End-User Liscence Agreement and Terms of Service

End-User License Agreement and Terms of Service
Terms

  • The Can’t Sleep App (“Can’t Sleep App”, “Can’t Sleep” or “We”)
  • Privacy Policy (the “Policy)
  • Can’t Sleep App mobile applications (collectively the “Application”)
  • Can’t Sleep App website www.cantsleepapp.com (the “Website”)
  • Application and Website collectively (the “Service”)
  • Users of the service (individually a “User”, and collectively the “Users”)
  • Email address, user name, age group, preferred language, and any other information (collectively “Personal Information”)
  • Latitude and longitude (collectively the “Location Information”). 
  • End-User License Agreement (the “EULA”)
  • Free of charge, non-exclusive, non-transferable, revocable license (the “License”)
  • Apple, Google, Microsoft or any other third party software EULA and/or terms and conditions (collectively referred to as the “Third Party Terms”)

End-User License Agreement and Terms of Service

The following EULA governs your rights and obligations regarding the use of the Services. This EULA constitutes a fully binding agreement between Can’t Sleep App., having a place of business at 4 Barrow Street Coburg, Victoria, Australia, 3058, We, the owner of all rights in and to the Service, and you.

THEREFORE, You must carefully read this EULA. By ACCESSING AND/OR USING THE SERVICE, YOU agree to be bound by all terms herein. If you do not agree with ALL of the terms, WE REQUEST THAT YOU REFRAIN FROM USING THE SERVICE. Can’t Sleep reserves the right, in its sole discretion, to update, revise, supplement and to otherwise modify this EULA, and to impose new or additional terms and conditions on your use of the Service from time to time. Such changes shall be effective immediately and incorporated into this EULA upon notice thereof, which may be provided by any reasonable means including by posting to our website or display in the mobile application. Your continued use of the Service following such note will be deemed to constitute acceptance of the updated EULA. Changes will not apply retroactively.

What the Service allows

  • The choice of instrumentation, background sounds and sound effects
  • The combination of customization or application presets with modes
  • The mixing of audio levels
  • The enabling/disabling of musical elements

What the Licence allows

The use of the Service solely for the following criteria

  • Private purposes;
  • Personal purposes;
  • Non-commercial purposes;
  • Mobile device that you own or control legitimately
  • For which the Service was designed subject to compliance with Can’t Sleep App EULA and Third Party Terms, by which you agree to be bound


You and Can’t Sleep acknowledge that this EULA is concluded between you and Can’t Sleep, and not with Apple, Google, Microsoft or any other third party software developer. Can’t Sleep is solely responsible for the License and the content thereof.

What the Licence does not allow

The use of the Service for the following criteria except as expressly permitted by this EULA or unless you have written agreement to the contrary with Can’t Sleep;

  1. copy, save or otherwise use the data from the Service’s database;
  2. duplicate the Service or any of the materials and/or content contained therein;
  3. create derivative works based on the Service or any of the materials and/or content contained therein or integrate it within a service of your own;
  4. use the Service or any of the materials and/or content contained therein for any commercial purpose, or for any public display, public performance, sale or rental;
  5. distribute the Service or any of the materials and/or content contained therein, except as specifically intended for in the Service;
  6. resell, redistribute or sublicense the Service or offer it for rent or lease;
  7. use the Service on any mobile device that you do not own or control
  8. removal of any copyright or other proprietary notices from the Service and/or content contained therein
  9. circumvent any encryption or other security tools used anywhere on the Service (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of any of the Service
  10. use any data mining, robots or similar data gathering and extraction tools on the Service
  11. decompile, reverse engineer, modify or disassemble any of the Application aspect of the Service and/or content
  12. sell, rent, lease, license, sublicense, transfer, distribute, re-transmit or otherwise assign to any third party the materials and/or content or any of your rights to access and use the materials and/or content as granted above.

You acknowledge, consent and agree

  • to cooperate with Can’t Sleep in causing any unauthorized use to cease immediately.
  • That Can’t Sleep may access, preserve, and disclose your account information and content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to:
    1. comply with legal process;
    2. enforce this EULA;
    3. respond to claims that any material violates the rights of third parties;
    4. respond to your requests for customer service;
    5. or (v) protect the rights, property or personal safety of IPNOS, the Service, its users and the public.


Unauthorized use of the Service or any of the materials and/or content contained therein shall terminate this EULA immediately.

TERMINATION
You agree that Can’t Sleep may, without prior notice, modify, suspend, limit or terminate immediately your access to the Service (or any part thereof), at any time and for any reason Can’t Sleep deems appropriate, at its sole and absolute discretion. Can’t Sleep is not liable to anyone in case of any such event, no matter the motive.

