These Terms govern use of the Services
1. Use of Services.
If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to both you as an individual and to that organization.
3. Services Ownership.
The Services and all associated content (including any derivatives of or enhancements to the same), and all intellectual property rights to the same (including trademarks, service marks, trade names, trade dress), that appear in connection with the Services, are owned by or licensed to AviyaSleep.
AviyaSleep grants you a revocable right to use the Services solely in accordance with these Terms. The Services are being licensed, not sold, to you by AviyaSleep only for use under the Terms. You do not acquire any right, title or interest in or to the Services or any associated content other than the limited license granted to you by these Terms. Any rights not expressly granted to you in these Terms are expressly reserved.
6. Account Information.
You agree to provide true, accurate and complete registration information, and you will promptly provide an update if any of this information changes. You are solely responsible for safeguarding and maintaining the confidentiality of your Login ID and Password. You may not resell, assign, distribute, transfer or otherwise provide your subscription, your Login ID and/or Password to any third party. You are responsible for any activity conducted under your account. You must immediately notify AviyaSleep of any unauthorized use of your account.
7. Prohibited Conduct.
You must not transmit or otherwise provide any harmful or objectionable content using the Services, including content that (i) violates or infringes in any way upon the rights of others, such as any copyright, trademark, patent, trade secret, moral right, or other proprietary right of any person or entity, (ii) impersonates another or is fraudulent, unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, abusive, or otherwise reasonably objectionable, or (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. You also will not upload spyware or any other malicious software to the Services. You will not use the Services in a manner harmful to AviyaSleep or any third party.
8. Copyright Violation
a. If you believe that your copyright in any material has been infringed by material available on this Website, please provide us with all of the following information in the form prescribed by Section 512 of Title 17, United States Code:
i. a description of the copyrighted work you claim has been infringed,
ii. a description of the material that you claim is infringing, identified with sufficient detail for us to identify it,
iii. your address, telephone number and email address,
iv. a statement by you that you have a good faith belief that the disputed use is not authorized,
v. a physical or electronic signature of the person authorized to act on behalf of the copyright owner's interest, and
vi. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the copyrighted work that is claimed to be infringed.
b. You understand and agree that: (1) AviyaSleep assumes no liability or responsibility for any third party content or material of any kind that is submitted to or posted on the Website by you or by any other users or third parties, and (2) AviyaSleep is merely a transmitter of any such content, and is acting solely as an Internet Service Provider as such term is defined in the Digital Millennium Copyright Act (DMCA).
c. We will promptly address any alleged infringement. Please direct all such notifications to: [email protected] and insert “Re: Copyright Violation” in the subject line header of the email.
9. Terms of Sale.
The terms of sale for all products and mattresses purchased through the Services (collectively, the “Products”) are governed by these Terms, the [WARRANTY], and the [RETURN POLICY].
10. Third-Party Websites.
11. No Representations and Warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, FOR USE BY YOU AT YOUR OWN RISK WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, AVIYASLEEP AND ITS OFFICERS, MEMBERS, MANAGERS, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “AVIYASLEEP PARTIES”) DISCLAIM ANY AND ALL WARRANTIES (1) THAT THE SERVICES OR THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR ACHIEVE CERTAIN RESULTS; (2) CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR COMPLETENESS OF THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES; (3) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE SERVICES OR THE PRODUCTS. This Section does not limit the terms of the [WARRANTY] for eligible Products.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL AVIYASLEEP OR THE AVIYASLEEP PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT AVIYASLEEP OR THE AVIYASLEEP PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE TERMS (AND EXCEPT AS SET FORTH IN THE [WARRANTY] AND THE [RETURN POLICY]), IN NO EVENT WILL THE CUMULATIVE LIABILITY OF AVIYASLEEP OR THE AVIYASLEEP PARTIES EXCEED TEN DOLLARS ($10). YOU AGREE THAT YOU MAY ONLY COMMENCE A CAUSE OF ACTION RELATED TO THE SERVICES WITHIN ONE (1) YEAR OF SUCH ACTION ACCRUING, AND ANY ATTEMPT TO BRING SUCH AN ACTION AFTER SUCH ONE (1) YEAR PERIOD IS BARRED. Some jurisdictions do not permit limitations of liability and in those jurisdictions some of the foregoing limitations may not apply to you. The limitations in these Terms shall apply to the fullest extent permitted by law.
You agree to indemnify and hold harmless AviyaSleep and the AviyaSleep Parties from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) brought by third-parties arising out of, related to, or that may arise in connection with any actual or alleged violation or breach of any of the representations, warranties, agreements or promises made by you in these Terms.
AviyaSleep may modify these Terms. You should review the Terms regularly. AviyaSleep will post notice of modifications to these Terms on the Services. If you do not agree to the modified terms for the Services, you should discontinue your use of the Services.
a. You and AviyaSleep each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents or information and the proposed resolution. You agree to contact us with disputes by contacting us at the address provided in these Terms. We will contact you based on the contact information you have provided us.
b. If you and AviyaSleep cannot resolve any dispute after 30 days, the party seeking to pursue a claim will submit the claim to arbitration consistent with this section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.
c. Any claim or dispute between you and AviyaSleep, and any claim by either against any agent, employee, successor, or assign of the other, including third parties, whether related to these Terms or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS' website (www.jamsadr.com) or by calling JAMS at 949-224-1810.
d. Either You or AviyaSleep may bring applicable claims in small claims court. Also, you and AviyaSleep each agree that any arbitration will be solely between you and us, not as part of a classwide claim. If any court or arbitrator determines that this classwide restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the classwide dispute must be brought in court.
e. AviyaSleep may pursue equitable relief in a court in connection with the Services without any obligation to pursue the claims in arbitration.
17. Class Action Waiver.
TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AND AVIYASLEEP EACH WAIVE ANY RIGHT TO PURSUE A DISPUTE ON A CLASSWIDE BASIS, INCLUDING BY JOINING A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR PROCEEDING.
18. Jury Trial Waiver.
TO THE EXTENT ALLOWED BY LAW, YOU AND AVIYASLEEP EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
19. Governing Law; Venue.
These Terms and the use of the Services will be governed by Ohio law without regard for its conflict of laws principles. For any claims not subject to the arbitration provisions of these Terms, all claims arising out of relating to these Terms or the Services must be litigated in the state or federal courts located in Cleveland, Ohio and you and AviyaSleep consent to the personal jurisdiction of such courts.
20. No Third-Party Beneficiaries.
These Terms do not create any third-party beneficiary rights.
21. Complete Agreement.
These Terms constitute the entire and exclusive agreement between you and AviyaSleep with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. The headers for these Terms are for convenience only and will not affect the interpretation of these Terms. If a provision of these Terms is found unenforceable the remaining provisions will remain in full force and effect, and an enforceable term will be substituted reflecting our intent as closely as possible.
AviyaSleep may assign any of its rights under these Terms to an affiliate or to any successor in interest to AviyaSleep’s business. You may not assign your rights under these Terms and any such purported assignment is void.
23. Waiver of Terms.
AviyaSleep’s failure to enforce these Terms for any period of time does not constitute a waiver of its right to enforce these Terms.