Misty terms and conditions

TERMS AND CONDITIONS OF SERVICE USE
These Terms and Conditions of Service Use shall take effect starting from 1st January, 2019.

Article 1 (Purpose)
The purpose of the Terms and Conditions of Service Use (the “Terms of Use”) is to set forth the rights, obligations, liabilities and other necessary matters between Sweet Dreamers LTD. (the “Company”) and the Members (as defined below) in connection with the use of the products and services sold by the Company.

Article 2 (Definitions)
1. The terms herein used shall have the meanings set forth below:
(1) “Member(s)” means the individuals or corporations, who execute an agreement hereunder with the Company whereby purchasing the Products or using the Services.
(2) “Website” means the website (www.sweetdreamers.co.uk) where the Services provided by the Company are available to the Members.
(3) “Applications” mean the mobile software applications whereby the Members can use the services provided by the Company, which can be downloaded to and installed on a device and are updatable.
(4) “Services” mean the general services provided by the Company to the Members through the Website and the Applications in connection with the Products that have been purchased regardless of the device on which such services are implemented (including various wired or wireless devices such as PC and smartphones).
(5) “Product(s)” means Sweet Dreamers Misty the Cloud (Misty) and Russell the dream sheepdog (Russell) Device, an IoT (Internet of Things) product provided (sold) by the Company for the use of the Services by the Members, and other commodities.
(6) “Misty or Russell Device (Sweet Dreamers)” means an IoT product which is used to measure the temperature and cry sensor activation periods.
(7) “Contents” mean various analyses, recommendations and information relating to parenting that may be provided through the Sweet Dreamers application services.
(8) “Device(s)” means smartphones or any other mobile terminals that can be identified through the wireless signals transmitted by the Products.
(9) “ID” means a combination of letters, numerical digits and symbols selected by the Member and granted by the Company for the purpose of identifying the Member and allowing the Member to access the Services.
(10) “Password” means a combination of letters, numerical digits and symbols selected by the Member for the purpose of identifying the Member with the given ID.
2. Except as provided in Paragraph 1 of this Article, the definitions of the terms used herein shall be governed by the relevant laws and regulations, the Personal Information Policy, any other guidelines separately set forth by the Company and other general commercial practices.

Article 3 (Effects and Amendment of the Terms of Use)
1. The Terms of Use shall take effect when the Member who intends to use the Services consents hereto and completes the registration of his/her account for use in accordance with the procedures prescribed by the Company.
2. A Member who becomes a Member by clicking the consent button through the online account registration form shall be deemed to have read, fully understood, and consented to the Terms of Use.
3. A Member who uses the Services shall warrant that he/she has the right, authority and ability to consent to the Terms of Use and is able to enter into contracts in compliance with the jurisdiction as a person who is 18 years of age or older.
4. The Company may amend the Terms of Use to the extent that they do not violate any relevant laws.
5. The Company reserves the right to amend the Terms of Use. Upon any amendment to the Terms of Use, the Company shall make an announcement thereof specifying the date of application, the amended terms and conditions and the reason for such amendment through the Website and the Applications for a reasonable period of time after the date of application from at least seven days prior thereto (or thirty days in case of a change in any matter material or unfavorable to the Members) and give notice to the Members by email.
6. Upon any amendment to the Terms of Use, the Company will confirm whether a Member consents to application of the amended terms and conditions after making an announcement thereof. A Member has the right not to give consent to the terms and conditions so amended by the Company under the foregoing paragraph, in which case, the Member may express the intent to suspend the use of, and withdraw from, the Services provided by the Company, and request termination of the use thereof. If a Member fails to express the intent to consent to, or to refuse the amended terms and conditions until the effective date thereof notwithstanding that the Company has clearly indicated the terms and conditions, at the time of notification thereof, that any Member who fails to do so shall be deemed to have consented thereto, such Member may be deemed to have consented thereto.

