These Terms are separated into two parts. Part One applies to all users; Part Two only applies to those who make a purchase with us. SleepBuddy reserves the right to change or modify these Terms or any policy or guideline of the Site at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and applicable policies to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended Terms, you must stop using the Site. Any use of the Site in violation of these Terms may result in, among other things, termination of your account.
If you have any questions regarding the use of the Site, please refer to the Frequently Asked Questions. All other questions or comments about the Site or its contents may be directed to customer service by calling 404-884-8582 or emailing us firstname.lastname@example.org.
Part One – Terms for All Site Users
2. Eligibility, Registration and Account
The Site is not targeted towards, nor intended for use by, anyone under the age of 13. By using the Site, you represent and warrant that you are 13 years of age or older. If you are not at least 13 years of age, do not access, use or register for an account on the Site. In addition, you may not make a purchase from the Site unless you are at least 18 years of age. You also represent and warrant that you (a) have not previously been suspended or removed from the Site; (b) do not have more than one Site account; and (c) that you have full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party.
In order to create a profile on the Site, you will need to register for an account. When registering for an account, you cannot create a screen name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim screen names on behalf of businesses or individuals that hold legal claim, including trademark rights, in those screen names.
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information; (b) maintain and promptly update your account information; (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to SleepBuddy; and (d) promptly notify SleepBuddy if you discover or otherwise suspect any security breaches related to the Site.
3. Ownership of Site Content
Unless otherwise indicated in the Site, the Site and all content and materials on the Site, including but not limited to, the SleepBuddy logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Site Content”) are the proprietary property of SleepBuddy or its affiliates, licensors, suppliers or users and are protected by U.S. and international copyright laws.
You are granted a limited, nonexclusive, non-sublicensable license to access and use the Site and electronically copy (except where prohibited without a license) and print hard copy portions of the Site Content for your informational, noncommercial and personal use. Such license is subject to these Terms and excludes: (a) any resale of the Site or Site Content; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Site Content; (d) modifying or otherwise making any derivative uses of the Site and the Site Content, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than page caching) of any portion of the Site, the Site Content or any information contained therein, except as expressly permitted on the Site or pursuant to separate terms; or (g) any use of the Site or the Site Content other than for its intended purpose. Any other use of the Site or the Site Content, without the prior written permission of SleepBuddy, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including but not limited to copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
4. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, SleepBuddy has adopted a policy of terminating, in appropriate circumstances and in SleepBuddy’s sole discretion, account holders who are deemed to be repeat infringers. SleepBuddy may also, in its sole discretion, limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Site infringes upon any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below.
|Name of designated Agent:||Crose Law – Attn Brad Crose|
|Address:||112 NORTHBROOKE TRACEWOODSTOCK, GEORGIA 30188|
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for all damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user’s email address in our records or by written communication sent by first-class mail to a user’s address in our records.
“SleepBuddy,” the SleepBuddy logo and other SleepBuddy product or service names, logos or slogans that may appear on this Site are trademarks or registered trademarks of SleepBuddy or its subsidiaries in the United States and other countries and may not be copied, imitated or used, in whole or in part, without the prior written permission of SleepBuddy or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “SleepBuddy” or any other name, trademark or product or service name of SleepBuddy without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of SleepBuddy and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by SleepBuddy.
If you believe that anything on the Site infringes upon any trademarks which you own or control, you may file a notification of such infringement with our designated agent as set forth in Section 4. A proper notification should contain the same elements required for copyright complaints (please see 17 U.S.C. §512(c)(3)).
You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray SleepBuddy or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a SleepBuddy logo or other proprietary graphic of SleepBuddy to link to this Site without the express written permission of SleepBuddy. Further, you may not use, frame or utilize framing techniques to enclose any SleepBuddy trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without SleepBuddy’s express written consent.
SleepBuddy makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Site, or websites linking to the Site. Such sites are not under the control of SleepBuddy and SleepBuddy is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. SleepBuddy provides these links to you only as a convenience and the inclusion of any link does not imply affiliation, endorsement or adoption by SleepBuddy of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
7. User Content and Interactive Features or Areas
The Site may include discussion forums, blogs, profiles, product reviews or other interactive features or areas, including SleepBuddy’s Online Community (collectively, “Interactive Areas”), in which you or other users create, post, transmit or store any content, such as text, music, sound, photos, video, graphics or code on the Site (“User Content”). User Content is publicly-viewable and includes your profile information and any content you post pursuant to your profile, but it does not include your SleepBuddy.com account information (also known as “Your SleepBuddy Online Account” or “Your Account”) or information you submit in order to make a purchase. You agree that you are solely responsible for your User Content and for your use of such Interactive Areas, and that you use the Interactive Areas at your own risk.
