Terms of Use

NightCare, LLC (“NightCare”, “we” or “us”) makes this Web site located at www.NightCareSleep.com (”“Web site” or “Site”) available to you, subject to the following terms of use ("Terms of Use") — please take a few minutes to review them. Your use of the NightCareSleep.com Web site represents your agreement to follow these rules and your agreement to be bound by these Terms of Use. If you do not agree with any of these terms and conditions, do not use our Website.

Use of this Web site

By accessing this Web site, you, the user (“you”) agree that you have read and agree to use the Site in accordance with this Site’s Terms of Use. You should not use the Site in any manner or attempt to access the Site if you are not willing to be bound and abide by these Terms of Use. If you are using this Site as an employee or agent of a NightCare authorized dealer or as a NightCare supplier, vendor or independent contractor, your continued use of the Site also means that you represent and warrant that you are able to enter into legally binding contracts and that you are authorized by your principals to (i) use the Site; and (ii) to agree to these Terms of Use as a legally binding contract on behalf of your and your company (or legal entity, as applicable).

For purposes of the Terms of Use, the term “Web site” includes without limitation those parts of the Web site that you can access based on your NightCareSleep.com account with the Web site, if any; the publicly available content, materials and information of the Site, and any portion thereof; and any other content, information or materials that may be available to you through the Site (collectively, “Content”).

Modifications to Terms of Use

We may revise these Terms of Use at any time by updating this posting. You should visit this page from time to time to review the then-current terms. If you do not agree with the revised Terms of Use after the revision has been made, do not use this Site further. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices located on particular pages at this Site. For example, portions of the Site on which our products are sold may have specific terms and conditions relating to product sales, payment terms and returns.

Use of Personally Identifiable Information

Personally identifiable information submitted by you to us through the Web site is treated according to the NightCareSleep.com Privacy policy located on this Site. Our Privacy policy does not apply to other Web sites, and NightCare shall not have any liability for the information collection or dissemination policies of third parties. By using this Site, you agree you have read and understand the Privacy policy, which is a condition to your use of the Site. You should not access the Site if you do not agree with the terms of the Privacy policy.

Use of the Site

The Content of this Web site is protected by copyright under both United States and foreign laws. Title to the Content remains with NightCare. You may access the Site solely to display the Content for informational purposes only and to print and/or save copies of the Content with or on your personal computer, solely for your use in obtaining information regarding NightCare and its subsidiaries and affiliates. Other rights may be granted to you by NightCare in writing or incorporated elsewhere in the materials on this Site. Any other use of the Content or the Site is expressly prohibited and may violate copyright, trademark and other laws. All other rights in the Content and the Site are reserved by NightCare and its licensors. You agree these Terms of Use do not grant you any rights in or licenses to the Site, except for the rights described above. You will not otherwise copy, transmit, distribute, sell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display incorporate into another Site, or in any way exploit any of the Content or any other part of the Site or any derivative works thereof, in whole or in part for commercial or non-commercial purposes. Without limiting the foregoing, you will not frame or display the Site (or any part of the Site) as part of any Web site or any other work of authorship without the prior written permission of NightCare. All Content and features of the Site are subject to change or subject to be removed without notice at the complete discretion of NightCare.

NightCare does not accept ideas, concepts, or techniques for new products or new services through the Site (“Comments”). If such Comments are received, you acknowledge that (a) they will not be considered confidential or proprietary, (b) NightCare and its subsidiaries and affiliates are under no obligation to keep such information confidential, and (c) NightCare will have an unrestricted, irrevocable, world-wide, royalty free right to use, communicate, reproduce, publish, display, distribute and exploit such Comments in any manner it chooses.

Users outside the United States

NightCare makes no representation that materials in the Site are available for use in other countries other than the United States.International purchasers should contact our Customer Service department at 1-800-245-1132 about sales and deliveries to international countries.

Copyright Notice

All of the Content you see and hear on this Web site, including, for example, all of the page headers, images, illustrations, graphics, audio clips, video clips and text, are subject to trademark, service mark, trade dress, copyright and/or other intellectual property rights or licenses held by NightCare or its subsidiaries. NightCare(R) is a registered trademark of NightCare. The entire Content of this Site is copyrighted as a collective work under U.S. copyright laws.

