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NightWise Terms and Conditions

Last Updated: April, 2021

Please read these terms and conditions (the “Agreement” or “Terms”) carefully. This Agreement governs your use of the NightWise website (“Site”) and your purchase of products that are offered for sale on the Site (“Products”) by NightWise, Inc. (“NightWise” or the “Company”). This Agreement forms a legally binding agreement between you, the individual accessing or using the Site (“you”), and Company, and you should read it carefully. Use of the Site includes using the services and resources available or enabled via the site (“Services”) by us, completing the registration process, making a purchase, or visiting and browsing the Site, you represent that (1) you have read, understand, and agree to be bound by the agreement, (2) you are of legal age to form a binding contract with the company, and (3) you have the authority to enter into this Agreement. If you do not agree to be bound by the Agreement, you may not access or use this Site or the Services or purchase any Products.

 THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR A JURY TRIAL OR PARTICIPATION IN A CLASS ACTION. PLEASE SEE THE DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW FOR MORE INFORMATION. By accessing or using the Site or purchasing a Product, you agree to be bound by these Terms and Conditions and our Privacy Policy which is incorporated herein by reference. If you do not agree to these Terms or our Privacy Policy, please do not use, or purchase any Products through, the Site.

 

TABLE OF CONTENTS

 

WEBSITE ACCESS AND USE

By downloading, accessing or using the Site, you represent that you are at least eighteen (18) years old or the legal age of majority in your state, whichever is greater, and that you have read, understood, and agree to these Terms. You agree to abide by all applicable local, state, and national laws and regulations with respect to your use of the Site. We grant you a limited license to access and use the Site for your personal use, and to copy, distribute and transmit the content of this Site only to the extent that such copying, distribution and transmission is automatically done through your browser software incidentally to using the Site for your personal use. You further represent you will at all times provide true, accurate, current, and complete information (and updates thereto) when submitting information to us and through the Site. You shall only use the Site as permitted by this Agreement. Company reserves the right, in its sole discretion, to terminate your access to the Site for any or no reason. The Site is only intended for use in the United States of America, and users who access the Site from outside the United States do so on their own initiative and shall bear all responsibility for compliance with local laws, if applicable.

You are prohibited from violating or attempting to violate the security of the Site, and you agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site. The sale or linking of our products on or to any third-party website, marketplace or mobile application without our specific written consent is expressly prohibited. Further, (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Site or Services, (b) you shall not frame or use framing techniques to enclose any of our trademarks, logos, or other intellectual property (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using our name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site. Any future release, update or other addition to the Site shall be subject to this Agreement. We, our suppliers, and our service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Site or Services terminates all licenses granted by us pursuant to this Agreement.

 

Registering an Account on the Site

To create an account or make purchases through the Site, you will be asked to submit certain information, which may include your name and a username, email address, password, and other information we may request. Each time you use your password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Site.

To access certain features of the Services, you may be required to link your account with a social networking site or other third-party account, such as Facebook by allowing us to access your third-party account. You represent that you have the right to grant us access to your such accounts without breach by you of any of the terms and conditions that govern your use of the applicable account and without requiring us to pay any fees or subjecting us to any usage limitations imposed by such third-party service providers. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE WILL HAVE NO LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO THEM BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  

YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.

You are solely responsible for protecting the security and confidentiality of your password and identification. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security.

 

PLACING AN ORDER

Your Information

When you order Products on the Site, you may be asked to provide certain information, including your name, email, phone number, payment card information, billing address, and shipping address. By purchasing a Product, you represent and warrant that: (i) you have the legal right to use any credit or debit card(s) or other payment method(s) in connection with any purchase; and (ii) the information you supply to us is true, correct and complete. By submitting this information, you grant us the right to use and provide the information to third-party service providers, including payment processors, to facilitate your purchase.

 

Order Cancellation

We reserve the right to refuse or cancel an order at any time for any reasons. Further, we may, at our discretion, require further authorization, such as a telephone confirmation of your order and other information, from you.  

 

Billing and Payment Information

We accept the following bank or credit cards: Visa, MasterCard, American Express and Discover. We are not responsible for any fees or charges that your bank or credit card issuer may apply. If you purchase any Products, you will be responsible for paying any applicable sales tax indicated on the Site or as otherwise required by your state. of your order.

We use a third-party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). You hereby consent to provide and authorize NightWise and its third-party service provider to share any information and payment instructions you provide to the extent required to complete payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. Payment cards are subject to validation. If we do not receive authorization for payment, we reserve the right to refuse your order or cancel your order, and we shall not be liable for any delay or non-delivery.