CAUTION.
ONLY USE THE SERVICE WITH CAUTION AND CARE AND IN SUCH A WAY THAT ALLOWS YOU TO CONSULT YOUR MOBILE DEVICE SAFELY. Using the service whilst in motion be it on foot or any other transportation method and/or when awareness of your surroundings is required is strictly not RECOMMENDED and should be avoided.

Medical Treatment

In no event shall the service be considered as medical TREATMENT or health related therapy, the service being offered at your SOLE RESPONSIBILITY AND AT YOUR own risk. We RECOMMEND that you consult A MEDICAL SPECIALIST before using the service. We DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE.

ACCURACY OF INFORMATION.
Can’t Sleep DOES NOT warrant THE ACCURACY, RELIABILITY, COMPLETENESS OR RELEVANCE OF THE INFORMATION PROVIDED VIA THE SERVICE.

Internet Connection

The Internet connection is under your responsibility and at your expense.

NO warrantee.
Can’t Sleep PROVIDES THIS SERVICE AND MATERIAL AND/OR CONTENT CONTAINED THEREIN “AS IS” AND “AS AVAILABLE”. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION, of quality and/OR fitness for a particular purpose, features, non-infringement, compatibility, performance, security or accuracy. Can’t Sleep, including its officers, directors, employees, subcontractors, representatives and agents are not liable for any direct, indirect, incidental, consequential damage or any other damage or loss (including loss of profit and loss of data), as well as costs, expenses and payments incurred, arising from or in relation with the use of or inability to use the service, or any failure, error or breakdown in the service, or from your reliance on the content of the service, including offers and content from a third party, or any communication with the service, or any refusal or limitation of your access to the service, or from the maintenance, deletion, disclosure and any other use or loss of information provided to the service.

you acknowledge and agree that you assume full, exclusive and sole responsibility for the use of the service and that such use is entirely at your own risk.

FORBIDDEN CONTENT: Content that

  • violates this EULA;
  • contains a commission or omission that is harmful or may be harmful to the Service, its users or Can’t Sleep;
  • is of a commercial nature (including advertising), unless such content has been approved by Can’t Sleep in advance.

Can’t Sleep may decline to publish, or immediately delete any content you submit and may also prevent you from posting additional content on the Service


RIGHTS IN CONTENT: You represent and warrant that you are permitted to publish the content on the Service and to permit Can’t Sleep to publish the content.

 

EXAMINATION OF CONTENT
Can’t Sleep/s

  • may examine content before or after its publication;
  • may remove content after its publication at its sole discretion;
  • may determine any matter pertaining to the publication of content within the Service;
  • does not guarantee that all content will be published, in general or for any limited time.
  • Views do not reflect content submitted by users for publication.
  • Decision to publish content does not warrant its validity, reliability, accuracy, legality or it being up-to-date.


INTELLECTUAL PROPERTY
All intellectual property rights in and to the Service and its database, including copyrights, trade-marks, industrial designs, patents and trade-secrets – are either exclusive property of Can’t Sleep or licensed to Can’t Sleep. The Service is protected, among others, by the Australian Copyright Act, or by provisions prescribed by any other law, in Australia and abroad.

Copying, distributing, publicly displaying, offering to the public via communication, transferring to the public, modifying, adapting, processing, creating derivative works, selling or leasing, any part of the Service, in any manner or means without the prior written consent of Can’t Sleep, is strictly forbidden. “Can’t Sleep”, “Can’t Sleep App”, “The Can’t Sleep App”, the Can’t Sleep logo, and other trade and/or service marks are property of Can’t Sleep and may not be used in any of the aforementioned means.

Can’t Sleep may protect the Service by technological means intended to prevent unauthorized use of the Service. You undertake not to circumvent these means. Infringement of the rights in and to the Service will, in and on itself, result in the termination of all your rights under this EULA.

LIMITATION OF LIABILITY AND WARRANTY
CAN’T SLEEP PROVIDES THE SERVICE AND CONTENT INCLUDED THEREIN FOR USE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THEY CANNOT BE CUSTOMIZED TO FULFILL THE NEEDS OF EACH AND EVERY USER. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, FEATURES, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY.

You agree and acknowledge that you assume full, exclusive and sole responsibility for the use of the Service and that the use of the Service is entirely at your own risk.

We do not warrant that the Service will operate in an uninterrupted or error-free manner, or that it will always be available or free from all harmful components, or that it is safe, secured from unauthorized access, immune from damages, free of malfunctions, bugs or failures, including, but not limited to hardware failures, Application failures and Application communication failures, originating either from Can’t Sleep, its providers or any other third party.

