SIMBA SLEEP COACH END USER LICENSING AGREEMENT TERMS EFFECTIVE 3RD JAN 2023
PLEASE READ THESE LICENCE TERMS CAREFULLY
BY INDICATING YOUR CONSENT VIA THE CHECKBOX PROVIDED, YOU AGREE TO THESE TERMS WHICH WILL BIND YOU.
WHO WE ARE AND WHAT THIS AGREEMENT DOES
We, Simba Sleep Limited, of 5th Floor, Halo, Counterslip, Bristo, United Kingdom, BS1 6AJ license you to use:
(i) The Simba Sleep mobile application software, version 4.0* for iOS or version 4.0* for Android, the data supplied with the software, (App) and any updates or supplements to it; and
(ii) The service or services you connect to via the App and the content we provide to you through it (Service or Services).
as permitted in these terms.
IF YOU DISAGREE WITH THESE TERMS, YOU MUST UNINSTALL THE APP.
If you are not willing to be or cannot be bound by all of these terms and conditions, including without limitation the following agreement, then do not access, browse or use the Services or the App.
YOU MUST DOWNLOAD THE APP FROM AN AUTHORISED PROVIDER
You must only use the App if you have downloaded it from an authorised provider, specifically, the Apple Mobile App Store, or Google Play (each a “Mobile App Provider”). You must not download the App from any other website or from any other distribution platforms.
SIMBA ACCEPTS NO LIABILITY FOR APP DOWNLOADS FROM LOCATIONS OTHER THAN AUTHORISED MOBILE APP PROVIDER
You acknowledge that downloading the App from any platform other than a Mobile App Provider may impact the App or Services’ operations (including, but not limited to, infecting your device with a virus or deploying malware, which could delete or compromise data on your device. Simba accepts no liability for any loss thereby caused in connection with downloading the App from any website or provider other than a Mobile App Provider as set out above.
MOBILE APP PROVIDER IS NOT A PARTY TO THIS END USER LICENSING AGREEMENT
The ways in which you may use the App and Services may also be controlled by the rules of the relevant Mobile App Provider. The Mobile App Provider’s rules and policies will apply instead of these terms where there are differences between the two.
You acknowledge and agree that:
(i) this End User Licensing Agreement is entered into between us, and not with the Mobile App Provider, and that we are solely responsible for the App (not the Mobile App Provider);
(ii) the Mobile App Provider has no obligation to furnish any maintenance and support with respect to the App;
(iii) the Mobile App Provider 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:
(a) product liability claims;
(b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(c) claims arising under consumer protection or similar legislation;
(iv) the Mobile App Provider and its subsidiaries are third party beneficiaries of these Terms & Conditions as it relates to your license of the Mobile App, and that, upon your acceptance of these Terms & Conditions, the Mobile App Provider will have the right (and will be deemed to have accepted the right) to enforce this End User Licensing Agreement as related to your license of the Mobile App against you as a third party beneficiary thereof; and
(v) you must also comply with all applicable third party terms, including, but not limited to, any other entity’s terms and conditions, when using the Services.
OPERATING SYSTEM REQUIREMENTS
The Apple iOS version of the App requires an Apple device with a minimum of 200MB of memory and the iOS operating system version 14 or higher.
The Android version of the App requires an Android device with a minimum of 200MB of memory and the Android operating system version 6 or higher.
If you are having technical difficulties, or if you think the App or the Services are faulty or misdescribed, or you wish to contact us about the App for any other reason, please use the in-app reporting tool. For non-technical issues, contact Simba using the form at https://help.simbasleep.com/hc/en-us/.
HOW WE WILL COMMUNICATE WITH YOU
If we have to contact you we will do so by email, via the App’s interface, by SMS, or by pre-paid post, using the contact details you have provided to us.
HOW YOU MAY USE THE APP
The App is designed for use as a digital sleep coach, to provide users with insights, information, and guidance in relation to sleep.
