This BreatheIQ User Agreement (“Agreement”) constitute a legally binding agreement between you (“User,” “You,” or “Your”) and Sleep Number Health Corporation (“Sleep Number Health,” “We,” “Us,” and “Our”).  The Agreement governs Your access and use of the BreatheIQ mobile application, any related web presence(s), updates, documentation, and all content, products, and services (“Services”) provided or viewed by or through any of the foregoing (collectively, the “Application”).  It includes important information about Your legal rights, and covers areas such as subscription plans, automatic subscription renewals, warranty disclaimers, limitations of liability, dispute resolution, and a class action waiver.  The Application is being provided to You subject to all of the terms and conditions of this Agreement and Our Privacy Policy, which may be found here.  If You also have a Sleep Number smart bed there is a separate User Agreement that governs Your use of the  Sleep Number smart bed system including your use of the Sleep Number app, which may be found here.  Without limiting the foregoing, We and Our licensors retain all rights, title, and interests in and to the Application. 

 

THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A REQUIREMENT THAT MOST DISPUTES BETWEEN YOU AND US MUST BE RESOLVED IN BINDING ARBITRATION, AND NOT IN COURT.  THERE IS NO JUDGE OR JURY IN ARBITRATION AND DISCOVERY AND APPELLATE RIGHTS ARE MORE LIMITED THAN IN COURT.  YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THIS ARBITRATION REQUIREMENT.  SEE THE “ARBITRATION/CLASS ACTION WAIVER” SECTION BELOW FOR DETAILS.

 

BY CLICKING THE “ACCEPT AND CONTINUE” BUTTON OR BY ACCESSING OR USING THE APPLICATION OR ANY SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE REVIEWED, UNDERSTAND, AND AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT (OR IF YOU ARE YOUNGER THAN 18 YEARS OF AGE), CLICK THE “DECLINE” BUTTON AND DO NOT FURTHER ACCESS OR USE THIS APPLICATION OR ANY SERVICES.

 

BY CLICKING THE “ACCEPT AND CONTINUE” BUTTON OR BY ACCESSING OR USING THE APPLICATION OR ANY SERVICES, YOU FURTHER INDICATE THAT YOU INTEND THAT ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE USE OF A MANUAL SIGNATURE, AND IF YOU ARE ACCESSING OR USING THE APPLICATION OR ANY SERVICES IN YOUR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF A BUSINESS ENTITY, YOU WARRANT THAT YOU HAVE ALL NECESSARY APPROVALS AND CONSENTS TO ENTER THIS AGREEMENT, AND IF YOU ARE ACCESSING OR USING THE APPLICATION OR ANY SERVICES ON BEHALF OF A BUSINESS ENTITY, YOU FURTHER WARRANT THAT YOU HAVE ACTUAL AUTHORITY TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT.

 

1. General

Your Responsibilities.  You are solely responsible for Your selection and use of the Application

for Your purposes, including all of its features and functionality and any; consequences of or

associated with any of the foregoing.

 

Registration.  To use the full features and functionality offered by the Application and Services, You must first register with Us and create an account (“Account”).  If You create an Account using Your Sleep Number app login, we will use Your profile information from the Sleep Number app to create this Account and  to complete Your registration for the Application. You must be 18 years of age or older to use the Application and Services and You must be 22 years of age or older to use the BreatheIQ+^™ portion of the Application and Services.   You agree to provide Us with accurate, complete, and at all times up-to-date information for Your Account.  We may need to use this information to contact You and You hereby authorize Us to do so for any reason.

 

Safeguards.  Please safeguard Your Account and make sure others do not have access to Your Account or passwords and other authentication credentials (collectively, “passwords”).  You are solely responsible for any activity on Your Account and for maintaining the confidentiality and security of Your passwords.  We are not liable for any acts or omissions by You or anyone else in connection with Your Account.  You must immediately notify Us if You know or have any reason to suspect that Your Account or passwords have been stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of Your Account.

