SLEEPIQ END USER AGREEMENT
SLEEP NUMBER SLEEPIQ® USER AGREEMENT
Welcome to the Sleep Number® SleepIQ® system! In order to fully understand these terms and conditions (collectively, the "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:
You: When we use the word “You” or “Your” we mean you, as well as any person on whose behalf you accept this Agreement, as discussed below.
Us: When we use the word “us”, we mean Select Comfort Corporation. We also sometimes refer to ourselves as “we,” “our,” “Sleep Number” or the “Company”.
The Bed: Your new Sleep Number® bed or SleepIQ Kids™ 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. Your Mattress is connected with hoses to a pump (“Pump”) that, depending on your purchase, is controlled by a wireless remote control that we provide or a compatible mobile device, which is not provided by us, and which is capable of running the SleepIQ® app (collectively, the “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® Application (the “App”): This is the application developed by us that is downloaded by You to a compatible mobile or other device, which is not provided by us, that allows you to interact with the SleepIQ system.
The SleepIQ® Processor (the “Processor”): This is the hardware and software that allows Your Pump to transmit the data that it generates or entered by You in Your User Profile(s) (“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 Services. The Processor lives in the Pump. Pumps that have the Processor 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 “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 Processor, the Data, and the Remote, 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 to function as intended.
The SleepIQ® Services (the “Services”): This is the phrase we use for the applications we allow You to access and/or interact with the System, including without limitation the App, and the information, content, and services provided by the Company through the System regardless of how You access it.
Please read this Agreement carefully before using the System or the Services, as it is the legal agreement addressing Your use of System and the Services. By indicating Your consent to this Agreement by clicking on “I Agree”, and by using the System or Services in any manner, you affirm 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 and a party to the terms and conditions of this Agreement to the exclusion of all other terms and conditions except for those which specifically relate to the purchase of the Bed (e.g. financing terms and warranty terms) on behalf on yourself as well as any minor member of your household or family on whose behalf you create a profile or any other person you permit to access or use the System or Services (collectively, “You”). 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 Processor, the Data, the System or the Services. Use of the Processor, the System, the Data, or the 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 System and the Services. You must uninstall the App from any device on which it is installed, call us to deactivate Your User Profiles (as hereafter defined), and cease any further use of the Processor or the Services. You may continue to use Your Bed without the use of the Processor or the 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 and in-home trial period) 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 Processor, the System or the Services or otherwise access or attempt to access any Data generated by the Processor 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 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. Except with respect to Open Source Software (as defined below), all intellectual property rights relating to the Bed, the Processor, the System and/or the Services are owned by Sleep Number and/or its suppliers. You have no intellectual property rights in or to the Bed, the Processor, the System or the Services except as may be expressly set forth in this Agreement. Subject to the terms and conditions of this Agreement, Sleep Number 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, non-sublicenseable nontransferable, nonassignable, revocable license to access the software contained in the Processor, and to access the online documentation, and the Services, and any programming fixes, updates, and upgrades provided to You concerning the Processor, 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 Processor, the System, the Data, and the Services automatically terminates and You must immediately cease using the Processor, the System, or the Services.
Consent to Communication: By using the Processor, the System, or the Services You agree to allow us to communicate with You in any medium, including electronically, by phone (including through autodialed and/or prerecorded calls and text messages) or in person, regarding Your Bed, the Processor, the System, or the 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 Processor, the System, or the Services.
Authorized Hardware: Your SleepIQ Firmness Control System must have an authorized Processor installed in order for You to use the System or the Services. Your Processor 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 Sleep Number dealer. 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 us or an authorized Sleep Number dealer, to access the Data generated by the SleepIQ® Processor, or to access the System or the Services is prohibited.
Necessary Third Party Equipment and Services: In order to use the Services, and in some cases to operate your Bed, You may be required to access, install, purchase, run or already possess other equipment, software, website, or ancillary services which are not provided by us and are outside of our control (the “Necessary Third Party Equipment and Services”). For example, the Services require that you have Wi-Fi equipment, services and connectivity, not provided by us, and near enough in physical proximity to Your Bed to maintain connectivity to the Firmness Control System. As another example, the SleepIQ Kids bed requires a sufficiently new and compatible mobile device, not provided by us, in order to control and interact with the Bed and the Services through the downloadable App. As yet another example, accessing the Services over the internet will require You to utilize a web browser on a computer or mobile device 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, communicate, control, or otherwise use the Services, the System, the App, and the Bed (depending on your purchase), including, without limitation, mobile devices, modems, hardware, software, broadband internet access, computer and mobile device operating systems, or long-distance or local telephone service. You are responsible for ensuring that such equipment, software, or ancillary services are compatible with the Processor, the System, Services, the App, and/or the Bed. 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 Your agreement with us.
