BY "SUBMITTING SIGNATURE", BY REGISTERING OR USING THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH GOVERNS YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT "SUBMIT A SIGNATURE" WHICH WILL INDICATE THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU WILL BE PROVIDED WITH A FULL REFUND.
1. NO PROVISION OF MEDICAL ADVICE. THE SERVICE THAT THE SLEEP CONSULTANT PROVIDES IS NOT INTENDED TO REPLACE, SUBSTITUTE OR SUPPLEMENT THE MEDICAL ADVICE OF YOUR PHYSICIAN, PEDIATRICIAN, OR QUALIFIED HEALTH CARE PROVIDER. NONE OF THE ADVICE OR THE SERVICES THAT THE SLEEP CONSULTANT PROVIDES WILL BE CONSIDERED MEDICAL ADVICE NOR SHOULD THE ADVICE BE RELIED UPON AS MEDICAL ADVICE. THEREFORE, YOU SHOULD CONSULT YOUR PHYSICIAN, PEDIATRICIAN, OR QUALIFIED HEALTH CARE PROVIDER TO RULE OUT ANY POTENTIAL UNDERLYING MEDICAL CONDITIONS BEFORE EMBARKING ON A NEW SLEEP PROGRAM OR USING THE SERVICES. IF A MEDICAL PROBLEM APPEARS OR PERSISTS, DO NOT DISREGARD OR DELAY SEEKING MEDICAL ADVICE FROM YOUR PHYSICIAN, PEDIATRICIAN, OR QUALIFIED HEALTH CARE PROVIDER. THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
2. Definitions. For this Agreement, except as otherwise defined herein, the following words and phrases will have the following meanings:
A. “Claims” means all claims, suits, demands, judgments, losses, injuries, obligations, liabilities, costs, damages, and expenses of whatever form or nature, including, without limitation, legal fees, experts’ and consultants’ fees, and other costs of legal defense.
B. “Improvements” means any modifications, enhancements, changes, or new proprietary information that is developed about the Services.
“Services” means the following services provided by The Sleep Consultant:
1) Sleep Intake Form;
2) Sleep Report;
3) Sleep Education;
4) Follow-up Assistance; and
5) Creation of an individualized sleep plan.
D. “SIDS Information Outline” means the American Academy of Pediatrics guidelines on sudden infant death syndrome (SIDS) attached hereto as Exhibit “B”.
E. “Taxes” means any consumption, excise, goods and services, harmonized sales, retail sales, social services, use, value-added taxes, and any other tax, duty, governmental fee, or other like assessment or charge of any kind whatsoever imposed by any federal, provincial, state, territorial, municipal or other governmental authority in any jurisdiction.
G. “The Sleep Consultant” means Aleni Katsinis, a sole proprietorship with a principal place of business in Buffalo, New York, USA, who will be providing the Services.
3. Currency. All currency or dollar references in this Agreement will be in US dollars.
4. Payments. You are obligated to pay in advance for the Services. Your order through The Sleep Consultant’s website. The Sleep Consultant accepts payment through the use of the third-party payment facilitator “PayPal”. By accepting this Agreement, you are giving The Sleep Consultant (or a third-party payment processor on The Sleep Consultant’s behalf) permission to charge you for fees that you owe The Sleep Consultant. All information that you provide in connection with the purchase must be accurate, complete, and current. You are responsible for and must pay any applicable taxes.
5. Agreement Term for the Services. Unless earlier terminated according to the terms of this Agreement, The Sleep Consultant will provide the Services until both parties agree, through an email acknowledgment, that You have met the goals listed in Your initial sleep report (“Agreement Term”).
6. Force Majeure. If The Sleep Consultant is delayed in or prevented from performing its obligations under this Agreement due to a Force Majeure Event then, upon written notice to You: (a) the affected obligations under this Agreement will be suspended to the extent necessary during the period of the Force Majeure Event, and (b) The Sleep Consultant will not have any liability to You or any other person in connection with such suspended obligation. For purposes of this Agreement, a “Force Majeure Event” means an event beyond The Sleep Consultant’s reasonable control, including an act of God, fire, flood, explosion, public health emergencies, communicable disease outbreak, general Internet outages, civil disorder, strike, lockout or other labor trouble, material shortages of utilities, delay in transportation, destruction or damage to production facilities breakdown or accident, any law, ruling, judgment, demand or requirement of any governmental authority, riot, war, or other cause beyond the reasonable control of The Sleep Consultant.
