Terms of Use

SOMNERA™ WEBSITE END USER LICENSE AGREEMENT

IMPORTANT – PLEASE READ CAREFULLY:  This Somnera™ Website End User License Agreement (this “Agreement”) is a legally enforceable contract between you and Somnera, Inc., a Delaware corporation (“Somnera”), regarding your use of Somnera’s proprietary website together with the associated Documentation, technical configurations, and technical data (the “Somnera™ Website”).  “Documentation” means the user manual and other documentation (including print and online), if any, provided to you with the Somnera™ Website.
In addition to the terms and conditions of this Agreement, certain third party programs or code (“Third Party Software”) are being provided to you under the terms and conditions of separate and distinct license agreements, copies of which are contained in or can be found at the locations set forth in Schedule A attached hereto (collectively, the “Thirty Party Licenses”).

BY CLICKING “I AGREE” BUTTON BELOW OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOMNERA™ WEBSITE, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THIRD PARTY LICENSES .  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE AGREEMENT AND THIRD PARTY LICENSES, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THE AGREEMENT OR THIRD PARTY LICENSES, YOU MUST NOT ACCEPT THE AGREEMENT AND MAY NOT USE THE SOMNERA™ WEBSITE.

  1. Limited License.  Subject to the terms and conditions of this Agreement, Somnera grants you a non-exclusive, non-transferable, non-sublicensable, limited license, to download, install and use the Somnera™ Website, in object code version, on a single mobile device owned or controlled by you for your personal use.
  2. Ownership.  You acknowledge that the Somnera™ Website is the intellectual property of, and is owned by, Somnera and its licensors.  The structure, sequence and organization of the Somnera™ Website are the valuable trade secrets and confidential information of Somnera and its licensors.  Somnera™ Website is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is used.  You acknowledge that Somnera, or its licensors, retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Somnera™ Website.  You will take no actions which adversely affect Somnera’s intellectual property rights in the Somnera™ Website.  This Agreement is a license and not an agreement for sale.  No title to, or ownership of, the Somnera™ Website, or any intellectual property rights subsisting therein, is transferred to you.
  3. Restrictions.  Somnera™ Website is licensed solely for your personal use and any other use including for third parties is expressly prohibited.  Somnera and its licensors reserve all rights not expressly granted to you in this Agreement.  Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) make copies of the Somnera™ Website except as expressly permitted by Somnera, (ii) disassemble, decompile, reverse engineer, or translate any part of the Somnera™ Website, or otherwise attempt to reconstruct or discover the source code of the Somnera™ Website, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, (iii) modify or create derivative works based upon the Somnera™ Website, (iv) externally distribute, sublicense, resell, encumber or otherwise transfer the Somnera™ Website, (v) rent, lease, lend, or use the Somnera™ Website, or any part thereof, for timesharing or bureau use, (vi) allow a third party to copy, access, or use the Software (except as expressly provided in this Agreement), (vi) alter or remove any copyright, trademark or other proprietary notice which may appear on the Somnera™ Website, (vii) take any action that would cause the Somnera™ Website to be placed in the public domain or become subject to open source license agreement, or (viii) use the Somnera™ Website in any manner that violates any statute, law, rule, regulation, directive, guideline, bylaw whether presently in force or may be implemented by federal, state or local authorities.
  4. Collection and Use of Your Information.  You acknowledge that when you download, install, or use the Somnera™ Website, Somnera may use automatic means (including, for example, cookies and web beacons) to collect information about your mobile device and about your use of the Somnera™ Website.  You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Somnera™ Website or certain of its features or functionality.  All information we collect through or in connection with this Somnera™ Website is subject to Somnera’s Privacy Policy [INSERT AS LINK TO WEBSITE PRIVACY POLICY].  By downloading, installing, using, and providing information to or through the Somnera™ Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
  5. Updates.  Except as otherwise expressly provided herein, this Agreement will govern any updates and upgrades to the Somnera™ Website that may be provided to you in accordance with Somnera’s then-current maintenance and support policies, unless such updates and upgrades are provided under a separate license agreement.  You may use such updates or upgrades only in conjunction with your then-existing Somnera™ Website licensed under this Agreement.  The Somnera™ Website and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Somnera™ Website to exceed the scope of your original license.
  6. No Support.  Except as expressly required by applicable law, nothing in this Agreement entitles you to any support, maintenance or new versions of the Somnera™ Website.  You may contact Somnera to determine the availability of support, maintenance, and new versions, and the fees, terms and conditions that would apply.
  7. Disclaimer of Warranties.  THE SOMNERA™ WEBSITE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SOMNERA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOMNERA™ WEBSITE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, SOMNERA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOMNERA™ WEBSITE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
  8. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SOMNERA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOMNERA™ WEBSITE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (B) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOMNERA™ WEBSITE.  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  IN SUCH STATES AND JURISDICTIONS, EITHER PARTY’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.  THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
  9. Your Indemnification.  You agree to fully indemnify and completely save harmless Somnera, its affiliates and their directors, officers, employees, agents, representatives of and from any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Somnera™ Website or your breach of this Agreement.
  10. Sole Remedy and Allocation of Risk.  YOUR SOLE AND EXCLUSIVE REMEDY AND SOMNERA’S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS AGREEMENT.  This Agreement defines a mutually agreed-upon allocation of risk.
