These terms of sale (“Terms”) apply to all orders accepted by SleepBit, LLC, formerly known as RPSGroup, LLC, (hereinafter referred to as “SleepBit, LLC”) for the sale of the SleepBit device (the “SleepBit Device”), except in the case that you and SleepBit, LLC have executed a written agreement that supersedes these Terms. To the extent that the SleepBit Device contains or consists of software in any form (the “SleepBit Software”), such SleepBit Software is licensed to you, not sold, and only in accordance with the section entitled “Software License” below. Terms such as “sell” and “purchase,” as used in these Terms, apply only to the extent the SleepBit Device consists of items other than SleepBit Software.
ORDERING FROM SLEEPBIT, LLC
You can browse and place orders for the SleepBit Device by accessing the SleepBit website (the “SleepBit Site”) online through a computer or through the SleepBit mobile application (the “SleepBit App”). When placing an order, you will have to put your name, phone number, email, shipping and billing address, and any other information necessary to fulfill the order. When you place an order, SleepBit, LLC’s third party payment provider and fulfillment processor will collect your credit card information and charge your credit card account in connection with that order. You agree to make all applicable payments in connection with any orders placed by you.
By placing an order for the SleepBit Device, you agree that: (1) any credit card information supplied by you is true and complete; and (2) you will pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial sale.
SleepBit, LLC can withdraw the SleepBit Device for sale at any time and for any reason. Prices listed for the SleepBit Device are stated in U.S. dollars and do not include shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place an order. You are responsible for paying such charges and taxes. You agree to indemnify and hold harmless SleepBit, LLC from and against any liabilities, interest, penalties, or fees assessed against SleepBit, LLC arising from your failure to pay any such taxes. All SleepBit Device prices are subject to change at any time.
3. ACCEPTANCE AND FULFILLMENT
All orders are subject to acceptance by SleepBit, LLC. After you place an order, you will receive an email confirming that it has been received. Acceptance of your order will occur upon your receipt of another email containing a shipping confirmation, tracking number, and carrier information. If an order is on back order, you will receive another email indicating that this is the case, followed by another email when the items in question are in stock, which will contain a shipping confirmation, tracking number, and carrier information. SleepBit, LLC reserves the right not to accept any of your orders for any reason, or for no reason. SleepBit, LLC reserves the right to restrict multiple quantities of a SleepBit Device being shipped to any one customer or postal address.
Purchases made through the SleepBit Site are intended for end users only, and are not authorized for resale.
5. SHIPPING AND DELIVERY
The fulfillment processor will pack the SleepBit Device in accordance with its standard practices. You can choose the method of shipment and timing of delivery for the SleepBit Device ordered, and will be charged shipping and handling accordingly. Title to the SleepBit Device (except to the extent that the SleepBit Device consists of SleepBit Software) and risk of loss will pass to you upon the fulfillment processor’s delivery of the SleepBit Device to the carrier. You acknowledge that all scheduled shipment dates are estimates only. Reasonable efforts will be made to meet the scheduled shipment dates, but in no event will SleepBit, LLC be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
LIMITED PRODUCT WARRANTY AND RETURNS
SleepBit, LLC provides certain limited warranties to the SleepBit Device as set forth in our Warranty and Return Policy, which is incorporated herein by reference. In the event that the Device does not conform to the limited warranties set forth therein, SleepBit, LLC will provide you with the remedy set forth in our Warranty and Return Policy. Please see the Warranty and Return policy for full details.
You acknowledge that you have verified the compatibility of the SleepBit Device you are purchasing with other required equipment (e.g., ensuring that you mobile device is compatible with the SleepBit Device). You are solely responsible for determining the compatibility of the SleepBit Device with other equipment and you accept that lack of compatibility is not a valid claim under the warranty period provided with your SleepBit Device and does not otherwise constitute a basis for receiving a refund after the ninety (90) day policy identified above.
