Celeste End User License Agreement

END USER LICENSE AGREEMENT Effective Date April 9, 2024

INTRODUCTION

This End User License Agreement (“EULA”) is an agreement between you and EnsoData, Inc. (“we” or “us”). This agreement is about your use of any of our products available to you as an End User.  These products include but are not limited to the Celeste Application and anything that comes with it, like information, services, and features, or other software we make available to End Users.  It also includes any documents or materials related to these things, as well as any services or items provided by us or any affiliated companies the “Services.”  Collectively we refer to all of these items under this EULA as “Application.”

It’s important to note that this agreement doesn’t cover how you use www.ensodata.com, which has its own rules in a separate set of Terms and Conditions found at www.ensodata.com. It also doesn’t apply to any other websites or apps besides the Application.

Make sure to read this EULA carefully before using our Application. If you tap or click “I agree,” “I accept,” or any similar button or box related to this EULA, or if you install or use our Application, you’re agreeing to follow this EULA, and that when you use the Application, you will follow all of the rules, requirements, and restrictions in this EULA.

We can change this EULA at any time and for any reason. When we do, the changes will apply from that point onward. We will let you know about these changes using reasonable methods, like putting the updated EULA in the Application, or posting it on our website.

Because of this, it’s important to review this EULA from time-to-time. When you download and use a new version of the Application, or you keep using the Application after we make a change to the EULA, it means you accept the updated EULA.

The “Last Updated” date at the top of this EULA shows the date that it was last changed.

The information and resources you access through the Application are made available by us, our suppliers, vendors, and other third parties. You may only use these materials if you agree to this EULA. If you don’t agree to this EULA, you cannot use the Application.

DISCLAIMERS

THIS EULA CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

BY USING THE APPLICATION, YOU AGREE THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS EULA.

THE CELESTE APPLICATION IS FOR DATA TRANSFER ONLY AND DIFFERENT THAN ENSODATA PRODUCTS INCLUDING ENSOSLEEP AND ENSOSLEEP PPG. THE FOOD AND DRUG ADMINISTRATION (“FDA”) HAS NOT EVALUATED ANY OF THE STATEMENTS OR INFORMATION MADE IN THE CELESTE APPLICATION. THE CELESTE APPLICATION IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE.

WHILE WE MAY CORRECT ERRORS, OMISSIONS, OR INACCURACIES IN THE APPLICATION, WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, CURRENCY, OR COMPLETENESS OF INFORMATION, CONTENT, MATERIALS, SERVICES, PRODUCTS, MERCHANDISE, OR OTHER RESOURCES AVAILABLE THROUGH THE APPLICATION. THE ACCURACY, SUBSTANCE, AND SUFFICIENCY OF THE PRODUCT INFORMATION ON THE APPLICATION CAN’T BE GUARANTEED. THERE ARE NO GUARANTEES OR WARRANTIES ABOUT THE AVAILABILITY, COMPLETENESS, ACCURACY, RELIABILITY, VALIDITY, OR TIMELINESS OF ANY OF ANY OF THESE RESOURCES, WHETHER THOSE RESOURCES ARE PROVIDED BY US OR A THIRD PARTY. IN ALL WAYS, WE ARE PROVIDING THE APPLICATION AND/OR SERVICES ON AN AS-IS AND AS-AVAILABLE BASIS, WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, WHATSOEVER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN THAT CASE SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

LICENSE

As long as you follow the rules in this EULA, and as long as we allow it, we grant you a limited, non-transferable, non-exclusive license to install and use the Application on your device(s), as applicable, for your own personal use. This means that you cannot share or resell access to the Application, and you are not allowed to use it for any business or commercial purpose. This license can be taken away by us at any time and for any reason, or for no reason whatsoever.

Remember, you’re using the Application based on this license, but you don’t own it. We own all the rights and control over the Application, including any changes or updates.

ENDING THIS AGREEMENT

You can end this EULA by stopping use of and getting rid of all copies of the Application and related documents. If you break any terms of this EULA or if it’s ended, the rights we granted to you will stop, but some rights that you granted to us will still apply even after this Agreement ends.