By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish or send through the Site any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or that would otherwise create liability or violate any local, state, national or international law;
- User Content that displays, describes or encourages usage of any product we sell in a manner that could be offensive, inappropriate or harmful to SleepBuddy or any user or consumer or that is contrary to any instructions or warnings relating to the product (safety concerns can be reported here);
- User Content that may impinge upon the publicity, privacy or data protection rights of others, including pictures or information about another individual where you have not obtained such individual’s consent;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Viruses, malware of any kind, corrupted data or other harmful, disruptive or destructive files or code; and
- User Content that, in the sole judgment of SleepBuddy, restricts or inhibits any other person from using or enjoying the Site or which may expose SleepBuddy or its users to any harm or liability of any type.
SleepBuddy takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party or for any loss or damage thereto, nor is SleepBuddy liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. If you become aware of User Content that violates these Terms (with the exception of copyright and trademark infringement which is addressed in Sections 4 and 5), you may report it by clicking on the “Flag as Inappropriate” link. Enforcement of the Terms, however, is solely in our discretion and the absence of enforcement of these Terms in some instances does not constitute a waiver of our right to enforce the Terms in other instances. In addition, these Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Site will not contain any content that is prohibited by such Terms. Although SleepBuddy has no obligation to screen, edit or monitor any of the User Content posted on the Site, SleepBuddy reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies and replacing any User Content you post or store on the Site at your sole cost and expense.
8. Rights in User Content and Submissions
Except as otherwise provided herein, on the Site or in a separate agreement (such as the rules of a SleepBuddy photo contest), SleepBuddy claims no ownership or control over any User Content. However, by submitting or posting User Content on the Site, you grant SleepBuddy and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content on the Site and on third-party sites. We will contact you directly to obtain permission before we use your User Content for our own commercial purposes, unless you expressly grant these rights to SleepBuddy at the time you upload your content. If you choose to remove your User Content, the license granted above will automatically expire; however, you acknowledge that there may be exceptions (for example, you cannot delete a vote you submitted that has already been counted or your purchase history). In addition, we may retain archived copies of your User Content and cached copies of your User Content may still be available for some period of time.
By posting User Content to the Site, you represent and warrant that (a) such User Content is non-confidential; (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post and use such User Content to the Site and to grant the rights to SleepBuddy that you grant in these Terms; (c) the User Content is accurate and not misleading or harmful in any manner; (d) the User Content, and your use and posting thereof in connection with this Site, do not and will not violate these Terms or any applicable law, rule or regulation.
Notwithstanding the foregoing, you acknowledge and agree that any questions, comments, suggestions, reviews, ideas, plans, notes, drawings, original or creative materials or other information or materials regarding the Site, SleepBuddy or SleepBuddy’s products or services that are provided by you, whether by email, posting to the Site or otherwise (“Submissions”), are non-confidential and become the sole property of SleepBuddy. SleepBuddy owns exclusive rights, including all intellectual property rights, and is entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Do not send us a Submission if you expect to be paid or want to continue to own or claim rights in them; your idea might be great, but we may have already had the same or a similar idea and we do not want disputes.
9. Product Reviews
10. User Conduct
You agree that you will not violate any law, contract or intellectual property or other third party right or commit a tort. You also agree not to:
- Use the Site in any unlawful manner or in any manner that could damage, disable, overburden or impair the Site;
- Send unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters and pyramid schemes, or harvest or collect email addresses or other contact information of other users from the Site for the purposes of sending spam;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract data;
- Reverse engineer any aspect of the Site or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Site (except as otherwise expressly permitted by law);
- Solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
- Use or attempt to use another’s account without authorization from SleepBuddy;
- Attempt to circumvent any content filtering techniques we employ or access any service or area of the Site that you are not authorized to access;
- Engage in any harassing, intimidating, predatory or stalking conduct;
- Develop any third-party applications that interact with User Content and our Site; or
- “Frame” our Site or otherwise make it look like you have a relationship to us or that we have endorsed you for any purpose.