 

No Medical Advice.  THE APPLICATION AND ALL RELATED CONTENT, INFORMATION, RESULTS, AND MATERIALS, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND UNDER NO CIRCUMSTANCES SHOULD YOU CONSTRUE SUCH INFORMATION AS MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. THE APPLICATION IS NOT INTENDED TO DIAGNOSE, CURE, MITIGATE, TREAT OR PREVENT ANY DISEASE. YOU SHOULD NOT RELY ON THE APPLICATION OR ANY RELATED CONTENT, INFORMATION, RESULTS, OR MATERIALS AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.  IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE APPLICATION, OR RELATED INFORMATION, RESULTS, OR MATERIALS, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL.  WITHOUT LIMITING THE FOREGOING, DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL OR HEALTH-RELATED ADVICE OR TREATMENT FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF ANYTHING YOU MAY HAVE READ OR THAT WAS PROVIDED THROUGH THE APPLICATION, THE SERVICES, OR ANY RELATED INFORMATION, RESULTS, OR MATERIALS.  THE SELECTION AND USE OF ANY INFORMATION PROVIDED VIA THE APPLICATION OR SERVICES IS SOLELY AT YOUR OWN RISK.

 

2. Your Content and License to Sleep Number Health.

The Application may allow You to submit to Us, or otherwise make accessible to Us information, data, content (e.g., audio), text, comments, or other materials (“Your Content”).  You are solely responsible for Your Content.

 

You hereby freely and irrevocably grant to Sleep Number Health, Our affiliates, and Our and their successors or assigns, a non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, unlimited, worldwide right and license to, directly or indirectly, make, have made, copy, modify, create derivative works of, publicly display, perform, publish, use, and otherwise distribute and/or utilize Your Content, and for Sleep Number Health to authorize others to do any of the foregoing via a sublicense, subject only to the express limitations in this Agreement and in the Privacy Policy.  You represent and warrant that You own Your Content or that You have all the necessary rights and permissions to grant us a license to use Your Content as described in this Agreement.

 

Without limiting the foregoing, You acknowledge and agree that Sleep Number Health reserves the right, but undertakes no obligations, to modify, delete or remove, Your Content, in whole or in part, in Our sole discretion, including without limitation, for any violation of the restrictions License, discussed in Section 2 above.  Any feedback, comments, proposed improvements or modifications, or other suggestions You may provide regarding the Application is entirely voluntary and Sleep Number Health will be free to access, copy, use and otherwise exploit any such feedback, proposed improvements or modifications, comments, or suggestions as it sees fit without any obligation or additional permission from, or consideration to, You.

 

3.  Use and Restrictions

Intellectual Property.  All text, videos, audio, data, articles, images, illustrations, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, artwork, and computer code, including without limitation the design, structure, “look and feel,” and arrangement of the content available on the Application, or otherwise generated by the Application is owned, controlled, or licensed by or to Us, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

 

License to Use.  The Application and Services are licensed, not sold.  The Application, Services, and all related intellectual property, are solely and exclusively owned by Us and/or Our licensors and suppliers.  Subject to Your continued compliance with all of the terms of this Agreement, We grant You a personal, limited, non-exclusive, non-transferable, revocable license (the “License”) to access, download, display, install, and use the Application and Services available through the Application on a personal computing device or mobile phone that You own or control (a “Device”) strictly in accordance with this Agreement.  Without limiting the foregoing, this License does not allow You to use the Application on any device that You do not own or control, or to use the Application or receive any Services except as expressly permitted in this Agreement.

 

Restrictions.  You will not, and You will not permit or assist any other person or entity to:

 

1. copy, reproduce, republish, post, publicly display, translate, or distribute the Application or related content or documentation, in whole or in part, except as specifically authorized by the features and functions of the Application;
2. modify, translate, adapt, or otherwise create derivative works of or improvements on the Application;
3. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application;
4. transmit, access, or communicate any data or material that infringes any patent, trademark, trade secret, copyright, publicity right, privacy right, or other proprietary right of Ours or any other person;
5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or any features or functionality of the Application, including without limitation any content, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
6. reverse engineer, decompile, disassemble, decode, or otherwise attempt to derive or gain access to all or any part of the source code of the Application and/or any content available through the Application;
7. impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity;
8. defame, abuse, harass, stalk, intimidate, bully, threaten, or otherwise violate the rights of others, including without limitation the rights of publicity or privacy of others;
9. send, allow access to, or otherwise provide to anyone any obscene, pornographic, or other age-inappropriate content or materials;
10. forge headers or otherwise manipulate or modify identifiers in order to disguise the origin of any transmissions;
11. “frame” or “mirror” any portion of the Application or Services;
12. transmit, access, view, or communicate any data that You do not have a right to transmit;
13. interfere with or disrupt any other person’s rightful use of the Application, including unauthorized access or use of another user’s account;
14. violate local, state, national, or international law, rules, regulations, executive orders, or policies relating to the use of the Application;
15. knowingly transmit, access, or communicate any data that contains software viruses or any other malicious computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
16. probe, scan, or test the vulnerability of the Application;
17. breach the security or authentication measures on the Application;
18. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Application, such as a distributed denial-of-service (DDoS) attack;
19. monitor traffic or make search requests in order to accumulate information about individual users of the Application.

