Terms of Service

1. Agreement

These terms are between you and NightVigil LLC ("we", "us"), and govern your use of the AwakeMinder web application, iOS application, and related services (the "Service"). By creating an account or using the Service you accept them. If you are accepting on behalf of an organization, you confirm you are authorised to bind it, and "you" means that organization.

2. What the Service does

AwakeMinder sends prompts to a caregiver assigned to a shift, at intervals configured by your organization, and asks them to demonstrate they are awake. If a prompt is not answered within the response window, the Service notifies the escalation contacts your organization has configured, by the channels it has chosen, in the order it has set. Every prompt and every notification is recorded with a timestamp.

3. What the Service does not do

This section matters more than any other, so it is stated plainly.

• It is not a medical device and is not intended to diagnose, treat, or monitor any medical condition. It has not been reviewed or cleared by any medical regulator.
• It does not observe the person receiving care. It observes whether a caregiver responds to a prompt. A caregiver can answer a prompt and still be failing to provide care.
• It does not summon emergency help. It contacts the people you list. It does not call 911 or any emergency service, and it is not a substitute for doing so.
• It cannot guarantee delivery. Prompts and alerts travel over mobile networks, push notification services, telephone carriers and email providers that we do not operate. Messages can be delayed, filtered, blocked or lost for reasons outside our control, including a phone that is off, out of signal, silenced, or out of battery.
• It does not supervise your staff for you. You remain responsible for your caregivers, for your care plans, and for meeting whatever obligations your licence, insurer or regulator places on you.

4. Your account

You must give accurate information when you register and keep it current. You are responsible for activity under your account and for keeping your sign-in credentials secure. Tell us promptly at support@awakeminder.com if you believe your account has been compromised.

Roles within an organization are set by that organization's owners and managers. If you are an owner or manager, you are responsible for who you invite, what role you grant them, and what they can then see.

5. Your responsibilities when you configure it

The Service does what you configure it to do, and a misconfiguration can mean nobody is alerted. You are responsible for:

• Setting check intervals and response windows that are appropriate for the care being given.
• Keeping escalation contacts accurate, reachable, and aware that they are listed. Contact details that are wrong, out of date, or belong to someone who will not answer make the escalation path useless.
• Telling each person you have listed them, before you enter their number. The Service reaches escalation contacts by automated voice call, email and push notification, and you are responsible for having each person's prior agreement to be contacted at that number, and for telling them what the calls are for. Anyone may ask to be removed by contacting you, or by writing to support@awakeminder.com.
  
  Text messaging works differently, and you cannot consent on anyone's behalf. We text a contact only after that person has turned alert texts on in their own AwakeMinder account, as described in the Messaging Terms. Listing someone does not enrol them, and consent you have gathered yourself does not transfer to us. Until a contact turns them on, their alerts arrive on the other channels you have configured.
• Assigning the right caregiver to each shift.
• Testing your configuration before relying on it, and re-testing after you change it.
• Having a lawful basis for the information you enter about other people, including care recipients and escalation contacts, and telling them it is held here.

6. Acceptable use

You may not use the Service to harass or covertly surveil anyone; to send messages to people who have not been listed as contacts by an organization entitled to list them; to break any law, including those governing telephone and text messaging; to attempt to gain unauthorised access to the Service or to another organization's data; to interfere with its operation; or to resell it without our written agreement.

Caregivers should know they are being monitored. Using AwakeMinder to check on someone who has not been told is a misuse of it.

7. Subscriptions and payment

Paid plans are billed in advance on a recurring basis. Web subscriptions are handled by Stripe; subscriptions bought inside the iOS app are handled by Apple and are governed additionally by Apple's terms.

Subscriptions renew automatically until cancelled. You may cancel at any time, taking effect at the end of the current billing period; you keep access until then. Fees already paid are not refundable except where the law requires it, or, for Apple purchases, under Apple's own refund process.

We may change prices on at least 30 days' notice before the change takes effect for you. If a payment fails we may suspend the Service after a grace period.

8. Availability

We aim to keep the Service running continuously, but we do not promise uninterrupted availability. We may take it down for maintenance, and we will try to do so at times least likely to affect overnight shifts. We do not currently offer a service level agreement.

9. Your data

You keep ownership of the information you put into the Service. You grant us the licence needed to host, process and transmit it in order to operate the Service for you. Our handling of personal information is described in the Privacy Policy.

You may export or request your organization's records while your account is active. On closure we delete or anonymise them as described in the Privacy Policy, so export anything you need first.

10. Third-party services

The Service depends on providers including Clerk, Twilio, Twilio SendGrid, Apple, Stripe and Amazon Web Services. Their failures can affect the Service, and we are not responsible for them. Where you buy through Apple, Apple's terms also apply to that purchase.

11. Disclaimers

The Service is provided "as is" and "as available". To the fullest extent the law allows, we disclaim all warranties, express or implied, including merchantability, fitness for a particular purpose, and non-infringement. We do not warrant that the Service will be uninterrupted, error-free, or that any prompt or alert will be delivered, delivered on time, or received by anyone.

12. Limitation of liability

To the fullest extent the law allows, we are not liable for indirect, incidental, special, consequential or punitive damages, nor for lost profits, lost data, or personal injury or death arising from a failure of the Service to deliver a prompt or an alert, or from the acts or omissions of any caregiver.

Our total liability for any claim arising out of or relating to these terms or the Service is limited to the amount you paid us in the twelve months before the event giving rise to the claim.

Some jurisdictions do not allow certain exclusions, so parts of this section may not apply to you.

13. Indemnity

You will indemnify us against claims, damages and reasonable costs arising from your use of the Service, your breach of these terms, or your handling of information about caregivers, care recipients or escalation contacts.

14. Suspension and termination

You may stop using the Service and close your account at any time. We may suspend or terminate access if you materially breach these terms, if your payment fails after a grace period, or if we are required to by law. Where circumstances allow, we will give notice first. Sections that by their nature should survive termination — including sections 9 through 13 — do survive it.

15. Changes to these terms

We may update these terms. If a change is material we will update the date above and notify account holders by email or in the app before it takes effect. Continuing to use the Service after that means you accept the revised terms.

16. Governing law

These terms are governed by the laws of the United States and of the state in which NightVigil LLC is organised, without regard to conflict-of-laws rules. The courts of that state have exclusive jurisdiction over disputes, except that either party may seek injunctive relief wherever necessary to protect its rights.

17. General

These terms, together with the Privacy Policy, are the entire agreement between us about the Service. If a provision is held unenforceable, the rest stays in force. Our failure to enforce a provision is not a waiver of it. You may not assign these terms without our consent; we may assign them in connection with a merger or sale of the business.

18. Text messaging

AwakeMinder Alerts is our text message program. It carries one kind of message: an alert that a caregiver on an overnight shift did not confirm they were awake. We do not send promotional text messages.

We text only a person who has turned alert texts on themselves, in their own AwakeMinder account, by entering their mobile number and ticking a box that is unchecked by default. Nobody can turn them on for somebody else, including an organization listing that person as an escalation contact. Message frequency varies. Message and data rates may apply. Reply STOP to end messages and HELP for help, or contact support@awakeminder.com. Carriers are not liable for delayed or undelivered messages.

The complete program terms are set out in the Messaging Terms, which form part of this agreement.

19. Contact

NightVigil LLC
Support: support@awakeminder.com
Sales: sales@awakeminder.com