TERMS OF USE & CONDITIONS OF SALE

 OVERVIEW

 IMPORTANT -PLEASE CAREFULLY READ AND UNDERSTAND OUR TERMS OF USE AND CONDITIONS OF SALE ("TERMS" OR "AGREEMENT") BEFORE ACCESSING OR ACCESSING, USING, OR PLAL1NG AN ORDER THROUGH OUR SITE. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (SEE SECTIONS 18 AND 19). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.

Your use of www.sleepsutera.com, including any sub-domains thereof, affiliated websites, and mobile applications (collectively, the "Site"), which are owned and maintained by Sutera Holdings, LLC ("Sutera,” "we,” "our,” "us"), are governed by the policies, terms, and conditions set forth below. Please read our terms carefully. We offer the Site, including all information, tools, products, and services available from the Site to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here. By accessing, using, or placing an order over the Site, you agree to the terms set forth herein. If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Site in any manner or form whatsoever.

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 20 OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 20 BELOW WHICH DESCRIBES YOUR RIGHT TO OPT-OUT.

You can review the most current version of the Terms at any time on this page (https://www.sleepsutera.com/policies/terms-of-service). We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes to our Site. It is your responsibility to check this page periodically for changes. YOUR CONTINUED USE OF OR ACCESS TO THE SITE FOLLOWING THE POSTING OF ANY CHANGES CONSTITUTES BINDING ACCEPTANCE OF THOSE CHANGES.

 

TABLE OF CONTENTS

 Overview

 Table of Contents

1. Site Use
2. Privacy and Security-Disclosure
3. No Resale
4. Accuracy, Completeness, and Timeliness of Information
5. Modifications to the Site and Prices
6. Intellectual Property.
7. User Conduct
8. Account Registration
9. Payment
10. Subscriptions and Cancellation Policy
11. Order Placement and Acceptance
12. Shipping
13. Delivery Confirmation
14. Satisfaction Guarantee, Return, and Refunds
15. Social Media
16. Copyright Notice
17. DISCLAIMER OF WARRANTIES
18. DISCLAIMER OF LIABILITIES
19. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
20. Indemnification
21. Third-Party Websites and Links
22. Testimonials, Reviews, and Ocher Submissions
23. Electronic Communications
24. Assignment
25. No Waiver
26. Severability
27. Termination
28. Entire Agreement
29. Questions or Additional Information

 

TERMS OF USE AND CONDITIONS OF SALE

 

1.0  Site Use

Sutera's Site, products, and services are intended for adults only. By using the Site and agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence. If you use the Site, you affirm that you have the legal capacity to enter into a binding contract with us and have read this Agreement and understand and agree to its terms.

2.0  Privacy and Security Disclosure

Sutera’s Privacy Policy may be viewed at https://www.sleepsutera.com/policies/privacy-policy.  The Privacy   Policy is hereby incorporated into these Terms by reference and constitute a part of this Agreement.  Sutera reserves the right to modify the Privacy Policy at its sole discretion.

3.0  No Resale

You agree that any products or services you purchase on or through the Site will be used for personal, non-commercial use. You agree that you will not resell, redistribute, modify, or export any product that you order from our site.

4.0  Accuracy, Completeness, and Timeliness of Information

The material on the Site is provided for general informational purposes only. While we endeavor to provide accurate and current information on our Site, there may be information that contains typographical errors, inaccuracies, or omissions related to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information on the Site or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

This Site may also contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.

5.0  Modifications to the Site and Prices

We reserve the right to modify or discontinue access to the Site (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third party for any modification, suspension, or discontinuance of access to the Site. Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Shipping and Returns Policies.

All descriptions and pricing of our products or services are subject to change at any time without notice, at our sole discretion. Any offer for any product or service made on this Site is void where prohibited.

