF YOUR USER CONTENT (INCLUDING, WITHOUT LIMITATION, YOUR USER DREAM CONTENT) OR ANY WAKEFULLY ANALYSIS OR ANY OTHER INFORMATION AVAILABLE THROUGH THIS FUNCTIONALITY, THIS INFORMATION WILL BE MADE AVAILABLE TO THIRD PARTIES AND WE CANNOT CONTROL AND ARE NOT RESPONSIBLE FOR WHAT THESE THIRD PARTIES DO WITH THAT INFORMATION. ANY INFORMATION THAT YOU MAKE AVAILABLE THROUGH THIS FUNCTIONALITY IS AT YOUR OWN RISK. IN ADDITION, WHILE WE REQUIRE ALL USERS TO COMPLY WITH THE COMMUNITY GUIDELINES, WE HAVE THE RIGHT, BUT NOT THE OBLIGATION TO MONITOR THE CONTENT THAT USERS MAKE AVAILABLE THROUGH THIS FUNCTIONALITY. WE ARE NOT RESPONSIBLE FOR AND WILL HAVE NO LIAIBLITY WITH RESPECT TO ANY INFORMATION OR CONTENT PROVIDED TO YOU BY OTHER USERS OF THE SERVICE OR FOR ANY INTERACTIONS YOU HAVE WITH OTHER USERS.

4. ARTIFICIAL INTELLIGENCE DREAM INTERPRETATION:

Our application utilizes advanced artificial intelligence (AI) technology, specifically Chat 3.5 developed by OpenAI, to assist in the interpretation of dreams. By using our service, you acknowledge and agree that the dream analysis and results provided to you are generated by AI and are not based on human expertise or professional advice.

Please note that while the AI system is designed to provide helpful and relevant insights into dream symbolism, it may not always be accurate or complete in its interpretations. Dream analysis is subjective and may vary depending on personal experiences, cultural influences, and individual beliefs.

The dream interpretation provided by our application is for informational and entertainment purposes only and should not be considered as a substitute for professional counseling, therapy, or medical advice. If you have any concerns about your dreams or mental well-being, we encourage you to seek guidance from qualified professionals.

5. INTELLECTUAL PROPERTY

The Service contains material, such as software, text, graphics, images, and other material provided by or on behalf of us (collectively referred to as the “Wakefully Content”). We and our licensors exclusively own all right, title, and interest in and to the Service Wakefully Content, including all associated intellectual property rights. Subject to your rights in your User Dream Content, we own all right, title and interest in and to the Wakefully Analysis and grant to you a license to use the Wakefully Analysis for your personal, non-commercial use. The Service, the Wakefully Content and any Wakefully Analysis are protected by copyright, trademark, and other laws of the United States and foreign countries. You are not granted any right, title or interest in or to the Service, the Wakefully Content, or any Wakefully Analysis except for the limited rights to access and use as expressly set forth herein.

Subject to the terms and conditions of these Terms of Use, you are permitted to access and use the Service and the Wakefully Content solely for your personal purposes. You may not (i) remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Service, the Wakefully Content, or any Wakefully Analysis, or (ii) sell, transfer, assign, license, sublicense, or modify the Service, the Wakefully Content or any Wakefully Analysis ,or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service, the Wakefully Content or any Wakefully Analysis in any way for any public or commercial purpose.

The trademarks, service marks, and logos of Wakefully (the “Wakefully Trademarks”) used and displayed in connection with the Service are registered and unregistered trademarks or service marks of ours. Other company and service names used in connection with the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Wakefully Trademarks, the “Trademarks”). Nothing herein shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Wakefully Trademarks inures to our benefit.

6. SOCIAL MEDIA SITES

You may enable or log in to the Service via various social media and social networking services (“Social Media Sites”), or enable sharing of your User Content or Wakefully Analysis to, on or with Social Media Sites. By logging in or directly integrating these Social Media Sites into the Service, we may make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Media Sites on the websites of their respective providers. As part of such integration, the Social Media Sites may provide us with access to certain information that you have provided to such Social Media Sites, and we will use, store and disclose such information in accordance with our Privacy Notice. However, please remember that the manner in which Social Media Sites use, store and disclose your information is governed solely by the policies of such Social Media Sites and not by these Terms of Use or our Privacy Notice, and we have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service. In addition, if you share any of your User Content or Wakefully Analysis through Social Media Sites or otherwise, you acknowledge and agree that you will be sharing sensitive or personal information about yourself with Social Media Sites and their users, and you do so at your own risk; we have no control over, and will have no liability of responsibility for, these third parties or how they use your User Content or any Wakefully Analysis that you share with them.

7. COMMUNITY GUIDELINES

Our community, like any community, functions best when its users follow a few simple rules. By accessing the Service, you agree to comply with these community guidelines (“Community Guidelines”) and that:

You are 18 years or older.
You will not upload, post, e-mail, transmit, or otherwise make available any User Content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity;
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will comply with all applicable laws in connection with your use of the Service and will not use the Service for any unlawful purpose;
You will not access or use the Service to collect any market research for a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with or attempt to interrupt the proper operation of the Service through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Service;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Service;
You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Service;
You will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
You will not introduce, post, or upload to the Service any computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Service to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Service.

If you find something that violates our Community Guidelines, please let us know, and we will review it.

We have the right, but not the obligation, at our sole discretion to remove any content that, we feel in our judgment does not comply with these Terms of Use, along with any content that we feel is otherwise offensive, harmful, objectionable, inaccurate, or violates any third party copyrights or trademarks. We are not responsible for any delay or failure in removing such content. If you post content that we choose to remove, you hereby consent to such removal, and waive any claim against us. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of this Agreement and your access to and use of the Service.

