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Welcome to the Sleep Number® SleepIQ® System! In order to fully understand these terms and conditions (“Terms and Conditions” or “Agreement”) that apply to your use of your new SleepIQ® System, it will be helpful to have an understanding of all the components and technology that make up the system. These are the definitions we will be using in this Agreement:DEFINITIONS
You:This one is pretty straight forward. When we use the word “you” we mean you. We also sometimes refer to you as “Registered User”. We also mean you when we use words like “your”.
Us:You guessed it. When we use the word “us”, we mean Select Comfort Corporation. We also sometimes refer to ourselves as “we” or “Sleep Number®” or the “Company”. We also mean us when we use words like “our”.
The Bed:Your new Sleep Number® bed consists of several components. First, there’s the mattress (“Mattress”). This is the part you sleep on. Your Mattress sits on a foundation (“Foundation”). You may or may not have purchased the Foundation through us and it may or may not be adjustable. For the purposes of this Agreement, that doesn’t really matter. Your Mattress is connected with hoses to a pump (“Pump”) that is controlled by a wireless remote control (“Remote”). Together, the Pump and the Remote are referred to as the Firmness Control® System (“Firmness Control™ System” or “FCS”). We refer to the Mattress, the Foundation, and the Firmness Control™ System collectively as the bed (“Bed”).
The SleepIQ® Module:The SleepIQ® Module (the “SleepIQ® Module”) is the hardware and software that allows your Pump to transmit the data that it generates or entered by you in your User Profile (“Data”) across your wi-fi network to the internet. From there, the Data arrives at our servers where it is transformed into the information that is provided to you through the SleepIQ® Services. The SleepIQ® Module lives in the Pump. Pumps that have the SleepIQ® Module factory installed are called SleepIQ® Firmness Control™ Systems. You may have purchased a Bed that comes with a SleepIQ® Firmness Control™ System or you may have purchased a SleepIQ® Firmness Control™ System to replace an existing non-SleepIQ® Firmness Control™ System.
The SleepIQ® System (the “SleepIQ® System”):This is the phrase we use to refer to the whole combination of the Mattress, Foundation and the SleepIQ® Firmness Control™ System including the SleepIQ® Module. The SleepIQ® System requires all these “sub-systems” in order to function as intended.
The SleepIQ® Services (the “Services”): This is the phrase we use for the applications we allow you to access, and the information, content, and services provided by the Company through the SleepIQ® System regardless of how you access it.AGREEMENT
Please read this Agreement carefully before using the SleepIQ® System or the SleepIQ® Services. By indicating your consent to this Agreement by clicking on “I Agree”, and by using the SleepIQ® System or SleepIQ® Services in any manner, you agree that you have read and agree to be bound by and a party to the terms and conditions of this Agreement to the exclusion of all other terms and conditions save for those which specifically relate to the purchase of the Bed (e.g. financing terms, warranty terms, etc.). If the terms of this Agreement are considered an offer, acceptance is expressly limited to such terms. If you do not unconditionally agree to all of the terms and conditions of this Agreement, you have no right to access and/or use the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. Use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services is expressly conditioned on your assent to all the terms and conditions of this Agreement. To reject these terms, you must click “I Don’t Agree”, and cease your use of the SleepIQ® System and the SleepIQ® Services. You must delete the Sleep Number IQ app from any device on which it is installed, delete any User Profiles (as hereafter defined) and cease any further use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. You may continue to use your Bed without the use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services without agreeing to this Agreement. You are thereafter permitted to continue your use of the Bed without the need to agree to any specific on-going terms and conditions save for those that relate to the purchase of the bed generally (e.g. returns, in-home trial period, etc.) and which are contained in your Sales Order or Receipt which you received or acknowledged at the time of sale. However, you may not use the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services or otherwise access or attempt to access any Data generated by the SleepIQ® Module without agreeing to this Agreement or, as set forth in the Section entitled “Changes to This Agreement”, in any future update or change to this Agreement.