6.0  Intellectual Property

The Site and the content contained herein, as well as all copyrights, including without limitation, the text, documents, articles, products, software, graphics, photos, sounds, videos, interactive features, services, links, User Submissions (as defined below), third-party apps, and any other content on the Site ("Content") and the trademarks, service marks, and logos contained therein are the property of Sutera and its third-party licensors or providers. You may access and use the Content, and download and/or print out copies of any content from the Site, solely for your personal, non-commercial use. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You acknowledge that you do not acquire any ownership rights by using the Site. Sutera reserves all rights not expressly granted in and to the Site.

7.0  User Conduct

You may not use, copy, display, sell, license, decompile, republish, upload, post, transmit, distribute, create derivative works, or otherwise exploit Content from the Site to online bulletin boards, message boards, newsgroups, chat rooms, or in any other manner, without our prior written permission. Modification of the Content or use of the Content for any purpose other than your own personal, non-commercial use is a violation of our copyright and other proprietary rights, and can subject you to legal liability.

In addition, in connection with your use of the Site and its products or services, you agree not to:

• Restrict or inhibit any other visitor from using or enjoying the Site, including, without limitation, by means of "hacking" or defacing any portion of the Site;

• Use the Site for any unlawful purpose;

• Use the Site to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

• Express or imply that any statements you make are endorsed by us, without our prior written consent;

• Modify, adapt, sublicense, translate, sell, reverse engineer, decompile, or disassemble any portion of the Site;

• Disable, damage, or alter the functioning or appearance of the Site, including the presentation of advertising;

• "Frame" or "mirror" any part of the Site without our prior written authorization;

• Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, “data mine,” "scrape," “harvest," or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;

• Harvest or collect information about visitors to the Site without their express consent;

• Send unsolicited or unauthorized advertisements, spam, chain letters, etc. to other users of the Site; or

• Transmit any Content which contains software viruses or other harmful computer code, files, or programs.

• Use the Site to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law.

 

Sutera has no obligation whatsoever to monitor any of the content or postings on the message boards, chat rooms or other public forums on the Site. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.

8.0  Account Registration

In order to access some of the products or services of the Site, you will be required to create an account. By creating this account, you agree to the following:

• You may only maintain a single account;

• You may never share your account username or password or knowingly provide or authorize access to your account;

• You may never use another user's account without permission;

• When creating your account, you must provide accurate and complete information;

• You are solely responsible for the activity that occurs on your account, and you must keep your account password secure;

• You must notify us immediately of any breach of security or unauthorized use of your account; and

• You will be liable for any use made of your account or password and the losses of Sutera or others due to such unauthorized use. We will not be liable for your losses caused by any unauthorized use of your account.

       Sutera has the right, in its sole discretion, to cancel your subscription or suspend your access to the Site.

 

9.0  Payment

       All charges are in U.S. Dollars.

By submitting payment information to us, you represent and agree that: (i) you are fully authorized to use that card or account; (ii) all payment information provided is complete and accurate; (iii) you will be responsible for any payment card fees; and (iv) that sufficient funds exist to pay us the amount(s) due.

We and our third-party payment service providers may request, and we may receive, updated credit card information from your credit card issuer, such as updated card numbers and expiration date information when your credit card has expired. If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly. Your credit card issuer may give you the right to opt-out of providing vendors and third-party payment service providers with your updated credit card information. If you wish to opt-out of your credit card's updating service, you should contact your credit card issuer.

We are not responsible for any fees or charges that your bank or credit card issuer may apply. If your bank or credit card issuer reverses a charge to your credit card, we may bill you directly and seek payment by another method including a mailed statement.

 

10.0  Subscriptions and Cancellation Policy

If you go to the Site to purchase a product or service, you may have the option of buying a product one time, or enrolling in our Subscribe & Save Program. If you purchase a subscription, your payment method will be automatically billed at the then-current rate (plus sale tax, if applicable) and you will receive a new product every 30, 60, or 90 days (depending on the option you selected) until you cancel the subscription. If you wish to cancel your subscription, you may do so at any time; however, you must cancel your subscription twenty-four (24) hours prior to your next scheduled order.

