Welcome to Sleep Number’s proprietary Sleep Number smart bed system. The terms and conditions of this End User License Agreement (the "Agreement") apply to your use of the Sleep Number smart bed system and services. Please review this Agreement carefully prior to using them. In this Agreement, when we use the word "us," "we," or "our," we mean Sleep Number Corporation and when we use the word "you" or "your," we mean you, as well as any other person that uses the services or the system through your bed. Additional terms in quotes are defined throughout this Agreement.  If you use the BreatheIQ app, there is a separate user agreement that governs your use of the BreatheIQ app, which is available at https://www.sleepnumber.com/pages/breatheiq-user-agreement. 

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.

We use several terms in this Agreement to refer to the Sleep Number smart bed, the related technology, system, and services.

The bed. Your Sleep Number smart bed consists of several components, which may include a mattress, foundation (adjustable or non-adjustable), heating and cooling components, components that control adjustable features, remote control (physical or app-based), and sensors that collect and generate data. We refer to the combination of these components as the “bed”. 

The Sleep Number Application. The “app” is the application developed by us that allows you to interact with the system through a compatible mobile or computing device that you provide.

The data. The “data” includes any information you share about yourself in the app; information about you collected or generated by the bed, app, or processor, including physiological information, sleep duration, and time and motion in the bed; information about your use of the app and the bed; and any other information, content, or other materials that are generated, provided, or otherwise made available through the services, defined below.

The Sleep Number smart bed processor. The "processor" is the hardware and software that is located in the bed and allows the bed to transmit data to the Internet. The data arrives at our servers where we transform it into the information that is provided to you through the services, defined below. 

The Sleep Number smart bed system. The "system" is the combination of the bed, the app, the processor, the data, and other accessories that may come with your Sleep Number bed. The system requires all these sub-systems for you to get the benefit of the Sleep Number smart bed features and functionality. A reference to the system includes the entire system and any sub-system.

The SleepIQ services. The "services" are the applications you access and/or that interact with the system, including the app, and the information, content, and services provided by us through the system. A reference to the services includes all the services and any portion of the services.

AGREEMENT

This Agreement is the legal agreement addressing your use of the services and the system.

Use of your bed without the processor or the services. You may use your bed without the use of the processor or the services, and without creating a Sleep Number sleeper profile. If you want to use your bed in this manner, you are not required to agree to this Agreement, but you are still subject to the other terms and conditions that relate to the purchase of your bed generally (e.g., returns, warranty, and in-home trial period), or are contained in your sales order or receipt.

Use of your bed with the processor and the services. You may not use the services or the system, or access or attempt to access any data generated by the processor, without agreeing to this Agreement. 

Safety with the bed; Disclaimers. When using your bed with an adjustable foundation that you purchased from us, it is possible that voids will be created where an animal, person, or property could fit. You or anyone else using the bed must always inspect the bed and confirm no animal, person, or property is located near or under the bed before making any adjustment. Additionally, it is possible that the app could be used to remotely operate the bed when the bed is out of sight. TO REDUCE THE RISK OF PROPERTY DAMAGE, SERIOUS INJURY, OR DEATH, YOU MUST NEVER (A) PERMIT CHILDREN TO ACCESS, USE, OPERATE, OR PLAY WITH THE APP OR THE REMOTE UNSUPERVISED, OR (B) ADJUST THE BED, OR PERMIT THE BED TO BE ADJUSTED, BEFORE INSPECTING AND CONFIRMING THAT NO ANIMAL, PERSON, OR PROPERTY IS NEAR OR UNDER THE BED. ADJUSTMENTS TO THE BED SHOULD ONLY BE MADE WHEN THE BED IS IN THE LINE OF SIGHT OF THE OPERATOR.

Authorized hardware. To use or access the system or services, you must purchase your bed directly from us or one of our authorized dealers. 

Necessary third party equipment and services. Use of the services and the system may require compatible devices (e.g., smart phones, tablets), Wi-Fi access, Bluetooth connectivity, and certain software. We issue periodic updates for the services and the system, and your failure to implement the updates may affect their performance or prevent you from enjoying certain features. You agree that meeting the requirements and implementing the updates are your responsibility. Some or all updates may occur automatically, and you hereby consent to the downloading and installing of updates without separate notice from us. To the extent third party equipment, software, or ancillary services require you to agree to other terms and conditions of access or use, you are responsible for complying with those agreements.

