Emma Up by Emma - Privacy Policy

These Terms form the basis of the user contract being formed between Emma Sleep GmbH, Wilhelm–Leuschner–Str. 78, 60329 Frankfurt am Main, Germany (hereinafter referred to as “Emma Sleep”, “We”, or “Us”) and you as the user (hereinafter referred to as “You”). The subject matter of these Terms is the use, free of charge of the services offered by Us via Our Application Software (hereinafter referred to as “App”) downloaded by You from the Apple App Store or Google Play. The App is designed for use as a digital sleep coach service (hereinafter referred to as “Product”), but may also be used on a stand-alone basis and/or with other Emma products and/or third-party products. Any other use of the App is prohibited.

2. Terms of Use; Amendments

2.1 By downloading, installing, accessing or using this App, You affirm that (i) You have obtained and read a copy of these Terms and (ii) You are able and legally competent to agree to and comply with these Terms. If You do not agree to these Terms or if You are not legally competent to agree to them do not use the App.

2.2 General, non-confidential and non-sensitive health and sleep information (such as sports practice, lack of sleep or oversleeping, average hours of sleep per day, etc.) acknowledged by the App are intended solely for leisure, well-being, and fitness purposes. Any medical application of this data, including self-diagnosis or consultation with the Sleep Coaches, is expressly excluded from the scope of the App’s intended use. The App and its data are not intended to treat, diagnose, cure or prevent any disease.

2.3 If You are a parent or guardian that provides consent to Your teenager’s registration with and use of the App, You agree to be bound by these Terms in respect of such teenager’s use of the App.

2.4 Any objection or contestation to these Terms will be interpreted as a refusal to agree to these Terms. If You disagree with these Terms, you shall uninstall the App.

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3. Prerequisites for App Usage, Downloads and Updates

3.1 You shall download and install the App from an official app store or distribution platform (like the Apple App Store or Google Play Store) where the App may now or in the future be made available, or in another manner designated by Us. You shall refrain from downloading the App from any unauthorized websites or distribution platforms. You acknowledge that downloading the App from an unauthorized website or distribution platform may affect the operations of the App or infect Your mobile devices with malicious programs that can destroy or alter Your data and compromise Your sensitive personal information. Emma Sleep accepts no liability for any loss thereby caused to You in connection with downloading the App from any unauthorized websites or distribution platform.

3.2 You may only connect to the Product using the App.

3.3 We reserve the right from time to time and at Our sole discretion to provide replacement, modified and upgraded versions of the App and You must (i) consent to such changes and (ii) install the replaced, modified or upgraded version of the App. We further, reserve the right to charge a fee for access to and use of certain features of the App and You will be notified of such fees in advance if such fees become effective and will also be given the opportunity to consent to the payment of such fees.

3.4 When an update is available, the App will display an ‘upgrade prompt’ feature by default.

3.5 After a new version of the App is released, all earlier versions of the same will be unsupported and may eventually cease to operate. We do not guarantee the security, continuous operation or customer services for any unsupported versions.

4. Necessary Equipment

Use of the App depends on Your use of a supported mobile device as well as an internet connection. The maintenance and security of this device can affect the performance of the Product; You are also responsible for ensuring the functionality of the equipment.

5. Push Notifications, Location based Features

5.1 We may provide You with push notifications, in-app notifications, alerts and other electronic communications related to the App and/or Emma Sleep services, such as enhancements, offers, products, events, and other promotions.

5.2 After downloading the App, You will be asked to accept or deny push notifications/alerts. If You deny, You will not receive any push notifications/alerts. If You accept, push notifications/alerts will be automatically sent to You. If You no longer wish to receive push notifications/alerts from the App, You may opt out by changing Your notification settings on Your mobile device.

6. Limited License and Restrictions in Relation to Use of App

6.1 We grant You a limited license to temporarily download one copy of the App per device for personal, non-commercial transitory viewing only. This is the grant of a right to use, and not a transfer of title or ownership, and You hereby undertake to comply with all applicable laws, including without limitation, privacy laws, intellectual property laws, anti-spam laws and regulatory requirements.