SleepBuddy is not responsible or liable for the conduct of, or your interactions with, users of the Site (whether online or offline), nor is SleepBuddy responsible or liable for any associated loss, damage, injury or harm. Although SleepBuddy has no obligation to monitor any user conduct on the Site, SleepBuddy reserves the right and has absolute discretion to monitor any user conduct on the Site at any time and for any reason without notice. SleepBuddy does not approve or endorse any user-posted meetings or events referenced on the Site and SleepBuddy recommends exercising caution before contacting or meeting anyone (online or offline) that is unfamiliar to you.
11. No Third-Party Beneficiaries
These Terms are for the benefit of, and will be enforceable by, the parties only. These Terms are not intended to confer any right or benefit on any third party or to create any obligations or liability of a party to any such third party.
You agree to defend and indemnify SleepBuddy, its subsidiaries, affiliates, officers, agents, partners, members, employees, independent contractors, service providers and consultants, and their respective directors, employees and agents, against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) your use of the Site; (b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Site; (c) any Submissions you provide; (d) your violation of these Terms; (e) your violation of any rights of another; or (f) your conduct in connection with the Site. Some jurisdictions limit consumer indemnities, so some or all of the indemnity provision above may not apply to you.
Except as expressly provided, the Site, Site Content, User Content and services provided on or in connection with the Site (collectively, “Complete Site”) are provided on an “AS IS” and “WITH ALL FAULTS” basis without representations, warranties or conditions of any kind, either express or implied. SLEEPBUDDY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, DUTIES OR CONDITIONS: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, TITLE, NON-INFRINGEMENT, PRIVACY OR SECURITY; AND (B) CREATED BY TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. SleepBuddy does not represent or warrant that the Complete Site is accurate, complete, reliable, current or error-free. SleepBuddy does not represent or warrant that the Site or its servers are free of viruses or other harmful components.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
14. Limitation of Liability
IN NO EVENT ARE SLEEPBUDDY, ITS DIRECTORS, EMPLOYEES OR AGENTS LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED TO THE USE OF, OR INABILITY TO USE, THE COMPLETE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY THE USER ON ANY INFORMATION OBTAINED FROM SLEEPBUDDY, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SLEEPBUDDY’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT MAY THE AGGREGATE LIABILITY OF SLEEPBUDDY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO SLEEPBUDDY FOR ACCESS TO OR USE OF THE COMPLETE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
15. Modifications to Site
SleepBuddy reserves the right to modify or discontinue, temporarily or permanently, the Site or any features or portions thereof without prior notice. You agree that SleepBuddy will not be liable for any modification, suspension or discontinuance of the Site or any part thereof.
16. Applicable Law and Venue
These Terms and your use of the Site will be governed by and construed in accordance with the laws of the State of Georgia, applicable to agreements made and to be entirely performed within the State of Georgia, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms must be filed only in the state or federal courts of the United States located in the Northern District of Georgia, and you irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
Either we or you may end this agreement with or without cause or prior notice. Notwithstanding any of these Terms, SleepBuddy reserves the right, without notice and in its sole discretion, to terminate your right to use the Site or any portion of the Site and to block or prevent your future access to and use of the Site or any portion of the Site.
Part Two – Terms for Users Making Purchases
PART TWO APPLIES IN ADDITION TO PART ONE IF YOU PURCHASE A PRODUCT OR SERVICE THROUGH THE SITE.
18. Pricing and Availability
All prices are shown in U.S. dollars; taxes, shipping and handling charges are additional. All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order. All prices are subject to change without notice and you agree that taxes may be adjusted from the amount shown on the billing screens. Several factors may cause this, such as variances between processor programs and changes in tax rates
We attempt to be as accurate as possible and eliminate errors on the Site; however, we do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on the Site, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. Your sole remedy in the event of such error is to cancel your order and obtain a refund.
20. Out-of-Stock Items; Backorders
If the color or size you want is not listed in the “Choose Your Color/Size” drop-down box on the Product Information page, it is not then available for ordering. Please check back later. If the color or size you want has an asterisk next to it in the drop-down box, it is on backorder. Sometimes we will not know in advance that product is unavailable, so when you place items in your Shopping Cart you will be asked if you would like to backorder them. If you indicate yes, the item will be sent to you once it becomes available. Note that some items may be backordered or unavailable even if the Site indicates that they are in-stock, and adding an item to your cart does not guarantee the availability of that item. We will not charge your payment card until the item ships to the designated delivery address. If the backordered item is no longer available, we will cancel the item from your order and notify you, usually via e-mail. If you have items on backorder that you would like to cancel, please contact us.
You agree that any oral conversations may be recorded.