Sleep Number sleeper profile. If you choose to use the services and/or the system, you must create and maintain at least one Sleep Number sleeper profile (“sleeper profile”) containing login information and a password. If you purchased a SleepIQ Kids bed, you may grant the minor using it (“child”) direct access to the services by creating a separate sleeper profile with login and a password for the child’s personal use. If you purchased a dual-chamber bed, there can be up to two sleeper profiles associated with that bed. The bed owner may grant access through the services to allow another adult person (“secondary user”) to create a separate sleeper profile. Any secondary user must agree to the terms and conditions of this Agreement when creating their sleeper profile. You acknowledge and agree that only your sleeper profile and, if applicable, a secondary user’s sleeper profile is available for your bed and only one child sleeper profile is available for the SleepIQ Kids bed. To the extent you grant such access to a child or other person, you are expressly authorizing us to communicate and interact directly with that person regarding the services and the system. You are responsible for maintaining the confidentiality of the sleeper profile(s), login information, and password(s), and are responsible for all activities that occur under the sleeper profile(s), with or without your knowledge. You agree to notify us immediately of any unauthorized use of the sleeper profile(s) or other breach of security. You agree that we may treat as you any person who presents your login and password, or other credentials that we deem sufficient for user account access, and we shall be entitled to disclose to that person your account information and permit them to make changes in the services and the system.

Privacy. To enable and provide you the benefits of the services and the system, we collect and use data, including data that identifies you or is linkable to you (“your data”). Our collection and use of your data 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 data 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 the data, the terms of our privacy policy will control.

Disabling the transmission of data. You may disable the transmission of your data to us from the system by enabling "Privacy Mode" in the app. The only data transmitted in Privacy Mode is your app and remote interactions, and that your bed is online and generally operational. Additional data may still be gathered "locally" on the processor but will not be transmitted to us by the system or displayed through the services unless you later re-enable the transmission of the data. You or a secondary user will be able to see that transmission has been disabled through the app or the services. Additionally, you may also unplug the bed in order to disable the transmission of the data to us from the system. If you plan on unplugging your bed for more than a few nights, please refer to your owner’s manual for instructions on capping your bed.

Your sharing of data. The services may allow you to share the data and third party data displayed through the app. Such sharing of the data is limited to the purposes allowed under this Agreement. Once you share the data, we have no control over what can or may happen with the data.

Allowing others to use your bed. You understand that after creating user profiles, data is collected about any person that uses your bed or a child’s SleepIQ Kids bed. You are responsible for notifying any additional bed user that data is being collected about them, that you will have access to the data, and that our collection and use of their data is governed and limited by our privacy policy. You are also responsible for any claim related to the collection of data from an additional bed user. To prevent data from being transmitted to us while another person uses the bed, you may unplug the bed or enable Privacy Mode in the app, as explained in the section of this Agreement titled “Disabling the transmission of data.”

Ownership of the services and system. The services and system are owned and operated by us. Except with respect to open source software, all intellectual property rights relating to the services and the system are owned by us and/or our suppliers. You have no intellectual property rights in or to the services and the system except as may be expressly set forth in this Agreement. Our collection and use of your data is governed and limited by our privacy policy and your privacy rights.

Limited license. Subject to the terms of this Agreement, we grant you a limited, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable, revocable license to (1) access and use the services, (2) use the software contained in the system, (3) access and use any online documentation related to the services, and (4) access and use any programming fixes, updates, and upgrades that may be provided to you concerning the processor, the app, or the services. This license is provided solely for your own personal, non-commercial use of the services and the system. You may not use, sublicense, copy, adapt, modify, translate, disclose, reverse engineer, decompile, disassemble, prepare derivative works based upon, distribute, license, sell, rent, lease, lend, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the services and the system except as expressly permitted in this Agreement. You may not defeat or circumvent any encryption, digital rights management, or security technology implemented with respect to the data, services, or the system or attempt to connect the system to an unauthorized network or API. If you breach this restriction or any other terms or conditions contained herein, you may be subject to prosecution and damages.