 

Sleep Number Health reserves the rights, but undertakes no obligation, to remove any content, including Your Content, Services, Third Party Materials (defined below), or other materials provided or viewed by or through the Application, in Sleep Number Health’s sole discretion and without notice to You.

 

 

4. Collection and Use of Your Personal Information.

Through Your use of the Application and the Services we will collect certain types of information that identifies you or is linkable to you (“Personal Information”). Our collection and use of Your Personal Information is governed and limited by our Privacy Policy, found at www.sleepnumber.com/privacy-policy (“our Privacy Policy"), and Your privacy rights which are detailed in our Privacy Policy. Other than the limited circumstances described in our Privacy Policy , we do not share Your Personal Information with any third party. The terms of our Privacy Policy are incorporated into this Agreement by reference, and You are responsible for reading and understanding them.  Our Privacy Policy may be updated from time-to-time at the foregoing link, which is also available through the app.  If there is any conflict between the terms of this Agreement and our Privacy Policy regarding Your Personal Information, the terms of our Privacy Policy will control.

 

5. Geographic Restrictions.

The Application is intended for use by persons only while located within the United States of America, its territories, and possessions (collectively, the “United States”).  The Application may not comply with the laws of other countries or jurisdictions.  If You access or use the Application while outside the United States, You are solely responsible for complying with all applicable local laws.

6. Updates.

We may, but undertake no obligations to, at any time add, remove, change, or modify features and/or functionality of the Application, including without limitation, certain content and/or any Services, through the use of bug fixes, patches, and other updates (the “Updates”), with no notice to You.  Based on Your Device settings, for any such Updates when Your Device is connected to the internet either: (a) the Application will automatically download and install all available Updates; or (b) You may receive notice of or be prompted to download and install available Updates.  If You do not promptly download and install all Updates, the Application and Services may not operate properly.

7.  Third Party Sites, Services, and Materials.

The Application may display, include, or otherwise make available third-party content (including without limitation, property, images, data, information, applications, and other products, services, and/or materials), or provide links to third-party websites and services (“Third Party Materials”).  We are not responsible for any Third Party Materials or their sources, including without limitation, their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect.  We do not assume and will not otherwise have any liability or responsibility to You or to any other person or entity for any Third Party Materials.  Third Party Materials and any links to Third Party Materials are provided solely as a convenience and courtesy to You and You access and use them at entirely Your own risk and subject to the third parties’ applicable policies, terms, and conditions.

 

Third Party Materials accessible through the Application may include links to the third-party websites of healthcare services and providers (collectively “Healthcare Services”). Sleep Number Health does not recommend or endorse any Healthcare Services that are accessible through the Application, and any opinion, medical advice, diagnosis, or treatment provided to You by the Healthcare Services comes from the Healthcare Services alone and not from Sleep Number Health.

 

You may be provided with various third party services and applications (collectively, “Third Party Services”) via the Application that may make their content, products, or services available to You.  Examples of Third Party Services include e-commerce payment processors and other integration partners and service providers.  These Third Party Services may have their own policies, terms, and conditions, and Your use of them will be governed by those policies, terms, and conditions.  Any information that a Third Party Service collects, stores, and processes from You will be subject to such Third Party’s terms of service, privacy notice, or similar terms, and will not be subject to Our Privacy Policy.  Therefore, please evaluate and ensure You trust each Third Party Service prior to interacting with or providing any information to such Third Party Service.  Each Third Party Service is solely responsible for providing all support, maintenance, and technical assistance to You with respect to their products and services.  When using Third Party Services, Your security is entirely Your responsibility.  We do not control Third Party Services, and are not and will not be liable for Third Party Services or for any transaction You may enter into with them, or for what they do.  We may receive compensation from Third Party Services that We recommend to You or that You otherwise engage via the Application or Services.  You agree that we may, at any time and in Our sole discretion, and without any notice to You, suspend, disable access to, or remove any Third Party Services.  We are not and will not be liable for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, date, goodwill, or other intangible losses, or business disruption, costs, or expenses You may incur or otherwise experience as a result (except where prohibited by applicable law).

 

8. Paid Services.

Paid Services.  You can access certain additional portions and features of the Application by upgrading to BreatheIQ+ and selecting Your plan and associated payment (such features and services, “Paid Services”).  More details about the Paid Services, including the term and associated fees, are available in the Application.  