Article 4 (Overview and Additional Terms of Use)
1. The Terms of Use shall be applicable to the use by the Members of the Services. Certain functions of the Services may be subject to additional guidelines, terms of use, or rules that may be posted in relation thereto. All additional guidelines, terms of use, or rules (the “Additional Terms of Use”) are incorporated in the Terms of Use by reference, and the Member using the Services shall be deemed to agree to comply therewith.
2. The Company’s personal information policy (the “Personal Information Policy”) includes the policy on the use and perusal of the personal information collected from the Members.
3. Any repair, exchange or refund of the Products shall be subject to the product warranty of the Company (the “Product Warranty”).
4. Any Additional Terms of Use may be issued by the Company.

Article 5 (Notification of Information)
1. The Company may provide information for the Member by sending emails to the email address provided by the Member.
2. In the case of notice to unspecified Members, the Company may substitute the notice originally required in Article 1 with an announcement thereof posted on the Website for seven days or longer. Provided, however, that any matter that may have a material effect in relation to a transaction with a particular Member shall be individually notified pursuant to Article 1.

Article 6 (Use of Services)
1. Access to the Services
Subject to the Terms of Use, the Company shall grant to the Member a limited, non-transferable, non-exclusive, and revocable right to access and use the Services.

2. Account
Any person who intends to use the Services must become a Member by creating an account and such Member shall provide information that warrants the following:
(1) Any and all information mandatorily entered by the Member is true and accurate;
(2) The accuracy of the information shall be maintained; and
(3) The use of Services by the Member will not be in violation of the domestic laws or any other applicable law or regulation.
The Member shall have the responsibility not to leak his/her account information and be fully liable for all acts conducted through his/her account.
The Member shall agree to use a “strong” password (a combination of capital letters, lower case letters, numerical digits and symbols) and keep his/her password safe to ensure that his/her account is not used without his/her approval. Furthermore, the Member shall agree that if any actual or suspected abnormal use related to his/her account or security is detected, he/she will immediately notify the Company thereof.
The Company shall not take any responsibility for any damage or loss that arises due to any failure by the Member to comply with any of the foregoing requirements.

3. Automatic software upgrade
The Company may occasionally provide patches, bug fixes, updates, upgrades, modifications, improvements and other performance improvements (the “Updates”). The Updates may be automatically installed without giving prior notice or obtaining consent. If the Member does not wish the relevant Update, he/she may suspend the use of the Application and delete the Application on the device. If the Member does not delete the Application, the Updates may be automatically installed. The Member understands that the Updates must be installed in order for him/her to use the Services and the Products and agrees to install the Updates provided by the Company promptly. A continued use by the Member of the Services and the Products indicates consent to the relevant terms and conditions of use thereof.

4. System requirements
Access to the Services shall be limited to the Members who meet a certain level of system requirements. Certain Services are inaccessible unless they meet the following requirements:
(1) A functioning 802.11 wireless network installed to communicate reliably with the Products;
(2) An Android or iOS smartphone, or tablet that supports BLE (Bluetooth Low Energy) service;
(3) A Wireless internet connection that is constantly running;
(4) A Member account and
(5) Other system requirements presented by the Company.
It is the Member’s responsibility to ensure that the above requirements are met and the elements are compatible and appropriately set.

The Member understands that the Services may not operate as explained if the requirements and the compatibility above are not satisfied. In addition, the Member understands that the Company may activate the Bluetooth of his/her smartphone or tablet with prior notice for a smooth operation of the Services, communication with the Product connected to his/her account or any other specific functions.

5. Reliability of notification services
The Member understands that the remote access and mobile notification services among the Services provided by the Company cannot be fully relied on and may not always be available to the extent permissible by applicable law The Company does not warrant that the notification services will always be made available to the Members.
The Member agrees that he/she will not rely on the Services for any critical purpose such as life safety. Mobile alerts on specific circumstances and notifications by the Products are provided for informational purposes only and do not constitute a third party notification system for emergencies.
The information provided by the Company on the actions to be taken in an emergency derives from authoritative sources relating to safety, but the Company does not provide any specific information relating to a situation at home or any other place. The Member agrees that it is entirely his/her responsibility to decide what actions to take in case of an emergency.