8. COMMUNICATIONS WITH AND SUBMISSIONS TO US

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of the Service that incorporate such information without compensation or attribution to you.

9. NO WARRANTIES; LIMITATION OF LIABILITY

THE SERVICE AND THE WAKEFULLY CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE MAKE NO, AND HEREBY DISCLAIM ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND WARRANTIES OF ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SERVICE.

WE DO NOT GUARANTEE THAT (1) THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES, OR (2) ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY OR OTHERWISE, AND IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR THE WAKEFULLY CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) OUR LIABILITY IN THE AGGREGATE FOR ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURY SHALL IN NO EVENT EXCEED FIFTY UNITED STATES DOLLARS (US $50).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AS SET FORTH ABOVE OR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION. THEREFORE, SOME OF THE ABOVE DISCLAIMERS OF WARRANTY AND/OR LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU.

NOTHING HERE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

10. MEDICAL DISCLAIMER

We are not a health care or medical device provider, and nothing made available to you through the Service, the Wakefully Content, or any Wakefully Analysis should be considered counseling, therapy or medical advice. Only your health care providers can provide you with medical advice. We make no claims, representations or guarantees that the Service, the Wakefully content or any Wakefully Analysis provides a therapeutic or medical benefit.

Any health or dream and/or mindfulness related information and links available through the service, the Wakefully content, or any Wakefully analysis, whether provided by us or by our third party licensors, is provided simply for your convenience.

Any advice or other materials made available to you through the Service, the Wakefully Content, or any Wakefully Analysis are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The Service, Wakefully Content and Wakefully Analysis is intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having been provided with or your having relied on any advice or other materials made available to you through the Service, the Wakefully Content or any Wakefully Analysis - you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information made available to you through the Service, the Wakefully Content, or any Wakefully Analysis.

If you have an existing mental health condition, or think that you may have one, you speak with your health care provider(s) before starting a dream analysis or mindfulness-related practice.

11. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION

You shall indemnify, defend, and hold harmless us, our affiliates, and our and their respective officers, managers, partners, employees, and agents from and against any and all losses, civil penalties, liabilities, damages, judgments, costs, and expenses, including, but not limited to, reasonable attorney’s fees and court costs, incurred in connection with any proceeding, claim, or action arising out of or related to (i) your breach of any of your representations, warranties or other obligations set forth in these Terms of Use, (ii) your use or misuse of the Service, the Wakefully Content or any Wakefully Analysis; and/or (iii) your violation of any applicable law or any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

12. EXTERNAL SITES

The Service may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites or the products or services made available by or through such External Sites. The External Sites and their content and the product or services made available through the External Sites is provided by third parties and not by us, and we are not responsible for and will have no liability with respect to the foregoing. You should contact the site administrator or webmaster for those External Sites if you have any questions or concerns regarding the External Sites. We encourage you to review the terms of use and privacy policies or all sites that you visit, including, External Sites, prior to use. Always take precautions when downloading files from any website, including External Sites, to protect your computer from viruses and other destructive programs. If you decide to access External Sites, you do so at your own risk.

13. COMPLIANCE WITH APPLICABLE LAWS

The Service is based in the United States. We make no claims concerning whether the Service, the Wakefully Content or any Wakefully Analysis may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Service, the Wakefully Content, or any Wakefully Analysis from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

14. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 16 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

15. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

16. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.

17. CONTROLLING LAW

This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

18. DOWNLOADING THE MOBILE APP

Apple-Enabled Software: We make the App available through the Apple App Store. The following terms apply to the App when accessed through or downloaded from the Apple App Store. You acknowledge and agree that:

• These Terms of Use are between you and Wakefully, and not with Apple, and Wakefully (not Apple), is solely responsible for the App.

• Apple has no obligation to furnish any maintenance and support services with respect to the App.

• In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Wakefully.

• Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

• In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Wakefully will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

• Apple and its affiliates are third-party beneficiaries of this Agreement as related to your license to the App, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App against you as a third-party beneficiary thereof.

• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.

• You must also comply with all applicable third party terms of use when using the App.

Google-Sourced Software: The following applies to the App when you download it from the Google Play Store (the App when downloaded from the Google Play Store shall be referred to herein as “Google-Sourced Software”): (a) you acknowledge that these Terms of Use are between you and Wakefully only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Use; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Wakefully, and not Google, is solely responsible for the Google-Sourced Software; (e) Google has no obligation or liability to you with respect to the Google-Sourced Software or these Terms of Use; and (f) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to the Google-Sourced Software.

19. GENERAL

Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. No failure or delay by us in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy. This Agreement constitutes the final and complete agreement between you and us regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between us, whether oral or written. You are not permitted to assign or transfer this Agreement, your Credentials, or your right to access and use the Service and any attempt to assign will be deemed null and void. This Agreement will be binding and will inure to the benefit of the legal representatives, successors and permitted assigns of the parties hereto. If any provision of this Agreement should, for any reason, be held invalid, prohibited by law or unenforceable in any respect, such term will not apply. However, the remainder of this Agreement shall be enforced to the full extent permitted by law. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of the Agreement. Terms which by their nature are intended to survive indefinitely shall survive and shall apply to you even if you have canceled your account or stopped using the Service, including, without limitation, the limitations of liability, indemnity, and dispute resolution provisions.

20. HOW TO CONTACT US

If you have questions about the Agreement or the Service, please contact us at hello@wakefully.com and we will be more than happy to listen.