Effective Date of Current Policy: January 29, 2019
These terms and conditions (the “Terms”) apply to the website located at www.ultimatesmartbed.com and all associated sites (collectively, the “Site”) operated by Ultimate Smart Bed. (“Ultimate Smart Bed”, “we”, or “us”). The use of the Site, including the purchase of any Products (as defined below), is subject to the Terms. Please read these Terms carefully. By using this Site, you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of this Site, without limitation or qualification. If you do not agree to these Terms, then you must exit the Site immediately and discontinue any use of the information or products obtainable or accessible through the Site. If you have any questions about the Terms, please contact us at info@ultimatesmartbed.com.
These Terms provide that all disputes between you and Ultimate Smart Bed relating to these Terms or your use of the Site or Products will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section XVII (“Dispute Resolution”) for the details regarding your agreement to arbitrate any disputes with Ultimate Smart Bed.
We provide the Site in order to enable you to browse and purchase Ultimate Smart Bed mattresses (“Mattresses”), bed frames (“Bed Frames”), dog beds (“Dog Mattresses”), pillows (“Pillows”), sheets (“Sheets”), mattress protectors (“Mattress Protectors”) and Glow light devices (“Glow Products”) (collectively, the “Products”).
I. Privacy
We have adopted a Privacy Policy that you should refer to in order to fully understand how we collect and use your information. The Privacy Policy is hereby incorporated into these Terms by reference.
II. Electronic communication
When you visit the Site, or send us e-mails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
III. Eligibility
No part of the Site is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, DO NOT USE OR ACCESS THIS SITE.
Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials (together, “Ultimate Smart Bed Content”) is the property of Ultimate Smart Bed or its licensors, partners or affiliates and is protected by United States and international copyright laws. The compilation of this Site is the exclusive property of Ultimate Smart Bed and is protected by United States and international intellectual property laws. Any unauthorized use of any Ultimate Smart Bed Content on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on this Site only with our prior written and express authorization. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at info@ultimatesmartbed.com.
IV. Copyright
Images of people, places and/or products posted on this Site are either the property of Ultimate Smart Bed or our licensors. Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials (together, with “Marks” (as defined below), “Ultimate Smart Bed Content”) is the property of Ultimate Smart Bed or its licensors, partners or affiliates and is protected by United States and international copyright laws. The compilation of this Site is the exclusive property of Ultimate Smart Bed and is protected by United States and international intellectual property laws. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on this Site only with our prior written and express authorization. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at info@ultimatesmartbed.com.
V. Trademarks
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to Ultimate Smart Bed, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Ultimate Smart Bed, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.
VI. Limited license and Site access
We grant you a limited license to use the Site for personal use only. Consequently, this grant does not allow you to do any of the following: (a) resell or make any commercial use of this Site or any of the contents of this Site; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of this Site not intended to be so read. This includes using or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser; (c) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any of the contents of this Site (including any Marks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; or (d) use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods on the contents of the Site or to collect any information from the Site or any other user of the Site.
VII. Accounts, forms, registrations and passwords
You represent and warrant that the information you provide to Ultimate Smart Bed upon creating an account on the Site and at all other times will be true, accurate, current, and complete.
To facilitate future purchases on the Site, you may choose to create an account by providing an e-mail address and password. Please note that you may choose to use the Site and make purchases without creating an account. If you do create an account, your account is personal to you, and you may not share your account information with, or allow access to your account by, any third-party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Site and to preserve the confidentiality of your username and password, and any device that you use to access the Site.
You agree to notify us immediately of any breach in secrecy of your log-in information.
If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third-party, you agree to immediately notify Ultimate Smart Bed by e-mail to info@ultimatesmartbed.com. You will be solely responsible for the losses incurred by Ultimate Smart Bed and others due to any unauthorized use of your account.
VIII. Fees and payments; shipping; In-home setup
Prices. The price for Products available for purchase through the Site will be displayed to you on the Site. The prices displayed do not include taxes. Any applicable taxes will be communicated to you before you place an order. There is no charge for standard shipping.
