You agree that your assent, given electronically, will have the same legal effect as if it had been personally signed by you. To the extent permitted by law, these Terms and Conditions are intended to supersede any provisions of applicable law that might otherwise limit their enforceability or effect because they were entered into electronically. Please print a copy of these Terms and Conditions for future reference. IF AT ANY TIME YOU DO NOT OR CANNOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU SHOULD CEASE USING THE SITE. YOUR ACCESS TO AND USE OF THE SITE IS CONDITIONED ON YOUR ACCEPTANCE OF THESE SITE TERMS, AND YOUR ONLY REMEDY IF YOU DO NOT AGREE TO BE BOUND BY THESE SITE TERMS IS TO STOP ACCESSING OR USING THE SITE. If you have any questions about these Terms and Conditions, please contact us at firstname.lastname@example.org.
We may change, suspend, or discontinue any aspect of the Website at any time, including hours of operation or availability of the Website or of any Product (as hereinafter defined) or feature, without notice or liability.
We may offer Products through other authorized distribution channels, such as other sellers and websites; and if we do so, the terms, conditions, and policies applicable to those other sellers and websites may apply, which may be different than these Terms and Conditions.
We are an online mattress company that designs and sells mattresses and other related products and components. We provide the Website in order to enable you to purchase our Ō by Neven™ Mattress and other related products (individually referred to as a “Product”, and collectively, “Products”). We provide the Products to you subject to these Terms and Conditions.
When you visit the Website and/or communicate with us by e-mail or by chat via the Website, you are communicating with us electronically. By doing so, you agree that we may communicate with you electronically (including but not limited to by email, chat on the Website, and notices posted to the Website). You also agree that all such electronic communications (including all notices, disclosures, warranties, and agreements) satisfy any legal requirement that such communication be “in writing.”
INTELLECTUAL PROPERTY RIGHTS
All trademarks, service marks, trade names, trade dress, and other branding devices that appear on the Website and/or Ō by Neven™ Products (collectively the “Marks”) are the exclusive property of Neven Sleep and/or our licensors, partners, or affiliates, and are protected by applicable intellectual property laws. You may not display or use the Marks without our prior written authorization and/or prior authorization of our licensors, partners, or affiliates, as applicable.
All images of people, places, and/or products posted on the Website are the property of Neven Sleep and/or our licensors, partners, or affiliates. Unless otherwise noted, all visual, audio-visual, and written information displayed on the Website, including all graphics, photographs, drawings, designs, iconography, animation, videos, writings and other materials (collectively, and together with the Marks, the “Ō by Neven™ Content”) is the property of Neven Sleep or its licensors, partners, or affiliates and is protected by one or more applicable intellectual property laws, including without limitation copyright, right of publicity, and trademark laws. You may not copy or use any of the Ō by Neven™ Content without our prior written authorization and/or the prior authorization of our licensors, partners, or affiliates, as applicable.
The source code / HTML code underlying and compilation of the Website are likewise the exclusive property of Neven Sleep and protected by applicable intellectual property laws. You are not authorized to use such source code for any purpose other than the ordinary use of the Website.
Any unauthorized use of the materials or content on this Website, including but not limited to the Ō by Neven™ Content, is strictly prohibited and may violate copyright and trademark laws and/or the laws of privacy, publicity and/or communications regulations and statutes.
Please contact us at email@example.com if you have questions about the Ō by Neven™ Content, including whether we are willing to authorize your use of the same.
LIMITED LICENSE AND USE OF THE WEBSITE
We grant you a limited license to use the Website solely for your lawful, personal, non-commercial use (or personal, non-commercial use on behalf of a third party). You may not use the Website to do any of the following things (or otherwise to violate any laws or legal rights of anyone else):
- Copy, imitate, mirror, reproduce, distribute, publish, download, publicly display, publicly perform, post or transmit any of the Ō by Neven™ Content in any manner or format, or through any means, including but not limited to electronic, mechanical, photocopying, recording or otherwise.
- Resell or make any commercial use of the Product or any of the content of the Website, including the Ō by Neven™ Content.
- Commit fraud or other dishonest act, including by seeking refunds or other compensation or benefits for Product orders that are not legitimate, or about which you are not being completely truthful in your communications with us.
- Disclose personal information about another person or harass, abuse or post objectionable material.
- Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the content of the Website, including the Ō by Neven™ Content, not intended to be so read, including but not limited to using or directly viewing the underlying source code / HTML code, except as interpreted and displayed in a web browser.
- Use any automated software or tools that are designed to extract and copy data (such as bots, spiders, crawlers, or other similar data-mining, data-gathering, or data-extraction methods) on the content of the Website, including the Ō by Neven™ Content, or source code / HTML code underlying the Website.
- Collect any information about users of the Website.
- Attempt to interfere with, disrupt, reverse-engineer, steal from, or gain unauthorized access to, any of the software, technology, or equipment that supports the Website or user accounts.
- Impersonate another person, or misrepresent your affiliation, with a person or entity.
- Frame or link to the Website without Neven Sleep’s express written consent.
- Post advertising or marketing links or content.
- Sell, transfer, or assign any of your rights to use the Website to a third party without Neven Sleep’s express written consent.
- Access the Website from anywhere in the world where it is unlawful for you to do so.
AVAILABILITY OF WEBSITE
You recognize that the traffic of data through the internet may cause delays during the download of information from the Website and accordingly, you will not hold us liable for delays that are ordinary in the course of internet use. You further acknowledge and accept that the Website will not be available on a continual twenty-four hour basis due to such delays, or delays caused by the upgrading, modification, or standard maintenance of the Website.
By visiting or accessing this website, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given your consent to allow your minor dependents to use this website. We do not knowingly collect, use or disclose Sensitive Information from minors. If we learn that we have collected Sensitive Information from a minor, we will delete that data from our systems. Please visit the FTC’s website at http:www.ftc.gov/ for tips on protecting children’s privacy online.
Neven Sleep takes special care to protect the safety and privacy of children. We do not permit anyone under the age of 13 to register with us. We also do not send email correspondence to anyone who tells us that they are under the age of 13.
Children under the age of 13 should always ask their parents or guardians for permission before providing any contact information to anyone online. We urge parents and guardians to participate in their children’s online activities and use parental control or other web filtering technology to supervise children’s access to the internet.
California users under the age of 18 may request the removal of their content or information publicly posted on websites or mobile applications by sending us an email. Please note that most of the user content that appears on the website is stored and controlled by third party providers; thus, complete and comprehensive removal of the content may not be possible.
If you use this Website on behalf of an organization or legal entity (collectively, “Organization”), then you represent and warrant that you (a) are an authorized representative of that Organization, (b) have the authority to bind the Organization to these Terms and Conditions, and (c) agree to be bound by these Terms and Conditions on behalf of the Organization.
REVIEWS AND OTHER CONTENT
From time to time, we may allow you to submit or post reviews or similar content on the Website (each individually a “Review” and collectively, “Reviews”). We welcome your Reviews regarding our Products and services, including the Website, so long as they are appropriate, but we are under no obligation to display or post any Review. We do not promise or guarantee that the content of any Review will be truthful, accurate, or reliable.
We reserve sole and complete discretion over whether to allow or display, and how to use, all Reviews. By submitting a Review to us (via the Website or otherwise), you grant us a perpetual, worldwide, unlimited, fully assignable, royalty-free and fully-paid-up right and license to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform, create derivative works based upon, and otherwise use and exploit for any purpose (collectively, “Use”) such Review through any means or method now or not yet in existence, including but not limited to promoting and marketing Neven Sleep, Ō by Neven™ and the Products. The foregoing right and license includes a royalty-free license to Use the name, image, photograph and/or likeness of any person depicted in or identifiable from any Review. By posting a Review, you waive any and all rights under copyright law, right of publicity law, privacy law, and other legal rights (in addition to any “moral rights” that you may have in your Review). Further, by submitting a Review to us (via the Website or otherwise), you represent and warrant to us each of the following things:
- You are either the sole and exclusive owner of the Review (s) that you post to the Website, or you have all rights, licenses, consents, and releases that are necessary to grant to Neven Sleep the rights to Use the Review (s) as contemplated under these Terms and Conditions; and
- Reviews posted to the Website by you do not and will 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), (c) require Neven Sleep to obtain any licenses from or make any payments in any amounts to any third party throughout the world, or (d) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
You represent and warrant that all information you provide to Neven Sleep at all times will be true, accurate, current, and complete. We are not responsible for problems that you encounter as a result of false, inaccurate, outdated, or incomplete information that you provide to us. For example, when you purchase a Product via the Website, we will ship that Product to the address that you provided while completing your order. If that address is incorrect, you may experience problems with your purchase for which we will not be responsible.