The SleepIQ® Services and any other linked pages, features, content or applications and services offered from time to time by the Company are owned and operated by Sleep Number and/or BAM. Except with respect to Open Source Software (as defined below), all intellectual property rights relating to the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services are owned by Sleep Number, BAM and/or either of its suppliers. You have no intellectual property rights to the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services except as may be expressly set forth in this Agreement. Subject to the terms and conditions of this Agreement, Sleep Number or BAM may offer to provide certain services as may have been selected or configured by you solely for your own use, and not for the use or benefit of any third party.
Right to Access:Subject to the terms of this Agreement, Sleep Number grants you a limited, non-exclusive, personal, nontransferable, nonassignable sublicense to access the software contained in the SleepIQ® Module, and to access the online documentation, and the SleepIQ® Services, and any programming fixes, updates, and upgrades provided to you concerning the SleepIQ® Module, SleepIQ® Services or online documentation which may be delivered to you.
Effect of Violation of this Agreement:If you fail to comply with or otherwise violate this Agreement, your authorization to use the SleepIQ® Module, the SleepIQ® System and the SleepIQ® Services automatically terminates and you must immediately cease using the SleepIQ® Module, the SleepIQ® System, or the SleepIQ® Services.
Consent to Electronic Communication:By using the SleepIQ® Module, the SleepIQ® System, or the SleepIQ® Services you agree to allow us to communicate with you electronically regarding your Bed, the SleepIQ® Module, the SleepIQ® System, or the SleepIQ® Services. We may also, from time to time, provide information or other offers to you that may be of interest to you as a user of the SleepIQ® Module, the SleepIQ® System, or the SleepIQ® Services.
Necessary Hardware:Your Firmness Control™ System must have an authorized SleepIQ® Module installed in order for you to use the SleepIQ® System or the SleepIQ® Services. Your SleepIQ® Module may be installed in a SleepIQ® Firmness Control™ System which came with your Bed at the time of purchase or you may have purchased a SleepIQ® Firmness Control™ System as an upgrade to your existing bed. In either case, it must have been purchased directly from us or from an authorized third party provider. Use of a second-hand SleepIQ® Firmness Control™ System or any other hardware, except for a SleepIQ® Firmness Control™ System directly purchased by you from an authorized Sleep Number dealer, to access the Data generated by the SleepIQ® Module, or to access the SleepIQ® System or the SleepIQ® Services is prohibited.
User Profile:You must create and maintain a user profile (“User Profile”) in connection with your use of the SleepIQ® Services which will contain login information and a password. Sleep Number shall have the right to charge for use of the SleepIQ® Services with prior notice. You may use the Bed without creating a User Profile or after discontinuing/deleting a current User Profile but doing so will also discontinue the availability of the SleepIQ® Services to you. The SleepIQ® Services are available only to individuals aged 18 years or older. You are responsible for maintaining the confidentiality of your login information and password, and are responsible for all activities that occur under your login information or password with or without your knowledge. If you provide your login information or password to another person, your account privileges may be suspended temporarily or terminated. You agree to immediately notify Sleep Number of any unauthorized use of your login information or password or any other breach of security.
Duration of Services:The SleepIQ® Services start once you indicate your consent to this Agreement, create and activate your User Profile, and use the Bed with the SleepIQ® Module installed within the SleepIQ® Firmness Control™ System and will continue until you or we cancel the SleepIQ® Services as provided in this Agreement.
Upgrades and Updates:We, in our sole discretion, reserve the right at any time to add additional features or functions, or to provide programming fixes, updates and upgrades, to the SleepIQ® Services or the SleepIQ® System. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of the SleepIQ® Services or the SleepIQ® System. Furthermore, you acknowledge and agree that we, in our sole discretion, may modify, discontinue, or suspend your ability to use the SleepIQ® Services or the SleepIQ® System, or disable any SleepIQ® Services or the SleepIQ® System you may already have accessed without any notice to you, for the repair, improvement, or upgrade of the SleepIQ® Services or the SleepIQ® System.
Ending the Services:You may cancel your use of the SleepIQ® Services at any time by deleting your User Profile, deleting any applications which you use to access the SleepIQ® Services and contacting us. If you change your mind, we may not be able to reactivate your User Profile. You will not be entitled to any refunds or adjustments related to the price you paid for the Bed or SleepIQ® System as a consequence of not being able to use or access the SleepIQ® Services 1) because you did not agree to or comply with these terms or conditions; or 2) as a consequence of deleting your User Profile; or 3) as a result of connectivity issues specific to the location where your SleepIQ® System is installed; or 4) because you terminated your use of the SleepIQ® Services.