Trademarks

NightCare, NightCare Sleep, NightCare Store, The New Way to Sleep, Sleep and Thrive, Personal Contour, Personal Contour Technology, Internal Contour, Internal Contour Technology, NightCare Science, NightCare Science Inside, QuietSpot, Positive Sleep, Thank You for Not Snoring pillow, Peacemaker Pillow, Not Your Ordinary Topper, and other marks used in the Site are trademarks of NightCare. Other brand, product, service, and process names appearing on this Site are trademarks or service marks of their respective holders where indicated. Our trademarks may be not be used publicly except with written permission from NightCare, LLC. Reference to, description of or use of a product, service, publication or process on the Site does not imply recommendation, approval, affiliation, or sponsorship of that product, service, publication or process by us.

Submissions / Testimonials

We sincerely welcome your comments regarding this Web site submitted to us through this Site. Any comments, feedback, notes, messages, ideas, suggestions or other communications (collectively, “Comments”) sent to NightCareSleep.com or to NightCare via NightCareSleep.com’s email linkages and its other communication enablements, shall be and remain the exclusive property of NightCare. Your submission of any such Comments shall constitute an assignment to NightCare of all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the Comments. NightCare will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork.

If you submit to us product user feedback, a testimonial, “love note” and/or any other submissions, including, without limitation, testimonials about our products or services, such submission will not be confidential or secret, and may be used by us in any manner. By submitting or sending a testimonial to us, you: (i) represent and warrant that the testimonial is original to you, that no other party has any rights thereto, and that any “moral rights” in such testimonial have been waived, and (ii) you grant us a royalty-free, unrestricted, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub-licensable right and license to use, reproduce, publish, distribute, display, translate, summarize, modify and adapt such testimonial (in whole or part) and/or to incorporate in other works in any form, media, or technology now known or later developed, in our sole discretion, with or without your name. All testimonials found on this Site are for the exclusive use of NightCare and are not to be reproduced or copied in any way.

Product Information

NightCare sells products exclusively through this Web site and through authorized licensees in the United States. For questions regarding our products, please contact our Customer Service.

Warning! Any purchases from other companies or websites (as an example, Ebay.com or Amazon.com) are not authorized by NightCare, and are made entirely at the risk of the purchaser, particularly with regard to the authenticity and any warranties off such items.

Web site Accuracy

Although NightCare has tried to provide accurate and timely information on the Web site, please be aware that the Site (including without limitation the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. The information published on the Site is provided as a convenience to visitors and is provided for informational purposes only. Accordingly, you should verify all information before relying on it. If you need specific details about any information contained in our Site, you should contact us as provided on the Site. Certain portions of this Site may indicate that information is provided by a third party. NightCare does not accept responsibility for other organizations, businesses, and private persons that may provide information on this Site.

Transactions

You may be able to purchase certain NightCare products and services on certain portions of the Site. Terms and conditions relating to the sale, shipping and returns regarding any products or services are indicated on or are referenced in those portions. If you are unsure of the terms and conditions of sale, shipping or returns regarding any products or services, please contact us.

Sales Tax

As an online sales benefit to our customers, NightCare does not currently add sales tax to your price at checkout; each product price you see is its checkout price. NightCare does, though, fully remit its sales tax obligation to those states where we have a physical business presence and are required by applicable tax code(s) to do so; currently only California. So, for sales delivered in our home state of California, we are paying the sales tax for you.

Note: Some states require purchasers of online merchandise to file a sale/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and pay a use tax on those purchases. Details of how to file these returns maybe found at the web sites of your respective states. NightCare is not responsible for purchasers' obligations, if any, for use or other taxes.