By allowing each renewal to proceed, you have provided your electronic authorization for us to charge the payment method you have on file. If you have more than one payment card on file, the first card will be used. If you have more than one payment card on file, and one or more payment cards have expired, we will use the unexpired payment card.

To cancel your membership, please contact us by chat, email (support@sleepsutera.com), or telephone (949-561-1019).

 

11.0  Order Placement and Acceptance

Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. We reserve the right to accept or deny shipment to anyone for any reason. In the event we deny your order, you will receive a refund to your original form of payment. You understand and agree that we will not be liable for any losses or damages that may result from our refusal to provide you any product or service. We reserve the right to require additional information before processing any order.

 

12.0  Shipping

Sutera ships to addresses located in the United States and internationally. Domestic orders generally ship within 24-48 business hours of the time of placement, and typically arrive within 5-10 days of shipment. Delivery times for international orders vary by location.

Accurate shipping address and phone number are required. We are not responsible for late shipments/missing shipments if you enter incorrect shipping address information. If you discover that you have made a mistake with your order after it has been submitted, please contact Customer Support immediately by chat, email (support@sleepsutera.com) or phone 949-561- 1019. You must contact us as soon as possible in order to modify or cancel your pending order. However, we cannot guarantee that we will be able to amend your order in accordance with your instructions.

 

13.0  Delivery Confirmation

Because many instances ,nay occur at your delivery address that are beyond our control, you agree that any delivery confirmation provided by the carrier is deemed sufficient proof of delivery to you, even without a signature.

 

14.0  Satisfaction Guarantee, Return, and Refunds

Sutera wants you to be satisfied with your experience with us, so we have made returning or exchanging products easy. If you are dissatisfied with our product, you may return or exchange the unused portion of the product up to thirty (30) days from the date of delivery for a refund, less return shipping costs and a $9.95 return processing fee.

 

To obtain a refund or store credit, you must return any unused portion of your order, your return must be approved, and the return must be received within forty-five (45) days of the date of delivery. Return shipping costs and processing fees will be deducted from the amount refunded. You will not be refunded the cost to ship the products to you.

 

The following terms apply for all returned items:

 

• To initiate a refund or exchange, contact us by chat, email (support@sleepsutera.com) or phone (949-561-1019).You will be given a Return Merchandise Authorization (RMA) number and details for shipping.

• We cannot process or refund packages marked "Return to Sender."

• Refunds will be issued to the same credit card or method of payment that was charged when ordering the product.

• Send returns to the address provided along with your RMA number. The RMA number must be clearly written on the package that you are sending back. Our shipping department is NOT allowed to accept any packages without an RMA number.

 

We are not responsible for lost or stolen items. We recommend sending all returned items using some type of delivery confirmation system to ensure proper delivery.

After the shipping department receives your return, it generally takes 5-10 business days to process your refund. Once a return is processed, it can take up to 30 business days for the return to be posted to your account, depending on your financial institution.

 

15.0  Social Media

This section applies to everyone who interacts with our social media presence, including com1nent sections, feeds, and other elements of social media presence viewable on Facebook, Instagram, YouTube, Pinterest, Twitter, Google+, LinkedIn, or any of the many other available external third-party social media platforms we may use ("Social Media Presence").

The sites and platforms that host our Social Media Presence are not controlled by us and therefore have their own privacy policies and terms of use. The comments and opinions expressed by users on social media are theirs alone and do not reflect the opinions of Sutera, and we have no obligation to monitor or remove user comments. If you see an offensive or inappropriate post or comment on our Social Media Presence, you should report it to the operator of the applicable site or platform using the procedures they have established for that purpose.