 

Subscriptions

If you enroll in a subscription, your subscription will continue, and you will be charged on an automatically recurring basis, at the price and frequency you choose at enrollment, until you cancel. Your subscription will automatically renew on your “Renewal Date,” which is the first day following the end of your period (generally 30, 45 or 60 days), and your subscription will continue to renew on a regular basis. You can cancel your subscription by emailing questions@nightwise.com or logging onto the “Change/Cancel Membership” page of your “Account Settings” page. You must cancel at least two (2) days before your next Renewal Date to avoid being charged for your next shipment. If you do not cancel your subscription at least two (2) days before your next Renewal Date, you will be charged for your next recurring shipment, and your cancellation will be effective after that shipment.  

The charge for each subscription order will be billed to the payment method you used to create your account, enroll in the subscription program, or as otherwise directed by you. You authorize us to charge the payment method for your subscription orders on an automatically recurring basis until you cancel.  You agree to keep your payment and shipping information updated in your account.

Refund and Return Policy

We believe that NightWise will work for you, but if for any reason you are unhappy with the product, we offer a full money-back guarantee less shipping. Simply reach out to us at questions@nightwise.com within 30 days of receiving NightWise. If you order a subscription, we only offer a refund on the first shipment of your subscription. We do not provide refunds after the (30) day period expired.

 

Personal Use Only

The Products and the Site are for personal use only. You may not sell or resell any of the Products you purchase or otherwise receive from us. By purchasing any Products, you agree not to offer the Products for resale. We reserve the right, with or without notice, to cancel or reduce the quantity of Products in any order or Products to be provided to you that we believe, in our sole discretion, may result in the violation of these Terms.

 

HEALTH DISCLAIMER

Any statements made on the Site or any materials or supplements distributed or sold on our Site have not been evaluated by the Food and Drug Administration. The Products are not intended to diagnose, treat, cure or prevent any disease. Not everyone will experience the benefits described. Any health or medical-related information provided on the Site, or in response to any inquiries by email, phone, social media or other methods, is for informational and educational purposes only and is not intended to be a substitute for medical advice or discussions with a physician. Information provided on the Site should not be used to diagnose or treat a medical condition. If you are pregnant, nursing, taking medication, have any medical condition or have any healthcare related questions, you should consult with a physician before using the Products. You should carefully read instructions printed on the Products’ packaging before use.

 

SMS MESSAGING

You may enroll in receiving text messages and telephone calls by signing up via the website, through an email link, or by texting us at a designated sign-up number. When you sign up, you are providing your prior express written consent to receive marketing calls and text messages from us at the telephone number you provide, including communications using an automated telephone dialing system or prerecorded or artificial voice, even if your telephone number is on a national, state or internal do-not-call list. Consent is not a condition of purchase. Standard message and data rates may apply. You may opt-out at any time by texting STOP in response to any of our messages. You may request help at any time by texting HELP in response to any of our messages or by emailing customer service at questions@nightwise.com.

 

PRODUCT REVIEWS

You may be permitted to post reviews, ratings and comments about Products on the Site (“Reviews”). You are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are not endorsed by NightWise and do not represent the views of NightWise. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. That means that you, and not NightWise, are solely responsible and liable for any Reviews that you post, including the content contained therein.

By posting a Review, you grant NightWise a nonexclusive license to use the content of such Review. You acknowledge that NightWise may choose to provide attribution of your Review at our discretion. You further grant NightWise the right to pursue at law any person or entity that violates your or NightWise’s rights in your Review by a breach of this Agreement. You acknowledge and agree that your Review is non-confidential and non-proprietary. You affirm, represent and warrant that you own or have the necessary licenses, rights (including copyright and other proprietary rights), consents and permissions to publish and otherwise use (and for NightWise to use) your Review as authorized herein.

You agree: (i) to base any rating or Review you post only on your firsthand experience with the Product you are reviewing; and (ii) your Review will comply with the terms set forth herein. NightWise reserves the right, but does not undertake the obligation, to refuse to post or remove any material submitted or posted in any Review. NightWise does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Further, NightWise may remove any Reviews in the event it determines, in its sole discretion, that a Review:

        1. Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
        2. Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
        3. Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law;
        4. Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy or providing or creating computer viruses;
        5. May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
        6. Constitutes mass mailings or “spamming,” “junk mail,” “chain letters,” or “pyramid schemes”;
        7. Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including NightWise;
        8. Contains personal information of any third party, including, without limitation, name, addresses, phone numbers, email addresses, social security numbers and payment card numbers;
        9. Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files; or
        10. Is unrelated to the topic of the Reviews or products in which such Review is posted.

 

NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, users of the Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Company may be contacted in writing at NightWise, Inc. 10895 Brunson Drive, Duluth, GA 30097 or by telephone at 404-97-SLEEP.