User Profile: You must create and maintain at least one user profile (“User Profile”) in connection with Your use of the System and Services, which will 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 will be using the SleepIQ Kids bed, direct access to the Services by creating a separate User Profile, login and a password for them for their own personal use. As set forth above, to the extent you grant such access to the minor or other user, you are expressly authorizing us to communicate and interact directly with them in any medium, including electronically, regarding the Services, the Data, and the System (and any sub-system thereof). If you purchased a dual-chamber Bed, you may grant access through the Services to allow another adult person (“Secondary User”) to create a separate User Profile and to collect Data to be accessed via the Services relating to their and your 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. You may use the Bed without creating a User Profile or after deactivating a current User Profile, but doing so will also discontinue the availability of the Services to You. 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), login information or password(s) with or without Your knowledge. If You or anyone else you permit to use the System provides the login information or password to another person, Your account privileges may be suspended temporarily or terminated. You agree to immediately notify us of any unauthorized use of the User Profile(s), login information or password(s) or any other breach of security.
Duration of Services: The Services start once You indicate your consent to this Agreement, create and activate Your User Profile(s), and use the Bed with the Processor and/or Services, and will continue until You or we end or cancel the 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, to modify existing features or functions, or to provide programming fixes, updates and 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. Furthermore, You acknowledge and agree that we, in our sole discretion, may modify, discontinue, or suspend Your ability to use the Services or the System, or disable any Services or the System You may already have accessed without any notice to You, for the repair, improvement, or upgrade of the Services or the System.
Ending the Services: You may end Your use of the Services at any time by contacting us to deactivate the Services and/or the User Profile(s). If you change your mind, we may not be able to reactivate the User Profile(s). You will not be entitled to any refunds or adjustments related to the price paid for the Bed or System as a consequence of not being able to use or access the Services (1) because You did not agree to or comply with any part of these terms or conditions; or (2) as a consequence of deactivating the Services or User Profile(s); or (3) as a result of connectivity issues specific to the location where Your System is installed; or (4) because You ended or discontinued Your use of the Services; or (5) because You do not have Authorized Hardware or the Necessary Third Party Equipment and Services, as addressed above. The terms of this paragraph will survive the termination of this Agreement.
Transferring the Services: In the event You sell, give or donate Your Bed to another person or entity, it is Your responsibility to deactivate the Services and User Profile(s) and discontinue Your use of the Processor, the System or the Services. Use of the Processor, the System or the 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 Processor, the System or the 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 deactivate the Services and User Profile(s), discontinue Your use of the Processor, the System or the Services, and notify us that You are transferring ownership of Your bed or otherwise disposing of it could result in Data generated by the Processor, 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 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 and any of its suppliers against any claims by a third party to whom You transfer or sell Your Bed or Your System. The terms of this paragraph will survive the termination of this Agreement.
Termination of the Services: If we determine that You or the Secondary User are not using the Data, the Processor, the System or the Services in accordance with the terms and conditions of this Agreement, Your right to access the Data, the Processor, the System or the Services terminates automatically, and we have the right (but not the obligation) to remove, edit, block or delete the transmission of Data from Your Processor or Your access to the Data, the Processor, the System or the Services entirely. Our failure to perform any of the foregoing remedies will not constitute any waiver by us or any of our suppliers 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 Processor, the System or the Services including any applications used to access the System or Services at any time without further notice. We may also charge a fee for use of the 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 may be notified about these changes electronically and be requested to notify us if You do not agree to the changes, in which case, You must discontinue Your use of the Processor, the System and the Services and deactivate Your User Profile, as set forth above. If You do not so notify us or do not 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 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 wireless remote control we provide 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 Services. We will be responsible solely under the terms of the warranty that came with your purchase. Neither Sleep Number nor its suppliers is responsible for, and You accept all liability relating to or arising out of: (1) electronic communication issues which 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; and/or (4) 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 Your mobile device or computer's functionality or operation. We make no guarantee that the Services will be available uninterrupted or that Your Bed will be able to be connected to the Services.
Personal, Non-Commercial Use: You may only access or use the Processor, the Data, the System or the 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 System or the Services. You may not reverse engineer, decompile, or otherwise attempt to gain access to any of the Processor, the System, the Services, or the Data except through the proper, intended use of the System and Services. You may not defeat or circumvent any encryption, digital rights management, or security technology implemented by Sleep Number with respect to the System or the Services.