6. Temperature, health and other usefulness
The Company does not guarantee or assure the temperature or any other health-related factors in relation to the Products, the Services or the functions thereof. The actual temperature may limit the functions of the Product or show different levels due to factors beyond common knowledge.
The Company may at times use the Services to provide customised information to conform to the Member or to his/her environment and provide methods to change or improve his/her habit.
The Company provides such information in order to emphasise the options available to the Member in view of the information measured and collected by the Company and the analysis thereof.
The Member understands that these suggestions are not medical advice and the effect and applicability thereof may differ depending on the situation.
The Company does not take any responsibility for a Member’s conduct that is based on information by the Services to the extent permitted by laws, and does not guarantee or assure the applicability of such information or guide. Any health-related questions with respect to the information and guide so provided shall be referred to doctors.

7. Modification, suspension or interruption of the Services
The Company may modify, suspend or discontinue Services with advance notice or, in case of emergency, without prior notice for service improvement, maintenance and repair. The Member shall not hold the Company liable for any alteration, suspension or interruption of the Services thereof.

8. Product information
The Company may sometimes provide the Member with information regarding a product by a third party, or a relevant product or service provided by the Company. All such information shall be provided in its unprocessed form. The Company does not warrant that the information so provided is accurate and up-to-date.

9. Fee and Settlement
Certain Services may be provided for compensation.

Article 7 (Restriction on Use of Services)
The Services are designed to be accessible and available for the purpose of controlling the Products and providing information in real time. The Company intends to provide the Service in as stable a manner as possible, but the Services may not always be stable or available. The Services may be suspended or subject to errors sporadically for various reasons beyond the control of the Company such as problems involving but not limited to 802.11 mobile networks, service provider’s operating hours, mobile notification or any circumstances of the Carrier. The Member is aware of such restrictions and agrees not to hold the Company liable for any damage caused by any suspension or delay of the Services arising as a result of the above circumstances.

1. Access from Certain Foreign Countries
Notwithstanding that the Company’s webpage is accessible from all over the world, certain Products and the Services provided and accessed from the webpage may be unavailable in some countries.

If a Member enters the Website from a country other than those supporting the Products and the Services (the “Supporting Countries”), such access shall be deemed to have been made entirely of his/her own volition and the Member shall take the responsibility to comply with the laws applicable to the country.
The Member understands and agrees that the webpage is not designed to be used in a non-supporting country and some functions are not operable or suitable for such country.
To the extent permitted by the laws, the Company shall not assume any responsibility for any loss or damage caused by access to, and use of the webpage in a non-supporting country.

2. Prohibition on use of the Services in connection with material matters such as life safety
The Member acknowledges and agrees that it is not fully guaranteed that actions will be taken in response to an emergency irrespective of whether the Products or the Services are independent from or connected to a third party product or service.
The Member understands that the Company does not provide any third-party monitoring notification system on emergency irrespective of whether the Products or the Services are independent from or connected to a third party product or service.
The Company shall not assume any responsibility for any emergency that a Member may encounter. Furthermore, the Company’s customer support may not be deemed to be used as an emergency measure for the Member and is not a replacement for emergency services. All emergencies that threaten life shall be handled through appropriate services.

3. Access to Content
The Member understands that he/she shall be held liable for all risks related to the Contents which he/she comes across through use of the Services, and be fully responsible for any loss or damage caused thereby. The Company shall not assume any responsibility or obligation to provide compensation with respect to the way the Member interprets or uses the Content and the actions he/she takes in response thereto. The Member agrees not to hold the Company liable in relation with the Content obtained through the Services.

Article 8 (Restriction on Services due to a Third Party)
1. Under certain circumstances, the Services may be operated in reliance on, or in combination with a product or service provided by a third party. Such product or service provided by a third party is beyond the control of the Company, but may affect the use or reliability of the Services. The Member understands and agrees that,
(1) the use and availability of the Services relies on the third-party seller and service provider;
(2) the third party’s product or service may be discontinued or suspended, and thereby may affect the operation of the Company; and
(3) the Company will not be held liable for damages or loss resulting from the operation by a third party of its product or service.