Electronic Communications

In order to use portions of the Site or communicate with NightCare with respect to products or services provided via the Site, NightCare may communicate with you via e-mail or otherwise electronically. YOU AFFIRMATIVELY CONSENT TO RECEIVE COMMUNICATIONS FROM US AND TO TRANSACT BUSINESS WITH US ELECTRONICALLY. THIS CONSENT TO TRANSACT BUSINESS AND RECEIVE COMMUNICATIONS ELECTRONICALLY APPLIES GENERALLY TO ALL YOUR INTERACTION AND BUSINESS DEALINGS WITH NIGHTCARE VIA THIS SITE; HOWEVER, CERTAIN PORTIONS OF THE SITE FROM WHICH YOU TRANSACT BUSINESS MAY HAVE PARTICULAR TERMS AND CONDITIONS RELATING TO ELECTRONIC TRANSACTIONS AND COMMUNICATIONS THAT APPLY TO THOSE PORTIONS OF THE SITE OR THE PRODUCTS OR SERVICES PROVIDED FROM THOSE PORTIONS. YOU MAY HAVE THE RIGHT TO TRANSACT BUSINESS WITH NIGHTCARE USING PAPER DOCUMENTS RATHER THAN ELECTRONICALLY IF YOU TELL NIGHTCARE THAT YOU PREFER TO TRANSACT BUSINESS IN THAT WAY; HOWEVER, CERTAIN PRODUCTS OR SERVICES MAY ONLY BE AVAILABLE IF YOU CONSENT TO RECEIVE COMMUNICATIONS OR DO BUSINESS ELECTRONICALLY, AND NIGHTCARE MAY ELECT TO NOT MAKE THEM AVAILABLE IF YOU WITHDRAW YOUR CONSENT TO RECEIVE COMMUNICATIONS OR DO BUSINESS ELECTRONICALLY. TO CHANGE YOUR CONTACT INFORMATION WITH NIGHTCARE, UNLESS SPECIFIC PROCEDURES ARE OTHERWISE PROVIDED ON THE PORTIONS OF THIS SITE THAT PERTAIN TO THE APPLICABLE PRODUCT OR SERVICE FOR WHICH YOU ORIGINALLY PROVIDED CONTACT INFORMATION, PLEASE CONTACT US. COPIES OF THESE TERMS OF USE ARE AVAILABLE FOR DOWNLOAD AND PRINTING BY USING CURRENT WEB BROWSER SOFTWARE. COPIES OF EMAIL DOCUMENTS SENT TO YOU MAY BE PRINTED USING CURRENT EMAIL CLIENT SOFTWARE. OTHER PARTICULAR PORTIONS OF THE SITE MAY GIVE YOU OTHER INSTRUCTIONS ON HOW TO OBTAIN A PAPER COPY OF ANY ELECTRONIC DOCUMENTS RELATED TO THOSE PORTIONS OF THE SITE.

Internet Access

To use the Web site, you must at no cost to NightCare: (a) provide for your own access to the World Wide Web and pay any service fees associated with such access; and (b) provide all equipment necessary for you to make such connection to the World Wide Web, including without limitation a computer and modem or broadband Internet connection.

Site Restrictions

As a condition of your use of the Site, you represent and warrant that you shall not use the Site for any purpose that is unlawful or prohibited by these Terms of Use. You will not submit any false, misleading or inaccurate information to the Site or as any part of a purchase transaction process. You will abide by all applicable local, state, national and international laws and regulations and you shall be, and agree to be, solely responsible and liable for all of your acts or omissions that occur while you use the Site. By ways of example, and not as a limitation, you will not use the Site to:

Defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others;
Publish, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, indecent, immoral or otherwise objectionable material or information;
Transmit or upload any material to the Site that contains viruses, trojan horses, worms, time bombs, cancelbots, spyware, or any other harmful or deleterious programs;
Interfere with or disrupt the Site networks or servers;
Harvest or otherwise collect information from the Site about others, including without limitation email addresses, without proper consent;
Use the account, login identification, or password of another party to access the Site;
Otherwise attempt to gain unauthorized access to the Site, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
Submit false and/or fraudulent information as a part off any purchase transaction from NightCare, and/or
Interfere with another individual’s or entity’s use or enjoyment of the Site.
NightCare has no obligation to monitor your use of the Site or retain the content of any of your sessions on the Site. However, NightCare reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.

Links to Other Sites

Any links on this Web site may let you leave the NightCare Site and go to other Web sites. The linked sites are not under the control of NightCare, and NightCare is not responsible for the content, the accuracy thereof or any other aspect of any linked site or any link contained in a linked site. NightCare reserves the right to terminate any link or linking program at any time. NightCare does not endorse companies or products to which it links. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.

Links from Other Sites

You may link to any page of the Site through a plain text link provided that you do not violate any of the restrictions noted in the next sentence. Any web site or other device that links to http://www.NightcareSleep.com or any page available therein is prohibited from (a) replicating Content, (b) using a browser or border environment around the Content, (c) implying in any fashion that NightCare or any of its affiliates are endorsing it or its products, (d) misrepresenting any statement of facts, including its relationship with NightCare or any of its affiliates, (e) presenting false information about NightCare products or services, and (f) using any logo, trademark or other mark of NightCare or any of its affiliates without express written permission from NightCare.

