Philips SleepMapper App – Terms of Use

1. Services

(i) Sleep Tracking. By connecting your Product to the App, you enable Philips to provide you with a customized App experience by calculating your personalized sleep score and improving your sleeping habits. We do so by displaying your individual sleep patterns, sleep goals and sleeping routine.

(ii) Secure Cloud Storage. We enable you to log into the App and securely store your sleep tracking data in our servers, enabling you to access it at any time, and restore it at a later point in time, if you delete and re-install the App.

2. Grant of License

a. Subject to the terms of this Agreement, including, without limitation, payment of all applicable fees, Philips Consumer Lifestyle B.V. (‘Philips’) grants you, during the term of this Agreement, a limited, non-exclusive, non-transferable licence, without the right to sublicense, to use the App on an iOS-enabled mobile device or Android mobile device that you own or control. The App shall be used only by you, and only for your own personal, non-commercial use. Any use or access to the App by anyone under the age of 16 is strictly prohibited and is a violation of these Terms.

3. Ownership

You have no ownership rights to the App. Rather, you have a limited licence to access and use the App as long as this Agreement remains in full force and effect. Except for the limited licence granted hereunder, the PHILIPS retains all right, title and interest in and to the app and all intellectual property rights therein, and ownership shall remain at all times with the PHILIPS. Any access or use of the App by any other person, business, corporation, government organisation or any other entity is strictly forbidden and is a violation of this Agreement. The App may not be transferred to anyone without the prior written consent of the PHILIPS.

4. Intellectual Property

The App contains material that is protected by intellectual property laws, including, without limitation, copyright law. All rights not expressly granted to you herein are expressly reserved by the PHILIPS. You agree to not remove, and not permit another to remove, any proprietary notices, labels or marks of the PHILIPS from any copy of the App.

5. Restrictions

You agree not to publish, display, disclose, rent, lease, give away, sell, sublicense, transfer, copy, reproduce, modify, loan, distribute or create derivative works based on the App or any part thereof. You agree not to use the App to process data for any third party or use or permit the use of the App to operate a service bureau. You also agree not to reverse engineer, decompile, translate, adapt or disassemble the App or any part thereof, and you agree not to attempt to derive the source code of the App. You agree not to transmit the App over any network or between any devices except for transmission as necessary to back up the data on your mobile device.

6. Open Source Software

The App may be accompanied by software components that are subject to Open Source License Terms, including without limitation the software components set forth in Exhibit 1. This Agreement does not apply to any software components that are subject to Open Source License Terms.

Your license rights under this Agreement do not include any right or license to use, distribute or create derivative works of the App in any manner that would subject the App to Open Source License Terms.

"Open Source License Terms" means terms in any license that require as a condition of use, modification and/or distribution of a work

a. the making available of source code or other materials preferred for modification, or
b. the granting of permission for creating derivative works, or

c. the reproduction of certain notices or license terms in derivative works or accompanying documentation, or

d. the granting of a royalty-free license to any party under intellectual property rights regarding the work and/or any work that contains, is combined with, requires or otherwise is based on the work.

7. Disclaimer

PHILIPS AND ITS AFFILIATES ASSUME NO LIABILITY FOR ANY DAMAGE OR LOSS RELATED TO ANY USE OF THE APP (INCLUDING WITHOUT LIMITATION ON A MOBILE DEVICE OR THROUGH THE PHILIPS'S WEBSITE), INCLUDING, BUT NOT LIMITED TO, ANY INJURY, MEDICAL COMPLICATIONS, DEATH, COSTS, OR OTHER DAMAGES THAT MAY RESULT FROM THE USE OF OR FAILURE TO USE (I) THE APP OR (II) THE INFORMATION ENTERED BY YOU OR ANYONE ELSE INTO THE APP. YOU EXPRESSLY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY INFORMATION (BOTH ITS ACCURACY AND CONTENT) ENTERED INTO ANY FIELD PROVIDED IN THE APP.

WITHOUT LIMITING THE FOREGOING, THE APP IS PROVIDED "AS IS". ANY USE BY YOU OF THE APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHILIPS DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. PHILIPS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APP WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE OR THAT THE APP WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE APP WILL BE CORRECTED, OR THAT THE APP IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

YOU UNDERSTAND AND AGREE THAT PHILIPS IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT THE APP IS AN INFORMATION TOOL ONLY AND IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OF HEALTHCARE PROVIDERS IN DIAGNOSING AND TREATING PATIENTS. YOU SHALL INDEMNIFY PHILIPS AND ITS AFFILIATES FULLY AND HOLD PHILIPS AND ITS AFFILIATES HARMLESS AGAINST ANY LOSSES OR LIABILITY IN CONNECTION WITH ANY CLAIM ARISING DUE TO YOUR USE OF THE APP FOR PURPOSES OF DIAGNOSIS OR TREATMENT.

THE APP IS NOT INTENDED FOR USE IN A MEDICAL EMERGENCY.