Third party services. We may provide the opportunity for you to use the data and/or the system with one or more third party applications, platforms, and/or services (collectively, the "third party services"). When you use a third party service, you agree that we may receive information and data regarding you and your use of the third party service, including your personal information ("third party data"). Our privacy policy governs our collection and use of your data. The third party service’s privacy policy governs the third party’s collection and use of your data. You are responsible for reading and understanding the terms, conditions, and privacy policy that applies to your use of any third party service and you should contact the third party with any questions about their service. You acknowledge and agree that we are not responsible for your use or the performance of the third party services, and we make no representation or guarantee about any aspect of any third party service, including but not limited to, the accuracy, quality, or security of the third party data accessed or made available by or through the third party services.

Upgrades and updates.  We reserve the right at any time and without any notice to you to (1) add additional features or functions to the services or the system, (2) discontinue, modify, or remove existing features or functions from the services or the system, and (3) provide programming fixes, updates, or upgrades to the services or the system. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of the services or the system. We may also charge a fee for use of the services. In such case, we shall provide you with notice of such fee in advance.

How the services work and system limitations.  The services are only available in the United States. The services work using wireless communications networks, some of which are our responsibility (e.g., between our wireless remote control and the bed), some of which are your responsibility (e.g., between your wireless router and your internet service provider), and some of which are the responsibility of others (e.g., Internet access provided by a third party). The status of each of these networks can be impacted by many things, any of which may affect your ability to use the services. We shall be responsible solely under the terms of the warranty that came with your purchase of the bed. Neither us nor our suppliers is responsible for, and you accept all liability relating to or arising out of: (1) electronic communication issues that arise with your mobile device, wireless communication network, or that are otherwise beyond our control; (2) your failure to place the processor in a location having continuous wireless access to the internet with sufficient reception and network capacity when the bed is being used or the services are being accessed; (3) any interception, corruption, damage, or misuse of any data, and any security risks and any damage resulting therefrom; (4) overages or actions that your wireless carrier may take against you for using data in violation of your wireless carrier’s service terms; and/or (5) any failure to install and keep updated anti-virus software, firewalls, and related security protections against any virus, or other software or technique that may have the effect of damaging, destroying, disrupting, or otherwise impairing a wireless router, network, or your mobile device or computer’s functionality or operation. We make no guarantee that the services shall be available uninterrupted or that your bed shall be able to be or remain connected to the services. We are not responsible for any loss of the data, or for any loss related to downtime associated with the use of the services or the system, whether through failure of Internet or wireless connectivity, network disruptions, power outage, or otherwise. We will have no responsibility or liability for wrongful acts or conduct of any third party committed through use of the Internet that may affect you, your guests, the services, and/or the system. You agree that no data transmitted over our network, the Internet, or through wireless means is or can be guaranteed to be secure. We do not guarantee that data submitted or transmitted to us will be free from unauthorized disclosure, access, misappropriation, or intrusion. We do not guarantee that the app shall be available for, or function in connection with, all smart phones, tablets, or other mobile devices.

Ending the services.  You may end your ability to use the services at any time by contacting us to deactivate the services and/or your sleeper profile(s). After deactivation, you must cease any further access to, or use of, the processor, the data, or the services. If you change your mind, we may not be able to reactivate the sleeper profile(s). You will not be entitled to any purchase refunds or adjustments as a consequence of: (1) not being able to use or access the services, (2) not agreeing to or complying with any part of this Agreement; (3) deactivating the services and/or your sleeper profile(s); (4) connectivity issues specific to the location where your system is installed; (5) you ending or discontinuing your use of the services; or (6) you not having authorized hardware or the necessary third party equipment and services.

Termination of the services.  If we determine that you, your child, or the secondary user are not using the services or the system in accordance with the terms and conditions of this Agreement, your right to access the services and the system (other than the bed) terminates automatically without any notice to you. If you are in breach of this Agreement, we have the right (but not the obligation) to delete, edit, remove, and/or block the  transmission of the data from or to your processor, the services, and/or the system (other than the bed). Our failure to perform any of the foregoing remedies shall not constitute a waiver by us or our suppliers of any claims against you.