LIMITATIONS ON LIABILITY
IN NO EVENT WILL SLEEPBIT, LLC BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, USE, PROFITS, DATA, OR GOODWILL) OR COSTS OF PRODUCING SUBSTITUTE PRODUCTS, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS OF PURCHASE, SALE, USE, OPERATION, OR PERFORMANCE OF THE SLEEPBIT DEVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, WHETHER OR NOT SLEEPBIT, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. SLEEPBIT, LLC AND YOU HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL SLEEPBIT, LLC’S LIABILITY TO YOU ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE ACTUAL AMOUNT PAID TO SLEEPBIT, LLC BY YOU FOR THE DEVICE THAT GIVES RISE TO THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
SleepBit, LLC grants you a nonexclusive, nontransferable license to use the SleepBit Software, in executable form, solely as embedded in the SleepBit Device, solely for your internal, non-commercial use. You may not copy or modify the SleepBit Software. You acknowledge that the SleepBit Software contains trade secrets of SleepBit, LLC, and, in order to protect such trade secrets, you agree not to disassemble, decompile, or reverse engineer the SleepBit Software, nor permit any third party to do so, except to the extent such restrictions are prohibited by law. SleepBit, LLC reserves all rights and licenses in and to the SleepBit Software not expressly granted to you under these Terms.
You agree that any such dispute between you and SleepBit, LLC arising out of or relating to these Terms, or the use of the SleepBit Device (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
1. GOVERNING LAW
The Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Oklahoma without regard to its conflict of laws principals.
2. INFORMAL DISPUTE RESOLUTION
Before filing a claim against SleepBit, LLC, you agree to try to resolve the Dispute informally by contacting SleepBit, LLC directly. We will try to resolve the Dispute informally by contacting you through email. If a Dispute is not resolved within fifteen (15) days after submission, you or SleepBit, LLC may bring a formal proceeding.
3. AGREEMENT TO ARBITRATE
You and SleepBit, LLC agree to resolve any Disputes through final and binding arbitration, except as set forth under the Exceptions to Agreement to Arbitrate, below.
4. OPT-OUT OF AGREEMENT TO ARBITRATE
You can decline this agreement to arbitrate by contacting SleepBit, LLC within thirty (30) days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
5. ARBITRATION PROCEDURES
The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, Tulsa, Oklahoma, or any other location we agree to.
6. ARBITRATION FEES
The AAA rules will govern payment of all arbitration fees. SleepBit, LLC will pay all arbitration fees for claims less than seventy-five thousand ($75,000.00). SleepBit, LLC will not seek its attorney’s fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
7. EXCEPTIONS TO AGREEMENT TO ARBITRATE
Either you or SleepBit, LLC may assert claims, if they qualify, in small claims court in Tulsa, Oklahoma, or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop the unauthorized use or abuse of the SleepBit Device, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
8. NO CLASS ACTIONS
You may only resolve a Dispute with SleepBit, LLC on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
9. JUDICIAL FORUM FOR DISPUTES
In the event that the agreement to arbitrate is found not to apply to you or your claim, you and SleepBit, LLC agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Tulsa County, Oklahoma. Both you and SleepBit, LLC consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
10. LIMITATION ON CLAIMS
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the SleepBit Device must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
You may not assign or transfer these Terms, or any order accepted by SleepBit, LLC hereunder, in whole or in part, by operation of law or otherwise, without SleepBit, LLC’s express written prior consent. Any attempt to do so, without SleepBit, LLC’s consent, will be null and of no effect. SleepBit, LLC may freely assign these Terms.
SleepBit, LLC will not be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials, or supplies, war, terrorism, riots, or acts of God.
The failure by SleepBit, LLC to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provisions. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
These Terms constitute the complete and exclusive agreement between SleepBit, LLC and you regarding its subject matter and supersedes all prior or contemporaneous quotations, agreements, communications, or understandings, whether written or oral, relating to its subject matter. Any waiver, modification, or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of each party.
You will not export or re-export, directly or indirectly, the SleepBit Device or any technical information related thereto, or any direct products thereof, to any destination or person prohibited or restricted by the export control laws or regulations of the United States, without the prior authorizations from the appropriate governmental authorities.
All notices required or permitted to be given under these Terms will be in writing and will be deemed given: (i) upon actual delivery, if made by personal service; (ii) three (3) days after mailing, if made by U.S. certified or registered mail; and (iii) one (1) business day after delivery to the courier or overnight delivery service, if made by courier or overnight delivery service. All notices will be addressed to such address as the party who is to receive the notice so designates by written notice to the other.