EMMA Terms and Conditions
These Emma Terms & Conditions of Service apply to this website and any other associated digital properties (collectively, the “Site”) owned and operated by Emma Sleep GmbH, Emma Mattress, Inc. d/b/a Emma Mattress, Emma Sleep Canada Inc., and associated corporate affiliates (hereinafter, the “Company”, "Emma", “we”, “us” or “our”). The use of the Site, including the purchase of any Products (as defined below) is subject to (i) the following terms and conditions (the “Terms”), (ii) the terms of our Privacy Policy, and (iii) the terms and conditions of our 365-Night Trial Policy and Warranty (as applicable). Therefore, please read all materials carefully, as they contain important information regarding your legal rights, remedies and obligations, including, but not limited to, various limitations exclusions and indemnities.
By using the Site, you are indicating to us that you agree to these Terms as they are written here. If you do not agree to these Terms, you may not use, and must immediately cease accessing, the Site now or in the future. If you have any questions about the Terms, please contact https://www.emma-mattress.ca/contacts/
The Site allows you to learn about and purchase Emma mattresses and other products (collectively, the “Products”).
We may change, suspend, or discontinue any aspect of the Site at any time, including hours of operation or availability of the Site or of any Product or feature, without notice or liability.
We may offer Products through other authorized distribution channels, such as other sellers and websites; if so, the terms, conditions, and policies applicable to those other sellers and websites may apply, and those may be different than these Terms.
(QUEBEC RESIDENTS: the following provision does not apply to you) Please note that the arbitration provision set forth in these Terms below, require you to arbitrate any claims you may have against Emma on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
I. OUR PRIVACY POLICY
Please refer to our Privacy Policy on our website to learn about collection and use of information from and about you. The Privacy Policy is part of these Terms. You acknowledge that you have read the Privacy Policy as it may be updated from time to time.
II. ELECTRONIC COMMUNICATIONS
By visiting the Site, or sending us e-mails, you are communicating with us electronically. In doing so, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing. We may also communicate with you via telephone; please let us know if you do not want us to contact you by telephone.
III. ELIGIBILITY
No part of the Site is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, DO NOT USE OR ACCESS THIS SITE.
If you purchase a Product via the Site on behalf of another person, entity or organization, then by doing so, you represent and warrant to us that you have the right and authority to do so and to bind that other person, entity or organization to these Terms.
IV. CONTENT & INTELLECTUAL PROPERTY
You may not copy or use any of the Content and intellectual property of or on the Site without our expressed written consent or a prior written authorization. Content means all the visual, audio-visual, and written information displayed on the Site, including all graphics, photographs, drawings, designs, iconography, animation, videos, and writing (collectively, “Content”). All Content on the Site is the property of Emma and/or third parties with whom Emma has a relationship, and all Content may be protected by one or more applicable intellectual property laws, including without limitation copyright, right of publicity, trademark laws.
The source code and compilation of this Site are additionally the exclusive property of Emma and protected by applicable intellectual property laws. You are in no way authorized to use such source code for any purpose other than the ordinary use of the Site.
All trademarks, service marks, trade names, trade dress, and other branding devices (collectively, “Marks”) that appear on the Site and/or the Products (collectively the “Emma Marks”) are the exclusive property of Emma Mattress, Inc. and Emma Mattress GmbH or its affiliates and are protected by applicable intellectual property laws. In some cases, we may display trade or service Marks owned by third parties with whom we have a relationship. You may not use or display the Emma Marks (or Marks of third parties displayed on the Site) without our prior written authorization (or prior authorization from the applicable third party).
If you are a member of the press, you may use the Content included on our Press page without our prior written authorization, but only for legitimate, accurate, non-commercial reporting purposes that are not likely to cause confusion as to the source, sponsorship and/or affiliation of Emma or Emma’s Products.
Please contact us at https://www.emma-mattress.ca/contacts/ if you have questions about our Content or intellectual property, including whether we are willing to authorize your use of the same.