 

16.0  Copyright Notice

The Site maintains specific contact information provided below, including an e­ mail address, for notifications of claimed infringement regarding materials posted to this Site. All notices should be addressed to the contact person specified below (our agent for notice of claimed infringement):

Notification of Claimed Infringement:

 

Sutera Holdings, LLC

Attn: Copyright Agent

2570 W. 600 N. Suite 400, Lindon, UT 84042

Email: support@sleepsutera.com

Tel: 949-561-1019

        

You may contact our agent for notice of claimed infringement specified above with complaints regarding     allegedly infringing posted material and we will investigate those complaints. If the posted 1naterial is believed in good faith by us to violate any applicable law, we will re1nove or disable access to any such material, and we will notify the posting party that the material has been blocked or removed.

In notifying us of alleged copyright infringement, the Digital Millennium Copyright Act requires that you include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a state1nent by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf. Failure to include all of the above-listed information may result in the delay of the processing of your complaint.

 

17.0  DISCLAIMER OF WARRANTIES

EXCEPT WHERE PROHIBITED BY LAW, THIS SITE AND ALL PRODUCTS PROVIDED ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY AND/OR COMPLETENESS OF ANY INFORMATION ON THIS SITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) OUR PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (B) THE SITE OR THE SERVER(S) THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

18.0  DISCLAIMER OF LIABILITIES

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL SUTERA OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE PRODUCTS, OR YOUR OR A THIRD-PARTY'S USE OR ATTEMPTED USE OF THE SITE OR ANY PRODUCT, REGARDLESS OF WHETHER SUTERA HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE. IF, NOTWITHSTANDING THE LIMITATIONS OF LIABILITY SET FORTH ABOVE, SUTERA IS FOUND LIABLE UNDER ANY THEORY, SUTERA'S LIABILITY AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO USO $500.00. THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF WHETHER SUTERA WAS AWARE OF OR ADVISED ·IN ADVANCE OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

19.0  DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION AND CLASS ACTION WAIVER PROVISION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH SUTERA ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS A PRIVATE ATTORNEY GENERAL. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.

 

• A) General

 

Arbitration is a manner of resolving a "Claim" without filing a lawsuit. "Claim" means any dispute between you, Sutera, or any involved third party relating to your account, your use of the Site, your relationship with Sutera, these Terms, or the Privacy Policy. This includes any and all claims that relate in any way to your use or attempted use of the products or services, and any act or omission by Sutera, or any third party related to your use or attempted use of the products or services, and any communications from Sutera or any third party on Sutera's behalf. You, Sutera, or any involved third party may pursue a Claim. Sutera agrees to final and binding confidential arbitration should it have any Claims against you. Likewise, you agree to final and binding confidential arbitration should you have any Claims against Sutera. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to final and binding confidential arbitration. This arbitration provision sets forth the terms and conditions of our agree1nent to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act (the "FAA"), 9 U.S.C. §§ 1-16, as amended.

 

Notwithstanding anything to the contrary herein, (a) a representative action for public injunctive relief pursuant to California's Consumer Legal Remedies Act (Cal. Civ. Code§ 1750 et seq.), Unfair Competition Law (Cal. Bus. &Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) must be arbitrated on a class basis, (b) in the event that the foregoing clause is deemed invalid or unenforceable, a representative action for public injunctive relief pursuant to California's Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) may be brought in the state or federal courts located in Orange County, California on a class basis, and (c) any claims other than for public injunctive relief must be arbitrated on an individual, non-class basis as otherwise set forth in this section.

 

• B) Exceptions

 

Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Sutera both retain the right to pursue, in small claims court, any claim that is within that court's jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court's jurisdiction. Sutera will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in Orange County, Utah: (i) an action by Sutera relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents; or (ii) an action by Sutera for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection "b" in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection "b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Utah County, Utah and forever waive any challenge to said courts' jurisdiction and venue.

 

• C) Required Pre-Dispute Procedures

 

Before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by U.S. Mail to Sutera Holdings, LLC, Attn: Legal Department, 2570 W. 600 N. Ste 500, Lindon, UT 84042. Sutera will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Sutera or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written dispute, we agree to the dispute resolution provisions herein.

 

• D) Commencing Arbitration

 

You and Sutera agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1 year period includes the required pre­ dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.