We attempt to be as accurate as possible when describing the Products. We do not, however, warrant that the Product descriptions are or will be 100% accurate, complete, current, or error-free.
PRICING AND PAYMENT
We will display on the Website the current prices for all Products available for purchase via the Website. The prices do not include applicable taxes and fees that we are legally required to charge you. We will inform you about any such taxes and/or fees before you are able to complete a purchase order. For example, certain jurisdictions require us to charge and remit separate fees to support those jurisdictions’ mattress recycling efforts.
The Website currently uses one or more third parties to process payments that you authorize in connection with purchasing Products. We will inform you of the methods of payment that our third party payment processors permit while you are placing your order.
All amounts listed and monetary transactions on and via the Website are in U.S. dollars.
SHIPPING AND RISK OF LOSS
When you place an order for Products through the Website, the Products will be shipped to the address you designate as the “Shipping Address” during the checkout process. Generally, standard shipping is free for customers in the continental United States.
We want you to be able to enjoy your products as quickly as possible. To accomplish this we may use the postal service or a private delivery service to deliver your item or offer another method of delivery.
All Products purchased from our Website are made pursuant to a shipment contract. You acknowledge that we have no control over the carrier, and that once we have turned your merchandise over to the carrier, we are no longer liable for any loss or damage involving the product, though we may voluntarily seek insurance claims from the carrier, where applicable, to assist in mitigating or compensating your losses. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier, and you are responsible for filing any claims with carriers for damaged or lost shipments.
100-NIGHT SLEEP TRIAL, WARRANTY, OTHER REFUNDS AND RETURNS
This post-purchase, risk-free 100-Night Sleep Trial serves as our return policy. If you decide your Ō by Neven product isn’t right for you, we’ll send a return partner over to remove the product from your home and either donate it to a local charity or have it recycled. With all other products, we will provide you with a prepaid UPS label for you to ship your product back to Ō by Neven free of charge. Either way, your original form of payment will be refunded 100 percent. With financed orders, interest paid is not refunded.
Your Ō by Neven product is covered by a limited warranty of 10 years for mattresses, 3 years for sofa sleeper mattresses and 3 years for pillows. These limited warranties give you specific legal rights and are incorporated into these Terms and Conditions. To the extent there is a conflict between the terms of our 100-Night Sleep Trial, our limited warranties and these Terms and Conditions, the terms of the applicable 100-Night Sleep Trial and limited warranty will govern with respect to the Product purchased from Ō by Neven.
For questions about potential refunds or returns not covered by the 100-Night Sleep Trial and/or Neven Limited Warranties, please contact firstname.lastname@example.org.
You may cancel an order any time prior to shipment.
Digital Millennium Copyright Act (“DMCA”) Policy
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 Website infringe your copyright, you (or your agent) may send Neven Sleep 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 an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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 Neven Sleep 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 the Website should be sent to 8401 Ambassador Row, Dallas, TX 75247 or email@example.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.
For purposes of these Terms and Conditions, “Released Parties” mean Neven Sleep and its parents, subsidiaries, affiliates and related entities, and our and their respective officers, directors, managers, members, shareholders, employees, agents, licensors, successors and assigns.
We make no representation about accuracy, reliability, completeness, or timeliness of any contents of the Website. 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 Website. By using the Website, you assume the risk that you might be exposed to content that is objectionable or otherwise inappropriate. Use the Website at your own risk.
The Website may contain links to other websites that are not operated by or related to us. We are not responsible for the content, accuracy or opinions expressed in such third party websites, and do not investigate, monitor, or check these websites for accuracy or completeness. The inclusion of any linked website on the Website does not imply approval or endorsement of the linked website by us. If you leave the Website to access these third-party sites, you do so at your own risk.
We are not responsible for any dispute or disagreement between you and any other person or entity with which you may communicate or interact via or while using the Website. You assume all risk associated with dealing with such third parties. You release and shall defend and hold harmless the Released Parties from and against all claims, injuries, demands, and exposures of any kind arising out of or relating to (a) any such dispute or disagreement and (b) any other third-party action, claim, or demand arising out of any breach by you of any representation, warranty, covenant, obligation or duty of you under these Terms and Conditions. You also promise not to involve us in such dispute.