Payments. The Site currently uses third parties to process payments. Our third-party payment processors accept payments through various credit cards, including Visa, MasterCard, American Express and Discover, as detailed on the applicable payment screen. You may also finance your purchase of Products through Affirm (in the United States) or PayBright (in Canada), as detailed on the payment screen.
In-home setup. For in-home setup and mattress removal, a customer or adult must be present at the scheduled time and delivery address. If no adult is present at the time of delivery, Ultimate Smart Bed reserves the right to leave the package with a secure receiving authority (e.g., doorman, concierge, or building package center). All mattresses removed using Ultimate Smart Bed’s in-home setup must be in sanitary condition. in-home setup fees are final and will not be refunded in the event you return any of the Products.
IX. Gift and offer codes; Referral Program
From time to time, Ultimate Smart Bed may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to herein as “offer codes”) that are redeemable towards a purchase on ultimatesmartbed.com, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Ultimate Smart Bed in its sole discretion. Only valid offer codes provided or promoted by Ultimate Smart Bed will be honored at checkout. Codes supplied or promoted by third parties unauthorized by Ultimate Smart Bed (including any unauthorized third party websites) will not be considered valid. Each offer code promoted by Ultimate Smart Bed is non-transferable and valid for single use on an item (or items) of merchandise as determined by Ultimate Smart Bed. Offer codes may not be combined and may not be used in conjunction with the Ultimate Smart Bed Referral Program–customers are limited to the use of a single offer code per order. Offer codes cannot be used towards purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the ‘offer code’ field at checkout. Offer codes are not valid for use by customers that elect to finance their purchase through Affirm. Offer codes are not valid in showrooms or stores and are valid online only. Ultimate Smart Bed is not responsible for lost, stolen or corrupted codes or any unauthorized use of codes. Offer codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. Expiry dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
Spokespeople. From time to time, Ultimate Smart Bed may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third-party source, such as a television or radio show host, please note that such individuals may have been compensated by Ultimate Smart Bed for their statements.
Referral Program. Ultimate Smart Bed offers brand advocates the opportunity to refer friends to participate in the Ultimate Smart Bed Referral Program. For the terms and conditions of the Ultimate Smart Bed Referral Program, please see Referral Terms. Offer codes may not be used in conjunction with the Ultimate Smart Bed Referral Program.
X. Warranty
We stand behind our Products. Each Product that is manufactured by Ultimate Smart Bed and purchased directly from Ultimate Smart Bed or Ultimate Smart Bed’s authorized retailers is covered by a warranty, the terms of which can be found at ultimatesmartbed.com/warranty (together, the “Product Warranties”). The Product Warranties are incorporated by reference into these Terms. To the extent there is a conflict between the terms of any Product Warranty and these Terms, the terms of the applicable Product Warranty shall govern.
If you are dissatisfied or believe there is a defect in any of your Products, please review the relevant warranty and, if you believe that you are entitled to take advantage of those terms, please contact us at info@ultimatesmartbed.com.
XI. Refunds and returns; cancellation
Cancellations. You may cancel an order any time prior to shipment.
Returns. You may return any Product within the applicable Product’s trial period (each, a “Trial Period”) after your receipt of that particular Product, provided that the Product is located in the United States (not including US territories) or Canada, and subject to the conditions described below. You can find a summary of our Trial Periods policy here. Refunds will be issued in the form of the original payment If you purchased the Product using an offer code or gift code, the dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned.
Return Procedure. Return shipping is free, provided that the Product being returned is located in the United States (not including territories) or Canada. Refunds will be issued in the form of the original payment. Please follow the instructions below to return your Product.
Mattress or Bed Frame: If you want to return your Mattress or Bed Frame within the applicable Product’s Trial Period after your receipt, please e-mail Ultimate Smart Bed at info@ultimatesmartbed.com to arrange a return pick-up.