Transferring the Services:In the event you sell, give or donate your Bed to another person or entity, it is your responsibility to delete your User Profile and discontinue your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. Use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services is non-transferrable to the new owner of the Bed. The Bed can still be used as a premium-quality, adjustable firmness, air-supported mattress but use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services is not available to the new owner of your Bed. You must notify us that you are transferring ownership of your bed or otherwise disposing of it. Your failure to delete your User Profile, discontinue your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services, and notify us that you are transferring ownership of your bed or otherwise disposing of it could result in Data generated by the SleepIQ® Module, both past, present or future, being available to and accessible by any new user and vice versa. You will be responsible for any liability to any third party for your access to any Data after you no longer have possession of the Bed. Neither Sleep Number nor any of its suppliers including, without limitation, BAM, will be liable to you for any access by the new owner of the Bed to your Data if you fail to timely inform us that you are transferring possession or otherwise disposing of the Bed. You agree to indemnify Sleep Number, BAM and any of its suppliers against any claims by a third party to whom you transfer or sell your Bed or your SleepIQ® System. The terms of this paragraph will survive the termination of this Agreement.
Termination of the Services:If we determine that you are not using the Data, the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services in accordance with the terms and conditions of this Agreement, your right to access the Data, the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services terminates automatically, and we have the right (but not the obligation) to remove, edit, block or delete the transmission of Data from your SleepIQ® Module or your access to the Data, the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services entirely. Our failure to perform any of the foregoing remedies will not constitute any waiver by us or any of our suppliers including, without limitation, BAM, from any claims against you. The terms of this paragraph will survive the termination of this Agreement.
Changes to the Services:We may change or discontinue, temporarily or permanently, any feature or component of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services including any applications used to access the SleepIQ® System or SleepIQ® Services at any time without further notice. We may also charge a fee for use of the SleepIQ® Services. In such case, you will be provided with notice of such fee in advance.
Changes to this Agreement:We reserve the right to change the terms of this Agreement at any time. You will be notified about these changes electronically and will be requested to agree to the changes to continue your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. If you do not agree to the change, you must discontinue your use of the SleepIQ® Module, the SleepIQ® System and the SleepIQ® Services and deactivate your User Profile. If you do not discontinue your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services and any applications that you use to access them, and contact us to end the Services, within fourteen (14) days of any notice of a change to the terms of this Agreement, you are then deemed to have agreed with the change and it becomes part of this Agreement between us. No modification of this Agreement, however, shall affect either party’s rights or duties existing prior to the effective date of the change.
How the SleepIQ® Services Work and System Limitations:The SleepIQ® Services are only available in the United States. The SleepIQ® Services work using wireless communications networks some of which are our responsibility (e.g. between the Remote Control and the Pump), some of which are your responsibility (e.g. between your wireless router and your Internet Service Provider (ISP)) and some of which are the responsibility of others (e.g. internet access through community-wide wireless services provided by local government or free wireless access provided by a landlord in an apartment building). The status of each of these networks can be impacted by many things and may affect your ability to use the SleepIQ® Services. We will be responsible, under the terms of the warranty which came with your Bed, for issues which arise with the wireless communication network between the Remote control and the Pump and the SleepIQ® Module. Neither Sleep Number nor its suppliers including, without limitation, BAM, is responsible for, and you accept all liability relating to or arising out of (a) electronic communication issues which arise with your wireless communication network or that are otherwise beyond the control of us or BAM, (b) your failure to place the SleepIQ® Module in a location having continuous wireless access to the internet with sufficient reception and network capacity when the Bed is being used or the SleepIQ® Services are being accessed, (c) any interception, corruption, damage, or misuse of any Data, (d) any security risks and any damage resulting therefrom, and (e) any failure to install anti-virus software, firewalls, and related security protections against any viruses, or other software or techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a wireless router, network, or computer's functionality or operation. We make no guarantee that the SleepIQ® Services will be available uninterrupted or that your Bed will be able to be connected to the SleepIQ® Services.
