DREAMCLOUD SLEEP CANADA
TERMS & CONDITIONS
EFFECTIVE DATE: DECEMBER 12, 2022
Welcome to the DreamCloud website, www.dreamcloudsleep.ca, (the “Website”) by Resident Home Canada ULC (“Resident”, “we”, “us”, “our”). Please review these Terms of Use (the “Terms”) and our Privacy Policy (“Privacy Policy”) carefully because they govern your access to and use of the Website as well as any services (“Services”) we may provide you through the Website. These Terms form a contract between you and Resident.
READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THIS WEBSITE, OR EXPRESSLY AGREEING TO THESE TERMS IN THE MANNER PROVIDED ON THIS WEBSITE, INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THIS WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. THESE TERMS APPLY TO CONSUMERS LOCATED IN CANADA. IF YOU ARE NOT A CONSUMER LOCATED IN CANADA AND YOU PROCEED WITH BROWSING OR USING THIS WEBSITE, INCLUDING, WITHOUT LIMITATION, MAKING A PURCHASE THROUGH THIS WEBSITE, THEN YOU AGREE TO BE BOUND BY THE U.S. TERMS AVAILABLE AT HTTPS://WWW.DREAMCLOUDSLEEP.COM/P/TERMSOFUSE/.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW. THE FOREGOING MAY NOT APPLY TO CERTAIN CANADIAN USERS, INCLUDING QUEBEC CONSUMERS.
I. CHANGES
We may change the Website and Services we offer and/or choose to modify, suspend or discontinue this Website at any time and without notifying you. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. We will inform you of any modifications to these Terms by posting them on this Website. Your access to and use of the Website will be governed by the Terms as they exist at the time of such access and use and a new contract is formed in each instance based on the then current Terms, which may be different from previous versions of these Terms. Continued use of this Website following notice of any such modifications, or expressly agreeing to these Terms in the manner provided on this Website, indicates you acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of this Website. Unless otherwise stated, these expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
II. GENERAL USE
We invite you to use this Website for individual, consumer purposes (“Permitted Purposes”). In these Terms, we are granting you a limited, personal, non-exclusive, revocable, non-sub-licensable, and non-transferable license to use and to display the text, data, information, software, graphics, photographs and other content (“Materials”) on the Website; your right to use the Materials is conditioned on your compliance with these Terms. You have no other rights in this Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of this Website or Materials in any manner except for a Permitted Purpose. If you make copies of any portion of this Website while engaging in Permitted Purposes then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on this Website. If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
III. USING SITES AND THE WEBSITE'S SERVICES
We appreciate you visiting this Website and allow you to visit the Website without registering with us. By using this Website, you represent, acknowledge and agree that you are at least 18 years of age and, in any event, at least of legal age and with the necessary legal capacity to form a binding contract in your jurisdiction (in some jurisdictions, this is also referred to as the age of majority). However, in order to access certain password-restricted areas of this Website and to use certain Services and Materials offered on and through this Website, we may require you to successfully register an account with us.
IV. PASSWORD-RESTRICTED AREAS OF THIS WEBSITE
If you want an account with us, you must submit the following information through the account registration page on this Website:
– a working email address;
– your first and last name; and,
– a password.
You may also provide additional, optional information so that we can provide you a more customized experience when using this Website. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be sent an e-mail detailing how to complete your registration. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes. If you forget your password, we will send a password update to your provided email address.
You are responsible for complying with these Terms when you access this Website, whether directly or through any account that you may setup through or on this Website. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access this Website. Should you believe your password or security for this Website has been breached in any way, you must immediately notify us.
V. PAYMENTS
You agree to pay all applicable fees related to purchases made on this Website. Any such fees are in Canadian Dollars, unless another currency is explicitly stated. We may suspend or terminate your account and/or access to our Services and this Website if your payment is late and/or your offered payment method (e.g., credit card or PayPal) cannot be processed. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as related taxes, fees, duties, customs, and surcharges set by any governmental agency or taxing authority (collectively, “Sales Taxes”) and other charges incurred thereto at regular intervals, all of which depend on your purchases. Where we do not bill you for applicable Sales Taxes, you agree to self-assess and pay such Sales Taxes directly to the applicable governmental agency or taxing authority and will provide evidence of such payment to us upon written request to you for same.