No transferring of the services. If you donate, give, or sell your bed to another person or entity, or otherwise dispose of it, it is your responsibility to immediately deactivate the services and your sleeper profile(s) and notify us by calling (888) 484-9263. Use of the services or the system is non-transferrable to the new owner of the bed. The new owner can still use the bed as a premium-quality, adjustable firmness, air-supported mattress, but use of the services or the system will not be available. Your failure to deactivate the services and/or your sleeper profile(s) could result in your data being available to the new owner of the bed, as well as the new owner’s data being available to you. You are responsible for any liability to a third party for your access to any data after you no longer have possession of the bed. Neither us nor our suppliers will be liable to you for access to the data by the new owner of the bed or any other party if you fail to timely inform us that you are transferring possession or otherwise disposing of the bed.

Precautions. Content found on www.sleepnumber.com, in our and our authorized dealers’ advertisements, or provided through the app, the services or the system, is for informational purposes only, and under no circumstance should you construe such information as medical advice, diagnosis, or treatment. We do not intend for the foregoing content to replace medical care, medical diagnosis, or the relationship between you and your physician or other medical provider. We are not a licensed medical care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. The data should not be used in any way to diagnose or treat any medical condition. You should always consult with a physician or healthcare professional regarding concerns you have relating to your health, especially before you start or stop a health-related regimen. Never disregard or delay seeking professional medical advice because of something you have read or interpreted while using the services or the system or based on any data generated by the processor.

Not a substitute for active monitoring. Through your use of the processor, the services, and/or the system, you will have access to certain physiological and sleep-related data regarding you and any person that uses your bed. We do not provide the data in real time and the data is not an equivalent or substitute for medical or scientific sleep monitoring analysis or techniques used by sleep doctors and scientists, such as polysomnography and actigraphy. In some cases, the data is generated by averaging, correlating, or otherwise manipulating raw data being captured and transmitted to the processor. We intend the data to be informational only and you should not use the data as a substitute for medical care or diagnosis, including the proper supervision of either a medical condition or person. For example, the services should not be used to monitor a person of limited mobility or who is at risk of a fall to ensure that they remain in bed, or to monitor someone with sleep apnea to ensure they are breathing. We undertake no responsibility or liability with respect to use of the data to ensure your or any other person’s health or safety. You acknowledge and agree that the services and the system do not protect your or any other person’s health or safety. If you rely on information provided by the services or the system, you do so solely at your own risk.

Provisions Relating to Apple.  The following provisions apply if you are accessing or using the app 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 app and content of the app; (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 app 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 app 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 app 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 app.

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.

Indemnification.  Upon request by us, you agree to indemnify, defend, and hold us and our suppliers harmless from and against any and all losses, liabilities, damages, and costs, including, but not limited to, legal fees, expert witness fees, and court costs, arising from any claim, action, or demand related to or alleged to relate to: (1) your or any other person’s use or misuse of the services or the system related to your bed; (2) violation of this Agreement by you or a child or a secondary user on your user account; (3) violation of the rights of any third party by you or any person using the services or the system related to your bed; (4) your violation of any applicable law, rule, or regulation in connection with your or any other person’s use of the services or the system related to your bed; or (5) your failure to timely inform us that you are transferring possession or otherwise disposing of the bed. We reserve the right to assume control of the defense of any claim that is subject to indemnification hereunder, in which event you shall cooperate with us in connection with our defense of such claim. We reserve the sole right to settle or otherwise compromise any claim, action, or demand subject to indemnification under this Agreement, with or without your consent.