2. Third party service providers used by the Company
The Member understands that the Company uses third party service providers to make certain functions of the Services available.
The Member agrees not to rely on the Services for any time-sensitive or life threatening safety matters.

3. Equipment, internet service provider, telecoms carrier
The Member understands the availability of the Services relies on the following:
(1) Member’s mobile device, internet connection at home, 802.11 wireless network, Bluetooth connection and any other connected equipment (the “Equipment”)
(2) Internet service provider
(3) the telecom carrier of the Member’s mobile device (the “Carrier”)
The Member understands that he/she is liable for all the fees charged by the internet service provider and the Carrier related to the use of the Services. The Member also understands that he/she is responsible for complying with all the terms and policies of the internet service provider and the Carrier.

4. Third party products and services that operate with the Services
The Company may provide the Members an opportunity to control, connect, or access any third party product and service through the Application or the API (Application Programming Interface) or by any other means.
Notwithstanding that the Application and the API are provided by the Company, the Member understands that the third party products and services used to connect his/her account are not the Company’s Product or Service, cannot be controlled by the Company and are not subject to the Terms of Use.
All the products and services of a third party shall be available only under the independent terms and conditions expressly provided by the relevant provider. The Member understands and agrees that the Company does not warrant the safety with respect to the use of any third party product and service. Furthermore, the Company shall not be held liable for any injury, death, property damage (including housing) or any other damage of a Member that may arise from the use of any third party product or service. Any inquiry in relation to any third party product or service shall be made to such third party.

5. App Stores
The Member understands and agrees that the availability of the Applications is dependent on third party websites (the “App Stores”: Apple App Store, Google Android Apps Market) that download and install the Applications. The Member understands that the Terms of Use are the terms and conditions between the Company and the Member and not with the App Stores. Each App Store has its own terms and conditions to which the Member must agree in order to receive the Application. The Member shall agree to comply with such terms and conditions, whereby he/she may obtain the license to download the Application. In case of any discrepancy between the terms and conditions of any App Store and the Terms of Use, the Terms of Use shall prevail.

6. Third party webpages, links, information, referral
The Company’s webpage or Application may include any other webpages operated by third parties (the “Third Party Webpages”) or links referring to third party suppliers (the “Referred Suppliers”).
The referrals to the Third Party Webpages and the Referred Suppliers are not operated or controlled by the Company. The Company provides such referrals or links for persuasion purposes and does not review, consent to, recommend or guarantee the Third Party Webpages and the Referred Suppliers. The risks involving the use of the Third Party Webpages shall be borne by the Member.

7. Remedial actions with respect to third parties
The Company shall not take any responsibility in connection with any third party or third party product or service, such as the App Stores, third party products and services, the Third Party Webpages, the Referred Suppliers, the Equipment and the Carrier. The Member will not hold the Company liable for any known or unknown past, present, or future claims, liabilities or damages arising out of contact with any third party, or third party product or service.

Article 9 (Obligations of Company)
1. The Company shall not conduct any act against the relevant laws, the Terms of Use or public morals in connection with the provision of the Services for the Members, and shall do its best to provide the Services in a continuous and stable manner.
2. The Company shall do its best to protect the Members’ personal information (including credit information) so that the Members can use the Services safely, and disclose and comply with the Personal Information Policy.
3. The Company shall do its best to establish and maintain the necessary personnel and systems to properly handle the Members’ complaints or requests for remedies in connection with the use of the Services.
4. In circumstances where a Member presents a reasonable opinion or complaint in connection with the use of the Services, the Company shall handle the said issue and promptly notify the process and the results thereof to the Member through e-mail, or other method.