 

Termination or Cancellation.  Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement.  If You do not make timely payments for the Paid Services, We reserve the right to suspend or cancel Your Account and/or Your access to the Paid Services.

 

You may cancel or change Your Paid Services plan at any time through the Application. Your cancellation will take effect at the end of Your current  plan term.  You will not receive a refund for the plan that You have already purchased, but You will have access to the Paid Services for the remainder of the term. 

 

Transaction fees and additional fees may also apply to certain portions of the Paid Services.  Please note that different Paid Services plans have different fees.

 

Payment Processor.  We may use third party payment processors (each, a “Payment Processor”) to bill You through a payment account linked to Your Account.  The processing of payments will be subject to the policies, terms, and conditions of the Payment Processor, in addition to this Agreement.  You agree to pay Us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms.  You agree to make payment using the payment method You provide with Your Account.  We reserve the right to correct, or to instruct Our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.

 

Taxes.  All fees are exclusive of applicable national, state, local, or other taxes (“Taxes”), unless explicitly stated otherwise.  You are and will remain responsible for all applicable Taxes, and We will charge Taxes in addition to the fees for the Paid Services when required to do so.  If You are exempt from certain Taxes, You must provide our Payment Processor with valid tax exemption documentation.  Our Payment Processor reserves the right to determine if the documentation provided is valid.  Application of Tax exemption will only apply from and after the date such valid documentation is received.

 

Automatic Plan Renewals.  To ensure uninterrupted access to the Paid Services We will automatically bill You for Your then-current plan for Paid Services from the date You select Your plan and periodically (for example, monthly, quarterly, or annually thereafter, depending on the plan) until cancellation or You change Your plan.  You will automatically be charged the applicable amount through our Payment Processor.  By accepting this Agreement, You authorize Us to do this.

 

Fee Changes.  We may change Our fees for any Paid Service, or any features or parts of Paid Services at any time.  New fees will not apply retroactively.  If You do not agree to the change in fees, You may cancel or change subscription plans of the applicable Paid Service before Your next payment date. 

 

9.Term and Termination.

The License described in Section 2 above only begins when You download the Application and indicate Your agreement to the terms of this Agreement, and will continue until it has terminated as follows:

 

1. the License will terminate immediately and automatically without any notice if You terminate this Agreement or otherwise attempt to or revoke Your agreement to same;
2. We may terminate the License at any time without notice to You, for any reason or for no reason, in Our sole discretion; or
3. You may terminate the License at any time by uninstalling and making no further use of the Application, provided that the terms of this Agreement shall still apply to Your use of the Application that occurred prior to Your termination of access or use, including for payment of Our fees associated with the Paid Services.

Upon termination of the License for any reason Your right to use the Application shall cease and You agree to immediately stop accessing or otherwise using the Application and will erase the Application from Your Device.

 

The other provisions of this Agreement will continue in full force and effect after termination of the License.  Without limiting the foregoing, termination of the License will not limit Our rights or remedies at law or in equity or release You from any claim for breach of the License, liability or other provision of this Agreement that arose before the termination of the License (or which extend beyond the term of the License).

 

10. Copyright Complaints.

We own, protect, and enforce copyright and other rights in Our own intellectual property, and respect the intellectual property rights of others.  We will respond to alleged copyright infringement in accordance with the Digital Millenium Copyright Act (“DMCA”).  Under the DMCA, a copyright owner may give notification to an online service provider of an alleged copyright infringement.  During this process, the service provider responds by taking down the alleged infringing content, and takes reasonable steps to contact the owner of the removed content so that a counter-notification may be filed.  If a valid counter-notification is filed, We typically will restore the content in question, unless We receive notice from the notification provider that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.  We may provide copies of such notices to the affected parties or to any other third parties, at Our discretion and as required by law. 

When notifying Us of potential infringement, You must include the following:

1. identification of the copyrighted work(s) claimed to have been infringed. If multiple copyrighted works, then a representative list of such works on the Application or Services;
2. identification of the supposedly infringing material that is to be removed;
3. information reasonably sufficient to permit Us to locate the material on the Application or Services;
4. contact information reasonably sufficient to permit Us to contact the complaining party, such as an address, telephone number, or email address;
5. a statement that the complaining party has a good faith belief that use of the material is in fact infringing and/or not authorized by the copyright owner, its agent, or the law;
6. a statement that, under penalty of perjury, the information in the notification is accurate and where relevant that the complaining party is authorized to act on behalf of the copyright owner; and
7. the signature, physical or electronic, of the copyright owner or a person authorized to act on his or her behalf.
   