Content and warranty disclaimer. THE SERVICES ARE PROVIDED BY US OR OUR AFFILIATES ON AN "AS IS" BASIS ONLY, WITH ALL FAULTS, AND WE HEREBY DISCLAIM, ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE FUNCTIONALITY OR OPERATION OF THE SERVICES, OR THE ACCURACY OR QUALITY OF ANY INFORMATION OR DATA MADE AVAILABLE BY OR THROUGH THE SERVICES OR THE SYSTEM. IN ADDITION, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND WITH RESPECT TO THE SERVICES AND THE SYSTEM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OWNERSHIP, QUALITY (INCLUDING WARRANTY AGAINST LATENT DEFECTS) OR FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, NON-INFRINGEMENT, ERROR-FREE OPERATION, ACCURACY, SYSTEM INTEGRATION, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF CONDUCT, OR TRADE USAGE OR TRADE PRACTICE. FURTHERMORE, WE DO NOT WARRANT THAT THE USE OF THE SERVICES SHALL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE. WE DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) THE OPERATION OF THE LICENSED MATERIALS AND THE SYSTEM IS OR SHALL BE UNINTERRUPTED OR ERROR-FREE OR COMPATIBLE WITH ANY OTHER HARDWARE OR OTHER ITEMS USED BY YOU OR (B) ANY DEFECT CAN OR SHALL BE CORRECTED OR THAT THE SYSTEM SHALL BE AVAILABLE OR USABLE, OR (C) THE FUNCTIONS CONTAINED IN OR TO BE PROVIDED BY THE SYSTEM SHALL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF THE LICENSED MATERIALS AND THE SYSTEM SHALL BE WITH YOU. THE FOREGOING SHALL NOT LIMIT THE TERMS OF THE WARRANTY THAT CAME WITH YOUR PURCHASE OF THE BED.

Limitation of liability.  TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WE SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF THE USE OF THE SERVICES OR THE SYSTEM, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE APP, THE DATA, AND THE SERVICES, REGARDLESS OF THE FORM OF ACTION OR CLAIM, IS LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM ONE JURISDICTION TO ANOTHER.

Governing law. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Minnesota, regardless of the laws that might otherwise govern under its principles of conflicts of laws.

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 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.

Effect of violation of this Agreement. If you fail to comply with or otherwise violate this Agreement, your authorization to use the services and the system automatically terminates and you must immediately cease using them.

Changes to this Agreement. We reserve the right to change the terms of this Agreement at any time (subject to the limit stated above on our ability to change arbitration terms once a Dispute has arisen). We may notify you about these changes electronically, and request that you notify us if you do not agree to the changes. If you do not agree to any change to the terms of this Agreement, you must discontinue your use of the processor, the services, and the system and deactivate your sleeper profile(s), as set forth above in the section of this Agreement titled “No Transferring of the Services.” You are deemed to have accepted the changes if you do not deactivate the services and/or your sleeper profile(s) within fourteen (14) days of a notice of a change to the terms of this Agreement. No modification of this Agreement shall affect either party’s rights or duties existing prior to the effective date of the changes.

Entire Agreement. This Agreement represents the entire agreement between you and us related to your use of the services and the system, and it supersedes any prior or contemporaneous oral or written agreements. If any provision of this Agreement is found to be contrary to law, that provision will be construed as nearly as possible to reflect the intentions of the parties with the other provisions remaining in full force and effect. Our failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of that right or provision unless acknowledged and agreed to by us in writing.

Assignment. You are not permitted to assign this Agreement without our prior written consent and doing so will be deemed a breach of this Agreement. We may assign this Agreement to any other business or company that we own or control, or to a third party, so long as the other party undertakes all our obligations, rights, and duties hereunder.

Reservation of rights.  All rights not expressly granted herein are reserved to us and our suppliers, and no other licenses are granted herein by implication, estoppel or otherwise. You shall not take any action to interfere with the ownership of the service, the system, and the online documentation by us, or by our suppliers. All proprietary notices incorporated in, marked on, or fixed to any portion of the service provided to you shall not be altered, removed, or obliterated.

Open source software. Certain software contained in the system provided to you contains open source software provided by suppliers other than us ("open source software"). The relevant open source software license information, notices and files can be found by clicking here: https://www.sleepnumberlabs.com/web-open-source.html#

Survival. The sections of this Agreement titled  “Ending the Services,” “Allowing Others to Use Your Bed,” “Termination of the Services,” “Indemnification,” “Content and Warranty Disclaimer,” “Limitation of Liability,” and “Disputes; Arbitration,” as well as those provisions of this Agreement that, by their sense and context, are intended by the parties to survive the completion of performance and the termination of this Agreement, shall survive termination of this Agreement for any reason.

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