  11. Third Party Licenses.  You understand and agree that, although provided to you by Somnera with the Somnera™ Website, your use of Third Party Software shall be and is governed by the relevant terms of Third Party Licenses.  The ownership terms in Section 2 and restrictions in Section 3 do not apply to Third Party Software.  You understand and acknowledge that under the Third Party Licenses, Third Party Software is being provided “AS IS” WITHOUT ANY WARRANTY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  If there is a conflict between this Agreement and Schedule A with respect to Third Party Software, the provisions of Schedule A shall prevail.
  12. Export Restrictions.  You agree to comply with all export and re-export restrictions and regulations (“Export Restrictions”) imposed by the United States or any other country in which you reside.  Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Somnera regarding an ultimate destination of the Somnera™ Website, you represent and warrant that you understand the U.S. law currently prohibits the export or re-export, directly or indirectly (including via remote access) of U.S. origin products and technology to certain proscribed countries (including Cuba, Iran, Sudan, North Korea and Syria and/or any other country that may become subject to an embargo by the United States), entities, organizations and individuals, without prior authorization from the U.S. government.  You will not commit any act or omission that will result in a breach of any such Export Restrictions.  Your breach of this clause shall constitute cause for immediate termination of this Agreement.
  13. High Risk Activities.  The Somnera™ Website is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the “High Risk Activities”).  The Company specifically disclaims any express or implied warranty of fitness for High Risk Activities.
  14. Term and Termination.  The term of this Agreement commences when you download/install the Somnera™ Website and will continue in effect until terminated by you or Somnera as set forth in this Section 14.  You may terminate this Agreement by deleting the Somnera™ Website from your mobile device.  Somnera may terminate thisAgreement at any time without notice if it ceases to support the Somnera™ Website, which Company may do in its sole discretion.  In addition, all licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this Agreement.  Upon termination, you must immediately uninstall and delete the Somnera™ Website.  This shall not limit or affect any remedy available to the Company for your breach of this Agreement.
  15. Resolution of Disputes.
    1. If any dispute arises between the parties relating to this Agreement, one party will provide written notice of the dispute to the other party describing the dispute in reasonable detail.  Executives of the parties, who are not directly involved in the administration of this Agreement and have the authority to resolve the dispute, must attempt to negotiate a resolution of the dispute.  During the negotiation, each party will provide to the other party all information reasonably requested by the other party.  The parties will take any actions necessary to toll any applicable statutes of limitation and defenses based upon the passage of time during this period of notice and negotiation.  All negotiations under this Section will be confidential and will be treated as compromise and settlement negotiations under all applicable laws.  If the dispute is not resolved within 60 days after the written notice is delivered, either party may initiate arbitration.
    2. Each party will choose one arbitrator.  The parties will attempt to agree on the third arbitrator.  If the parties fail to agree on the third arbitrator within 20 days of the parties choosing their arbitrators, the American Arbitration Association (the “AAA”) will choose the third arbitrator.  If the dispute involves patent law, despite anything to the contrary, every arbitrator will be an attorney that specializes in patent law.
    3. The arbitrators may grant any remedy or relief that does not conflict with any term in this Agreement, including, but not limited, specific performance or injunctive relief.  Any award granted by the arbitrators will be final and binding on the parties unless appealed in accordance with the AAA’s Optional Appellate Arbitration Rules within 30 days following the award.  If appealed as provided above, the decision rendered in the appeal will then be deemed final and binding on the parties.  The final judgment resulting from the arbitration may be entered in any court having jurisdiction.
    4. Except as required by law, the parties (including counsel and other representatives), the witnesses, and the arbitrators may not disclose the existence, contents, or results of any dispute or arbitration under this Agreement without the prior written consent of both parties.  Any documentary or other evidence produced in any arbitration will be treated as confidential and will not be disclosed to any third party (other than a witness or expert used during the arbitration), except as required by law.
    5. The United States Arbitration Act, as amended to date (the “Federal Arbitration Act”), will govern the interpretation, enforcement and all proceedings of the arbitration.  To the extent that the Federal Arbitration Act is inapplicable, or held not to require arbitration of a particular claim or claims, the arbitration law of California will apply.
    6. The prevailing party in any dispute related to this Agreement will receive from the other party all reasonable costs incurred by the prevailing party, including reasonable attorneys’ fees.
    7. This Agreement shall be governed by the laws of the State of California, exclusive of its choice of law rules.  Any dispute between you and Somnera regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts sitting in the County of Orange in the State of California; provided that any arbitration shall be in Orange County in the State of California.   
  16. Miscellaneous.
    1. The Somnera™ Website is commercial computer software, as such term is defined in 48 C.F.R. §2.101.  Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
    2. You may not assign, sublicense, or transfer this Agreement, the Somnera™ Website, or any rights or obligations hereunder without prior written consent of Somnera.  Any such attempted assignment, sublicense, or transfer without Somnera’s consent will be null and void.  Somnera may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer without Somnera’s consent.
    3. This Agreement is in the English language only, and will only be provided in the English language, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.  All communications and notices to be made or given pursuant to this Agreement must be in the English language.
    4. The Agreement constitutes the final and complete understanding between you and Somnera with respect to the subject matter of this Agreement. Any modifications or waivers of this Agreement must be in writing and signed by both parties hereto.
    5. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
    6. Failure or delay on the part of either party to exercise any right, power, privilege, or remedy will not constitute a waiver of, or bar the later exercise of, that or any other right, power, privilege, or remedy of such party.
    7. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this Agreement.