 

• E) Arbitration Location

If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in Utah County, Utah unless Sutera otherwise agrees to arbitrate in another forum requested by you.

• F) Organization, Rules, and the Arbitrator

 

We each agree that any and all Claims other than those exempted under subsection "b" above shall be submitted to final and binding confidential arbitration before a single arbitrator of the American Arbitration Association ("AAA”). Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA and providing a copy to the other party, within the time period set forth in subsection "d" above. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with the AMs Commercial ·Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute or Claim is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Sutera.

 

• G) Fees

 

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules.

 

• H) Governing Law and Award

The arbitrator shall follow the substantive law of the State of Utah without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

• I) Enforceability

 

This provision survives termination of your account or relationship with Sutera, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

• J) Miscellaneous

 

Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1 year limitation period set forth above. This provision is the entire arbitration agreement between you and Sutera and shall not be modified except in writing by Sutera.

• K) Amendments

Sutera reserves the right to amend this arbitration provision at any time. Your continued use of the Site, purchase of a product or service on or through the Site, or use or attempted use of a Sutera product or service, constitutes your consent to such changes.

 

YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT OR SERVICE PURCHASED ON OR THROUGH THE SITE (WHICHEVER COMES FIRST) BY WRITING TO US AT SUTERA HOLDINGS, LLC, ATTN: LEGAL DEPARTMENT, 2570 W. 600 N. STE 400, LINDON, UT 84042. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT OR SERVICE. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.

 

20.0  Indemnification

To the fullest extent permitted by law, you agree to indemnify, defend, and hold harmless Sutera, its affiliates (including without limitation all affiliated professional entities), subsidiaries, and their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys from and against any claims, actions, losses, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to, reasonable attorneys' fees, arising out of, resulting from, or in any way connected with or related to (1) your breach of these Terms, the documents they incorporate by reference, or the Agreement; (2) your breach of any representations or warranties in this Agreement; or (3) your violation of any law or the rights of a third-party.

 

21.0  Third-Party Websites and Links

Our Site may include materials from third-parties or links to third-party websites. Sutera is not liable for any third-party materials or websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the applicable third-party.

 

22.0  Testimonials, Reviews, and Other Submissions

Anything that you submit or post to the Site and/or provide us, including without limitation, photographs, testimonials, ideas, know-how, techniques, questions, reviews, comments, testimonials, and suggestions (collectively, "Submissions") is and will be treated as non-confidential and non-proprietary, and we shall have the right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. You represent and warrant that you are the owner or have sufficient rights to share the Submissions with us. Submissions represent the unique experience of the submitting customers, and do not necessarily reflect the experience that you may have using our products.

 

Sutera reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. Sutera shall be under no obligation to use any, or any part of, any testimonial or product review submitted.

 

23.0  Electronic Communications

You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.

 

24.0  Assignment

You may not assign any of your rights under these Terms, and any such attempt will be null and void. Sutera and its affiliates may, in their individual discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to these Terms if some or all of Sutera's business is transferred to another entity byway of merger, sale of its assets, or otherwise.

 

25.0  No Waiver

No waiver by Sutera of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Sutera to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

 

26.0  Severability

In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms. Such determination shall not affect the validity and enforceability of any other remaining provisions.

 

27.0  Termination

In the event that we terminate this Agreement, Sections 1-29, as well as any representations, warranties, and other obligations made or taken by you, shall survive the termination of this Agreement.

 

28.0  Entire Agreement

These Terms, the Agreement, and any policies or operating rules posted by us on the Site or in respect to the Site constitutes the entire agreement and understanding between you and Sutera, and supersedes and replaces any prior or contemporaneous agreements. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.

 

29.0  Questions or Additional Information

If you have any questions regarding your account, any product or service, or these Terms, please contact our customer support team via chat, or by mail, email, or phone at the following:

 

Sutera Holdings, LLC
2570 W. 600 N. Suite 400, Lindon, UT 84042
Email: support@sleepsutera.com
Tel: 949-561-1019