   

A provider of content subject to a claim of infringement may make a counter notification.  To file a counter notification with Us, please provide the DMCA Agent a written communication containing the following:

1. identification of the supposedly infringing material that is to be removed;
2. a statement that, under penalty of perjury, You have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
3. Your name, address, and telephone number, and a statement that You consent to the jurisdiction of the Federal District Court for the judicial district in which Your postal address is located, and that You will accept service of process from the party who submitted the infringement notification or his, her, or its principal or agent; and
4. the signature, physical or electronic, of You or a person authorized to act on Your behalf.

           Notice of alleged infringement must be delivered to Our Designated DMCA Agent:

Legal Department
Sleep Number Corporation
1001 Third Avenue South
Minneapolis, MN 55404
Phone: 763.551.7000
Email: Legal@sleepnumber.com

Before filing such a notification, make a careful determination as to whether or not the use of the material at issue is or may be protected by the “fair use” doctrine. You could potentially be held liable for costs and attorneys’ fees should You file a takedown notice where there is no infringing use. If You are unsure whether there is infringement, it may be advisable to seek Your own legal counsel.

11. Provisions Relating to Apple.

The following provisions apply if You are accessing or using the Application on an Apple Inc. (“Apple”) branded mobile device. This Agreement is between You and Sleep Number Health only and not Apple. Sleep Number Health and You acknowledge that, Sleep Number Health, not Apple, is responsible for: (1) the Application and content of the Application; (2) providing maintenance or support services for the Application; (3) any product warranties, whether express or implied by law, or other warranty obligations (except as set forth below); (4) any claims, including product liability claims, losses, liabilities, damages, cost, or expenses attributable to any failure of the Application to conform to any warranty or failure to conform to any applicable legal or regulatory requirement, or arising out of consumer protection or other similar legislation; and (5) the investigation, defense, settlement and discharge of any intellectual property claim brought by a third party against You or Us. In the event of any failure of the Application to conform to any applicable warranty, You may notify Apple and Apple will refund the purchase price for the App to You, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the App.

 

By agreeing to these terms relating to Apple, You acknowledge and agree that You are only using the Application on an Apple device that You own or control, and You are using it as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions. You further acknowledge and agree that Apple, and its subsidiaries, will have the right (and will be deemed to have accepted the right) to enforce these terms as a third party beneficiary thereof. You represent and warrant to Apple that (i) You are not located in a country that is subject to a U.S. Government embargo or that is designated as a “terrorist supporting country”; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with all applicable third party terms of services when using the Application.

12. No Warranty.

THE APPLICATION AND ANY RELATED CONTENT OR MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND FOR INFORMATION PURPOSES ONLY.  SLEEP NUMBER HEALTH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE SAME, INCLUDING, WITH RESPECT TO THE APPLICATION, THAT THE APPLICATION WILL BE COMPATIBLE OR OTHERWISE WORK WITH ANY DEVICE OR ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OR IS FIT FOR A PARTICULAR PURPOSE, AND WITH RESPECT TO THE INFORMATION CONTENT, INCLUDING THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, AND WITH RESPECT TO THE APPLICATION, THE SERVICES, AND ANY RELATED CONTENT, INFORMATION, RESULT OR MATERIALS, THAT ANY OF THE FOREGOING CONSTITUTES MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR AS A SUBSTITUTE FOR CONSULTATION WITH QUALIFIED HEALTH PROFESSIONALS FOR ANY MEDICAL NEEDS.  SLEEP NUMBER HEALTH, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS THE WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, COURSE OF DEALING, AND USAGE IN THE TRADE.  THESE DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.  SLEEP NUMBER HEALTH CANNOT AND DOES NOT WARRANT THE APPLICATION AND RELATED SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS.

13. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SLEEP NUMBER HEALTH, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND/OR DIRECTORS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR: (i) ANY LOST PROFITS, LOSS OF USE, COST OF CURE, DIMINUTION OF VALUE, LOSS OF DATA, OR FOR ANY DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF OR INABILITY TO USE THE APPLICATION, YOUR PURCHASE OF GOODS OR SERVICES IN CONNECTION WITH THE APPLICATION, OR ANY RELATED INFORMATION, CONTENT OR MATERIALS, INCLUDING YOUR CONTENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF THOSE DAMAGES WERE FORESEEABLE AND EVEN IF SLEEP NUMBER HEALTH WAS ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; OR (ii) MONEY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO YOUR USE OR MISUSE OF OR INABILITY OT USE THE APPLICATION, OR ANY RELATED INFORMATION, CONTENT OR MATERIALS, IN A TOTAL AMOUNT GREATER THAN $10.00 IN THE AGGREGATE.