We make no promises and disclaim all liability of specific results from the use of the Website.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THE WEBSITE IS 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 OR AVAILABLE THROUGH THE WEBSITE (OTHER THAN OUR Ō BY NEVEN 100-NIGHT SLEEP TRIAL AND AND/OR Ō BY NEVEN LIMITED WARRANTIES), IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE 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.
THE RELEASED PARTIES MAKE NONE OF THE FOLLOWING WARRANTIES, EACH OF WHICH THE RELEASED PARTIES EXPRESSLY DISCLAIM:
- THE WEBSITE WILL MEET YOUR EXPECTATIONS, NEEDS, OR REQUIREMENTS;
- THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
- THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE;
- THE NATURE, QUALITY, OR QUALITIES OF ANY PRODUCTS OR SERVICES PROMOTED OR AVAILABLE FOR PURCHASE VIA THE WEBSITE WILL MEET YOUR EXPECTATIONS, NEEDS, OR REQUIREMENTS;
- ANY ERRORS IN THE WEBSITE WILL BE CORRECTED; OR
- ANY PRODUCTS OR SERVICES PROMOTED OR AVAILABLE FOR PURCHASE VIA THE WEBSITE, OUR SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM US ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION ON LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT 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 NEVEN SLEEP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY OF THE FOLLOWING:
- YOUR USE OR INABILITY TO USE THE WEBSITE;
- 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 WEBSITE;
- UNAUTHORIZED ACCESS TO OR ALTERATION OF DATA OR INFORMATION THAT YOU PROVIDE TO US VIA THE WEBSITE OR OTHERWISE;
- STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON OR INVOLVING THE WEBSITE;
- YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US OR THIRD PARTIES ON OR VIA THE WEBSITE; OR
- ANY OTHER CIRCUMSTANCES ARISING OUT OF OR RELATING TO THE WEBSITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE OR YOUR USE OF THE CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE PRICE THAT YOU PAID FOR ANY PRODUCT(S) PURCHASED VIA THE WEBSITE OR $50, WHICHEVER IS GREATER.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any and all claims, actions, demands, and expenses, including without limitation reasonable legal and accounting fees, alleging, arising out of, or resulting from (a) your use of the Website, the Ō by Neven™ Content, or the services or Products obtained through the Website, (b) your breach of these Terms and Conditions, and (c) your use of or reliance on any third-party content (collectively referred to as “Claims”). We will give you prompt notice of any such Claims, but reserve the right, in our sole and absolute discretion and at our own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as required by the Released Parties in the defense of any Claims.
Notwithstanding any of these Terms and Conditions, we reserve the right, in our sole and absolute discretion, to terminate your access and license to use the Website and to block or prevent future access to and use of the Website for any reason or no reason without notice or attendant liability. Upon termination, these Terms and Conditions will still apply.
All provisions relating to intellectual property and other proprietary rights, confidentiality, disclaimers of warranty, indemnification, limitation of liability, damages, dispute resolution, and choice of law shall survive the expiration or earlier termination of these Terms and Conditions.
We may review these Terms and Conditions periodically to ensure that they comply with applicable law and remain consistent with our Products and operations. We therefore reserve the right to update and revise these Terms and Conditions at any time without specific or direct notice to you. We intend to change the “Effective date” at the bottom of these Terms and Conditions each time we revise these Terms and Conditions. You should review these Terms and Conditions regularly to ensure that you are aware of any changes or updates.
You may not transfer any rights or obligations in or to these Terms and Conditions, in whole or in part. We may transfer any and all rights and obligations in and to these Terms and Conditions and/or subcontract some or all of its obligations hereunder at any time without your consent.
You acknowledge that a breach of any confidentiality, intellectual property, or other proprietary rights provisions of these Terms and Conditions may cause us irreparable damage, for which the award of damages would not be adequate compensation. Consequently, we may seek an injunction to prevent you from taking any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and we may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.
DISPUTE RESOLUTION; CHOICE OF LAW; MANDATORY ARBITRATION
If a dispute, claim, or controversy arises out of or relating to these Terms and Conditions (including an alleged breach or the termination, enforcement, interpretation, or validity thereof), the Website, or your purchase of Products or use of any Service available via the Website (collectively, “Dispute”), the following rules and procedures shall apply.