7. Termination. This Agreement and the Services may be terminated as follows:
(a) by The Sleep Consultant immediately, with cause, if: (1) The Sleep Consultant does not receive any payment hereunder when due and such non-payment continues for five days following The Sleep Consultant’s demand for payment in writing; (2) in The Sleep Consultant’s sole and absolute discretion, You have been verbally abusive or confrontational or do not follow the agreed upon sleep plan; (3) You miss two or more scheduled calls with The Sleep Consultant any time during the Agreement Term without giving The Sleep Consultant at least one (1) hour advance prior notice; (4) You request a suspension of the Services for greater than 1.5 weeks; (5) You fail to initiate the sleep plan within one week of The Sleep Consultant’s sleep education session; (6) You fail to inform The Sleep Consultant about any major changes in Your family’s routine (including, but not limited to, prolonged vacations, changes to daycare or nanny arrangements, living accommodations or relocations, career changes, etc.); or (7) You fail to respond to two emails from The Sleep Consultant over the course of one week;
(b) by The Sleep Consultant, by giving You written notice, if The Sleep Consultant is delayed in or prevented from performing an obligation under this Agreement for a period longer than one (1) month in duration due to a Force Majeure Event; or
(c) by either party, for convenience and without cause on one week prior written notice to the other party.
8.Effect of Termination.
(a) If the Services are terminated or canceled by You, for any reason, You will not be entitled to any refund. You will pay for all actual costs, including time spent by The Sleep Consultant incurred to complete activities associated with the termination and close-out of the Services.
(b) If the Services are terminated by The Sleep Consultant according to Section 7(a), The Sleep Consultant will not be obligated to refund to You any portion of the purchase price paid by You (if any).
(c) If The Sleep Consultant terminates the Services for convenience according to Section 7(b) or Section 7(c), The Sleep Consultant will refund a pro-rated portion of the purchase price (if any) to You to account for the unused portion of the Services based upon The Sleep Consultant’s hourly rate posted on the Sleep Consultant’s website.
Nothing in this Section gives you any right to a refund from The Sleep Consultant except as stated herein.
9. Your Representation and Warranties. You acknowledge and agree that:
(a) You have read the SIDS Information Outline attached hereto as Exhibit “B” and You agree to follow the sage sleeping practices recommended by the SIDS Information Outline.
(b) You are at least 18 years old, are at least of the legally required age in the jurisdiction in which You reside, and are otherwise capable of entering into binding contracts.
(c) You have the right, authority, and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that You will so abide.
(e) You agree to immediately contact Your physician, pediatrician, or qualified health care provider if You, Your baby, or Your family have any medical conditions which prevent them from being sleep trained safely.
(f) You agree to disclose any medical condition(s) to The Sleep Consultant that You or Your baby or family has.
(g) You acknowledge that Your use of the Services is voluntary and that injuries, accidents, or other complications may result from participation.
(h) You acknowledge and agree that it is Your responsibility to follow instructions for any service provided or purchases You make and to seek help from The Sleep Consultant if You have any questions.
(i) You acknowledge and agree that injuries, accidents, or other complications associated with the Services may result from Your use of the Services. You agree to consult with Your physician if You are concerned about any of the risks to You or Your baby or Your family’s health or well-being that may result from the Services.
(j) You acknowledge and agree that if You request a “baby-led” versus a “parent-led” sleep solution as a part of the Services, You understand that the baby-led solution requires additional time.
(k) You acknowledge and agree that after The Sleep Consultant reviews Your intake form, The Sleep Consultant may notice or identify potential medical issues, nutritional sensitivities, or maternal health issues that, in The Sleep Consultant's sole opinion, require treatment before The Sleep Consultant will commence the Services. If this is the case, You acknowledge and agree that The Sleep Consultant will not provide the Services and will recommend other experts for You to meet with before initiating the Services.
10. No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR PURCHASE OF THE SERVICES IS AT YOUR SOLE RISK. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SLEEP CONSULTANT MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SERVICES AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES: (a) REGARDING THE SCOPE OR NATURE OF CONTENT OR SERVICES THAT WILL BE AVAILABLE TO CUSTOMER; OR (b) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE OR NON-INFRINGEMENT), AND WILL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU, INCLUDING WITHOUT LIMITATION FOR ANY DAMAGES WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. To the extent that the jurisdiction in which you reside or to which The Sleep Consultant delivers the Service does not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, the limitations or exclusions set out in this Section may not apply to you in such a jurisdiction and any implied warranties relating to the Service are limited to thirty (30) days from the commencement of the Services. These implied warranties give you specific legal rights and you may have other rights, which vary from jurisdiction to jurisdiction.
11. Exclusion of Damages. To the maximum extent permitted by applicable law, in no circumstances WILL THE SLEEP CONSULTANT be liable to YOU or any third party for lost profits (whether direct or indirect), costs of substitute SERVICES, or for incidental, consequential, punitive, special, or exemplary damages, or indirect damages of any type however caused, whether by breach of representation or warranty, breach of contract, in tort, negligence or any other legal or equitable cause of action even if THE SLEEP CONSULTANT has been advised of such damages in advance or if such damages were foreseeable.