14. Choice of Law.

This Agreement will be interpreted under, and any dispute arising out of this Agreement or the Application will be governed by, the laws of the State of Minnesota, without reference to its or any conflict of laws principles.

15. Arbitration/Class Action Waiver

Please review this section carefully.  It provides that most “Disputes” between Us must be resolved in binding, individual arbitration, and not in court.  Arbitration replaces the right to go to court and the right to have a judge or jury decide a dispute, and discovery procedures and appellate rights are more limited in arbitration than in court.  “Individual” means that the arbitrator may award the same remedies to You as a court could, but to the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person other than You or Us as part of the resolution of any Dispute.  “Binding” means that both You and We will have to accept and follow the arbitrator’s decision, except to the limited extent appeals to a court are permitted under applicable law.  The award entered by the arbitrator may be confirmed or enforced in any court having jurisdiction.

The term “Disputes” that must be arbitrated means any dispute, claim, or controversy—excluding only those exceptions listed below—between You and Us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either of us seeks legal recourse.  This includes Disputes that arose prior to Your entry into this Agreement.  The term Disputes also includes disputes regarding the validity, enforceability, or scope of this agreement to arbitrate or any portion of it.  In other words, if You believe this agreement is unenforceable against You for any reason or that a claim You are asserting should not be resolved in arbitration, the decision about this will be made by the arbitrator, not by a court, unless this Agreement expressly says otherwise.

The exceptions to arbitration are: (a) claims that can be brought as individual actions in small claims court; (b) pursuit of enforcement actions through a government agency, if the law allows; (c) an action to compel or uphold any prior arbitration decision; (d) Your or our right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (e) claims of intellectual property infringement or misappropriation; (f) claims that are the subject of a proposed class or collective action settlement in any court; (g) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis; and (h) certain roles expressly specified for courts in the terms below.

Time Limit to Pursue a Dispute.  To the fullest extent permitted by applicable law, You or We must start arbitration of a Dispute within two (2) years from when the Dispute first arose.  If applicable law requires You or Us to bring a claim for a Dispute sooner than two years after the Dispute first arose, the shorter deadline applies instead.  The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that to the fullest extent permitted by applicable law, You or We will not have the right to assert the Dispute.

Informal Resolution. If You have a Dispute against Us, or We have a Dispute against You, You and we will make a good-faith effort to negotiate a resolution any Dispute for at least 30 days (“Informal Resolution”) from the day You or we receive a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with these Terms.  The two-year time limit for asserting Disputes, as well as any applicable statutes of limitations, will be tolled from the date of receipt of a compliant Notice of Dispute.

You must send any Notice of Dispute to the following address: Sleep Number Health Corporation, ATTN Legal Department, 1001 Third Avenue South, Minneapolis, MN 55404 or by email to Legal@Sleepnumber.com. We will send any Notice of Dispute to You at Your registered email address and to the residential address You provided to Us.  The Notice of Dispute sent by either party must include the sender’s name, address, and other contact information, a description of the Dispute, and what resolution to the Dispute is being sought.

The Notice of Dispute requirement is designed to allow Us (or You, in the case of a Dispute we assert against You) to make a fair, fact-based offer of settlement if we or You choose to do so.  You and we cannot proceed to arbitration unless this information has been provided.  If You or We proceed to arbitration without providing what the other party believes in good faith to be a compliant Notice of Dispute, the other party may ask a state (or, if federal jurisdiction exists, a federal) court in Minneapolis, Minnesota to enjoin the filing of any arbitration demand that has not been preceded by a compliant Notice of Dispute and the Informal Resolution process.  You and We consent to the jurisdiction of the courts in Minneapolis, Minnesota, for this purpose.  The court may order a party that has filed an arbitration demand without having first provided a compliant Notice of Dispute and completed the Informal Resolution process to reimburse the other party for any arbitration fees and costs already incurred.

Small Claims Court.  You and We agree that notwithstanding the obligation to arbitrate Disputes, Disputes that qualify for small claims court in either the county where You live or in Minneapolis, Minnesota, may be brought as individual actions in such small claims courts.  We hope You will try Informal Resolution first, and You must do so before commencing an arbitration, but You do not have to complete the Informal Resolution process before going to small claims court.