8. Limitation of Liability

IN NO EVENT WILL THE PHILIPS OR ANY OF ITS AFFILIATES, OR ANY AUTHOR OF OR CONTRIBUTOR TO THE APP, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; BUSINESS INTERRUPTION; OR PERSONAL INJURY OR DEATH) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE LIABILITY OF THE PHILIPS AND ITS AFFILIATES WITH RESPECT TO THE PHILIPS'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE APP OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENCE FEE (IF ANY) PAID BY YOU FOR THE APP. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

9. Export Restrictions

THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE APP OR INFORMATION ABOUT SUCH APP WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE APP OR INFORMATION ABOUT THE APP WITHOUT THE PRIOR WRITTEN CONSENT OF THE PHILIPS, AND YOU SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR COMPLIANCE WITH ANY SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.

10. Termination

This Agreement is effective until terminated. You may terminate this Agreement at any time by deleting the App from your mobile device. This Agreement shall terminate automatically without notice from the PHILIPS if you fail to comply with any of the terms of this Agreement. Upon termination, you agree to destroy all copies of the App in your possession or under your control. Upon termination of this Agreement for any reason, the licence granted hereunder shall immediately terminate. All other terms and conditions of this Agreement shall survive the termination of this Agreement, and you shall continue to be bound by all such surviving terms and conditions including, without limitation, those relating to ownership, disclaimer and limitation of liability.

11. Other Agreements

You may have obtained a copy of the App from either the Apple Store or the Android Market, in which case you may have already agreed to the terms of another end-user license agreement in connection with the App (hereinafter the "Other EULA"). This Agreement supersedes and terminates any such Other EULA. This Agreement shall constitute the entire agreement between you and PHILIPS with respect to the App.

You may have agreements with third parties relating to the use of the device on which the App is run (a 'Third-Party Agreement'). You agree to comply with the terms of any such Third-Party Agreement when using the App. In addition, some mobile phone operators may charge fees related to email messages and incoming or outgoing SMS (or text) messages, or for streaming videos such as those provided on YouTube, that result from your use of the App. These fees are unrelated to the limited licence granted to you hereunder, and payment of such fees is your sole responsibility.

12. Acknowledgements with respect to Apple

You may have obtained a copy of the App from the Apple Store hosted by Apple Inc. ("Apple"), in which case you and PHILIPS acknowledge and agree to the following:

a. that this Agreement is concluded between You and PHILIPS only, and not with Apple,

b. that PHILIPS, not Apple, is solely responsible for the App and the content thereof,

c. that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the App,

d. that Apple has no warranty obligations whatsoever with respect to the App,

e. that Apple has no obligations, and is not otherwise responsible, in the event of any claim by you or any third party relating to the App or your possession and/or use of the App, including but not limited to (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation, and that you will solely look to PHILIPS for remedy, if any, in the event of any such claim (subject to the terms and conditions of this Agreement including without limitation all disclaimers and limitations of liability),

f. that Apple has no obligations, and is not otherwise responsible, in the event of any third party claim that the App, or your possession and/or use of the App, infringes the intellectual property rights of that third party, and that you will solely look to PHILIPS for remedy, if any, in the event of such third party claim (subject to the terms and conditions of this Agreement including without limitation all disclaimers and limitations of liability), and

g. that Apple and its subsidiaries are third party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right, and will be deemed to have accepted such right, to enforce the Agreement against you as a third party beneficiary thereof.

13. Legal Compliance

You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a 'terrorist supporting' country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

14. PHILIPS Contact Information

If you have any questions, complaints, or claims with respect to the App, they should be directed to PHILIPS whose contact information is set forth below.

Philips Consumer Lifestyle B.V.,

High Tech Campus 52,

5656 AG, Eindhoven, Netherlands.

15. General

To the extent permitted under applicable law, this Agreement shall be construed, interpreted and governed by the laws of Netherlands, without regard to conflicts of law provisions thereof. Your statutory rights under consumer protection laws in your country may remain unaffected by this choice of law. Any litigation arising from or relating to this Agreement shall be filed and prosecuted exclusively before a court of competent subject matter jurisdiction in the Netherlands. You hereby consent to the jurisdiction of such courts over you and stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts based on the alleged inconvenience, inefficiency or unfairness of such courts. Any waiver of this Agreement shall only be effective if it is in writing and signed by you and PHILIPS. PHILIPS reserves the right to amend or modify this Agreement at any time. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these conditions of use.

For purposes of this Agreement (but not for purposes of the terms and conditions set forth in Exhibit 1), the term “Affiliate” means, in relation to a Party, any legal entity which is directly or indirectly: (i) owned or controlled by that Party; (ii) owning or controlling that Party; or (iii) owned or controlled by the legal entity owning or controlling that Party, but any such legal entity shall only be considered an Affiliate for as long as such ownership or control exists. For the purpose of this definition, a legal entity shall be deemed to be controlled if: (i) more than 50% (fifty per cent) of its voting stock is owned by the controlling entity; or (ii) the controlling entity has the ability to direct the business activities or appoint the majority of the directors of such legal entity."