Article 10 (Obligations of Members)
1. The Member shall not conduct any of the following acts in connection with the use of the Services:
(1) Registering false information upon subscription or change of his/her membership information;
(2) Using personal information, ID, password or any other Service use information of others illegally;
(3) Changing or deleting information posted by the Company on the Services without the prior consent of the Company;
(4) Infringing on the Company’s intellectual property or other rights;
(5) Distributing any information, texts, figures, etc. that may cause disruption to the service information network of the Company and to the information and communications network managed and operated by the Company;
(6) Disturbing the operation of the Services by the Company intentionally or transmitting any information that may interfere therewith;
(7) Violating other laws or the Terms of Use;
(8) Selling, renting, leasing, distributing, brokering the Services of the Company or using them for any commercial purpose;
(9) Modifying, disassembling or reproducing the Services or making any derivatives thereof;
(10) Accessing the Services with an aim to create any services similar thereto, or competing therewith;
(11) Duplicating, reproducing, distributing, redistributing, downloading, displaying, posting or transmitting any part of the Services;
(12) Uploading, transmitting, or distributing software created to cause damage to the computers, telecoms network, mobile devices, data, Services, Products, product software, systems, machines or any other property of the Company in whatever form such as computer viruses or worms;
(13) Attempting an unauthorised access to, interfering with, destroying any server or network connected to the Services, or violating the prohibitions, policies or procedures of such network;
(14) Accessing the Services by any means other than the interface provided by the Company; or
(15) Deleting, obscuring or altering the notice of ownership (including notice of copyright and trademark rights) displayed in connection with, or included in the Services;
2. In connection with the use of the Services, the Members shall comply with the relevant laws, the Terms of Use, use guidelines, service use guidelines and notices notified by the Company, and shall not interfere with any business activities of the Company.
3. The Members may not carry out any business of the same kind as the Company’s business or similar thereto by using the Services provided by the Company without the prior consent of the Company.
4. The Company shall not bear any responsibility for any business of the same kind as the Company’s business or similar thereto under paragraph 3 carried out by any Member without the prior consent of the Company, and if any damage is caused to the Company by such business, the Member shall fully compensate the Company therefor.

Article 11 (Obligations and Responsibilities for Management of Members’ Account)
1. The Member shall be responsible for the management of his/her account information (including name, ID, password, e-mail address, etc.), and shall not allow third parties to use his/her ID and password.
2. The Member shall provide and maintain accurate account information as well as other personal information and do his/her best to register any changes therein.
3. If a Member recognises that a third party is using his/her account information or other personal information, such Member shall immediately change his/her password, notify the Company thereof, and comply with its instructions.
4. In the event set forth in paragraph 2, the Company shall not be liable for any disadvantage caused by the failure of the Member to notify the Company of the use of his/her personal information by a third party or comply with the Company’s instructions.

Article 12 (Intellectual Property Right)
1. All patents, copyright and other relevant intellectual property rights to the Products, the Website, the Applications, software and any other information and data provided by the Company to the Members in connection with the Services shall be held by the Company.
2. The intellectual property rights to the device data information and any other products that arise in the course of use of the Services hereunder shall be vested in the Company.
3. To the extent expressly permitted by the Terms of Use, the Members may use the information and data under paragraph 1 and the products under paragraph 2, but may not infringe on the Company’s intellectual property rights in connection with the use of the Services.

Article 13 (Termination of Use agreement)
1. The Member may terminate the use agreement at any time. The Company shall take necessary actions at the Member’s request for termination thereof.
2. In any of the following events, the Company may terminate the use agreement by giving notice to the Member:
(1) If the Member violates any of the obligations of the Members set forth in Article 10 hereof; or
(2) If there occurs any other reasonable event where the Company may refuse to provide the Services to the Member
3. If any damage is caused to the Company due to any violation of the current laws or intentional or material fault by a Member, notwithstanding paragraph 2 above, the Company may terminate the use agreement executed with the Member without giving prior notice.
4. Upon termination of the use agreement under paragraph 2 or 3, the Company shall notify the Member of the following in such manner as set forth in Article 5 hereof:
(1) Reason for termination and
(2) Date of termination