Third Party Websites and Software:In order to use the Services, you may be required to access, install, purchase or run other equipment or ancillary services which are outside of our control. For example, accessing the SleepIQ® Services over the internet will require you to utilize a web browser on a computer which may be running a particular operating system. You are responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the SleepIQ® Services including, without limitation, modems, hardware, software, broadband internet access or long-distance or local telephone service. You are responsible for ensuring that such equipment or ancillary services are compatible with the SleepIQ® Module, the SleepIQ® System, the SleepIQ® Services and/or the Bed. To the extent such third party equipment or ancillary services require you to agree to other terms and conditions of access or use, you are responsible for complying with such agreements separate and apart from your agreement with us.
Personal, Non-Commercial Use:You may only access or use the SleepIQ® Module, the Data, the SleepIQ® System or the SleepIQ® Services for your own personal, non-commercial use and not for the use or benefit of any third party. You may only access or use the Data in connection with the SleepIQ® System or the SleepIQ® Services. You may not reverse engineer, decompile, or otherwise attempt to gain access to any of the SleepIQ® Module, the SleepIQ® System, the SleepIQ® Services, or the Data except through the use of the SleepIQ® System and SleepIQ® Services. You may not defeat or circumvent any encryption, digital rights management, or security technology implemented by Sleep Number or BAM with respect to the SleepIQ® System or the SleepIQ® Services.
Ownership of Data:Sleep Number and BAM jointly own the Deidentified Data (as hereafter defined) which may be generated by the SleepIQ® Module and the SleepIQ® System or entered by you in your User Profile and, to the extent legally necessary, you assign to each of Sleep Number and BAM ownership in your Deidentified Data. To the extent not inconsistent with both this Agreement and your privacy settings, each of Sleep Number and BAM shall have the right to exploit the Data for commercial or other purposes provided that the Data is de-identified (“Deidentified Data”). For the purposes of this paragraph only, any user-entered information shall be considered Data. For example, while it may not be particularly interesting to anyone other than yourself how you slept last night, it could be highly interesting to some (e.g. researchers, insurance companies, etc.) how people in a particular group (e.g. age, gender, location, etc.) sleep during a particular period of time (e.g. last month, after an earthquake, before or after a change in daylight savings time, etc.). To the extent we are able to generate income related to the collection and/or sale of Deidentified Data, each of Sleep Number and BAM shall have the right to and will retain that income and hold no obligation to share it with you. In addition to, and without limiting the foregoing, Sleep Number also owns information which it has come to know about you, which we may deidentify and exploit for commercial purposes. The terms of this paragraph will survive the termination of this Agreement.
Website Content:All materials displayed or performed through the SleepIQ® Services (including but not limited to any text, graphics, articles, photographs, images or illustrations (the “Content”)) are protected by applicable intellectual property laws including, without limitation, copyright. You shall abide by all proprietary rights notices including, without limitation, copyright notices, trademark notice, and any information and restrictions contained in any Content accessed through the any of the SleepIQ® System or SleepIQ® Services and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit or dispose of for any purposes whatsoever any Content or other proprietary rights in the Content not otherwise owned by you.
Precautions:Content found on www.selectcomfort.com/sleepiq or provided through the SleepIQ® Services is for informational purposes only and under no circumstance will such information be construed as medical advice, diagnosis or treatment. It is not intended to replace medical care, medical diagnosis, or the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining or treating medical conditions of any kind. In no way should the Data be used to diagnose or treat any medical condition. You should always consult with a physician regarding any concerns you have relating to your health, especially before your start or stop any particular health-related regimen. Never disregard professional medical advice or delay in seeking it because of something you have read or interpreted while using the SleepIQ® System or SleepIQ® Services or based on any Data generated by the SleepIQ® Module.