Disclaimer of Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NIGHTCARE (ON ITS BEHALF AND ON BEHALF OF ALL ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, SUBSIDIARIES AND AFFILIATES) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION REGARDING ANY CONTENT OR OTHER INFORMATION ACCESSED THROUGH THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. NO MATERIALS OR OTHER ADVICE OR INFORMATION, WHETHER ORAL, WRITTEN OR IN ANOTHER FORM, OBTAINED BY YOU THROUGH THE SITE OR OTHERWISE, WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS OF USE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OR FROM THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED TO YOU “AS IS.”

Limitations on Liability

YOU AGREE THAT NIGHTCARE AND ALL OF ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, CONTRACTORS, VENDORS, SUPPLIERS, AGENTS, SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “NIGHTCARE PARTIES”) SHALL NOT HAVE ANY LIABILITY TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES THAT ARISE OUT OF OR RELATE TO THE SITE OR THESE TERMS OF USE. IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OF THE NIGHTCARE PARTIES FOR DAMAGES OF ANY TYPE, EXPENSES OR LOSSES UNDER ANY CLAIM, CAUSE OF ACTION, LAWSUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE EXCEED ONE HUNDRED DOLLARS ($100). THE LIABILITY LIMITATIONS IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER THE CLAIM, CAUSE OF ACTION, LAWSUIT OR PROCEEDING IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER NIGHTCARE HAS BEEN ADVISED OF THE POSSIBILITY OF THE APPLICABLE DAMAGES.

If you are dissatisfied with this Web site or any Content on the Web site, or with their terms and conditions, you may discontinue using the Website. You acknowledge by your use of this Website, that your use of the Website is at your own risk.

Applicable law may not allow the limitation of liability set forth above, so this limitation of liability may not apply to you. If any part of this limitation on liability is found to be invalid or unenforceable for any reason, then the aggregate liability of NightCare under such circumstances for liabilities that otherwise would have been limited shall not exceed one dollar ($1).

The limitations in this Section do not apply if and only to the extent that applicable law prevents the application of such limitations.

Indemnification

You agree to defend, indemnify, and hold NightCare and its employees, officers, directors, shareholders, contractors, agents, vendors, suppliers, subsidiaries and affiliates harmless from any and all damages, costs and expenses, including without limitation reasonable attorneys’ fees, arising out or relating to any and all third party claims, demands or allegations arising out of or relating to your use of the Site in violation of these Terms of Use or other restrictions set forth on the Site, any applicable laws, and your violation of any rights of a third party.

Infringement Claims Policy

NightCare respects the intellectual property of others, and NightCare asks you to do the same. If you believe some Content on the Site has been copied in such a way as to constitute copyright infringement, please contact the NightCare representative designated below. NightCare may investigate and take appropriate action.

As Is and As Available Basis

This Site is operated by NightCare on an “as is” and “as available” basis, without representations or warranties of any kind except the written Limited Warranty for each respective product for the original purchaser only as authorized and published by NightCare and which accompanies each new product purchase. To the full extent permitted by law, NightCare, LLC and its employees, shareholders, vendors, suppliers, agents, independent contractors, subsidiaries and affiliates (collectively, “NightCare”), disclaim any and all such representations and warranties with respect to this Site and its contents, whether express, implied, or statutory, including, but not limited to, warranties of title, merchantability and fitness for a particular purpose or use.

Miscellaneous

THESE TERMS OF USE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, U.S.A., WITHOUT REGARD TO ITS RULES GOVERNING CONFLICTS OF LAW. YOU AGREE THAT THE EXCLUSIVE VENUE FOR ALL ACTIONS AND ARBITRATIONS RELATING IN ANY MANNER TO THESE TERMS OF USE SHALL ONLY BE IN A FEDERAL OR STATE COURT OF COMPETENT JURISDICTION LOCATED IN MARIN COUNTY, CALIFORNIA, U.S.A. If any provision of these Terms of Use is for any reason held unenforceable or invalid, then these Terms of Use shall be construed as if such provision were not contained in these Terms of Use. No action arising out of these Terms of Use may be brought by you more than two years after the date the cause of action has accrued. A waiver by NightCare of any of the terms, provisions or conditions of these Terms of Use or the acquiescence of NightCare to any act (whether commission or omission) shall not constitute a general waiver of such term, provision or condition of any subsequent act contrary thereto. These Terms of Use represent the entire understanding between you and us with respect to the subject matter of these Terms of Use and supersede all other written or oral agreements with respect to the subject matter of these Terms of Use.

Contact Information

All inquiries regarding these Terms of Use should be directed to NightCare in writing via the contact information found at the Contact Us section of our Site.