Article 14 (Effect of Termination)
1. The use agreement shall lapse upon termination thereof by the Member under Article 13, paragraph 1 hereof or provision by the Company of notice of termination thereof under Article 13, paragraph 4 hereof and the Member may not use the Services.
2. Upon termination of the use agreement hereunder, the Company shall delete all information of the Member such as all personal information, data, and individual configurations selected by the Member for the Products except for the information required to be retained by the Company under the relevant laws and the Personal Information Policy, etc.
3. Any termination hereunder shall not affect any compensation of damages defined in Article 15.

Article 15 (Compensation for Damage)
1. The Company shall compensate the Members for any damage that they suffer due to any intentional or grossly negligent fault by the Company. This exclusion does not apply in cases of physical injuries, damage of health as well as claims according to product liability law or with regard to a violation of one of the contract’s essential obligations.
2. If any damage is caused to the Company due to any breach of the Terms of Use by a Member, the Member shall compensate the Company therefor unless the Member proves that such breach was neither intentional nor the result of negligence.

Article 16 (Restriction on Assignment)
The Member may not assign, sell, provide as security or otherwise dispose of their rights and contractual status that they have under the Terms of Use and the use agreement to any third party.

Article 17 (Protection of Personal Information)
1. The Company shall not use for any purpose other than the purpose of operating the Services or provide third parties with the personal information provided by the Member to execute the use agreement without their consent, except in cases,
(1) where the use or provision to third parties of the personal information of the Member is permitted under the laws; or
(2) where the Company has obtained the prior consent of the Member pursuant to the Terms of Use and the Personal Information Policy.
2. The protection and use of personal information shall be subject to the relevant laws and the Personal Information Policy. The Personal Information Policy issued or publicly announced by the Company through the Service or Website constitutes a part of the Terms of Use and the Member shall agree thereto.
3. The Company shall, in principle, perform the processing and management of the collected personal information, but it may entrust the entire or any portion thereof to a third party, if necessary. The general matters relating thereto shall be notified and provided to the Member through the Personal Information Policy.
4. For the purpose of protecting the personal information of the Member, the Company shall comply with the relevant laws including the Act on the Promotion of Information and Communication Network Utilisation and Information Protection and the Personal Information Protection Act.
5. The Company shall not take any responsibility for all the account information or other information of a Member exposed by any reason attributable to such Member.

Article 18 (Indemnification)
1. The Company shall not be liable for failure to provide the Services due to the following reasons:
(1) Any war, natural disaster, hacking, system error or any other event of force majeure equivalent thereto;
(2) Any alteration, suspension or interruption by the Company of the Services under Article 6, paragraph 7 hereof; or
(3) Any failure by the Company to provide the Services in a regular manner due to any reason fully attributable to the Member.
2. The Company shall not take any responsibility for any transactions between the Members or between a Member and a third party via any Service or advertisement provided by the Company.
3. The Company shall not take any responsibility for any damage caused by any act of a Member to such Member, other Members or third parties. If a dispute arises between the Company and a third party for any reason attributable to a Member, said Member shall resolve such dispute at his/her own expense and the Company’s responsibility for any obligations or liabilities arising in connection therewith shall be indemnified (including the obligation to pay attorneys’ fees).
4. The Company shall not be liable to the Member for any services provided free of charge unless otherwise set forth in the relevant laws.
5. Those exclusions of liability as set forth in this Article 18 shall not apply
a) in case of intention or gross negligence by the Company;
b) where an essential obligation of the contract has been violated by the Company; or
c) in cases of physical injuries, damage of health as well as German product liability law (Produkthaftungsgesetz).

Article 19 (Resolution of Dispute)
Any dispute arising in connection with the Terms of Use and the use agreement shall be governed by the laws of the country where the Member has his habitual residence.

Article 20
The ineffectiveness or invalidity of individual provisions in these Terms shall have no effect on the validity of the remaining provisions.