If you select to make a purchase using the financing option, your purchase will be subject to the Affirm Canada Holding LTD’s (“Affirm”) Terms, including completion of a credit check and approval. See Affirm – Help for details. You agree to comply with Affirm’s Terms and you agree that Resident is not responsible, and you understand that Resident assumes no liability, for any services provided by Affirm, including, without limitation, any financing.
We understand that you might cancel your account, but please know that we will only provide refunds in accordance with the “Cancellations, Returns, Exchanges, and Refunds” provision below.
You agree that risk of loss and title for products you purchase from us pass to you upon delivery of any such products to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.
VI. CANCELLATIONS, RETURNS, EXCHANGES, AND REFUNDS
You may cancel an order any time prior to processing. You may return any of your products for a full refund (not including fees for shipping) subject to the terms and conditions for returns for each of our products. Our return and refund policies for our products, which are incorporated into these Terms, are available on the Website (for each product, the “Product Return Terms”). In the event of any inconsistency between these Terms and the Product Return Terms, these Terms shall prevail, but only to the extent of the inconsistency.
Refunds will be issued in the form of the original payment. If you purchased a product using an Offer Code (as defined in these Terms), the dollar value of the Offer Code will not be refunded or credited back if any or all products are returned.
Unless a product exchange is requested due to a manufacturing defect or warranty claim, exchanges are processed as return and refund requests as described herein. After returning the product to be exchanged, you may place an order for the replacement product. You may request only one exchange. No refunds will be given for shipping fees or for White Glove Service fees on product exchanges.
If you wish to return any products you purchased from us, please contact Customer Service by email at info@dreamcloudsleep.ca to arrange for the return. Once the products have been returned and if such products fulfill the terms and conditions herein, you will be refunded the entire amount paid for such products less (i) any Offer Code (defined below) or other discounts, and (ii) fees for shipping.
VII. OFFER CODES
From time to time, we may offer qualified consumers offer codes (“Offer Codes”) through various communications and advertising channels that are redeemable towards a purchase on the Website, while supplies last, and subject to certain product exclusions or any other restrictions as determined and communicated by us in Our sole discretion. Only valid Offer Codes provided by us and fulfilling the terms of such Offer Code will be honoured at checkout. Offer Codes supplied by a third party unauthorized to provide such Offer Codes by us will not be considered valid. Each Offer Code is non-transferable and valid for single use on an item as provided in the terms and in our sole discretion. Offer Codes cannot be used towards taxes. The Offer Code must be provided in the applicable box at checkout when purchasing the product. We are not responsible for lost, stolen or corrupted Offer Codes or any unauthorized use of the Offer 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 of the products are returned. Offer Codes may have expiration dates and we may decide to stop accepting any Offer Codes or stop any promotion at any time in our sole discretion. Offer Codes are void if copied, transferred, sold, exchanged or expired and where prohibited. Requests not complying with all terms and conditions of the Offer Codes will not be honoured. Current promotion and offer details can be found here. In the event of any inconsistency between these Terms and the terms of a Offer Code, the Terms shall prevail, but only to the extent of the inconsistency.
VIII. ELECTRONIC COMMUNICATIONS
You may subscribe and consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website and/or Services provided on or through the Website. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. This paragraph is subject to applicable Canadian anti-spam laws.
IX. RESIDENT TEXT MESSAGE PROGRAM
By participating in Resident’s text messaging program, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages (e.g. cart reminders) from Resident, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. This paragraph is subject to applicable Canadian anti-spam laws. Consent to receive automated marketing text messages is not a condition of any purchase. Standard carrier msg & data rates may apply.
Message frequency will vary. Resident reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Resident also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so.
Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. Resident, its service providers, and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
We are able to deliver messages to the following mobile phone carriers: Bell, Rogers, Telus, Shaw/Freedom, Videotron, Sasktel, Eastlink, and Iristel.
IX.A. Cancellation
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Resident and its service providers will have no liability for failing to honour such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Resident through any other programs you have joined until you separately unsubscribe from those programs.
IX.B. Help
Text the keyword HELP to our shortcode to return customer care contact information.
IX.C. Customer Care
If you are experiencing any problems, please contact us via e-mail at emailteam@dreamcloudsleep.ca.