Not a Substitute for Active Monitoring:Through your use of the SleepIQ® Module, the SleepIQ ®System or the SleepIQ® Services, you will have access to certain biometric Data regarding you or anyone else you allow to use your Bed. The Data is not provided to you in real time. In some cases, the Data is generated by averaging or otherwise manipulating raw data being captured and transmitted to the SleepIQ® Module. The Data is intended to be informational only and should, in no way, be used as a substitute for medical diagnosis or medical care including, without limitation, the proper supervision of either a person or of a medical condition. For example, using the SleepIQ® Services to monitor a person of limited mobility or who is at risk of a fall to ensure that they remain in bed or using the SleepIQ® Services to monitor someone with sleep apnea to ensure they are breathing are examples of improper use of the Bed, the SleepIQ® Module, the Data, the SleepIQ® System and the SleepIQ® Services for something for which it wasn’t intended. We undertake no responsibility or liability with respect to actively monitoring the Data to ensure your or anyone else’s health or safety. You understand that the SleepIQ® System and the SleepIQ® Services do not protect your health or safety. You agree to use other safety and medical devices and techniques available to you as advised by your doctor or other health care professional and to otherwise adhere to any limitations, precautions or warnings which may accompany any medications, prescribed or otherwise.
Accuracy of Information and Data:We endeavor to provide helpful and accurate information through the SleepIQ® Module, the SleepIQ® System and the SleepIQ® Services but we make no endorsement, representation or warranty of any kind about the Data, its quality or accuracy, or other information accessed or made available through your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services and cannot be held responsible for the accuracy, reliability, effectiveness or correct use of the same. If you rely on such Data or other information, you do so solely at your own risk and peril.
Sharing:Through the SleepIQ® System and the SleepIQ® Services, we enable you to share information with others with whom you may share a sleeping environment. Choose wisely. Once you agree to share certain information or Data with another person, we have no control over what that person can do with your Data. You are responsible for maintaining the confidentiality of your login information and password related to your use of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. You agree to notify us immediately if you become aware of any unauthorized access to or use of your login information or password.
Allowing Others to Use Your Bed:You understand that once you set up your Bed to collect Data through the SleepIQ® Module which can then be accessed via the SleepIQ® System, such Data will be collected on any person you allow to use your Bed. On dual-chamber Beds, you can grant access through the SleepIQ® Services to allow another person (“Secondary User”) to create a separate User Profile and to collect Data to be accessed via the SleepIQ® Services relating to their use of the Bed. If you do that, the Secondary User will have to agree to this Agreement when they create their own User Profile. In any event, on both single and multi-chamber Beds, you are responsible for whether Data is collected from anyone you allow to use your Bed and for either a) notifying such person that Data is being collected and that you will have access to that Data; or b) disabling the Pump, the SleepIQ® Module or the SleepIQ® System such that no Data is collected or transmitted. You will indemnify us, BAM, and suppliers of us or BAM, as provided in the Section entitled “Indemnification”, for any matter arising out of or relating to any claims made by anyone who uses your Bed including, without limitation, disclosure of any information or Data concerning any Secondary User.
Disabling the Transmission of Data:The SleepIQ® Module or the SleepIQ® Firmness Control™ System will allow you to disable the transmission of Data to us from the SleepIQ® System. Data may still be gathered “locally” on the SleepIQ® module but it will not be transmitted to us by the SleepIQ® System. Even with transmission disabled, the SleepIQ® System will still transmit an occasional electronic/inaudible “ping” to allow us to know that the SleepIQ® Module is still there and that the SleepIQ® Services are generally operational. At a minimum, through the SleepIQ® Services, you or a Secondary User will still be able to see that transmission has been disabled. The transmission of Data can be restarted remotely by you or a Secondary User without warning. The only way to ensure that neither the Data nor the “ping” is being transmitted from the SleepIQ® Module or the SleepIQ® Firmness Control™ System to us is to unplug the Pump. Don’t worry, your Bed will not deflate. The absence of Data during the time the Pump is unplugged will be obvious to you or a Secondary User accessing the SleepIQ® Services. If you plan on unplugging your Bed for more than a few nights, please refer to your owner’s manual for instructions on capping your bed.
Indemnification:Upon request by us, you agree to defend, indemnify and hold us and our suppliers including, without limitation BAM, harmless from and against any and all losses, liabilities, damages and costs, including but not limited to legal fees, expert witness fees, and court costs, arising from any claims, actions or demands related to or alleged to relate to a) your use or misuse of the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services as well as the use or misuse of the same by anyone you allow to use your Bed or the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services; b) your violation of this Agreement; c) your violation of the rights of any third party; or d) your violation of any applicable law, rule or regulation in connection with your use of the Bed, the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services. Each of us and BAM reserve the right to assume control of the defense of any third party claims that are subject to indemnification hereunder in which event you will cooperate with each of us and BAM in connection with our defense of any third party claim. Each of us and BAM reserve the sole right to settle or otherwise compromise any claim, action or demand subject to indemnification under this Agreement with or without your consent. The terms and conditions of this paragraph will survive the termination of this Agreement.