22. Shipping & Handling; No Export by You
When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Site when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges before placing an order or signing up for a service. Generally, shipping is by standard ground delivery. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Site are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of product for export.
23. Payment; Credit for Refunds
Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our discretion, other method. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Site) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. Regarding “Your Account,” you agree to keep all payment cards or other payment method information current and that we may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem we encounter in order to proceed with your order.
24. Return and Exchanges
SleepBuddy has a 100% Satisfaction Guarantee (see Returns). You may return or exchange it by mail subject to any contrary terms imposed on your purchase (e.g., some of our “close out” items say “no return” or the like) and provided that you follow the instructions on the Site. General returns information and instructions can be found at http://sleepbuddy.com/sleepbuddy-returns/.
Returns may make you ineligible for promotions and we reserve the right to require identification, proof of purchase, or additional verifiable information to help SleepBuddy locate the purchase in our records. If a gift certificate or card, voucher, coupon or payment mechanism other than a credit or debit card was used to pay the original price, or if the purchase was part of a special offer that is not in effect when the return is made, we may give you a merchandise credit. After we have received your valid return, we will provide one of the following within a reasonable time: an exchange of merchandise for the item returned, a non-transferable merchandise credit, a non-transferable gift certificate or gift card, a credit to the payment card used to pay for the product, a check, or another remedy that we determine in good faith is appropriate in the circumstances. If you do not comply with any of the above conditions, we reserve the right to refuse the return or exchange, or to impose different or additional conditions, including (without limitation) basing our response on the current sales price.
If you believe a product sold by SleepBuddy has a condition or defect that might make it unsafe, please report this safety concern immediately by clicking here or calling 404-884-8582.
25. Complaints and Legal Notices
All complaints and legal notices should be mailed to SleepBuddy, P.O Box 723812, Atlanta, GA 31139. If a law requires us to accept legal notices via email, call 404-884-8582 to ask for the address intended for receipt of such notices. If you are a California resident, the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or (800) 952-5210.
SleepBuddy warrants that each Product will conform to the specifications provided by from time to time. SleepBuddy’s warranty of a Product is of no effect if (i) the defect is caused by incorrect installation, improper storage or by alterations undertaken without SleepBuddy’s consent; (ii) the defect of the Product has not been reported to SleepBuddy within 90 days after your receipt of the Product, or (iii) the defect resulted from damages occurring after delivery of the Product. THIS IS THE ONLY GUARANTEE OR WARRANTY YOU GET FROM SLEEPBUDDY RELATING TO THE PRODUCTS AND SERVICES YOU PURCHASE OR RECEIVE FROM SLEEPBUDDY. SLEEPBUDDY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER IN WRITING, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS OTHERWISE COVERED BY THE “100% SATISFACTION GUARANTEE”, PRODUCTS AND SERVICES PROVIDED BY SLEEPBUDDY ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND BY SLEEPBUDDY. Manufacturers of non-SleepBuddy branded products may provide other warranties, and you agree that you will look solely to the warranty(s), if any, provided by those manufacturers. Warranties give you specific legal rights, and you may have other rights, which vary from state to state. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OR ALL OF THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
27. Exclusivity of Remedy; Limitation of Liability
YOUR SOLE AND EXCLUSIVE REMEDY, AND SLEEPBUDDY’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY BREACH OF WARRANTY SHALL BE YOUR RIGHT TO RETURN THE PRODUCT OR RECEIVE A REFUND FOR THE SERVICE UNDER THE SLEEPBUDDY RETURNS AND EXCHANGE POLICY. IN NO EVENT IS SLEEPBUDDY LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL THE AGGREGATE LIABILITY OF SLEEPBUDDY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
SleepBuddy may deliver notice to you under these Terms by means of electronic mail, facsimile, a general notice on the Site or by written communication delivered by first class US mail or overnight courier to your address on record in the Site’s account information. You may give notice to us at any time via electronic mail, or facsimile to SleepBuddy or by letter delivered by first class postage prepaid US mail or overnight courier to the following address:
P.O. Box 723812
Atlanta, GA 31139
29. Miscellaneous Terms
If any provision of these Terms is unlawful, void, or for any reason unenforceable, then that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
This Agreement may be modified only by our posting of changes to them on the Website, or by written agreement of you and SleepBuddy. Each time you access the Website, you will be deemed to have accepted all such changes.
We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns and licensees.
The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in any other instance; rather, the same will be and remain in full force and effect.
(Last modified on August 31, 2011)