IX.D. Contact
This text message program is a service provided by Attentive Mobile Inc. to Resident Home Canada ULC. You may contact us at the e-mail address listed above.
IX.E. Dispute Resolution
In the interest of resolving disputes between you and Resident in the most expedient and cost effective manner, you and Resident agree that any dispute arising out of or in any way related to these text messaging terms and conditions or your receipt of text messages from Resident or its service providers will be resolved according to Provision XXI of these terms.
X. PRIVACY POLICY
We respect your right to privacy and want to ensure that you understand how we use the personal information that you provide to us. Please review our Privacy Policy, available at www.residenthome.com/p/privacypolicy (“Privacy Policy”), which describes how we collect, use and disclose personal information.
XI. LINKS TO THIRD-PARTY SITES
We think links are convenient, and we sometimes provide links on this Website to third-party websites. If you use these links, you will leave this Website. We are not obligated to review any third-party websites that you link to from this Website, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from this Website, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites.
XII. SUBMISSIONS
Certain areas of this Website (e.g. customer ratings and review areas) may permit you to submit feedback, information, data, text, software, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted
By submitting any User Submission, you are promising, representing and warranting to us that:
– you own all rights in your User Submissions (including, without limitation, all rights to the communication, reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to us the rights in your User Submissions as described in these Terms;
– you have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
– your User Submissions do not infringe, misappropriate, or violate the copyright, trademark, patent, trade secret, confidential information or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
– you voluntarily agree to irrevocably waive, in whole, all “moral rights” that you may have in your User Submission;
– any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
– your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising or criminal law);
– your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
– you were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
– your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own);
– your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
– your User Submission does not contain any information that you consider confidential, proprietary, or personal; and,
– your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam or other commercial electronic message, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
– use, distribute, reproduce, modify, adapt, publish, translate, communicate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
– use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); and,
– display advertisements in connection with your User Submissions and to use your User Submissions for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Website through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Website and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
XIII. CUSTOMER PRODUCT REVIEW WEBSITE MODERATION POLICY
XIII.A. Review Moderation Guidelines
Whether solicited or unsolicited and without regard to the star value of the review, customer reviews will be curated in a timely manner and in Resident’s sole discretion as follows:
When we remove a customer review:
– if the review is incomprehensible;
– if the review includes obscene or vulgar language;
– if the review includes harassment or threats of violence or harm;
– if the review is unrelated to the review or use of the product purchased;
– if the review includes inappropriate references to race, religion, gender, sexuality, or ethnicity;
– if the review is false, misleading, or appears intended to direct customers to a competitive website or affiliate link;
– if the review includes non-public, personal information such as emails, phone numbers, physical addresses, or other forms of contact information;
– if, in the good faith judgment of the Resident marketing team, the review is suspected to have been created by:
i) a bot (and not a real human);
ii) a competitor (and not a real customer);
iii) a consumer who did not actually purchase the product or receive services; and,
– if, in the good faith judgment of the Resident marketing team (and in our sole discretion), the review is deemed to be inappropriate or offensive for any other reason.
XIII.B. Violation(s) of the Guidelines
A customer’s violation of this “Customer Product Review Website Moderation Policy” may lead to the restriction of the customer’s ability to post reviews, removal of their content, or suspension or termination of the customer’s Resident account.
XIII.C. Uniform Application of Review Moderation Guidelines
All guidelines are applied uniformly to all reviews submitted, regardless of whether the review provides positive or negative customer feedback, particularly when deciding whether or not we remove or refuse to post a review. For example, if we withhold a negative review for including obscene language, we will also withhold positive reviews that include obscene language.
XIII.D. "Verified" Status Reviews
Customer reviews that are marked “Verified” visually indicate that the review was provided by:
– a real person (and not a bot);
– an actual consumer (and not a competitor); and,
– someone who actually purchased the product being reviewed.
As such, they will only be removed if they violate any of the applicable guidelines listed above.
XIII.E. Sorting & Filtering Reviews
All customer reviews will include the date of the review, and their order may be sortable by date, relevance, or some variables selectable by the consumer; Resident reserves the right to adjust the filters and sorting features at any time.