V. LIMITED LICENSE AND SITE ACCESS
Subject to these Terms, we grant you permission to access the Site only for your lawful personal use (or personal use on behalf of a third party). You may not use the Site to do or to facilitate any of the following things (or otherwise to violate any laws or legal rights of anyone else):
Copy, imitate, mirror, distribute, publish, download, publicly display, publicly perform, post or transmit any of the Content in any manner or format, and through any means now known or later developed;
Resell any Products or display or describe the Products for commercial or competitive purposes, or in a false, misleading, or disparaging light;
Commit fraud or other dishonest act, including by seeking refunds or other compensation or benefits for Product orders that are not legitimate, or about which you are not being completely truthful in your communications with us.
Make commercial use of any Content or any Product available on the Site.
Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the source code / HTML code underlying the Site;
Use any automated software or tools that are designed to extract and copy data (such as bots, spiders, crawlers, or other similar data-mining, data-gathering, or data-extraction methods) on the Contents of, or source code / HTML code underlying, the Site;
Collect any information about users of the Site;
Attempt to interfere with, disrupt, reverse-engineer, steal from, or gain unauthorized access to, any of the software, technology, or equipment that supports the Site;
Impersonate another person, or misrepresent your affiliation, with a person or entity;
Remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notice from the Site, including any copy thereof or other proprietary notations;
Post advertising or marketing links or content; or
Access the Site from anywhere in the world where it is unlawful for you to do so.
All rights not expressly granted to you are reserved by us and, if applicable, our licensors. For greater clarity, you are permitted to refer to the Site through email, social media, or other similar methods, provided that you do not imply any affiliation between you and us, or you and the Site, or portray us or the Site in a false, misleading, derogatory or otherwise defamatory manner.
VI. TRUTHFUL COMMUNICATIONS, ACCOUNTS, FORMS, REGISTRATIONS AND PASSWORDS
Your use of the Site may require an account identifying you as a user. When you create an account, you will be asked to provide certain information which will be subject to our Privacy Policy. You represent and warrant that the information you provide to Emma upon creating an account on the Site and at all other times will be true, accurate, current, and complete.
You agree to provide true, current, accurate and complete customer information as requested by us or our agents from time to time and you agree to promptly notify us of any changes to this information as required to keep such information held by us current, complete and accurate. We are not responsible for problems that you encounter as a result of false, inaccurate, outdated, or incomplete information that you provide to us. For example, when you purchase a Product via the Site, we will ship that Product to the address that you provided while completing your order. If that address is incorrect, you may experience problems with your purchase for which we will not be responsible.
If you do create an account, you must not register for an account on behalf of any individual other than yourself or register for an account on behalf of any group or non-individual entity unless you are duly authorized to do so by such group or entity. In connection with your account, you are solely responsible for (i) your account and the maintenance, confidentiality and security of your account and all passwords related to your account; and (ii) any and all activities that occur under your account, including all activities of any persons who gain access to your account, with or without your permission.. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Site and to preserve the confidentiality of your username and password, and any of device that you use to access the Site. You agree to notify us immediately of any breach of secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third-party, you agree to immediately notify Emma by e-mail to https://www.emma-mattress.ca/contacts/ .
VII. PURCHASING PRODUCTS
We will display the current prices on the Site for all Products available for purchase via the Site. The prices do not include applicable taxes and fees that we are legally required to charge you. We will inform you about any such taxes and/or fees before you are able to complete a purchase order. For example, certain jurisdictions require us to charge and remit separate fees to support those jurisdictions mattress recycling efforts.
We do not charge for standard shipping within Canada.
The Site currently uses one or more third parties to process payments that you authorize in connection with purchasing Products. We will inform you of the methods of payment that our third-party payment processors permit while you are placing your order.
All amounts listed and monetary transactions on and via the Site are in Canadian dollars.
VIII. 365-NIGHT TRIAL, WARRANTY, AND OTHER REFUNDS / RETURNS
We stand behind our Products. Each Product that is manufactured by Emma and purchased directly from Emma is covered by a warranty, the terms of which can be found at https://www.emma-mattress.ca/365-night-trial/ (the “Product Warranties”). The Product Warranties are expressly incorporated by reference into these Terms. To the extent there is a conflict between the terms of any Product Warranty and these Terms, the terms of the applicable Product Warranty shall govern.