Pillows, Sheets, Dog Bed or Mattress Protector: If you want to return a Pillow, Sheets, Dog Bed or Mattress Protector within the applicable Product’s Trial Period after your receipt, please log-in to your Ultimate Smart Bed account, click on the Returns page and select the item you would like to return. Please follow the instructions and confirm the return. After confirmation, you will receive an e-mail containing a complimentary UPS shipping label for you to apply to the box as well as a return receipt. Please place the Product you would like to return, along with the return receipt, in the box, affix the shipping label to the outside of the box, and drop off the box at your nearest UPS location. All returns must be delivered to UPS prior to the expiration of the applicable Product’s Trial Period.
Return Conditions. The following conditions also apply to Product returns:
Products must be in donatable condition to be eligible for return (e.g., no stains, tears or other soiling including odors).
Products may not be returned from outside the United States or Canada.
Customers may return a maximum of two (2) of each particular Product per initial order, validated by a customer name or shipping address (i.e. please try a Product first—we are happy to send you more later!)
If at least one of a particular Product type is returned from an initial order, that customer or shipping address will not be eligible for additional Trial Periods on subsequent orders of that particular Product (e.g. if you return a Pillow, you will not be eligible for the applicable Trial Period on future Pillow orders).
XII. Content you submit to Ultimate Smart Bed
From time to time, Ultimate Smart Bed may allow you to post reviews, comments, photos, or similar materials on the Site (collectively, “Reviews”). We welcome your comments regarding our Products and services, including our Site. However, any Reviews you submit to Ultimate Smart Bed must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
By posting a Review on the Site, you hereby grant Ultimate Smart Bed an unrestricted, assignable, sublicensable, perpetual royalty-free, fully paid up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Reviews you post to the Site, for any purpose, including promoting and marketing Ultimate Smart Bed and the Products. You further grant Ultimate Smart Bed a royalty-free license to Use the name, image, and likeness of any person identifiable in any Review you post to the Site. By posting a Review, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your Review. Except for materials provided to you by Ultimate Smart Bed through the Site, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of Reviews that you post to the Site, or you have all rights, licenses, consents, and releases that are necessary to grant to Ultimate Smart Bed the rights in your Reviews as contemplated under the Terms, and (ii) the Reviews you post to the Site do not (A) infringe, misappropriate or violate the rights of any party or entity, including a third-party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Ultimate Smart Bed to obtain any licenses from or make any payments in any amounts to any third-party throughout the world.
No Objectionable Content. You agree not to submit Reviews that: (i) are or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by Ultimate Smart Bed in its sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
Monitoring. Ultimate Smart Bed has no obligation to monitor this Site or any portion thereof. However, we reserve the right to review any Reviews and remove, delete, redact or otherwise modify such Reviews, in our sole discretion, at any time and from time to time, without notice or further obligation to you. Ultimate Smart Bed has no obligation to display or post any Reviews. Ultimate Smart Bed, subject to our Privacy Policy, reserves the right to disclose, at any time and from time to time, any information or posted content that it deems necessary or appropriate, including without limitation to satisfy any applicable, law, regulation, contractual obligation, legal, dispute process, or governmental request.
XIII. Digital Millennium Copyright Act
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Site infringe your copyright, you (or your agent) may send Ultimate Smart Bed a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked.
The notice must include the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works);
Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Ultimate Smart Bed to locate the material on the Site;
Your name, address, telephone number, and e-mail address (if available);
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Ultimate Smart Bed a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to info@ultimatesmartbed.com. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
XIV. Use of the Site
You agree to use the Site only for its intended purpose. You must use the Site in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Site are prohibited. You may not:
attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, user accounts, or the technology and equipment supporting the Site;
frame or link to the Site without permission;
use data mining, robots, or other data gathering devices on or through the Site;
post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
disclose personal information about another person or harass, abuse, or post objectionable material;
sell, transfer, or assign any of your rights to use the Site to a third-party without our express written consent;
post advertising or marketing links or content, except as specifically allowed by these Terms;
use the Site in an illegal way or to commit an illegal act in relation to the Site or that otherwise results in fines, penalties, and other liability to Ultimate Smart Bed or others; or access the Site from a jurisdiction where it is illegal or unauthorized.
