SLEEPIQ END USER AGREEMENT
SLEEP NUMBER SLEEPIQ® USER AGREEMENT
Welcome to the Sleep Number SleepIQ® system. The terms and conditions set forth in this End User License Agreement (the "Agreement") apply to Your use of Your new SleepIQ system. Please review this carefully so that You understand, among other things, how information about You and people that use Your Bed shall be collected, stored, and used. In this Agreement, when We use the word "Us," "We," or "Our," We mean Select Comfort Corporation. In addition, when We use the word "You" or "Your," We mean you, as well as any Child or any other person that uses the Services or the System through Your Bed. Capitalized terms are defined throughout this Agreement.
We use several terms in this Agreement to refer to the Sleep Number® bed, the related technology, Our SleepIQ system, and Our SleepIQ® services.
The Bed: Your new Sleep Number bed or SleepIQ Kids® bed consists of several components. The mattress (the "Mattress") is the top level on which You sleep and sits on a foundation (the "Foundation"). You may or may not have purchased the Foundation through Us and it may or may not be adjustable. Your Mattress is connected with hoses to a firmness control device commonly referred to as the pump (the "Pump") that, depending on Your purchase, is controlled by a wireless remote control that We provide, or the SleepIQ mobile application (i.e., the App), which is used on a compatible mobile device that You provide (collectively, the "Remote"). Depending on Your purchase, We may provide a wireless remote control or one may be available for purchase by You for an additional cost. The Pump and the Remote collectively are referred to as the SleepIQ Firmness Control™ system (the "Firmness Control System"). We refer to the Mattress, the Foundation, and the Firmness Control System collectively as the bed (the "Bed").
The SleepIQ® Application: The "App" is the application developed by Us that is downloaded by You to a compatible mobile or other computing device that allows You to interact with the System. We do not provide a compatible mobile or other computing device to You.
The SleepIQ® Processor: The "Processor" is the hardware and software that, among other things, allows Your Pump to transmit across Your Wi-Fi network to the Internet the data that it generates or You enter in Your User Profile(s) (the "Data"). The Data arrives at Our servers where We transform it into the information that is provided to You through the Services. The Processor lives in the Pump.
The SleepIQ® System: The "System" is the combination of the Bed, the App, the Processor, the Data, and other accessories that may come with the Sleep Number bed or SleepIQ Kids bed You purchased. The System requires all these "sub-systems" in order for You to get the benefit of the SleepIQ features and functionality. A reference to the System includes the entire System and any sub-system of the System.
The SleepIQ® Services: The "Services" are the applications We allow You to access and/or that interact with the System, including without limitation the App, and the information, content, and services provided by Us through the System regardless of how You access it. A reference to the Services includes all of the Services and any portion of the Services.
This Agreement is the legal agreement addressing Your use of the Services and the System. Please read this Agreement carefully before using the Services or the System.
Use of Your Bed Without the Processor or the Services. You may use Your Bed without the use of the Processor or the Services, and without creating a User Profile. If You want to use Your Bed in this manner, You are not required to agree to this Agreement, but you are still subject to the other terms and conditions that relate to the purchase of Your Bed generally (e.g., returns, warranty, and in-home trial period), or are contained in Your Sales Order or Receipt.
Use of Your Bed With the Processor and the Services. You may not use the Services or the System, or otherwise access or attempt to access any Data generated by the Processor, without agreeing to this Agreement. By clicking the "I Agree" button, or by using the Services or the System in any manner, You are indicating Your consent to this Agreement, affirming that You are of legal age to enter into this Agreement, and that You agree that You have read and agree to be bound by this Agreement. Unless You unconditionally agree to all of the terms and conditions of this Agreement, You have no right to access and/or use the Services or the System. If after reading this Agreement You do not agree to these terms and conditions, You must click "I Don’t Agree" and not create a User Profile.
Safety With the Bed; Disclaimers. When Your Bed includes an adjustable Foundation that You purchased from Us, it is possible that voids will be created where an animal, person, or property could fit. You or anyone else using the Bed must always inspect the Bed and confirm no animal, person, or property is located near or under the Bed before making any adjustment. Additionally, it is possible that the App could be used to remotely operate the Bed when the Bed is out of sight. TO REDUCE THE RISK OF PROPERTY DAMAGE, SERIOUS INJURY, OR DEATH, YOU MUST NEVER (A) PERMIT CHILDREN TO ACCESS, USE, OPERATE, OR PLAY WITH THE APP OR THE REMOTE UNSUPERVISED, OR (B) ADJUST THE BED, OR PERMIT THE BED TO BE ADJUSTED, BEFORE INSPECTING AND CONFIRMING THAT NO ANIMAL, PERSON, OR PROPERTY IS NEAR OR UNDER THE BED. ADJUSTMENTS TO THE BED SHOULD ONLY BE MADE WHEN THE BED IS IN THE LINE OF SIGHT OF THE OPERATOR.
