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 BELOW FOR DETAILS.
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 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 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.