XV. Disclaimer
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Site you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Site at any time, including hours of operation or availability of the Site or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third-party you interact with using the Site. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. To the fullest extent permitted by law, you release Ultimate Smart Bed of all claims, demands, and damages in disputes among users of the Site. You also agree not to involve us in such disputes. Use caution and common sense when using the Site.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Site. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Services. Use the Site at your own risk.
We make no promises and, to the fullest extent permitted by law, disclaim all liability of specific results from the use of the Site.
Released Parties Defined. “Released Parties” include Ultimate Smart Bed and its affiliates, officers, employees, agents, partners, and licensors.
EXCEPT AS EXPRESSLY PROVIDED IN THE MATTRESS WARRANTY, FOUNDATION WARRANTY, DOG BED WARRANTY, PILLOW WARRANTY, AND SHEETS WARRANTY FOR PURCHASED PRODUCTS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW: (A) YOUR USE OF THE SERVICESSITE AND PRODUCTS IS AT YOUR SOLE RISK, AND THE SERVICESSITE AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
XVI. Limitation on liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Ultimate Smart Bed HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR third-party ON THE SITE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF Ultimate Smart Bed CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
XVII. Dispute resolution
Generally. In the interest of resolving disputes between you and Ultimate Smart Bed in the most expedient and cost effective manner, you and Ultimate Smart Bed agree that any dispute arising out of or in any way related to these Terms or your use of the Site or Products will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Site or Products, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Ultimate Smart Bed ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of the Section entitled “Generally” directly above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Ultimate Smart Bed will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Ultimate Smart Bed. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail (“Notice”). Ultimate Smart Bed’s email address info@ultimatesmartbed.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Ultimate Smart Bed may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Ultimate Smart Bed must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Ultimate Smart Bed will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Ultimate Smart Bed in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, Ultimate Smart Bed will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Ultimate Smart Bed for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND Ultimate Smart Bed AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Ultimate Smart Bed agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Ultimate Smart Bed makes any future change to this arbitration provision, other than a change to Ultimate Smart Bed’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Ultimate Smart Bed’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Ultimate Smart Bed.
Enforceability. If the Section entitled “No Class Actions”) is found to be unenforceable or if the entirety of this Section XVII is found to be unenforceable, then the entirety of this Section XVII will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of the Site or Products.
Choice of Law; Venue. These Terms will be governed and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. If a lawsuit or court proceeding is permitted under these Terms, then you and Ultimate Smart Bed agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within New York, New York.
XVIII. Termination
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Site, and to block or prevent future access to and use of this Site for any reason or no reason. Upon termination, these Terms will still apply.
XIX. We reserve the right to update and revise these terms at any time
From time to time we review these Terms to ensure that they comply with applicable law. Consequently, we reserve the right to update and revise these Terms at any time. You will know if these Terms have been revised since your last visit to the website by referring to the “Effective Date of Current Policy” date at the top of this page; provided, however, that we will endeavor to provide you with prior notice of any material changes that will apply to you. Your use of our website constitutes your acceptance of these Terms.
XX. Waiver
Either party’s failure to partially or fully exercise any rights or waiver of any breach of these Terms by the other party shall not prevent such party’s subsequent exercise of such right or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of these Terms.
XXI. Severability
If any of these Terms are deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition. NOTHING IN THESE TERMS WILL AFFECT ANY NON-NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
XXII. Entire agreement
These Terms (including any document or terms expressly incorporated into these Terms) constitute the entire agreement between the user and Ultimate Smart Bed with respect to this Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to this Site. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved.