You undertake that You will not:

6.1.1 delete any copyright information displayed or otherwise included in the App, or modify, delete or circumvent the technical measures set by the App software for the protection of intellectual property rights;

6.1.2 attempt to interfere with, harm, modify, adapt, translate, reverse engineer, decompile, disassemble, steal from, or otherwise attempt to obtain the source code of the App;

6.1.3 attempt to access non-public areas of the App or Our computer systems;

6.1.4 modify the App software by modifying or forging the instructions and data during the operation of the App, or otherwise operate or disseminate the App to the public, whether or not for commercial purposes;

6.1.5 use the App to commit any acts detrimental to network security, including using unauthorized data or access to unauthorized servers/accounts; unauthorized access to public networks or the operating system of others and delete, modify or add any information stored; unauthorized attempts to detect, scan or test the App software system or network weaknesses or do anything that harms network security; interfering or attempting to interfere with the normal operation of the App software system; deliberately spreading malicious programs or viruses; carrying out other acts that destruct or interfere with normal network information services; or forging the name or partial names of TCP/IP data packet;

6.1.6 log in or use the App through third-party software or systems not developed, authorized or approved by Us, or make, publish or disseminate such third-party software or systems;

6.1.7 access the App from a jurisdiction where it is illegal or unauthorized;

6.1.8 copy, modify or create derivative works based on the App;

6.1.9 distribute, transfer, sublicense, lease, lend or rent this Emma Sleep service to any third party;

6.1.10 use the App to produce, reproduce, publish, transmit, disseminate or store any content that violates local laws and regulations;

6.1.11 use the App to produce, reproduce, publish, transmit, disseminate or store any content that infringes the legitimate rights such as intellectual property rights and trade secrets of others;

6.1.12 use the App to produce, reproduce, publish, transmit or disseminate any content that incorporates advertising information, promotional material, junk mail, spam or a contest or sweepstakes;

6.1.13 use the App, in a manner that violates any local laws and regulations, for any unlawful purpose or in any manner inconsistent with the licensed usage under these Terms;

6.1.14 spread false or disparaging statements to mislead or deceive others, or to harm the goodwill of the App, the Product, Emma Sleep or its affiliates;

6.1.15 impersonate or misrepresent Your affiliation with Emma Sleep or Our affiliates;

6.1.16 conduct any activities or produce, reproduce, publish, transmit or disseminate any content which We have reason to believe is inappropriate; and

6.1.17 encourage or enable any other individuals to do any of the foregoing.

7. Privacy Policy and Personal Data Protection

7.1 At Emma Sleep, protecting the privacy of Our users is of the utmost importance. In order to provide You with the service in relation to the Product and to improve user experience, We will collect certain types of data. For information about how We collect, use and share Your personal data, please check out our Privacy Policy.

7.2 By using the App, You agree that We can use such data in accordance with our Privacy Policy.

8. Service Risk and Disclaimer

8.1 You agree to bear the communication fees, information fees and related costs incurred in connection with accessing the Internet from Your mobile device to access the App, including applicable fees and costs charged by third parties (such as telecommunications and mobile communication providers).

8.2 We shall not be liable for any loss suffered by You due to reasons attributable to third parties such as communication line failure, technical problem, network or mobile terminal device failure, system instability and other various force majeure factors.

8.3 The functionality of the App may be impacted by factors out of the control of Emma Sleep, including user operations, network service quality, social environment differences, social engineering, and computer viruses.

8.4 The App may make available to You content, promotions, websites, services and resources provided by third parties (collectively, “Third Party Services”), including links to third-party websites or resources. We do not control, endorse or adopt any Third-Party Services, do not guarantee the safety, accuracy and effectiveness of the Third-Party Services, and will have no responsibility for any Third Party Services including material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. You agree to assume all risks in connection with Your interaction or use of any Third-Party Services. You also acknowledge that these Terms do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to Your use of any Third-Party Services.

8.5 We will use commercially reasonable effort to ensure that the App and the technology and information involved are safe, effective, accurate and reliable; however, You accept and acknowledge that there are inherent risks associated with utilizing an internet-based software service and that Emma Sleep cannot guarantee the safety, efficacy, accuracy or reliability of the App. You agree to use the App at Your own risk.