SCHEDULE A
THIRD PARTY SOFTWARE

This Schedule A contains Third Party Licenses for Somnera™ Website.  These licenses apply only with respect to the software supplied by the named third party and are made a part of and incorporated by reference into the Somnera™ Website End User License Agreement that references these notices and/or additional terms and conditions.

  1. Newtonsoft Json
    Copyright (c) 2007 James Newton-King
    Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
    The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
    THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
  2. NLog
    Copyright (c) 2004-2020 Jaroslaw Kowalski <jaak@jkowalski.net>, Kim Christensen, Julian Verdurmen
    All rights reserved.
    Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
    * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
    * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
    * Neither the name of Jaroslaw Kowalski nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
    THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  3. Xabre Bluetooth LE Plugin
    Copyright (c) 2016 Adrian Seceleanu
    Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at
    http://www.apache.org/licenses/LICENSE-2.0
    Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
    See the License for the specific language governing permissions and limitations under the License.
  4. SQLite Net
    Copyright (c) Krueger Systems, Inc.
    All rights reserved.
    Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
    The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
    THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
  5. ZXing Net Mobile
    Apache ZXing.Net.Mobile Copyright 2012 The Apache Software Foundation
    Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at
    http://www.apache.org/licenses/LICENSE-2.0
    Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
    See the License for the specific language governing permissions and limitations under the License.