Right to Access. Subject to the terms of this Agreement, We grant You a limited, non-exclusive, personal, non-sublicenseable, non-transferable, non-assignable, revocable license to access the software contained in the Processor, the App, and to access the online documentation and the Services, and any programming fixes, updates, and upgrades provided to You concerning the Processor, the App, the Services, or online documentation that may be delivered to You (collectively, the "Licensed Materials"). You may only access or use the Licensed Materials and the System 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 Services, the System, and Third Party Services. You may not distribute or make the Licensed Materials available over a network. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Materials or the System, and You shall not copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, or create derivative works of, or otherwise attempt to gain access to, any of the Data, the Licensed Materials, or the System except through the proper, intended use of the Licensed Materials and the System. You may not defeat or circumvent any encryption, digital rights management, or security technology implemented with respect to the Licensed Materials or the System. If You breach this restriction or any other terms or conditions contained herein, You may be subject to prosecution and damages.
User Profile. If You choose to use the Services and/or the System, You must create and maintain at least one user profile ("User Profile"), which shall contain login information and a password. If You purchased a SleepIQ Kids bed, You may grant the minor member of Your household or family who shall be using the SleepIQ Kids bed (in each case, a "Child") direct access to the Services by creating a separate User Profile, login, and a password for his or her own personal use. If You purchased a dual-chamber Bed, there can be up to two (2) User Accounts associated with that Bed. An Owner of a dual-chamber Bed may grant access through the Services to allow another adult person ("Secondary User") to create a separate User Profile (e.g., Your spouse or partner). Any Secondary User shall have to agree to the terms and conditions of this Agreement when he or she creates his or her User Profile. You acknowledge and agree that only Your User Profile, a Child User Profile (if applicable), and/or a Secondary User User Profile (if applicable) is available for Your Bed. As set forth above, to the extent You grant such access to a Child or other person, You are expressly authorizing Us to communicate and interact directly with that person regarding the Services and the System (and any sub-system thereof). You are responsible for maintaining the confidentiality of the User Profile(s), login information, and password(s), and are responsible for all activities that occur under the User Profile(s), with or without Your knowledge. You may not provide the login information or password of Your User Profile to another person. You agree to notify Us immediately of any unauthorized use of the User Profile(s) or any other breach of security. You agree that We may, in Our sole discretion, treat as You (or a Child) any person who presents Your login and password, or any other credentials that We deem sufficient for User Account access, and We shall be entitled to disclose to such person Your account information and permit such person to make changes in the Services and the System.
Ownership of the Data, the Services, and the System. As between You and Us, Licensed Materials and the System are owned and operated by Us. Except with respect to Open Source Software, all intellectual property rights relating to the Licensed Materials and the System are owned by Us and/or Our suppliers. You have no intellectual property rights in or to the Licensed Materials and the System except as may be expressly set forth in this Agreement. You, on behalf of Yourself and any Child or other person that accesses or uses the Services and the System through Your Bed, hereby assign, and shall be deemed to have assigned going forward, to Us complete and sole ownership in and to the Data.
Authorized Hardware. Your Firmness Control System must have an authorized Processor installed in order for You to use the Services or the System. Your Processor may be installed in a Firmness Control System that came with Your Bed at the time of purchase or You may have purchased a Firmness Control System with the Processor as an upgrade to Your existing Bed. In either case, You must have purchased the Bed or upgraded Firmness Control System directly from Us or one of Our authorized dealers. You are prohibited from using a second-hand Firmness Control System or any other hardware, except for a Firmness Control System directly purchased by You from Us or one of Our authorized dealers, to access the Services, the System, or the Data generated by the SleepIQ Processor.