XIII.F. Outreach & Solicitation
On occasion, Resident may identify and contact our customers to solicit a customer review. If any incentive is provided in exchange for a review (e.g., discount, payment, opportunity, etc.), then the reviewer must disclose that “material” connection clearly in the review. See the FTC’s Endorsement Guidelines or the Canadian Competition Bureau’s Influencer Marketing and Deceptive Marketing Practices guidance, as applicable, for more details. To the extent the reviewer fails to disclose such compensation, Resident will remove the review consistent with these guidelines.
XIV. UNAUTHORIZED ACTIVITIES
To be clear, we authorize your use of this Website only for Permitted Purposes. Any other use of this Website beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of this Website. This is because as between you and us, all rights in this Website remain our property.
Unauthorized use of this Website may result in violation of various United States, Canadian and international copyright laws. Unless you have written permission from us stating otherwise, you are not authorized to use this Website in any of the following ways (these are examples only and the list below is not a complete list of everything that you are not permitted to do):
– for any public or commercial purpose which includes use of this Website on another site or through a networked computer environment;
– in a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of this Website;
– in a manner that violates any local, state, provincial, territorial, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
– to stalk, harass, or harm another individual;
– to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
– to interfere with or disrupt this Website or servers or networks connected to this Website;
– to use any data mining, robots, or similar data gathering or extraction methods in connection with this Website; or,
– attempt to gain unauthorized access to any portion of this Website or any other accounts, computer systems, or networks connected to this Website, whether through hacking, password mining, or any other means.
You agree to hire attorneys/lawyers to defend us if you violate these Terms and that violation results in a problem for us. You also agree to pay any damages that we may end up having to pay as a result of your violation. You alone are responsible for any violation of these Terms by you. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
XV. PROPRIETARY RIGHTS
DreamCloud™ and Forever Warranty™ are trademarks of Resident and/or its subsidiaries in the United States and Canada. Unless otherwise specified in these Terms, all Materials, including the compilation and arrangement of them on this Website are our sole property.
XVI. DISCLAIMER OF WARRANTIES; LIMITED WARRANTY
THIS “DISCLAIMER OF WARRANTIES; LIMITED WARRANTY” PROVISION DOES NOT APPLY TO QUÉBEC CONSUMERS.
THIS WEBSITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS WEBSITE IS WITH YOU. ANY USE OF OR RELIANCE ON THIS WEBSITE AND ITS CONTENT SHALL BE AT YOUR SOLE RISK.
WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARISING AT LAW OR IN EQUITY) WITH RESPECT TO THIS WEBSITE, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR THOSE ARISING OUT OF A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE WEBSITE IS FREE OF PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THIS WEBSITE WILL MEET YOUR NEEDS OR REQUIREMENTS OR THAT THIS WEBSITE WILL CONTINUE TO OPERATE OR THAT THIS WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, BUGS OR VIRUSES OR THAT THIS WEBSITE WILL BE COMPATIBLE WITH YOUR DEVICE OR RELATED EQUIPMENT OR SOFTWARE OR THAT DEFECTS IN THIS WEBSITE WILL BE CORRECTED. WE MAKE NO REPRESENTATION OR WARRANTY AND THERE IS NO CONDITION AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS WEBSITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THIS WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THIS WEBSITE OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY OR CONDITION. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
The products sold through this Website are subject to the terms of the limited warranty available on the Website (for each product, the “Product Warranty” and collectively, the “Product Warranties”). The Product Warranties are incorporated by reference into these Terms. To the extent there is a conflict between these Terms and the terms of any Product Warranty, the terms of the applicable Product Warranty shall govern.
XVII. LIMITATION OF LIABILITY
THIS “LIMITATION OF LIABILITY” PROVISION DOES NOT APPLY TO QUÉBEC CONSUMERS.
WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, LOSS OF REVENUE OR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE IS OTHERWISE FORESEEABLE. OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT BE MORE THAN THE GREATER OF EITHER: (I) THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE THREE (3) MONTH PERIOD PRIOR TO THE RELEVANT CAUSE OF ACTION ARISING; OR (II) $100.00. THE LIMITATION OF LIABILITY IN THIS PROVISION SHALL APPLY REGARDLESS OF THE NATURE, TYPE OR FORM OF THE CLAIM, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY.