Arbitration Procedure and Location.  Any arbitration under this Arbitration provision shall be administered by National Arbitration and Mediation (“NAM”), https://namadr.com, according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Dispute arises (the “Rules”), as modified by these Terms.  These Terms affect interstate commerce, and the enforceability of this section will be substantively and procedurally governed by the U.S. Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., and federal arbitration law.

The arbitration will be conducted by a single arbitrator selected pursuant to the Rules.  You and We both agree that the arbitration will be conducted in the English language.  The arbitrator will apply these Program Terms as a court would and will adjudicate any Disputes according to applicable law and fact based only upon the record before the arbitrator.

For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and You reside in the United States, the hearing will take place in Minneapolis, Minnesota, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence or in such other place the arbitrator deems to be mutually convenient for the arbitrator and parties.

Unless You and We agree otherwise, the arbitrator’s decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions. 

To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to You or us to satisfy one of our individual claims that the arbitrator determines are supported by credible relevant evidence. 

An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.

Arbitration Fees.  The party initiating an arbitration must pay the claimant’s share of NAM’s initial filing fee.  If You are a consumer as defined in the Rules, Your share of the filing fee is less than the cost of initiating a dispute in many courts.  Nevertheless, if Your dispute is a consumer dispute and the initiation fee poses a hardship for You, we will consider Your request that we pay the filing fee on Your behalf. All other payments will be as directed by the Rules, which impose most costs on the company in consumer disputes.  Either or both parties may elect to be represented by counsel in arbitration, but each party shall bear its own costs of attorneys, experts, and witness fees, subject to the prevailing party’s potential right to seek reimbursement of those fees if applicable law allows this. 

Special Rules for Coordinated Filings.  If 25 or more Disputes are initiated with the arbitrator that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Cases.” We will pay only the company’s share of arbitration fees for Coordinated Cases; the claimants will be responsible for their share of those fees as set by the Rules and NAM’s fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who have provided compliant Notices of Dispute beginning at the time of such notification, but demands for arbitration in Coordinated Cases shall only be filed with NAM as permitted by the bellwether process set forth below, and we may not be required to pay any fees associated with cases that this agreement does not allow to be filed.

Once counsel for Coordinated Cases have advised us that they have provided Notices of Dispute for all or nearly all claimants, counsel for claimants in the Coordinated Cases and our counsel shall confer in good faith regarding the number of cases that should proceed as bellwethers to allow each side to test the merits of its arguments, before the remainder of claims may be filed with the arbitration provider. Any number chosen must be an even number so as to allow each side to designate its half of the cases selected for bellwether trials. If counsel for claimants and our counsel do not agree on the number of bellwethers, the number shall be chosen by NAM as an administrative matter (or, in NAM’s discretion, by a process arbitrator). Factors that NAM may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various claims. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant notices of Dispute, and only those chosen claims may be filed with the arbitration provider. You agree that if Your case is not among the Coordinated Cases chosen to be filed against us, resolution of Your personal claim might be delayed by this bellwether process. Nothing in this paragraph shall be construed to delay the resolution of uncoordinated Disputes based on similar claims. 

A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process, unless the parties agree otherwise.

Once all bellwether trials have concluded (or sooner if the counsel for the claimants in the Coordinated Cases and our counsel agree), the parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding by engaging in a single mediation of all remaining cases. Each side shall pay half the applicable mediation fee. Counsel for claimants in the Coordinated Cases and for Company must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If our counsel and counsel for claimants in the Coordinated Cases cannot agree on a mediator within 30 days, NAM will appoint a mediator as an administrative matter. Our counsel and counsel for the claimants in the Coordinated Cases agree to cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution, then claimants in Coordinated Cases who notified us of their Disputes but whose claims were not resolved in bellwether proceedings shall no longer have the right to arbitrate their Disputes. Instead, outstanding claims from such cases may be filed only in the state courts in Minneapolis, Minnesota, or if federal jurisdiction exists, in the United States District Court for the District of Minnesota, Fourth Division (Minneapolis Division), and if the case is assigned to a division other than the Fourth Division, you consent to transfer to the Fourth Division.  You consent as part of this Agreement to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either You or us from removing a case from state to federal court if removal is allowed under applicable law. To the extent You are asserting the same claims as other persons and are represented by common or coordinated counsel, You agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who notified Us of their Disputes prior to the start of the bellwether process, and we reserve the right to contest class certification at any stage of the litigation and on any available basis.