Necessary Third Party Equipment and Services. Use of the Services and the System may require compatible devices (e.g., smart phones, tablets), Wi-Fi access, Bluetooth connectivity, and certain software. We issue periodic updates for the Services and the System, and Your failure to implement those updates may affect the performance of the Services and the System or prevent You from enjoying certain features. You agree that meeting the foregoing requirements and implementing the updates are Your responsibility. Some or all of the foregoing updates may download and/or install automatically, and You hereby consent to such downloading and installation without any separate notice thereof from Us. To the extent such third party equipment, software, 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 this Agreement.
Ending the Services: You may end Your ability to use the Services at any time by contacting Us to deactivate the Services and/or Your User Profile(s). If You deactivate the Services and/or Your User Profile(s), You must and cease any further access to, or use of, the Processor, the Data, or the Services. If You change Your mind We may not be able to reactivate the User Profile(s). You shall not be entitled to any refunds or adjustments related to the price paid for the Bed or the System as a consequence of: (1) not being able to use or access the Services, (2) not agreeing to or complying with any part of this Agreement; (3) deactivating the Services and/or Your User Profile(s); (4) connectivity issues specific to the location where Your System is installed; (5) You ending or discontinuing Your use of the Services; or (6) You not having Authorized Hardware or the Necessary Third Party Equipment and Services.
Privacy. The collection, ownership, storage, and use of the Data and the Third Party Data by Us is subject to Our privacy notice, which You can find at http://www.sleepnumber.com/sn/en/privacy-policy (the "Privacy Notice"). The terms of the Privacy Notice are hereby incorporated into this Agreement by reference. You are responsible for reading and understanding the Privacy Notice. The Privacy Notice may be updated from time-to-time at the foregoing link, which is also available through the App. Your continued use of the App and/or the Services following any amendment of the Privacy Notice shall signify Your assent to and acceptance of its revised terms for all previously collected information and information collected from You in the future. If there is any conflict between the terms of this Agreement and the Privacy Notice regarding Your Data and Third Party Data, the terms of the Privacy Notice shall control.
Collection and Use of Data and the Third Party Data. In order to enable and provide the benefits of the Services and the System to You, We track, collect, store, and use the Data generated by or through the Services or the System, including, without limitation, information about You and Your sleep, biometrics, presence in bed, and use of the App, the Bed, the Services, and the System. The Data includes, among other things, the information entered by You when setting up Your account and User Profile, and information entered by You through the App directly. We also collect, store, and use Third Party Data when You choose to interface with Third Party Services. We store Your Data and the Third Party Data in Our databases and servers, and may continue to store such data after You cancel or deactivate the Services and/or Your User Account(s).
Use of the Data and the Third Party Data. We have full, unrestricted access to and use of the Data and the Third Party Data to maintain, support, use, develop, and enhance the App, the Services, and the System, and to support You as the customer and user. In addition to the foregoing, except for certain limitations regarding Third Party Data, We shall have the right to exploit, share, and use with third parties the Data and Third Party Data for commercial or other purposes, provided that the Data is in an aggregated, anonymized form, such that You may not be identified (collectively, "De-identified Data"). We may continue to use the Data and the Third Party Data, and exploit, share, and use Your De-identified Data, after You deactivate or cancel the Services and/or Your User Account(s). To summarize, except as described above or in the Privacy Notice (e.g., to comply with court orders and subpoenas or the sale of Our business), We do not share the Data or the Third Party Data with any third party unless it is De-identified Data.
Your Use and Sharing of Data. You can share some or all of the Data, the Third Party Data, and certain other information with others through the Services and the System, including those with whom You may share a sleeping environment. Once You agree to share certain information or the Data with another person, We have no control over what that company or person can or may do with Your Data.
Disabling the Transmission of Data. You may disable the transmission of the Data to Us from the System using the App by enabling the "Privacy Mode". Data may still be gathered "locally" on the Processor, but shall not be transmitted to Us by the System or displayed through the Services unless You later re-enable the transmission of the Data. Even with transmission disabled, the System shall still transmit an occasional electronic/inaudible "ping" to allow Us to know that the Processor is still there and that the Services are generally operational. At a minimum, You or a Secondary User shall still be able to see that transmission has been disabled through the App or the Services. Unplugging the Pump is the only way to ensure that You do not inadvertently re-enable the transmission of Data, or disable the "ping" from transmitting. The absence of the Data during the time the Pump is unplugged shall be obvious when accessing the 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.