12. Release of Liability and Indemnity. To the extent permitted by APPLICABLE law, You shall release, indemnify, defend and hold harmless The Sleep Consultant, its employees, legal representatives, agents, successors, and assigns (collectively with The Sleep Consultant, the “The Sleep Consultant Indemnified Parties”), from and against any Claims by any party against any of The Sleep Consultant Indemnified Parties to the extent any Claim arises or results from: (i) the Services provided; (ii) the acts, omissions, gross negligence or willful misconduct of You; and (iii) without limitation on the generality of (i) and (ii) above, any claim for injury or death to any persons. If all or any portion of this release of liability and indemnity Section is deemed to be inapplicable for any reason, including, without limitation, as a result of a decision of an applicable court, legislative enactment, or regulatory order, the parties agree that this release of liability and indemnity Section shall be interpreted as requiring You to release indemnify, defend and hold harmless The Sleep Consultant Indemnified Parties to the fullest extent permitted by applicable law.
13. Limitation of Liability. The total, cumulative liability of THE SLEEP CONSULTANT arising out of or related to THE SERVICES or THIS AGREEMENT, whether based on contract, in tort, or any other legal or equitable theory, WILL be limited in the aggregate to the amounts paid to THE SLEEP CONSULTANT hereunder during the twelve (12) month period preceding the first event giving rise to liability. The existence of more than one claim WILL not enlarge this limit.
14. Response to Court Orders: Notwithstanding any other provision herein, You hereby consent to The Sleep Consultant providing any information relating to You and the Services, and any other information related thereto, as may be requested at any time by way of a subpoena or other court order, and agree to indemnify and hold harmless The Sleep Consultant from all costs, liabilities, losses, or expenses arising in connection therewith.
15. Feedback and Improvements. You understand and agree that any Improvements, feedback, input, suggestions, recommendations, troubleshooting information or other similar information that You provide or which is made available to The Sleep Consultant (including in the course of utilizing support or the Services) may be used by The Sleep Consultant to modify, enhance, maintain and improve The Sleep Consultant and shall become The Sleep Consultant’s exclusive property without any obligation or payment to You.
16. Assignment. You will not transfer or assign any of its rights or obligations under this Agreement without the express written consent of The Sleep Consultant.
17. Notices. Any notice required or otherwise given according to this Agreement will be in writing and emailed, faxed, mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to the address outlined in The Sleep Consultant’s intake form. Any such notice, if delivered or sent by electronic transmission, will be deemed to have been given or received on the day on which it was transmitted, if sent by postage prepaid or delivered by overnight delivery service, will be deemed to have been given or received on the second business day following the day on which it is sent. The address at which notice may be given to a party may be changed by the giving of notice of such change by that party to the other party as provided for in this Section.
18. Waiver. No party is to be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing. No waiver made concerning any instance involving the exercise of any such right is to be deemed to be a waiver concerning any other instance involving the exercise of the right or concerning any other such right.
19. Severability. If any part or parts of this Agreement are held unenforceable for any reason, the remainder of this Agreement will continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision will be deemed to be construed as so limited.
20. Governing Law; Forum. This Agreement and the Services will be governed and construed by the laws of New York State and the laws of New York State applicable therein without reference to its principles of conflict of laws. Each of the parties submits to the exclusive jurisdiction of any New York State court sitting in Buffalo, New York, in any action, application, reference, or other proceeding arising out of or related to this Agreement and the Services and agrees that all Claims in respect of any such actions, application, reference or other proceedings will be heard and determined in such New York State courts and further consents to any action, application, reference or other proceeding arising out of or related to this Agreement being tried or heard in Buffalo, New York.
21. Amendments. You agree that The Sleep Consultant may change the terms of this Agreement from time to time by notifying You via email or other means. You agree to accept, and You hereby accept, any changes to the terms of this Agreement, unless the changes impose commercially unreasonable disadvantages on You. If a change imposes commercially unreasonable disadvantages on You and The Sleep Consultant receives a written objection from You within 30 days of the date when You received notice or You should have noticed the change, The Sleep Consultant may, at The Sleep Consultant’s sole option and discretion, (a) reverse such change with the effect that the immediately prior version of this Agreement will continue to apply to You, or (b) terminate this Agreement and Your use of the Services and refund to You any prepaid services fees for periods after the effective date of the change to which You objected by this Agreement.
22. Entire Agreement. This Agreement contains the whole agreement between the parties relating to the subject matter herein and supersedes any promises, representations, warranties, undertakings, or other statements whether written or oral made by or on behalf of the one party to the other of any nature whatsoever or contained in any document given by one party to the other.
BY AGREEING TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, YOU UNDERSTAND THESE TERMS AND CONDITIONS, AND YOU AGREE TO BE BOUND BY THIS AGREEMENT.
SIDS INFORMATION OUTLINE