If you are dissatisfied or believe there is a defect in any of your Products, please review the relevant warranty and, if you believe that you are entitled to take advantage of those terms, please contact us at https://www.emma-mattress.ca/contacts/
Please refer to our 365-Night Trial Policy and Limited Warranty to learn about the terms that apply to those Emma offerings. You may return any Product within the first 365 days after your receipt of that particular Product, provided that the Product is located in Canada and that the the customer must unbox and unwrap the mattress within four weeks of the delivery date in order for the mattress to inflate to its entirety. If the customer does not comply with the recommendation within the prescribed time frame, Emma reserves the right not to compensate the customer for any defect in the product caused by improper storage or to send the customer a new product to replace the original one. The purchased product must be inflated within four weeks commencing the date of delivery in order to be eligible for return under the 365 Night Trial Policy. Refunds will be issued in the form of the original payment If you purchased the Product using an offer code or gift code, the dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. For questions about potential refunds or returns not covered by the 365-Night Trial Policy and Limited Warranty, please contact https://www.emma-mattress.ca/contacts/ .
Return shipping is free, provided that the Product being returned is located in the United States (not including territories) or Canada.
Products must be in donable condition to be eligible for return (e.g., no stains, tears or other soiling including odors).
IX. GIFT AND OFFER CODES; REFERRAL PROGRAM
Emma may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to as “offer codes”) that are redeemable towards a purchase on https://www.emma-mattress.ca/, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Emma in its sole discretion. Only valid offer codes provided or promoted by Emma will be honoured at checkout. Codes supplied or promoted by third parties unauthorized by Emma (including any unauthorized third-party websites) will not be considered valid. Each offer code promoted by Emma is non-transferable and valid for single use on an item (or items) of merchandise as determined by Emma. Offer codes may not be combined and may not be used in conjunction with the Emma Referral Program–customers are limited to the use of a single offer code per order. Offer codes cannot be used towards purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the ‘Apply Coupon’ field at checkout. Offer codes are only valid online. Emma is not responsible for lost, stolen or corrupted codes or any unauthorized use of codes. Offer codes cannot be redeemed for cash or any cash equivalent; no substitutions or credits allowed. The dollar value of any offer code will not be refunded or credited back if any or all the merchandise is returned. Expiry dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
Refer-a-friend: In order to be eligible for the Refer-A-Friend program, you have to be an Emma customer and have an Emma customer account. To refer a friend, go to your customer account, click on the “My referred friends“ tab and enter their email address. Your friend will then receive an email with their personalised voucher code. The voucher code is only valid on purchases made on emma-mattress.ca. The minimum spend is $290. The voucher code can be used on the entire Emma range and in conjunction with other offers and promotions. You are entitled to the $50 cash reward if the referred friend keeps their Emma products beyond their 365-night trial period. To receive the $50 cash reward, contact our customer service team by sending an email to support@emma-sleep.ca or calling them on 1-888-585-3662. Restrictions might apply. Conditions: We reserve the right to invalidate the voucher if it is made public on the internet or appears on any search engine. In this case the referrer also loses their claim to the $50 cash reward. The number of cash reward pay-outs is limited to ten. The voucher code becomes invalid if the referrer’s order is cancelled and the claim to the $50 cash reward is lost. The claim to the cash reward is also lost if the order is returned. The referrer and the referred cannot be the same person. People living in the same household or immediate family members cannot be referred. Customers are prohibited from using fake or multiple email addresses or customer accounts and cannot use fictitious identities to take part in the Refer-A-Friend program. We reserve the right to exclude customers from participating in this promotion, if they do not meet the necessary requirements or violate the rules in any other way. We also reserve the right to cancel the Refer-A-Friend program without further notice. For further questions about the Refer-A-Friend program please contact our customer service by sending an email to support@emma-sleep.ca or calling them on 1-888-585-3662. From time to time, Emma may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third-party source, such as a television or radio show host, please note that such individuals may have been compensated by Emma for their statements.
X. CONTENT YOU SUBMIT TO EMMA
From time to time, Emma may allow you to submit or post reviews, comments, photos, videos, or similar content or materials on the Site (collectively, the “Postings”). We welcome your Postings as long as they are appropriate. Postings may not harass, libel, defame, slander, threaten, or otherwise violate the legal rights of any other person or organization and may not be obscene, pornographic, defamatory, profane, or otherwise unlawful or indecent.