We may, at any time and for any reason (with or without cause), immediately: (a) stop your authorization to use the Application; (b) remove or destroy Access Credentials; (c) delete and destroy any Submissions you or others put on the Application; (d) limit access to your account; and (e) block you from future use of the Application, all without notice to you.

If this EULA ends, the license described above also ends, and you may not continue to use the Application. You will need to delete the Application. If applicable, you understand that you won’t get a refund for fees or charges you paid for the Application.

MEDICAL INFORMATION AND HEALTH CONTENT

OUR APPLICATION MAY CONTAIN GENERAL MEDICAL AND PHARMACEUTICAL INFORMATION FOR EDUCATIONAL PURPOSES ONLY AND ARE NOT FINANCIAL, LEGAL, OR MEDICAL ADVICE; THE APPLICATOIN IS NOT A SUBSTITUTE FOR MEDICAL JUDGMENT, ADVICE, DIAGNOSIS, OR TREATMENT OF ANY HEALTH CONDITION OR PROBLEM. INFORMATION RECEIVED FROM THE APPLICATION SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL, OR FINANCIAL DECISIONS. YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.

The Application does not address all possible uses, actions, precautions, side effects, or interactions of drugs, nor does it provide comprehensive information concerning any particular disease or medical condition. It’s important to talk to a healthcare professional before you make any decisions or take any actions related to your health. If you’re unsure about the risks or benefits of our Application, or have questions about a health condition, it’s best to consult a licensed healthcare provider. Don’t ignore, avoid, or delay getting medical advice from a licensed professional because of information you may find in the Application.

Getting the right treatment for health conditions depends on many things, like your medical history, diet, lifestyle, and the medications you take. Your healthcare provider knows your individual needs best. Before you start a new diet, exercise routine, or take any supplements, it’s a good idea to talk to your healthcare provider.

When it comes to products like our Application or other devices, drugs, herbs, vitamins, or supplements as may be mentioned in the Application, you should also look at the information that comes with them (like package inserts). Check for details about how much to use, precautions, warnings, interactions, and any reasons not to use them. We don’t support or confirm, and are not responsible for, claims from manufacturers or others about how well these products work.

GEOGRAPHIC RESTRICTIONS

The Application is meant for use within the United States only. The Application was designed for and follows the legal requirements within the United States.  Different countries have their own laws, rules, and medical practices that you will need to follow, so you may not be permitted or able to use the Application in these other countries.

Also, parts of the Application might not work or be available outside of the United States. Don’t use the Application in places where it’s illegal to do so. We might limit who can use the Application, and where they can be used, whenever we decide.

USAGE RULES AND REQUIREMENTS

You agree that the Application belongs to us, and our licensors and suppliers. When you use the Application, you are not allowed to:

(a) send automated or recorded requests to the Application, unless we specifically approve it;

(b) access the Application using anything other than the released version of the Application;

(c) copy, modify, distribute, sell, or create things based on the Application, unless we specifically approve it in writing;

(d) try to decompile, disassemble, reverse engineer, or otherwise attempt to derive, reconstruct, identify, or discover the source code of the Application;

(e) remove any marks that show the Application belongs to us;

(f) use the Application to compare it to products/services from other companies;

(g) take actions that would cause any part of the Application, including the source code, to be made public;

(h) use the Application to transmit harmful computer code, like viruses, worms, Trojan horses, Easter eggs, time bombs, spywares or any other code file or program that is potentially harmful or invasive, or intended to damage or hijack the operation of computer hardware, software, or equipment;

(i) use the Application to gather information about other users;

(j) use the Application to “scrape” or download the content of the Application in a systematic way.

You agree to use the Application legally. You may not disrupt the functioning or use of it in a way that interferes with other users’ use of the Application, for example by hacking or defacing any portion of the Application, or by engaging in spamming, flooding, or other disruptive activities. You may not use the Application to share harmful, offensive, or unlawful content. This includes content that’s threatening, harassing, false, explicit, or discriminatory, or encourages illegal actions. 

We can stop or pause your access to the Application without telling you.  If we think your actions break the law or harm our interests or the interests of other users, partners, affiliates, sponsors, providers, licensors, or merchants we may stop or pause your access to the Application without telling you. This is our decision to make.