Informal Dispute Resolution. You and Neven Sleep each agree that you will try in good faith to resolve such Dispute informally. If you wish to initiate this informal process, you should send a notice clearly marked “Notice of Dispute,” containing a brief written statement setting forth your name, address, and contact information, the facts giving rise to your Dispute, and the relief you are seeking. You must send any such notice to Neven Sleep at firstname.lastname@example.org (if by email) or at Neven Sleep, LLC, Attn: Claims, 8401 Ambassador Row, Dallas, TX 75247 (if by conventional mail). We will contact you via email at the address specified in any such notice or the physical address we have on file relating to any Product order you placed with us. You and Neven Sleep agree to use reasonable, good faith efforts to settle any Dispute through consultation, communication, and negotiations within thirty (30) days of your submission of such notice. If a Dispute is not resolved within thirty (30) days of such submission, you or Neven Sleep may resort to the procedures described in the remainder of this section. You must send a Notice of Dispute within six (6) months after the Dispute accrues; otherwise, such Dispute will be permanently barred. If we have a Dispute with you, we will follow the same process, except that we will initiate the process by sending the “Notice of Dispute” to you via email at the address specified in any such notice or the physical address we have on file relating to any Product order you placed with us.
Mandatory Arbitration. In the event that you and Neven Sleep are unable to resolve a Dispute through informal discussions within thirty (30) days of the “Notice of Dispute” (as described above), you and Neven Sleep agree to resolve such Dispute in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). Each party will designate one arbitrator and the two designated arbitrators will select a third arbitrator, who will serve as the chair of the arbitration panel. If the two arbitrators cannot agree on the third arbitrator, then the AAA will appoint the third arbitrator. The arbitration will take place in Dallas, Texas.
Prior to the appointment of the arbitrators, any party may seek a temporary restraining order, or a preliminary injunction from any state or federal court of appropriate jurisdiction, that shall be effective until the arbitrator renders a final decision.
The arbitration shall cover any and all claims or disputes arising out of or relating to these Terms and Conditions, including the breach, application, validity, interpretation or scope thereof. The arbitrators shall have no authority to go outside of the scope of these Terms and Conditions. The arbitrator(s) shall have no power to conduct class, mass, private attorney general or consolidated proceedings without our consent.
Barring extraordinary circumstances, the arbitrators will issue their decision within 120 days from the date the third arbitrator is selected by the two designated arbitrators or appointed by the AAA. The arbitrators may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all related records will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The decision and the arbitrators’ award will be in writing and will include a statement setting forth the reasons for the disposition of any claim. A dissenting decision will also be set forth in writing. The arbitrators may grant any appropriate remedy, including without limitation, injunctive relief or specific performance. The arbitrators’ award will be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction.
The costs of arbitration shall be borne equally by you and Neven Sleep, but each of you and Neven Sleep shall be solely responsible for your own respective costs and expenses related to the arbitration, including attorney’s fees and other expenses. Any arbitration proceeding shall be conducted in Dallas, Texas, and subject to the laws governing arbitration of the State of Texas, and neither you nor Neven Sleep may object to the jurisdiction of the arbitrator or to venue of such proceeding.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes but is not limited to any act, event, non-happening, omission or accident beyond our reasonable control including but not limited to restrictions of law, regulations, orders, or other governmental directives, labor disputes, acts of God, third-party mechanical or other equipment breakdowns, terrorist attacks, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunications or digital transmission links, internet failures or delays, storms or other similar events.
NO THIRD-PARTY BENEFICIARIES
No person or entity not a party to these Terms and Conditions will be deemed to be a third-party beneficiary of these Terms and Conditions or any provision hereof.
If any provision of these Terms and Conditions are held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms and Conditions will remain in full force and effect.
WAIVER AND AMENDMENT
If we fail to insist upon strict performance of your obligations under any of these Terms and Conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under these Terms and Conditions, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations. No waiver by us of any default will constitute a waiver of any subsequent default, and no waiver by us of any of these Terms and Conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
Our rights and remedies under these Terms and Conditions and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
These Terms and Conditions constitute the entire agreement between you and Neven Sleep with respect to the Website and supersede all prior or contemporaneous communications relating to the Website. Any rights not expressly granted herein are reserved.
EFFECTIVE DATE: December 20, 2018.