You and Can’t Sleep acknowledge that Can’t Sleep, not Apple, Google, Microsoft or any other third party software developer, is solely responsible for addressing any claims you or any third party may have relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

CAN’T SLEEP, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, REPRESENTATIVES AND AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, ARISING FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICE, OR FROM ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTIONING OF THE SERVICE, OR FROM ANY FAULT, OR ERROR MADE BY ITS STAFF OR ANYONE ACTING ON ITS BEHALF, OR FROM YOUR RELIANCE ON THE CONTENT OF THE SERVICE, INCLUDING CONTENT ORIGINATING FROM THIRD PARTIES, OR FROM ANY COMMUNICATION WITH THE SERVICE, OR WITH OTHER USERS ON OR THROUGH THE SERVICE, OR FROM ANY DENIAL OR CANCELLATION OF YOUR USER ACCOUNT, OR FROM RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT ON THE SERVICE. IN NO EVENT SHALL CAN’T SLEEP MAXIMUM TOTAL AGGREGATE LIABILITY HEREUNDER FOR DAMAGES EXCEED THE AMOUNT OF ONE AUSTRALIAN DOLLAR ($1).

Your use of the Service may be subject to various local, provincial, states, national, or international laws, and you may have rights which vary from jurisdiction to jurisdiction. Because some countries do not allow limitations on warranties and/or the exclusion or limitation of damages, the limitations and/or exclusions found herein may not apply to you. Any provision found herein shall not be enforceable solely to the extent that it is prohibited by an applicable law.

LINKS AND COMMERCIAL INFORMATION
Can’t Sleep or third parties may incorporate in the Service links to other sites or resources on the Internet, for information purposes. Can’t Sleep does not approve the data, software or any other content found on sites or in resources that do not originate from Can’t Sleep. You acknowledge that Can’t Sleep is not liable, directly or indirectly, for damages or losses arising from your use of or reliance on said data, software or content. You are responsible for reading the privacy policies and conditions of use related to these sites or other resources.

Furthermore, Can’t Sleep may incorporate in the Service advertisements and/or information of commercial nature. The source of such information may originate from Can’t Sleep or from third parties. It is understood that commercial content posted by Can’t Sleep or by third parties does not constitute a recommendation or encouragement by Can’t Sleep to purchase the goods or services advertised. Insofar as the Application includes links to services or applications not operated or managed by Can’t Sleep or content not originating from Can’t Sleep, Can’t Sleep will not be liable for any form of liability arising from your reliance on, or in connection with, such services, applications or content.

BREACH AND INDEMNITY
Subject to the mandatory provisions of any applicable laws, you agree to indemnify and hold harmless Can’t Sleep, its employees, officers, directors, representatives and agents in the event you have violated this EULA or illegally used the Service. Considering that the Service is provided free-of-charge, such indemnity shall cover all expenses, payments, loss, loss of profits or any other damage, direct or indirect, monetary or non-monetary, incurred by IPNOS, its employees, officers, directors, representatives or agents, including without limitation legal expenses and attorney fees.

FORCE MAJEURE
Can’t Sleep shall not be liable for any failure to perform its duties specified herein due to unforeseen circumstances or to causes beyond its reasonable control, including without limitation: acts of nature (e.g. fire, flood, earthquakes), riots, acts of civil or military authority, terrorism, strikes, shortages in transportation, failures or other causes related to communication, information or technology services (e.g. hacking, spam, computer, servers or Application failure, etc.).

MODIFICATION OF THE SERVICE
Can’t Sleep reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice. You agree that Can’t Sleep shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.

GOVERNING LAW AND JURISDICTION
As previously stipulated, this EULA, the Application and the Service will be governed solely by the laws of the Australia and the federal laws applicable therein, without giving effect to any conflicts of law principles. Any dispute, claim or controversy arising out of, connected with or relating to this EULA, the Application or the Service will be under the exclusive jurisdiction of the competent court in the judicial district of Australia.

WAIVER AND SEVERABILITY
The failure of Can’t Sleep to exercise or enforce any right or provision of the EULA shall not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision of this EULA, or any portion thereof, to be unenforceable, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the remainder of this EULA will continue in full force and effect.

COMPLETE TERMS
This EULA, subject to any other third party software developer privacy policies and conditions of use (such as the Apple terms and conditions and the Google terms and conditions), shall all constitute the entire and complete agreement between you and Can’t Sleep concerning the Service.

CONTACT US
You may contact us concerning any question about the Service, through TheCantSleepApp@gmail.com. We will make our best efforts to address your inquiry promptly.


Last update: May 12, 2017

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