 

The Site may contain links to third-party websites or services that are not owned or controlled by the Company. Company has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or services.

 

DISCLAIMER OF WARRANTIES

The Site and the Products are provided to you “AS IS” and “AS AVAILABLE” and without warranty of any kind. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT MAKE ANY WARRANTIES BEYOND THOSE ON THE FACE OF THE SITE AND THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED.

 

LIMITATION OF LIABILITY

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE, PURCHASE OF ANY PRODUCTS, ANY COMMUNICATIONS BETWEEN YOU AND THE COMPANY (INCLUDING COMMUNICATIONS THROUGH THIRD PARTIES), AND YOUR RIGHTS UNDER THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID COMPANY IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S) BUT IN NO EVENT GREATER THAN $100. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATIONS OR EXCLUSIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. CHECK LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THESE LIMITATIONS OR EXCLUSIONS.

 

INTELLECTUAL PROPERTY

The Site and any material made available on the Site, are the property of NightWise, Inc., or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The contents of the Site, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by this Agreement or otherwise approved in writing by Company.

 

DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER

Any dispute relating in any way to your visit to or use of the Site, the Content, your purchase or use of any Products, your relationship or communications with the Company (including indirect communications through third parties), or otherwise related to this Agreement (“Disputes”), shall be resolved exclusively through confidential arbitration, rather than in court, and shall be governed exclusively by the laws of the State Georgia, without regard to principles of conflict of laws. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Further, any question as to the validity of this Arbitration Agreement shall be submitted to confidential arbitration and decided by an arbitrator.

If a Dispute arises under this Agreement, you agree to first contact us at 404-97-SLEEP or questions@nightwise.com. Before formally submitting a Dispute to arbitration, you and we may choose to informally resolve the Dispute. If any Dispute cannot be resolved informally, you agree that any and all Disputes, including the validity of this arbitration clause and class action waiver, shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you or telephonically. Either you or we may commence the arbitration process by submitting a written demand for arbitration with the AAA and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. Except as may be required by law as determined by the arbitrator, no party or arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties.

Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Georgia: (i) any dispute, controversy, or claim relating to or contesting the validity of our or one of our family company’s intellectual property rights and proprietary rights, including without limitation, patents, trademarks, service marks, copyrights, or trade secrets; (ii) an action by us for temporary or preliminary injunctive relief, whether prohibitive or mandatory, or other provisional relief; (iii) any legal action by us against a non-consumer; and (iv) interactions with governmental and regulatory authorities. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement may be joined to an arbitration involving any other party subject to this Agreement, whether through a class action, private attorney general proceeding, class arbitration proceedings or otherwise. If an arbitrator or court decides that any part of this arbitration agreement is invalid or unenforceable, the other parts of this arbitration agreement shall still apply; however, if an arbitrator or court decides that the class action waiver is invalid or unenforceable, then the entirety of this arbitration agreement shall be null and void. YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE IN A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION. You shall have thirty (30) days from the earliest of the date that you visit the Site, purchase a Product, or submit information through the Site to opt out of this arbitration agreement, by contacting us by email at questions@nightwise.com or by mail at NightWise, Inc. 10895 Brunson Drive, Duluth, GA 30097. If you do not opt out by the earliest of the date that you visit the Site, purchase a Product, or submit information to us through the Site, then you are not eligible to opt out of this arbitration agreement.

 

ELECTRONIC COMMUNICATIONS

When you use the Site, purchase Products, or send emails, messages (including SMS, MMS or text messages), and other communications to us, you are communicating with us electronically. You acknowledge that by agreeing to this Agreement electronically, you are expressly agreeing to the terms set forth herein. You acknowledge and agree that by affixing your electronic signature, you are submitting a legally binding electronic signature and entering into a legally binding contract. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by the terms of this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OR PRODUCTS OR SERVICES OFFERED BY COMPANY. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

 

MISCELLANEOUS

Our failure to exercise or enforce any right or provision of this Agreement does not constitute a waiver of any such right or provisions. If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions. Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it. If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, such term shall be severed and the remaining terms shall be unaffected.

 

CHANGES TO THESE TERMS AND CONDITIONS

We reserve the right, at our sole discretion, to modify or update these Terms at any time. Such changes shall be effective as of the date they are posted. By continuing to access or use the Site or purchasing a Product after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, in whole or in part, please stop using, and do not purchase any Products on, the Site.

 

CONTACT US

If you have any questions about these Terms, please contact us by emailing questions@nightwise.com or writing to us at NightWise, Inc. 10895 Brunson Drive, Duluth, GA 30097.