In return for your agreeing to comply with these terms you may:
SIMBA DOES NOT PROVIDE HEALTH OR MEDICAL SERVICES, OR ADVICE
NEITHER THE SERVICES NOR THE APP CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. NEITHER THE SERVICES NOR THE APP ARE INTENDED TO BE USED, NOR SHOULD THEY BE USED, AS MEDICAL DEVICES. YOU REPRESENT TO US (WHICH REPRESENTATION SHALL BE DEEMED TO BE MADE EACH TIME YOU USE THE APP AND/OR THE SERVICES), THAT YOU ARE NOT USING THE APP AND/OR THE SERVICES FOR THE PURPOSE OF SEEKING MEDICAL ATTENTION OR MEDICAL ADVICE.
Neither the App nor the Services are intended to treat, diagnose, cure or prevent any disease. No diagnosis or treatment of, or advice regarding, any medical or mental health condition or illness will be offered. Neither the App nor the Services substitute for, and are not an alternative to, medical, psychiatric, psychological, psychotherapy or other healthcare diagnosis and treatment when any medical or mental health condition or illness is present or suspected.
YOU MUST BE 18 TO ACCEPT THESE TERMS AND USE THE APP AND SERVICES
You must be 18 or over to accept these terms and use the App. We do not permit individuals under 18 years of age to become registered users of our Services. Your use of the App and Services means that you represent and warrant that you are at least 18 years of age and have the right, authority and capacity to enter into these
YOU MAY NOT TRANSFER THE APP TO SOMEONE ELSE
Subject to your continued compliance with the End User Licensing Agreement, we are giving you personally the right to use the App and the Service as set out above. Whilst you may have sharing rights as set out above, you may not otherwise transfer the App or the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the App is installed, you must remove the App from it.
CHANGES TO THESE TERMS
We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce.
If you do not accept the notified changes you may not be permitted to continue to use the App and the Service.
UPDATE TO THE APP AND CHANGES TO THE SERVICE
From time to time we may update the App and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update the App for these reasons.
If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and the Services.
We reserve the right to charge a fee for access to and use of certain features of the App in the future. You will be notified of such fees in advance if such fees become effective and will also be given the opportunity to consent to the payment of such fees or decline consent and cease to use the App or certain features of the App.
IF SOMEONE ELSE OWNS THE PHONE OR DEVICE YOU ARE USING
If you download or stream the App onto any phone or other device not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these terms, whether or not you own the phone or other device.
WE ARE NOT RESPONSIBLE FOR OTHER WEBSITES TO WHICH YOU MAY CONNECT VIA A LINK
The App or any Service may contain links to other independent websites which are not provided by us.
Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any). We do not have control over the content and performance of independent sites. You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
You agree that you will:
ACCEPTABLE USE RESTRICTIONS
ADEQUATE INTERNET CONNECTIVITY AND COSTS ASSOCIATED ARE THE USER’S SOLE RESPONSIBILITY
The use of the App and Services requires internet access. You agree to bear the communication fees, information fees and related costs incurred in connection with accessing the internet from your mobile device to access the App and/or the Services, including applicable fees and costs charged by third parties, including, but not limited to, internet service providers’ fees or mobile telephone service providers’ fees.
Simba shall not be liable for any loss suffered by you due to reasons attributable to third parties such as communication line failure, technical problem, network or mobile terminal device failure, system instability, or any other force majeure matter.
INTELLECTUAL PROPERTY RIGHTS AND CONTENT
You acknowledge that the App and/or the Services may contain content, information, software, photos, video, text, graphics, music, sounds, questions, messages, comments, ideas, and other material that is or are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed.
All Content is copyrighted under the copyright laws of England and Wales (and, if applicable, similar foreign laws), and we own a copyright in the selection, coordination, arrangement and enhancement of such Content.
All intellectual property rights in the App and the Services throughout the world belong to us (or our licensors) and the rights in the App and the Services are licensed (not sold) to you. You have no intellectual property rights in, or to, the App or the Services other than the right to use them in not otherwise than in accordance with these terms.