8.6 If You have a medical condition, please consult a medical practitioner prior to using the Product. We are not responsible for any health or medical problems that may result from Your use of the Product or the App.

9. Intellectual Property

9.1 Copyright. Unless otherwise noted, all content included on the App, including text, interfaces, photographs, charts, pictures, browsing means, trademarks, logo, graphics, design, music, artworks, computer code, software, fonts or any other elements incorporated into the App (together with “Marks” - as defined below - “Emma Sleep Content”) is the property of Emma Sleep or its licensors, partners or affiliates and is protected by national and international copyright laws. The structure, organization, and code of the App software are valuable trade secrets and confidential information of Emma Sleep and/or its licensors and affiliates. Any unauthorized use of any content or materials on the App is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on this App only with Our prior written and express authorization.

9.2 Trademarks. All trademarks, service marks, and trade names (collectively the “Marks”) that appear on the App are proprietary to Emma Sleep, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Emma Sleep, and You may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the App.

10. Warranty

10.1 The App is not intended for use on devices on which the operating system does not conform to the default status anymore (“Jailbreak Devices”). On Jailbreak Devices You use the App at Your own risk, any warranty is waived, and We are not liable for any damages resulting from the use of said devices.

10.2 Unless required by any mandatory legal provision, the App, the software, hosting services, the API and improvement of any of the foregoing (hereinafter the “Elements”) are provided on an “as is” and “as available” basis. We make, and You receive, in connection with the Elements, no other warranty, express or implied, including without limitation, any implied warranties of merchantability, or fitness for a particular purpose, or non-infringement. We do not promise that the Elements or any content, services or feature of the Elements, including any information and documents downloaded by You are free from errors or defects, or that the aforementioned will be corrected.

11. Limitation of Liability

11.1 Liability for services provided free of charge: For services provided free of charge, we will be liable, regardless of the legal basis, exclusively for damage due to willful misconduct or gross negligence or the absence of a guaranteed feature.

Our liability is not limited to willful misconduct. In the event of gross negligence or the absence of a guaranteed feature, our liability is limited to reasonable, foreseeable damage. Otherwise, our liability is excluded.

11.2 Liability for services provided for a fee: In the case of services provided for a fee We have, regardless of the legal basis, unlimited liability in principle for damage due to willful conduct or gross negligence or the absence of a guaranteed feature. If We breach a material contractual obligation as a result of slight negligence, our liability is limited to reasonable, foreseeable damage. A material contractual obligation is any obligation that is necessary to fulfil the purpose of the contract, and on the fulfilment of which You as the consumer can rely or ought to be able to rely. Our liability in the event of any injury to life, limb or health that is our fault remains unaffected by the above-mentioned limitations. Otherwise, our liability is excluded.

11.3 Liability of our employees: To the extent that our liability is excluded or limited, this exclusion or limitation also applies to our employees, agents or subcontractors.

11.4 Product liability: Claims under Your local product liability laws remain unaffected by the above-mentioned liability exclusions or limitations.

12. Indemnity

12.1 You agree to, upon Our first request in text form, indemnify (in other words repay Our losses), defend, release, and hold Us, and Our partners, licensors, affiliates, contractors, officers, directors, employees, representatives and agents harmless, from and against any third party claims, damages, actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by Us arising as a result of, or in connection with:

12.1.1 any negligent or willful breach of these Terms by You;

12.1.2 Your access and use of the App;

12.1.3 any negligent acts, omissions or willful misconduct by You; and/or

12.2 You furthermore agree to support Us in Your best endeavours in defending Our rights in said situation, e.g. by providing any information on the case.

12.3 We retain the exclusive right to settle compromise and pay any and all claims or causes of action which are brought against Us without Your prior consent.

13. Cancellation, Suspension or Termination of App

We may, at Our sole discretion, cancel, suspend or terminate Your access to and use of all or any part of the App, at any time and without notice or liability to You. Without limiting the generality of the foregoing, We may terminate Your access to the App and delete all related data and files.