Content: All materials displayed or performed through the 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, trademark, and trade dress, and are the property of the respective owner(s) of such Content, which may be Sleep Number, a provider of Third Party Services or another third party. 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 System or 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.sleepnumber.com/sleepiq or provided through the System or 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 or healthcare professional 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 System or Services or based on any Data generated by the Processor.
Not a Substitute for Active Monitoring: Through Your use of the Processor, the System and/or the Services, You will have access to certain sleep-related and biometric Data regarding You or anyone else You allow to use Your Bed. The Data is not provided to You in real time nor is it an equivalent or substitute for scientific or medical sleep monitoring techniques or analysis, such as polysomnography and actigraphy, used by professional sleep doctors and scientists. In some cases, the Data is generated by averaging, correlating or otherwise manipulating raw data being captured and transmitted to the Processor. 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, the Services should not be used 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. These are examples of improper use of the Bed, the Processor, the Data, the System and the Services for unintended uses. 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 System and the 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 Processor, the System and the 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 Processor, the System or the 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.
Collection of Data: In order to enable and provide the benefits of the System and Services to You, we track, collect and store Data generated by or through the System or the Services, including, without limitation, information about You, Your sleep, Your biometrics, and Your use of the System and Services, the Bed, and the App. The Data includes any user-entered information such as the information entered by You in Your account set up, User Profile, or through the App directly. We also collect and store Third Party Data when authorized by You to interface with Third Party Services. We store Your Data and the Third Party Data in our databases and servers, and, depending on its origin, may continue to store such data even after you deactivate or cancel the Services.
Ownership of Data: Except for Third Party Data provided through Third Parties Services, Sleep Number owns the Data. To the extent legally necessary, You, on behalf on yourself as well as well as any minor member of your household or family for whom you create a profile or any other person you permit to access or use the System or Services, hereby assign to Sleep Number sole and complete ownership in and to the Data.
Our Use of Data: Sleep Number has full, unrestricted access to and use of the Third Party Data and Data to maintain, support, use, develop, and enhance the System and Services, the App, and to support You as the customer and user. In addition, except for certain limitations regarding Third Party Data provided through Third Parties Services, Sleep Number shall have the right to exploit the Data for commercial or other purposes with third parties provided that the Data is de-identified (“Deidentified 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, before or after a change in daylight savings time, etc.). To the extent we are able to generate income related to the collection, use and/or sale of Deidentified Data, Sleep Number 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.
Your Use and Sharing of Data: Through the System and the Services, You can share Data and information with others, including those 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 Processor, the System or the 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 System, such Data will be collected on any person You allow to use Your Bed. On a SleepIQ Kids bed, Data will be collected on the minor member of your family or household who uses the Bed. On dual-chamber Beds, as set about above, You can allow a Secondary User to create a separate User Profile and to collect Data to be accessed via the Services relating to their and your 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 the Bed and for either: (1) notifying such person that Data is being collected on them and that You will have access to that Data; or (2) disabling the Pump, the Processor or the System such that no Data is collected or transmitted. You will indemnify us and our suppliers 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. The terms and conditions of this paragraph will survive the termination of this Agreement.
Disabling the Transmission of Data: You may disable the transmission of Data to us from the System using the App. Data may still be gathered “locally” on the Processor, but it will not be transmitted to us by the System and displayed through the Services. Even with transmission disabled, the System will 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, through the 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 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 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 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: (1) Your use or misuse of the Processor, the System or the Services as well as the use or misuse of the same by anyone You allow to use Your Bed or the Processor, the System or the Services; (2) Your violation of this Agreement; (3) Your violation of the rights of any third party; or (4) Your violation of any applicable law, rule or regulation in connection with Your use of the Bed, the Processor, the System or the Services. Each of us reserves 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 in connection with our defense of any third party claim. Each of us 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 SERVICES ARE PROVIDED BY US ON AN “AS IS” BASIS ONLY. SLEEP NUMBER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OR FUNCTIONALITY OF THE SERVICES OR ANY INFORMATION OR DATA MADE AVAILABLE BY OR THROUGH THE SYSTEM OR THE SERVICES. IN ADDITION, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SYSTEM AND THE 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, WE DO NOT 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 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 BED, THE PROCESSOR, THE SYSTEM OR THE 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 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: This Agreement shall be governed by and will 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: 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. The terms and conditions of the following paragraphs will survive the termination of this Agreement.
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 Processor, the System, the Services or Your use thereof or this Agreement, 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: This Agreement represents the entire agreement between You and us related to Your use of the Processor, the System and the Services and supersede any and all prior or contemporaneous oral or written agreements. If any provision of this Agreement 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 Agreement will 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 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 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 System, the Service, and the online documentation by us, or by our suppliers. You acknowledge that any unauthorized copying or unauthorized use of the System and the 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 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/.