Upgrades and Updates. We reserve the right at any time and without any notice to You to (1) add additional features or functions to the Services or the System, (2) discontinue, modify, or remove existing features or functions from the Services or the System, and (3) provide programming fixes, updates, or upgrades to the Services or the System. You acknowledge and agree that We have no obligation to make available to You any subsequent versions of the Services or the System. We may also charge a fee for use of the Services. In such case, We shall provide You with notice of such fee in advance.
How the Services Work and System Limitations. The Services are only available in the United States. The Services work using wireless communications networks, some of which are Our responsibility (e.g., between the our wireless remote control and the Pump), some of which are Your responsibility (e.g., between Your wireless router and Your internet service provider), and some of which are the responsibility of others (e.g., Internet access provided by a third party). The status of each of these networks can be impacted by many things, any of which may affect Your ability to use the Services. We shall be responsible solely under the terms of the warranty that came with Your purchase of the Bed. Neither Us nor Our suppliers is responsible for, and You accept all liability relating to or arising out of: (1) electronic communication issues that arise with Your mobile device, wireless communication network, or that are otherwise beyond Our control; (2) Your failure to place the Processor in a location having continuous wireless access to the Internet with sufficient reception and network capacity when the Bed is being used or the Services are being accessed; (3) any interception, corruption, damage, or misuse of any Data, and any security risks and any damage resulting therefrom; (4) overages or actions that Your wireless carrier may take against You for using data in violation of Your wireless carrier’s service terms; and/or (5) any failure to install and keep updated anti-virus software, firewalls, and related security protections against any virus, or other software or technique that may have the effect of damaging, destroying, disrupting, or otherwise impairing a wireless router, network, or Your mobile device or computer’s functionality or operation. We make no guarantee that the Services shall be available uninterrupted or that Your Bed shall be able to be or remain connected to the Services. We are not responsible for any loss of Your data, or for any loss related to downtime associated with the use of the Services or the System, whether through failure of Internet or wireless connectivity, network disruptions, power outage, or otherwise. We will have no responsibility or liability for wrongful acts or conduct of any third party committed through use of the Internet that may affect You, Your guests, the Services, and/or the System. You agree that no data transmitted over the Our network, the Internet, or through wireless means is or can be guaranteed to be secure. We do not guarantee that data submitted or transmitted to Us will be free from unauthorized disclosure, access, misappropriation, or intrusion. We do not guarantee that the App shall be available for, or function in connection with, all smart phones, tablets, or other mobile devices.
Termination of the Services. If We determine that You, Your Child, or the Secondary User are not using the Services or the System in accordance with the terms and conditions of this Agreement, Your right to access the Services and the System (other than the Bed) terminates automatically without any notice to You. If You are in breach of this Agreement, We have the right (but not the obligation) to delete, edit, remove, and/or block the access to or transmission of, the Data from or to Your Processor, the Services, and/or the System (other than the Bed). Our failure to perform any of the foregoing remedies shall not constitute any waiver by Us or any of Our suppliers of any claims against You.
No Transferring of the Services. If You donate, give, or sell Your Bed to another person or entity, or otherwise dispose of it, it is Your responsibility to immediately deactivate the Services and Your User Profile(s) and notify Us of that occurrence by calling Us at (888) 484-9263. Use of the Services or the System is non-transferrable to the new owner of the Bed. The new owner can still use the Bed as a premium-quality, adjustable firmness, air-supported mattress, but use of the Services or the System is not available to the new owner of Your Bed. Your failure to deactivate the Services and/or Your User Profile(s) could result in the Data in Your User Profile(s) being available to the new owner of the Bed, as well as the Data of the new owner of the Bed being available to You. You are responsible for any liability to any third party for Your access to any Data after You no longer have possession of the Bed. Neither Us nor any of Our suppliers shall be liable to You for any access to Your Data by the new owner of the Bed or any other party if You fail to timely inform Us that You are transferring possession or otherwise disposing of the Bed.
Precautions. Content found on www.sleepnumber.com, in Our and Our authorized dealers’ advertisements, or provided through the App, the Services or the System, is for informational purposes only, and under no circumstance should You construe such information as medical advice, diagnosis, or treatment. We do not intend for the foregoing content 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. The Data should not be used in any way to diagnose or treat any medical condition. You should always consult with a physician or healthcare professional regarding any concerns You have relating to Your health, especially before You start or stop any particular health-related regimen. Never delay seeking or disregard professional medical advice because of something You have read or interpreted while using the Services or the System, or based on any Data generated by the Processor.