Content and Warranty Disclaimer:The SleepIQ® Services are provided by us and BAM on an “as is” basis only. NEITHER OF BAM NOR SLEEP NUMBER make ANY representations or warranties of any kind, express or implied, as to the operation or functionality of the SleepIQ® Services or any information or Data made available by or through the SleepIQ® System or the SleepIQ® Services. In addition, EACH OF BAM AND US disclaim all warranties with respect to the SleepIQ® System and the SleepIQ® Services, express or implied, including but not limited to the implied warranties of merchantability, title, fitness for a particular purpose, non-infringement, AND ANY WARRANTIES ARISING OUT OF CONDUCT OR TRADE PRACTICE. Furthermore, NEITHER OF BAM NOR US warrant that the use of the Services will be uninterrupted, available at any time or from any particular location, secure or error-free. The terms and conditions of this paragraph will survive the termination of this Agreement.
Limitation of Liability:In no event will EITHER OF BAM OR US be liable for direct, indirect, incidental, punitive or consequential damages (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use or the results of the use of the Bed, the SleepIQ® Module, the SleepIQ® System or the SleepIQ® Services, whether such damages are based on warranty, contract, tort or any other legal theory and whether or not we have been advised of the possibility of such damages. Our aggregate liability arising from or relating to the SleepIQ® Services, regardless of the form of action or claim, is limited to $100. In some jurisdictions, applicable law may not allow certain of the limitations described above, in which case such limitations may not apply to you. The terms and conditions of this paragraph will survive the termination of this Agreement.
Governing Law:These Terms and Conditions are governed by and will be construed in accordance with the laws of the State of Minnesota, regardless or the laws that might otherwise govern under its principles of conflicts of laws.
Alternative Dispute Resolution:
Note: You understand and agree that by entering into this Agreement, you and Sleep Number are each waiving the right to trial by jury or to participate in a Class Action.
Fundamental Fairness:Sleep Number supports the proposition that all parties to a dispute that is subject to these alternative dispute resolution (“ADR”) provisions are entitled to a fundamentally fair process. Toward that end, Sleep Number intends these ADR provisions to fully support the Consumer Due Process Protocol as published by the American Arbitration Association (“AAA”).
ADR Administrator and Rules:Unless we both otherwise agree in writing, any mediation or arbitration under this Agreement shall be administered by and pursuant to the non-binding mediation or binding arbitration rules of the AAA concerning consumer-related disputes in effect at the time a case is filed.
ADR Process:Except in the case of a Small Claim, as defined below, you agree that any and all disputes, claims or controversies arising out of or related to the SleepIQ® Module, the SleepIQ® System, the SleepIQ® Services or your use thereof or these Terms and Conditions of Use, including any claims under any statue or regulation (“Claim”), shall be submitted first to non-binding mediation. If the Claim is not resolved through mediation, you may then submit your Claim for binding arbitration. Further information on the ADR process may be obtained by contacting Sleep Number or the AAA.
Small Claims:If your Claim is for damages of less than the jurisdictional limit for claims made in small claims court where you live (a “Small Claim”), you may elect to file your Small Claim on a non-class/non-consolidated/non-representative basis in such small claims court instead of submitting your Small Claim to the AAA for mediation or arbitration as required by this Agreement. If your Small Claim is unsuccessful in small claims court and you wish to further pursue your Small Claim, you agree to submit your Small Claim to the AAA for binding arbitration but not mediation under this Agreement.