When you share information, you need to make sure it’s accurate, up-to-date, and true. You’re responsible for keeping this information correct. If you provide info that’s false, inaccurate, or incomplete, or if we suspect it is false, inaccurate, or incomplete, we can suspend or close your account without telling you. This might stop you from using the Application. We might do this suddenly. You understand that we can delete your account along with all your account’s information and stop your access to the Application. We won’t be held responsible to you or anyone else if this happens.

ACCESSING THE APPLICATION

When you create an account to access the Application, you may need to provide a username and password, personal identification number (“PIN”) or, if available on your device, a biometric identifier like a fingerprint or facial scan. These are called “Access Credentials”. You may also allow the Application to use technologies like Apple’s Touch ID or Face ID for authentication when you use the Application, if those technologies are available on your device. We might not give you an Access Credential if it looks like you’re Impersonating another Individual, if the Access Credential is against the law, if it’s protected by trademark or other rights laws, if it’s offensive, or if it could cause confusion. We’ll decide this based on our judgment.

YOU UNDERSTAND THAT IF YOU ALLOW THE APPLICATION TO USE TOUCH ID OR OTHER BIOMETRIC-BASED AUTHENTICATION TECHNOLOGY, ANYONE WITH A RELEVANT BIOMETRIC IDENTIFIER (SUCH AS A FINGERPRINT, IN THE CASE OF TOUCH ID) STORED ON YOUR DEVICE MAY HAVE ACCESS TO YOUR ACCOUNT AND BE MAY BE ABLE TO USE THE APPLICATION (INCLUDING TO MAKE OR ENGAGE IN TRANSACTIONS AND TO AUTHORIZE PAYMENTS).

It’s up to you to keep your Access Credentials safe and secret.  You are responsible for all of the activities connected to your Access Credentials.  If someone uses your Access Credentials without permission or if there’s a security breach, tell us right away. Don’t let others use your Access Credentials to access the Application. We are not responsible for checking if the person using an Access Credential is really who they claim to be. If we think that an Access Credential might not be secure, we may cancel it without providing you with notice. This decision is up to us, based on our own judgment.

You are responsible for making sure you have and pay for all the necessary things to use the Application. This includes hardware, software, and any services like internet or telecommunications that you need.

Using the internet for the Application might lead to charges from your wireless carrier, internet provider, or other internet access method. These charges are your responsibility. We don’t control these networks. Using them might not be secure and could expose any information that’s sent over your wireless carrier, internet, internet providers, or other internet access method.

 

CONTENT, COPYRIGHTS, AND TRADEMARKS

The Application and its related documents, text, graphics, legends, data, images, music, audio and video clips, typefaces, titles, button icons, logos, designs, words or phrases, or page headers provided by us through the Application (collectively called “Content”) are protected by copyright and other intellectual property laws. Content is owned by us and our licensors and suppliers. You may not remove or change any copyright or trademark notices. Our copyrights and trademarks can’t be used with products or services that aren’t ours, or in a way that could cause confusion or violate our rights.

SUBMISSIONS, COMMUNICATIONS, AND FEEDBACK

The Application might let you upload or share information and materials, like comments, personal data, text, photos, and images. The things you upload are called “Submissions”. When you upload Submissions to the Application, you agree to give us a non-exclusive, irrevocable, non-cancellable, royalty-free, worldwide, transferable, and sub-licensable license to use those Submissions for any legal purpose. When you upload Submissions, you agree that you own them and that you can grant us this license. We’re not responsible for any Submissions you or others upload through the Application. We are not obligated to monitor, check, control, or edit those Submissions to make sure they follow the law or this EULA. Some Submissions from other users might be offensive, harmful, inaccurate, or misleading. Be cautious and use your judgment while using the Application. We are not responsible for Submissions posted by other users and have no obligations or liability related to them. WE RESERVE THE RIGHT TO REMOVE ANY SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR JUDGMENT THAT IT VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE APPLICATION.

When you send us emails, text messages, or any other electronic messages, you’re agreeing to get responses from us electronically, including through the Application. This means that any agreements, notices, disclosures, or other communications we send you electronically meet the legal requirement for written communications.

Any suggestions, feedback, and information you provide to us about the Application (collectively called “Feedback”) and any improvements, updates, or modifications that we make to the Application in response to your Feedback (collectively called “Revisions”), belong to us. Even if you give us Feedback, it doesn’t give you any rights to the Application. You agree to give up any rights you might have in the Feedback, including intellectual property rights like patents, copyrights, and trademarks.