Not a Substitute for Active Monitoring. Through Your use of the Processor, the Services, and/or the System, You shall have access to certain biometric and sleep-related data regarding You and any person that uses Your Bed. We do not provide the Data in real time and the Data is not an equivalent or substitute for medical or scientific sleep monitoring analysis or techniques used by sleep doctors and scientists, such as polysomnography and actigraphy. In some cases, the Data is generated by averaging, correlating, or otherwise manipulating raw data being captured and transmitted to the Processor. We intend the Data to be informational only and You should not use the Data as a substitute for medical care or diagnosis, including, without limitation, the proper supervision of either a medical condition or person. For example, nobody should use the Services to monitor a person of limited mobility or who is at risk of a fall to ensure that they remain in bed, or to monitor someone with sleep apnea to ensure they are breathing. We undertake no responsibility or liability with respect to use of the Data to ensure Your or any other person’s health or safety. You acknowledge and agree that the Services and the System do not protect Your or any other person’s health or safety. If You rely on information provided by the Services or the System, You do so solely at Your own risk.
Indemnification. Upon request by Us, You agree to indemnify, defend, and hold Us and Our suppliers 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 claim, action, or demand related to or alleged to relate to: (1) Your or any other person’s use or misuse of the Services or the System related to Your Bed; (2) violation of this Agreement by You or a Child or a Secondary User on Your User Account; (3) violation of the rights of any third party by You or any person using the Services or the System related to Your Bed; (4) violation of any applicable law, rule, or regulation in connection with Your or any other person’s use of the Services or the System related to Your Bed, (5) any other person’s use of Your Bed, including, without limitation, disclosure of any information or the Data concerning any Child or Secondary User; or (6) Your failure to timely inform Us that You are transferring possession or otherwise disposing of the Bed. We reserve the right to assume control of the defense of any claim that is subject to indemnification hereunder, in which event You shall cooperate with Us in connection with Our defense such claim. We 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.
Content and Warranty Disclaimer. The Services are provided by us OR OUR AFFILIATES on an "as is" basis only, WITH ALL FAULTS AND IN LIEU OF, AND WE HEREBY DISCLAIM, ALL representations, warrantIES, AND GUARANTEES of any kind, express or implied, STATUTORY OR OTHERWISE, as to the functionality OR operation of the Services, or THE ACCURACY OR QUALITY OF any information or Data made available by or through the Services or the System. In addition, WE disclaim all REPRESENTATIONS, warranties, AND GUARANTEES OF ANY KIND with respect to the Services and the System, express or implied, , STATUTORY OR OTHERWISE, including but not limited to the implied warranties of merchantability, title, OWNERSHIP, QUALITY (INCLUDING WARRANTY AGAINST LATENT DEFECTS) OR fitness for a particular OR GENERAL purpose, non-infringement, ERROR-FREE OPERATION, ACCURACY, SYSTEM INTEGRATION, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF CONDUCT, OR TRADE USAGE OR TRADE PRACTICE. Furthermore, WE DO NOT warrant that the use of the Services shall be uninterrupted, available at any time or from any particular location, secure or error-free. WE DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) THE OPERATION OF THE LICENSED MATERIALS AND THE SYSTEM IS OR SHALL BE UNINTERRUPTED OR ERROR-FREE OR COMPATIBLE WITH ANY OTHER HARDWARE OR OTHER ITEMS USED BY YOU OR (B) ANY DEFECT CAN OR SHALL BE CORRECTED OR THAT THE SYSTEM SHALL BE AVAILABLE OR USABLE, OR (C) THE FUNCTIONS CONTAINED IN OR TO BE PROVIDED BY THE SYSTEM SHALL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF THE LICENSED MATERIALS AND THE SYSTEM SHALL BE WITH YOU. THE FOREGOING SHALL NOT LIMIT THE TERMS OF THE WARRANTY THAT CAME WITH YOUR PURCHASE OF THE BED.
Limitation of Liability. In no event shall WE 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 Services or the System, 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 APP, THE DATA, AND THE Services, regardless of the form of action or claim, is limited to $100. Some jurisdictions do not allow limitations on how long an implied warranty lasts, or the exclusion or limitation of incidental or consequential damages, so these limitations and exclusions may not apply. This Agreement gives YOU specific legal rights. YOU may also have other rights that vary from one jurisdiction to another.
Governing Law. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Minnesota, regardless of the laws that might otherwise govern under its principles of conflicts of laws.