Costs and Fees Imposed by AAA:You may be required to pay a filing fee when you file your Claim with the AAA. Generally speaking, there is no fee to file a request to mediate with the AAA. There is generally a filing fee required to file an arbitration request. You should contact the AAA to determine what the filing fee is. The AAA also charges certain administrative costs and expenses related to a mediation or arbitration. For example, the mediators or arbitrators selected by the parties will need to be paid for their time and related travel expenses (if any). Except in cases where the mediator or arbitrator determines that your Claim is frivolous or was filed with the sole purpose of being vexatious or to annoy, we will be responsible for paying all other fees or expenses related to the mediation or arbitration as imposed by the AAA above and beyond the filing fees imposed on you by the AAA. You are responsible for paying your own attorney’s fees if you choose to be represented by an attorney.
Right to Representation:During the ADR process (either mediation or arbitration) you have the right, at your own expense, to be represented by an attorney. The choice of whether to retain an attorney and the costs and expenses of such attorney are entirely yours.
Initiating a Claim:Please contact your local small claims court clerk for instructions on submitting your Small Claim to the small claims court. To submit your Small Claim to mediation (initial claims) or arbitration (appeals), please contact the AAA.
Selection of Neutrals:Any mediation or arbitration filed with the AAA will be heard by an independent and neutral third party (a “Neutral”). As part of the ADR process, all parties are entitled to a Neutral who is independent and impartial. Toward that end and pursuant to the AAA rules for the selection of a Neutral, each party will be provided with a list of available Neutrals by the AAA. Each party will be entitled to strike those Neutrals the party deems unacceptable. The parties shall then rank the Neutrals remaining on their list. The AAA will select the Neutral from the names remaining on the list starting with the highest mutually ranked Neutral.
Location of Mediation or Arbitration:In the case of face-to-face proceedings, such proceedings will be conducted at a locale that is reasonably convenient to each party with due consideration of each party’s ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by the Neutral.
Fundamental Fairness:All parties shall be entitled to a fundamentally fair ADR process and hearing. Each party shall be given adequate notice of hearings and an opportunity to be heard and to present relevant evidence to the Neutral. The Neutral is empowered to facilitate the exchange of information between the parties during any arbitration and prior to any hearing.
Nature of Hearing:In some cases, the Neutral may find it more expeditious and/or less costly to render an opinion based on written submissions only (no hearing) or based on a hearing conducted telephonically. The Neutral shall always have discretionary authority as to whether to require a face-to-face hearing at the request of either party.
Remedies and Awards:The Neutral shall be empowered to grant whatever relief would be available in court or in equity. In the case of arbitration, the decision of the Neutral and any award granted to either party shall be final and binding but subject to review in accordance with applicable statutes governing arbitration awards. In making the award, the Neutral should apply any identified, pertinent contract terms, statutes and legal precedents. The Neutral shall also provide a brief written explanation of the basis for any award at the time it is made.
Entire Agreement:These Terms and Conditions represent the entire agreement between you and us related to your use of the SleepIQ® Module, the SleepIQ® System and the SleepIQ® Service and supersede any and all prior or contemporaneous oral or written agreements. If any provision of the Terms and Conditions is found to be contrary to law then such provision will be construed as nearly as possible to reflect the intentions of the parties with the other provisions remaining in full force and effect. Our failure to exercise or enforce any right or provision of the Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
Third Party Beneficiary:BAM is an express third party beneficiary of this Agreement. The terms of this paragraph will survive the termination of this Agreement.
Assignment:You are not permitted to assign this Agreement without our prior written consent. Any such assignment without such prior consent shall be deemed a breach of this Agreement. We may assign this Agreement to either any other company which we own or control or to another company so long as such other company undertakes all of our obligations, rights and duties hereunder.
Reservation of Rights. All rights not expressly granted herein are reserved to Sleep Number, BAM, and their respective suppliers, and no other licenses are granted herein by implication, estoppel or otherwise. You shall not take any action to interfere with the ownership of the SleepIQ® System, the SleepIQ® Service, and the online documentation by us, or by our suppliers including, without limitation, BAM. You acknowledge that any unauthorized copying or unauthorized use of the SleepIQ® System and the SleepIQ® Service, or the online documentation, is a violation of this Agreement and is strictly prohibited. All proprietary notices incorporated in, marked on, or fixed to any portion of the Service provided to you shall not be altered, removed or obliterated.
Open Source Software. Certain software contained in the SleepIQ® System provided to you contains software provided by suppliers other than us or BAM (“Open Source Software”).