If the parties to an arbitration disagree about whether cases are Coordinated Cases or regarding NAM’s compliance with the bellwether process, a court shall have authority to enforce the bellwether process.  This includes the authority to enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

Continuation in Effect.  The dispute resolution process set forth in this agreement survives the termination of any other agreement between You and Us.

Future Terms Changes.  Although we may revise these dispute resolution terms in our discretion, we do not have the right to alter this agreement to arbitrate, or the arbitration rules or procedures specified herein, with respect to any Dispute once You have notified us of that Dispute, if such change would make arbitration procedures materially less favorable to You as the claimant.  The question of whether a change to arbitration rules or procedures is materially less favorable to a claimant shall be decided by NAM as a process matter.

Your Time-Limited Right to Opt Out of the Arbitration Requirement.  You have the right to opt out of and not to be bound by the binding individual arbitration provisions set forth in these Terms (except for the class action waiver, which is not subject to an opt-out). To exercise this right, You must send written notice of Your decision to the following address: Sleep Number Health Corporation, ATTN Legal Department, 1001 Third Avenue South, Minneapolis, MN 55404 or by email to Legal@Sleepnumber.com.

Your notice must include Your name, mailing address, and email address, state that You do not wish to be bound by the Binding Individual Arbitration provisions set forth in these Terms, and Your signature.  TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THESE TERMS UNLESS A LONGER PERIOD IS REQUIRED BY APPLICABLE LAW; OTHERWISE, YOU WILL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THIS SECTION. You are responsible for ensuring that We receive Your opt-out notice, so You may wish to send it by a means that provides for a delivery receipt. If You opt out of these provisions, We will not be bound by them with respect to disputes with You.

Class Action Waiver.  To the maximum extent permitted by applicable law, disputes, claims, and controversies not subject to the requirement to arbitrate (including, but not limited to, claims filed in small claims court and claims that are deemed not subject to the requirement to arbitrate) may not be aggregated together in a class action, except that, as set forth above, if a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases. Otherwise, to the maximum extent permitted by applicable law, You and We will only bring disputes, claims, or controversies against each other in an individual capacity only and shall not:

• seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or
• consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these Terms.

 

Severability.  If all or any provision of this agreement to arbitrate is found invalid, unenforceable, or illegal, then You and We agree that the provision will be severed, and the rest of this agreement to arbitrate shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, You and We agree that this entire agreement to arbitrate (but not the separate class action waiver) will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified herein.

 

16. No Waiver.

The failure of Sleep Number Health to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision.

17. Assignment.

You may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of Sleep Number Health.  Any attempt by You to assign or transfer this Agreement without such consent will be null and of no effect.  Sleep Number Health may assign or transfer this Agreement, at its sole discretion, without restriction.  Subject to the foregoing, this Agreement will bind and inure to the benefit of You and Sleep Number Health, Our successors, and permitted assigns.  This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than You and Sleep Number Health, and other than as expressly set forth in this Agreement.

18. Consent to Electronic Notice.

By using the Application or the Services, You agree that Sleep Number Health may communicate with You electronically regarding administrative, security, and other issues relating to Your use of the Application and Services.  You agree that any notices, agreements, disclosures, or other communications that Sleep Number Health sends to You electronically will satisfy any legal communication requirements, including that such communication be in writing.  The foregoing does not affect Your statutory rights.

19. Severability.

If any provision of this Agreement is held invalid or unenforceable, in whole or in part, that provision will be modified to the minimum extent necessary to make it valid and enforceable, and the validity and enforceability of all other provisions of this Agreement will not be affected thereby.

20. Entire Agreement.

This Agreement constitutes the entire agreement between You and Sleep Number Health relating to the subject matter of this Agreement, and it supersedes all prior oral and written and contemporaneous oral negotiations, commitments, and understandings between us.

21. Amendments.

Sleep Number Health may amend this Agreement at any time (subject to the limit stated above on our ability to change arbitration terms once a Dispute has arisen) by posting an updated copy of this Agreement on its website, currently located at www.breatheiq.com or by providing notice to You in any other way.  Those amendments will be effective upon notice to You or by Your continued use of the Application.  Sleep Number Health will not be bound by any amendment to this Agreement unless that amendment is in writing and has been signed by an authorized representative of Sleep Number Health.

22. Contacting Us.

If You have any questions about this Agreement, please contact Us at legal@sleepnumber.com or by calling us at 763.551.7000.