- Alternative Dispute Resolution. You understand and agree that by entering into this Agreement, You and We are each waiving the right to trial by jury or to participate in a class action.
- Fundamental Fairness. We support the proposition that all parties to a dispute that are subject to these alternative dispute resolution ("ADR") provisions are entitled to a fundamentally fair process. Toward that end, We intend these ADR provisions to fully support the Consumer Due Process Protocol as published by the American Arbitration Association (the "AAA").
- ADR Administrator and Rules. Unless We both otherwise agree in writing, any arbitration or mediation under this Agreement shall be administered by and pursuant to the non-binding arbitration or binding mediation 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, You agree that any and all disputes, claims, or controversies arising out of or related to the Services, the System, or Your use thereof or this Agreement, including any claims under any regulation or statue ("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. Contact the AAA or Us if You want further information on the ADR process.
- Restrictions on Arbitration. Disputes are arbitrated on an individual basis. There shall be no right to or authority for any dispute to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve disputes and to make awards is limited to disputes between You and Us alone and is subject to Section 25 (Limitation of Liability). Furthermore, disputes brought by either You or Us against the other may not be joined or consolidated in arbitration with disputes brought by or against any third party unless agreed to in writing by all parties. No arbitration award or decision on any dispute shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this Section 27(e) be stricken from this Agreement or deemed otherwise unenforceable, then this entire Alternative Dispute Resolution section shall be stricken from this Agreement.
- Small Claims. If Your Claim qualifies to be brought 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 arbitration or mediation as required by this Agreement. If Your Small Claim is unsuccessful in small claims court and You desire and have the right 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. 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 amount of the filing fee. The AAA also charges certain administrative costs and expenses related to an arbitration or a mediation. For example, the arbitrators or mediators selected by the parties shall need to be paid for their time and related travel expenses (if any). Except in cases where the arbitrator or mediator determines that Your Claim is frivolous or was filed with the sole purpose of being vexatious or to annoy, We shall be responsible for paying all fees or expenses related to the arbitration or mediation payable to and as imposed 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 arbitration or mediation), 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 shall be Your responsibility.
- 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 arbitration or mediation filed with the AAA shall 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 shall be provided with a list of available Neutrals by the AAA. Each party shall be entitled to strike those Neutrals the party deems unacceptable. The parties shall then rank the Neutrals remaining on their list. The AAA shall select the Neutral from the names remaining on the list starting with the highest mutually ranked Neutral.
- Location of Arbitration or Mediation. In the case of face-to-face proceedings, such proceedings shall 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 shall 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.
Effect of Violation of this Agreement. If You fail to comply with or otherwise violate this Agreement, Your authorization to use the Services and the System automatically terminates and You must immediately cease using the Services and the System.
Changes to this Agreement. We reserve the right to change the terms of this Agreement at any time. We may notify You about these changes electronically, and request that You notify Us if You do not agree to the changes. If You do not agree to any change to the terms of this Agreement, You must discontinue Your use of the Processor, the Services, and the System and deactivate Your User Profile(s), as set forth above in Section 20 (No Transferring of the Services). You are deemed to have accepted the changes if You do not deactivate the Services and/or Your User Profile(s) within fourteen (14) days of any notice of a change to the terms of this Agreement. No modification of this Agreement shall affect either party’s rights or duties existing prior to the effective date of the changes.
Entire Agreement. This Agreement represents the entire agreement between You and Us related to Your use of the Services and the System, and supersedes any prior or contemporaneous oral or written agreements. If any provision of this Agreement is found to be contrary to law, such provision shall 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 Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Us in writing.
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 any other business or company that We own or control, or to a third party, so long as such other party undertakes all of Our obligations, rights and duties hereunder.
Reservation of Rights. All rights not expressly granted herein are reserved to Us and Our 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 Service, the System, and the online documentation by Us, or by Our suppliers. 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 System provided to You contains open source software provided by suppliers other than Us ("Open Source Software"). The relevant Open Source Software license information, notices and files can be found by clicking here: http://sleepiqlabs.com/open-source/.
Survival. Sections 10 (Ending the Services), 16 (Allowing Others to Use Your Bed), 19 (Termination of the Services), 23 (Indemnification), 24 (Content and Warranty Disclaimer), 25 (Limitation of Liability), and 27 (Disputes; Arbitration), as well as those provisions of this Agreement that, by their sense and context, are intended by the parties to survive the completion of performance and the termination of this Agreement, shall survive termination of this Agreement for any reason.