XVIII. INDEMNIFICATION.
You hereby agree to indemnify, defend, and hold harmless us and our affiliates and our respective officers, directors, shareholders, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including legal fees, court costs, damage awards, settlement amounts, disbursements, and expenses) that result from any claim or allegation by a third party against any Indemnified Party arising in any manner from your access to or use of the Website and your breach of any representation, warranty, or other provision of these Terms. We will provide you with notice of any such claim or allegation, and we will have the right to participate in the defense of any such claim at our expense.
You acknowledge and agree that the Indemnified Parties are third party beneficiaries of this “INDEMNIFICATION” provision, and that, as a result of your acceptance of these Terms: (i) you acknowledge that we act as trustee for the Indemnified Parties with respect to all rights arising in favour of any such Indemnified Party and that we have agreed to accept such trust and hold and enforce such rights on behalf of each such Indemnified Party; and (ii) the Indemnified Parties will have the right to enforce this “INDEMNIFICATION” provision against you as a third party beneficiary of this “INDEMNIFICATION” provision.
XIX. FEEDBACK
Any submissions by you to us, including, comments, questions, suggestions, and materials (collectively, “Feedback”) through any communication whatsoever, including call, fax, mail, and email, will be treated as both non-confidential and non-proprietary. You hereby assign, and agree to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, trade secrets, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree to do all things necessary, without delay, to give effect to such assignment. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, techniques, trade secrets or other intellectual property contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XX. GOVERNING LAW
Unless you are a Quebec consumer, by accessing or using this Website, you agree that all matters relating to your access to, or use of, this Website, including, without limitation, the interpretation of, construction of, and any disputes under these Terms, shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflict of laws principles, and that you will comply with all such applicable laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any matters relating to your access to, or use of, this Website. If you are a Quebec consumer, Quebec law applies.
XXI. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION AND JURY WAIVERS.
Please Read This Provision Carefully. It Affects Your Legal Rights.
THIS “DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER AND JURY WAIVERS” PROVISION DOES NOT APPLY TO YOU WHERE PROHIBITED BY APPLICABLE LAWS IN YOUR JURISDICTION, INCLUDING APPLICABLE LAWS OF QUEBEC.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that, to the greatest extent permitted by applicable law, all disputes between you and us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including legal fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION AND THAT YOU AND RESIDENT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
XXI.A. Claim Resolution
For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing to us at legal@residenthome.com the following information:
– your name;
– your address;
– a written description of your claim; and,
– a description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
XXI.B. Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, nothing in these Terms shall be deemed to waive, preclude, or otherwise limit the right of either you or us to:
– Initiate and pursue court proceedings in small claims court if the dispute qualifies for initiation in small claims court;
– Pursue an enforcement action through the applicable federal, state, provincial, territorial or local agency if that action is available;
– Initiate and pursue court proceedings to seek injunctive relief in aid of arbitration or to enforce an arbitration award; or,
– Initiate and pursue court proceedings for an intellectual property infringement claim.
IF YOU DO NOT WISH TO RESOLVE DISPUTES BY BINDING ARBITRATION, YOU MAY OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST AGREE TO THESE TERMS BY PROVIDING US WITH NOTICE AS FOLLOWS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at legal@residenthome.ca the following information:
– your name;
– your address; and,
– a clear statement that you do not wish to resolve disputes with us through arbitration.
Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court, as applicable.
XXI.C. Arbitration Procedures
If this Provision applies and the dispute is not resolved as provided above (Claim Resolution) either you or we may initiate arbitration proceedings. Any arbitration between you and Resident will be governed by the Arbitration Rules of the ADR Institute of Canada, Inc. (“ADRIC”) and conducted by a sole arbitrator.
Resident shall nominate an individual to act as an arbitrator. You shall, by providing notice to us in writing, either signify your acceptance of our nominee or propose an alternative nominee to act as arbitrator. If you fail to provide such notice within ten (10) days of receipt of notice of Resident’s nominee for arbitrator (“Response Date”), you shall be deemed to have accepted our nominee for arbitrator. If you provide notice and propose an alternative nominee to act as arbitrator, we may accept your nominee or reject such nominee and propose another nominee. In the event that the parties do not agree within ten (10) days of the Response Date on the individual to act as an arbitrator, then either party may ask ADRIC to make the required appointment. All issues shall be for the arbitrator to decide, including the scope of this Provision.