We reserve sole and complete discretion over whether to allow or display, and how to use, all Postings. By submitting a Posting on the Site, you hereby grant Emma an unrestricted, assignable, sublicensable, perpetual royalty-free, fully paid up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Postings you submit to the Site, for any purpose, including promoting and marketing Emma and the Products. You further grant Emma a royalty-free license to Use the name, image, and likeness of any person identifiable in any Posting you submit to the Site. By submitting a Posting, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your Posting. Except for materials provided to you by Emma through the Site, you represent, warrant, and covenant that you either are the sole and exclusive owner of the Postings that you submit to the Site, or you have all rights, licenses, consents, and releases that are necessary to grant to Emma the rights in your Postings as contemplated under the Terms, and the Postings you submit do not infringe, misappropriate or violate the rights of any party or entity, including a third-party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on non-consensual recording, or otherwise), or require Emma to obtain any licenses from or make any payments in any amounts to any third-party throughout the world.
You acknowledge and agree that we may retain a copy or copies of the Postings for archival or compliance purposes or to otherwise provide the Site to you or others, subject always to your license to us set out above, even if you delete your account to which the Postings are connected.
You confirm, represent and warrant that you possess all legal rights, authorizations, and/consents or releases necessary to grant to Emma the foregoing rights in your Posting. You further confirm, represent, and warrant that the Posting do not infringe, misappropriate, or violate any legal rights of any other person or organization party or entity. You agree that you will indemnify and save us and our affiliated companies harmless from and against any liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever incurred by us relating to or arising from the Postings.
Emma has no obligation to monitor the Site or the Postings submitted to the Site. However, we reserve the right to maintain full control over all aspects of the Site, including all Postings, and we may remove, delete, redact, or otherwise modify any Posting at any time, for any reason, with or without notice or further obligation to you. If you do not agree with these terms, please do not submit any Postings.
Emma does not promise or guarantee that the content of any Posting will be truthful, accurate, or reliable.
XI. DISCLAIMERS AND INDEMNITIES
IF YOU ARE A CONSUMER SUBJECT TO THE QUEBEC CONSUMER PROTECTION ACT, THE WARRANTY DISCLAIMERS CONTAINED IN THIS PART XI DO NOT LIMIT YOUR RIGHTS AND REMEDIES UNDER SUCH ACT, INCLUDING THE RIGHT TO MAKE A CLAIM UNDER ANY OF THE STATUTORY WARRANTIES PROVIDED UNDER SECTIONS 34 TO 54 OF SUCH ACT.
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Site you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Site at any time, including hours of operation or availability of the Site or any feature, without notice or liability.
Emma is not responsible for any dispute or disagreement between you and any other person or entity with whom you may communicate or interact via or while using the Site. You assume all risk associated with dealing with such third parties. You release and shall hold harmless Emma from and against all claims, injuries, demands, and exposures of any kind arising out of or relating to any such dispute or disagreement. You also promise not to involve Emma in such dispute.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND (B) EXCEPT FOR OUR EXPRESS LIMITED WARRANTY, EMMA (INCLUDING ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, ADVISORS, SUBSIDIARIES, AFFILITATES, AND CONTROLLING PARTIES) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO THE SITE (AND PRODUCTS OR SERVICES AVAILABLE VIA THE SITE), IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (C) THE CONTENT THAT YOU MAY ACCESS WHILE USING THE SITE MAY CONTAIN LINKS TO WEBSITES OR THIRD PARTY APPLICATIONS WHICH ARE PROVIDED SOLELY AS A CONVENIENCE TO YOU AND THE INCLUSION OF ANY SUCH LINKS DO NOT IMPLY ENDORSEMENT, INVESTIGATION, OR VERIFICATION BY US OF SUCH WEBSITES OR THIRD PARTY APPLICATIONS OR THE INFORMATION CONTAINED THEREIN.
EMMA MAKES NO WARRANTIE AS TO YOUR USE OF THE SITE AND, EXPRESSLY DISCLAIMS THAT:
THE SITE WILL MEET YOUR EXPECTATIONS OR NEEDS
THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE
THE NATURE, QUALITY, OR QUALITIES OF ANY PRODUCTS OR SERVICES PROMOTED OR AVAILABLE FOR PURCHASE VIA THE SITE WILL MEET YOUR EXPECTATIONS OR NEEDS
You agree to indemnify and hold us harmless from all liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any such action, or to satisfy a judgment, and expenses of any kind and character whatsoever incurred by us relating to or arising from (i) access to or use, by you or permitted by you, of the Site or your account, or (ii) any of your acts or omissions, including breach or non-performance of these Terms and any violation of any third party rights.