• Recurring Subscriptions. If you purchase a recurring subscription to use Emma Up (“Recurring Subscriptions”), the subscription will be continuous for the subscription period you select and will automatically renew for another subscription period until canceled. You authorize Emma Up to automatically charge your designated payment method at the beginning of each subscription period for the then-current price of your Recurring Subscription, along with any applicable taxes and fees specified, unless canceled in accordance with section 13. If we are not able to charge your payment method for your Recurring Subscription, you remain responsible for any uncollected amounts.

• Cancellation. You must cancel your Recurring Subscription at least 24 hours before the end of your current subscription period to avoid being charged for the next subscription period.  If you purchased your Recurring Subscription through a third-party, like an app store, you must cancel the renewal directly with that third-party. Message us under [email protected] if you need assistance with canceling a Recurring Subscription. If you cancel, you are not entitled to a refund for the fees you already paid, but, subject to these Terms, you will continue to receive access to Emma Up until the end of your current subscription period.

• Promotional Offers Converting to Recurring Subscriptions. You may be offered a promotional offer in connection with a Recurring Subscription, such as a trial period or initial discount (each a “Promotional Offer”). Additional terms specific to each Promotional Offer we offer will be as described in the particular offer (“Offer Terms”). You must meet all eligibility requirements stated in these Terms and the Offer Terms to enroll in a Promotional Offer. Unless stated otherwise in the Offer Terms, Promotional Offers are only for new customers who have not previously subscribed to Emma Up or enrolled in a Promotional Offer. If the Offer Terms state that an offer is available only to past subscribers, you must have been a subscriber to Emma Up and allowed your subscription to expire before the date stated in the Offer Terms. Emma Up reserves the right, in its discretion, to determine your Promotional Offer eligibility, and to modify or cancel a Promotional Offer at any time. 

  
  
  

  Once your promotional period ends, you authorize Emma Up to begin billing your designated payment method on a recurring basis at the then-current price for the relevant subscription plus any applicable taxes unless it is canceled in accordance with section 13 at least 24 hours prior to the end of the promotional period.

14. Miscellaneous

14.1 These Terms constitute the whole agreement and understanding between You and Us and supersede any previous arrangement, understanding or agreement between You and Us relating to the subject matter of these Terms.

14.2 We reserve the right to change or modify these Terms with future effect. We will advise You of the changes by email no later than one (1) week before the new version of these Terms is scheduled to enter into force. If You do not object to the validity of the new version of these Terms within such period and continue to use the App, then the new version of these Terms will be deemed to have been accepted. In the event that You do object, We expressly reserve Our rights to terminate the contract between You and Us for convenience. We will also advise You again separately of Your right to object, the deadline to do so and the legal consequences of Your objection or failure to object.

14.3 These Terms and all rights and obligations thereunder shall be exclusively governed and exclusively construed in accordance with German Law.

14.4 Any notification and communication between Emma Sleep and You can be realized by any electronic means of communication such as emails. You hereby grant Us Your express consent for sending You by electronic means of communication any notification through your account.

14.5 The headings to all provisions of these Terms are for ease of reference only and shall be ignored in interpreting these Terms. In these Terms, unless the context indicates a contrary intention, use of the words “includes” or “including” or the abbreviation “e.g.” means “including, without limitation”, and the term “such as” will mean “such as without limitation”.

14.6 You can bring legal proceedings in respect of these Terms and all rights and obligations thereunder only in the country in which You purchased the Product.

14.7 If any provision of these Terms should be or become wholly or partially void, ineffective or unenforceable, the validity, effectiveness and enforceability of the other provisions of these Terms shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall be deemed replaced by the such valid, effective and enforceable provision as comes closest to the economic intent and purpose of the invalid, ineffective or unenforceable provision as regards subject- matter, extent, time, place and scope. The aforesaid shall apply mutatis mutandis to any gap in these Terms.

15. Information About Us

Emma Sleep GmbH

Wilhelm–Leuschner–Str. 78, 60329 Frankfurt am Main Germany

Email for support: [email protected]

Managing Directors: Dr. Dennis Schmoltzi, Manuel Müller