XXI.C.i. Arbitration Award
The arbitrator may award on an individual/personal basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal available at the seat of arbitration, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
XXI.C.ii. Seat of Arbitration
The seat of arbitration shall be the city and province/territory associated with your billing address or shipping address. The venue and format of any arbitration hearing shall be as mutually agreed by you and us or, failing agreement, as determined by the arbitrator.
XXI.C.iii. Payment of Arbitration Fees and Costs
So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to legal fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the provision above titled “Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable legal fees and costs as determined by the arbitrator.
XXI.C.iv. Class Action Waiver
YOU AND RESIDENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL/PERSONAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action or consolidated action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
XXI.C.v. Jury Waiver
YOU UNDERSTAND AND AGREE THAT BY ACCEPTING THIS PROVISION IN THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR A TRIAL BEFORE A JUDGE IN A PUBLIC COURT. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
XXI.C.vi. Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court in accordance with the “Governing Law” and “Jurisdiction” Provisions.
XXI.C.vi. Continuation
This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of this Website. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change and require us to adhere to the language in this Provision as in effect immediately prior to the changes you rejected, and such language in this Provision shall survive, if a dispute between us arises.
XXII. JURISDICTION
THIS “JURISDICTION” PROVISION APPLIES TO ANY DISPUTE NOT SUBJECT TO ARBITRATION.
Unless you are a Quebec consumer, any claim arising from, in connection with or relating to this Website, these Terms, any transaction through the Website, or any related matters must be resolved before the Courts of the Province of Ontario, Canada sitting in the City of Toronto, and you hereby irrevocably submit and attorn to the jurisdiction of those Courts in respect of any such dispute. You and Resident waive any objection to the laying of the venue of any such legal proceedings in Toronto, Ontario and you and Resident agree not to plead or claim in such courts that any such action has been brought in an inconvenient forum. If you are a Quebec consumer, you may submit and attorn to the jurisdiction of the Courts of Quebec or Ontario, as you prefer.
XXIII. GENERAL
We think direct communication resolves most issues – if we feel that you are not complying with these Terms, we will tell you. We will even provide you with recommended necessary corrective action(s) because we value this relationship.
However, certain violations of these Terms, as determined by us, may require immediate termination of your access to this Website without prior notice to you.
If, for any reason, a court of competent jurisdiction finds any provision of these Terms or portion thereof to be unlawful, void, unenforceable, or inconsistent with applicable law then that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms (or, if the foregoing is not achievable, severed from these Terms), and the remainder of these Terms shall continue in full force and effect.
By choosing not to enforce any of these Terms, we are not waiving our rights. No waiver of or consent to depart from the requirements of any provision of these Terms shall be binding against us unless it is in writing and is signed by us. Any failure by us to exercise or enforce, and any delay by us in exercising or enforcing, any of our rights under these Terms, in whole or in part, shall not constitute or be deemed a waiver or forfeiture of such rights, neither in the specific instance nor on a continuing basis. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
You and we are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms or your use of the Website.
The provisions of these Terms will enure to the benefit of and be binding upon us and our successors and assigns, and you and your heirs, executors, administrators, and personal representatives. You may not assign these Terms or your rights and obligations under these Terms without our express written consent, which may be withheld in our sole discretion. We may assign these Terms and our respective rights and obligations under these Terms without your consent.
Each reference in these Terms to “include” or “including” shall be deemed (if not already expressly so) to be followed by the words “without limitation” and the terms “include” and “including” shall not be construed to limit any general statement which they follow to the specific or similar items or maters immediately following such terms.
The division of these Terms into provisions, sections and subsections and the use of headings are for convenience or reference and shall not affect the interpretation of these Terms.
These Terms are the entire agreement between you and us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between you and us about this Website. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
It is the express wish of the parties hereto that the Terms and all related documents, including notices and other communications, be drawn up only in English. La volonté expresse des parties aux présentes est que les présentes modalités / ces “Terms” et tous les documents s’y rattachant, y compris les avis et les autres communications, ne soient rédigés qu’en anglais.
XXIV. CONTACT US
If you have any questions about these Terms, you may contact us by email at legal@residenthome.ca or if you would like to contact us for any other reason, you can reach us:
– by email at info@dreamcloudsleep.ca; or
– by regular mail: 100 Logistics Avenue, Jeffersonville, IN 47130