XII. LIMITATION ON LIABILITY
IF YOU ARE A CONSUMER SUBJECT TO THE QUEBEC CONSUMER PROTECTION ACT, THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION DO NOT RELEASE EMMA FROM THE CONSEQUENCES OF ITS OWN ACTIONS OR THE ACTIONS OF ITS REPRESENTATIVES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT EMMA WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EMMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY OF THE FOLLOWING: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD-PARTY ON THE SITE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF EMMA CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE) IS $1000.
Some jurisdictions prohibit the disclaimer of certain warranties or conditions or the limitation of certain types of liability. In such circumstances, to the extent that such prohibitions prohibit any exclusions and limitations in these Terms, such exclusions and limitations will not apply to you strictly to the extent necessary to make these Terms consistent with such prohibitions.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED
XIII. DISPUTE RESOLUTION; CHOICE OF LAW; MANDATORY ARBITRATION
IF YOU ARE A CONSUMER SUBJECT TO THE QUEBEC CONSUMER PROTECTION ACT, THE IMMEDIATELY FOLLOWING JURISDICTION PROVISION DOES NOT APPLY
We hope and expect that we will never have a dispute with you. However, if a dispute, claim, or controversy does arises from these Terms, the Site, or your purchase of Products or use of any service available via the Site, the following rules and procedures shall apply.
Informal Dispute Resolution. Both parties (You and Emma) both agree that you will try in good faith to resolve any dispute informally. If you wish to initiate this informal process, you must send a notice clearly marked “Notice of Dispute,” and have it contain a brief yet detailed written statement clarifying your name, address, and contact information, the information pertaining to your dispute, and the resolution you are seeking. All notices must be sent to support@emma-sleep.ca. We will contact you via email at the address that you have specified in your notice or at the physical address we have on file relating to any order you placed with us. Both parties (You and Emma) agree to use reasonable, good faith efforts to settle any dispute through consultation, communication, and negotiations within thirty (30) days of your submission of a formal notice. If a dispute is not resolved within thirty (30) days of it being formally submitted, either party may resort to the procedures described in the remainder of this section. If Emma has a dispute with you, they will follow the same procedure, except with the one caveat that they will initiate the process by sending the “Notice of Dispute” to you via email at the address specified in any such notice or the physical address we have on file relating to any order you placed with us.
Mandatory Arbitration. In the event that you and Emma Mattress INC are unable to resolve a dispute through informal negotiation within thirty (30) days of the “Notice of Dispute” (as described above), both parties (You and Emma Mattress, Inc.) agree to resolve the dispute through final and binding arbitration, except as set forth under “Exceptions” below, and unless you have opted-out of this agreement to arbitration by following the procedure described below.
Opt-out of Agreement to Arbitrate
You can decline this agreement to arbitrate within thirty (30) days of your first use of the Site or the date on which you purchased a Product (whichever is later) by contacting support@emma-sleep.ca in written form (including via email) clearly marked with the subject stating “Opt-out of Agreement to Arbitrate” that states that you decline this arbitration agreement.
If you do not choose to opt out, both parties (You and EMMA) agree to submit to the personal and exclusive arbitration of any disputes arising out of or relating to your use of the Site under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”). The AAA Rules and fee information are available at www.adr.org or by calling the AAA at 1-800-778-7879.
Arbitration be held in Delaware, unless both parties (You and Emma) otherwise agree in writing. You may not, and you promise not to, initiate any legal action or proceeding against Emma (including its employees, officers, agents, advisors, and sister companies) in any other forum or location.
[Any dispute arising between You and Emma concerning the Terms shall be referred to and finally resolved by a single arbitrator pursuant to the provisions of the Arbitration Act (British Columbia). Any such arbitration shall be held in the City of Vancouver, British Columbia and will be conducted in the English language. The decision of the arbitrator on all issues or matters submitted to the arbitrator for resolution shall be conclusive, final and binding on all of the parties.]