Simba does do not warrant that the App and/or the Services, are free from errors or defects. You expressly acknowledge and agree that use of the App and/or the Services is at your sole risk. To the maximum extent permitted by applicable law, Services accessed, performed or provided by the App are provided “as is” and “as available,” with all faults and without warranty of any kind, and Simba hereby disclaims all warranties and conditions with respect to the App and/or the Services, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and of noninfringement of third-party rights. No oral or written information or advice given by Simba representative shall create a warranty. Should the licensed App or the Services prove defective, you assume the entire cost of all necessary servicing, repair, or correction.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations under the “NO WARRANTIES” heading may not apply. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
We will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
We are not liable for business losses. The App and the Services are for domestic and private use. If you use the App and/or the Services for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
You agree to indemnify, defend, release, and hold Simba and our subsidiaries, affiliates, contractors, officers, directors, employees, representatives and agents harmless, from and against any third-party claims, damages, actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by Simba arising as a result of, or in connection with:
We retain the exclusive right to settle compromise and pay any and all claims or causes of action which are brought against Us without Your prior consent.
LIMITATIONS TO THE APP AND THE SERVICES
Neither the App nor the Services are intended for use on devices in respect of which changes to the operating system have been made without authorisation by the relevant manufacturer or supplier (commonly known as “jailbreaking”).
The App and the Services are provided for general information purposes only. Although we make reasonable efforts to update the information provided by the App and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
Please back-up content and data used with the App. We recommend that you back up any content and data used in connection with the App, to protect yourself in case of problems with the App and/or the Service.
Check that the App and the Services are suitable for you. The App and the Services have not been developed to meet your individual requirements. Please check that the facilities and functions of the App and the Services (as described on the Mobile App Provider’s interface or by reference to our Frequently Asked Questions at https://help.simbasleep.com/hc/en-us/categories/11406675378065) meet your requirements.
We are not responsible for events outside our control. If our provision of the Services or support for the App or the Services is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end your contract with us and receive a refund for any Services you have paid for but not received.
After a new version of the App is released, all earlier versions of the same will be unsupported and may eventually cease to operate. We do not guarantee the security, continuous operation or capability for the provision of any customer support for any unsupported versions.
USE OF NOTIFICATIONS
Simba may provide you with push notifications, in-app notifications, alerts and other electronic communications related to the App and/or Simba’s products and services, such as product launches and promotions.
WE MAY END YOUR RIGHTS TO USE THE APP AND THE SERVICES IF YOU BREAK THESE TERMS
We may end your rights to use the App and Services at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right we will give you a reasonable opportunity to do so.
If we end your rights to use the App and Services:
WE MAY TERMINATE OR MODIFY THE SERVICES OR THE APP ENTIRELY.
In Simba’s sole discretion and without prior notice or liability, we may discontinue, modify or alter any aspect of the App or the Services provided to you, including, but not limited to, (i) restricting the time the Services are available, (ii) restricting the amount of use permitted, (iii) restricting or terminating any user’s right to use the Services and (iv) changing any feature or functionality provided by the Services. You agree that any termination or cancellation of your access to, or use of, the Services may be affected without prior notice. Further, you agree that we shall not be liable to you or any third-party for any termination or cancellation of your access to, or use of, our Services.
WE MAY TRANSFER THIS AGREEMENT TO SOMEONE ELSE
We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
YOU NEED OUR CONSENT TO TRANSFER YOUR RIGHTS TO SOMEONE ELSE
You may only transfer your rights or your obligations under these terms to another person if we agree in writing.
NO RIGHTS FOR THIRD PARTIES
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
IF A COURT FINDS PART OF THIS CONTRACT ILLEGAL, THE REST WILL CONTINUE IN FORCE
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
EVEN IF WE DELAY IN ENFORCING THIS CONTRACT, WE CAN STILL ENFORCE IT LATER
Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
WHICH LAWS APPLY TO THIS CONTRACT AND WHERE YOU MAY BRING LEGAL PROCEEDINGS
These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.