UPDATES

We are not obligated to continue to provide the Application. We can change how the Application works or stop providing it, at any time with or without telling you.

We might choose to offer updates for the Application. If you download or use these updates, you agree to follow the current version of this EULA at the time that you begin using that updated version.

We can’t guarantee that any version of the Application will work with all hardware or software versions, including future updates of your devices or their operating systems. The Application might not work with your specific hardware or software versions. We don’t promise to make the Application compatible with your specific hardware or software.

PRIVACY

While using the Application, you may provide, and we may automatically collect, information about you and your use of the Application. Our collection and use of such information is governed by our Privacy and Security Policy and Notice of Privacy Practices. The Privacy Policy can be found at www.ensodata.com/privacy-policy.

If your device receives push notifications, anyone who can access your device might see those notifications. If you share your device with others, you are responsible for setting it to hide or turn off notifications that you want to keep private.

If available on the Application, and you allow it, and the feature is on, a caregiver, or other person as set up through the Application, might be able to see your notifications to assist in monitoring your use of the Application.

We have the right (but are not required) to monitor the use of the Application, including electronic communications related to them. We might share content, records, or electronic communications if allowed by laws, regulations, or in response to government requests, or if it’s needed to run the Application, or to protect rights or property.

THIRD PARTY RESOURCES

The Application may have links to or provide access to third-party sites, services, products, information, content, materials, merchandise, or other resources (“Third Party Resources”). These links and access are there for your convenience and reference only. We don’t control Third Party Resources, so we’re not responsible for them or any content they provide. Be aware that we don’t guarantee or endorse Third Party Resources, their security, or the accuracy, relevance, timeliness, completeness, or suitability of their information. We can end these links or access anytime. Offering these links or access doesn’t mean we endorse or sponsor Third Party Resources. You’re giving up any claim against us related to these Third-Party Resources. When you use Third Party Resources, you follow their terms, conditions, and policies (like their Terms of Service or Privacy Policies). We aren’t in charge of your privacy or security with these Third Parties. If you choose to use their services, it’s up to them to protect your personal info and handle any unauthorized use or disclosure.

LIMITATIONS OF LIABILITY; INDEMNIFICATION

OUR ENTIRE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH US ARISING FROM YOUR USE OF THE APPLICATION IS TO DISCONTINUE YOUR USE OF THE APPLICATION. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF SERVICE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE APPLICATION OR THESE TERMS OF SERVICE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE OR PERFORMANCE OF THE APPLICATION.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF TWENTY-FIVE DOLLARS ($25.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Except to the extent prohibited under applicable law, you agree to indemnify, and defend us, and hold us harmless from and against all liability, claim, losses, expenses, damages and costs, including reasonable attorneys’ fees, related to or arising out of your use of the Application (including any of your Submissions and your use of Third-Party Resources) or any violation by you of this EULA.

ARBITRATION AND CLASS ACTION WAIVER

This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.

a.   Informal Process First. You agree that in the event of any dispute between you and us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.

b.   Arbitration Agreement. Under these Terms, you agree that any dispute, claim, or controversy arising out of or relating to this EULA, your use of the Application, or relating in any way to the communications between you and us will be finally resolved by confidential binding arbitration administered by Judicial Arbitration and Mediation Services (“JAMS”) in Delaware, or another forum mutually agreed upon by you and us. The arbitration will be conducted according to the JAMS Expedited Procedures for arbitration by a single arbitrator nominated jointly by you and us. If JAMS is not hearing consumer commercial disputes at the time, we may select another arbitral body at its sole discretion. The arbitrator’s award will be binding and may be entered as a judgment in a court of competent jurisdiction. This clause shall not preclude us from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, or to seek injunctive relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of our copyrights, trademarks, trade secrets, or patents. This arbitration agreement does not (a) govern any Claim by us for infringement of our intellectual property or access to the Application that is unauthorized or exceeds authorization granted in these Terms of Service or (b) bar you from making use of applicable small claims court procedures in appropriate cases.

You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a Class Action. This arbitration provision will survive any termination of this EULA.April 9