Emma will reimburse all filing and arbitration fees for claims of less than $75,000 unless the arbitrator determines that a claim is frivolous or was brought in bad faith or for an improper purpose. You are responsible for any other costs that you may incur in connection with the arbitration, including but not limited to attorney's fees and expert witness costs, unless Emma is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the applicable arbitration rules shall govern payment of filing fees and arbitration fees. Both parties (You and Emma) agree not to seek attorneys' fees and costs in arbitration, unless the arbitrator determines that a claim is frivolous or was brought in bad faith or for an improper purpose.
You agree that you may resolve any dispute with Emma only on an individual basis, and that you may not, to the extent permitted by law, bring any claim or demand as a plaintiff of, or otherwise participate as part of, any purported class, consolidated, or representative action or proceeding. Further, unless both parties (You and Emma) otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, consolidated or representative proceeding. Therefore, you acknowledge and understand that each of the following restrictions applies to any dispute you have with Emma (including its employees, officers, agents, and advisors) arising out of or relating to your use of the Site, purchase of any Products, or these Terms:
If any court or arbitrator determines that the class, consolidated, or representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration may proceed on a class, consolidated, or representative basis, then the dispute will not be subject to arbitration and, other than small claims actions, must be brought in a federal or provincial court of competent jurisdiction in Vancouver (British Columbia). Both parties (you and Emma) irrevocably consent to venue and personal jurisdiction there and waive all objections to venue or personal jurisdiction there (except for objections based on failure of service of process). Both parties (You and Emma Mattress, Inc.) also each agree to waive our right to a jury trial in these circumstances.
Exceptions. Either you or Emma may bring a lawsuit for injunctive relief to prevent and/or to stop (1) unauthorized use or abuse of the Site, (2) defamation, libel, or other false or misleading statements, or (3) any actual or threatened intellectual property infringement or unfair competition without first engaging in the informal dispute resolution and arbitration processes described above.
Choice of Law. These Terms and the relationship between you and Emma shall in all cases be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein without reference or recourse to its choice of law or conflicts of laws principles.
Terms Admissible as Business Records. A printed version of these Terms (including our Privacy Policy and our 365-Night Trial Policy and Limited Warranty) and of any other communications between the two parties (You and Emma) shall be fully admissible in any proceedings arising out of or relating to these Terms, and shall be treated as a record maintained in the ordinary course of Emma's business.
XIV. OUR RIGHT TO TERMINATE YOUR ACCESS TO THE SITE
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Site, and to block or prevent future access to and use of this Site for any reason or no reason. Upon termination, these Terms will still apply.
You acknowledge and agree that termination for any reason may result in restrictions or disruptions to or cessation of your or third party access to your account and Postings, and you hereby agree to release us from any and all liability and claims of loss resulting from restrictions, disruptions or cessations. If your use of the Site is terminated, we will have no obligation to forward any of your Postings to you or any third party.
XV. OUR RIGHT TO CHANGE OR UPDATE THESE TERMS
We may review these Terms periodically to ensure that they comply with applicable law and remain consistent with our Products and operations. We reserve the right to amend these Terms at any time without notice to you, but we will use reasonable efforts to publish each amendment before it becomes effective. We will publish the latest, fully-amended version of these Terms on the Site. You are responsible for regularly reviewing the Site to obtain timely notice of such amendments. If you continue to use the Site after the effective date of each amendment, you will be conclusively deemed to have accepted such amended version of these Terms.
XVI. WAIVER
Our failure partially or fully to exercise any of our rights, or our waiver of any violation of these Terms, shall not prevent our later exercise of such right and shall not constitute or indicate our waiver of any subsequent breach. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.
XVII. SEVERABILITY
If any of these Terms are deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition. NOTHING IN THESE TERMS WILL AFFECT ANY NON-NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
XVIII. GENERAL PROVISIONS
Interpretation – In these Terms, (i) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (ii) the word “including”, the word “includes” and the phrase “such as”, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (iii) all references to website addresses or URLs shall also include any successor or replacement websites containing substantially similar information as the referenced website(s).
Entire Agreement - These Terms constitute the entire agreement between you and Emma with respect to the Site and supersede all prior or contemporaneous communications relating to the Site. Any rights not expressly granted herein are reserved.
Assignment and Inurement - We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
English Language – The part ies have requested and agree that this agreement and all documents relat ing thereto be drawn up in English / Les part ies ont demandé que cet te convent ion ainsi que tous les documents qui s’y rat tachent soient rédigés en anglais.
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