ANNEX I

ADDITIONAL TERMS APPLICALBE TO USERS OF THIS OFFERING IN THE EUROPEAN UNION

To the extent that Regulation (EU) 2023/2854 (the 'EU Data Act') applies to the Parties in relation to the Offering, and the Offering or a part of it qualifies as a Connected Product and/or a Related Service under the EU Data Act, the following terms shall apply.

Definitions
Capitalized terms used in this clause (e.g. Data Holder, User, Connected Product, Related Service, Product Data, Related Service Data) shall have the meaning given to them in the EU Data Act.

Roles of the Parties
Philips acts as the Data Holder of the relevant Connected Product and/or Related Service.

For details on the categories of information that qualify as Product Data and/or Related Service Data applicable to this Offering, please refer to the documentation provided by Philips in connection with the Offering.

Nærmere oplysninger om de kategorier af oplysninger, der er kvalificeret som Produktdata og/eller Relaterede Tjenestedata i forbindelse med disse Tjenester, kan ses i det dokumentationsmateriale, Philips stiller til rådighed i forbindelse med Tjenesterne.

Access to Data
If you do not already have direct access to your Product Data and/or Related Service Data, you may request access to specific Product Data or Related Service Data under this Agreement. Any such request must be submitted in writing and include: (i) the legal basis and rationale for the request, and (ii) sufficient information to allow Philips to verify the identity of the User in relation to the relevant Connected Product or Related Service.

Conditions and restrictions on data disclosure
If a legally valid data access request is submitted, Philips may, at its discretion, decline the request or suspend ongoing data sharing (if already initiated) in any of the following cases:

a. Personal data concerns: i) the requested data contains personal data, and ii) the User is not the data subject and iii) Philips determines that there are no valid legal bases under applicable data protection law to make the personal data available.

b. Trade secret protection: i) Philips deems the requested data qualifies as a trade secret under applicable law, and ii) its disclosure would reasonably be expected to cause serious economic harm to Philips or to a third-party trade secret holder; iii) the Parties are unable, despite good faith efforts, to reach an agreement on adequate technical and organizational protective measures.

If Philips agrees to disclose Product Data or Related Service Data that contains personal data or trade secrets, in addition to any terms and conditions established in a separate agreement, the User shall: i) implement and maintain appropriate legal, technical, and organizational measures to ensure the confidentiality, integrity and lawful processing of such data; ii) refrain from disclosing such data to third parties without the prior written authorization of Philips; iii) remain fully liable for any unauthorized use, disclosure, or breach; iv) not modify, disable or circumvent any technical protection measures implemented by Philips.

If Philips agrees to disclose Product Data or Related Service Data, User may use such data solely for lawful purposes and in accordance with this Agreement. User expressly agrees not to: i) use the data to develop, or support the development of, products or services that compete with Philips’s products or services, nor share the data with a third party with that intent; ii) use the data to derive insights into Philips’ economic situation, assets and production methods; iii) exploit vulnerabilities or gaps in Philips’s infrastructure to gain unauthorized access to data; iv) share the data with any third party that holds significant control over access to digital markets or platforms; v) use the data in any manner that violates applicable legal or regulatory obligations.

Use of Data
User hereby authorizes Philips and its Affiliates to use any readily available Product Data or Related Service(s) Data for the following purposes:

a. performing any agreement with the User or activities related to such Agreement;

b. providing support (e.g. maintenance, troubleshooting), warranty, guarantee or similar services or assessing User’s or third party’s claims (e.g. regarding malfunctions) related to the Offering;

c. monitoring and maintaining the functioning, safety and security of the Product, service and/or intellectual property therein and ensuring quality control;

d. complying with applicable laws, including obligations imposed on Philips in its capacity as manufacturer of the Product under product and sector-specific regulations and standards.

e. improving the functioning of any product or service offered by Philips;

f. developing new products or services, including artificial intelligence (AI) solutions, developed by Philips, by third parties acting on behalf of Philips or in collaboration with other parties or through special purpose companies (such as joint ventures);

g. validating product or service performance and substantiating technical or marketing claims;

h. generating anonymized or aggregated data or creating derived data, for any lawful purpose (including with the aim of making available such data to third parties).

i. sharing these data with third parties provided that: i) the third party uses the data only to support Philips in carrying out the purposes listed above, or to pursue those purposes together with Philips; and ii) Philips puts in place binding contracts requiring the third party to: use the data only for the agreed purposes, protect the data with appropriate technical and organizational safeguards, and not share the data further. Philips may always use service providers, such as cloud computing, hosting, or similar services, to achieve the agreed purposes listed above.

Philips undertakes to apply appropriate protective measures for the data that are reasonable in the circumstances, considering the state of science and technology, and the costs associated with the protective measures.