YOUR USE OF OUR WEB SITE
NBC makes reasonable efforts to ensure that all information on the Website is accurate. However, NBC makes no warranty or guarantee as to the accuracy of any information on the Website and may change the information on this Website at any time and for any reason without notice to you.
You may not reproduce, duplicate, copy, sell, or otherwise transfer or commercially exploit our Website (or any portion of it), unless you have NBC’s express written permission to do so. You may only use our Website in accordance with the terms of this User Agreement, any other terms applicable to the various features of our site and all applicable laws, rules and regulations. NBC may, in its sole discretion and at any time, discontinue the America’s Mattress Website, or any part thereof, with or without notice and without liability. You agree that you do not have any rights in our Website.
Use of any part of our Website or services is void where prohibited. By using our Website or services, you represent and warrant that (a) all information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; (d) you have the authority to enter into this User Agreement; and (e) your use of our Website or services does not and will not violate any applicable law, regulation or agreement. If you are an individual and intend to use products or services purchased from America’s Mattress in performing your duties on behalf of a company or organization (the "Primary Customer"), either as an employee or independent contractor and either directly for the Primary Customer or in providing services at the direction of the Primary Customer, this User Agreement is also between NBC and the Primary Customer, and you hereby represent and warrant that you have the authority to enter into this User Agreement on the Primary Customer's behalf and agree that you are entering into this User Agreement on behalf of the Primary Customer as well as yourself and that both you and the Primary Customer are bound by the terms of this User Agreement (you and the Primary Customer being referred to herein individually and collectively as "you").
Restrictions on Use
You specifically agree not to do any of the following: (a) use our Website or services to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (b) intercept or attempt to intercept electronic mail not intended for you; (c) misrepresent an affiliation with any person or organization; (d) restrict or inhibit use of our Website or services by others; (e) upload or otherwise transmit files that contain a virus or corrupted data; (f) collect information about others (including online IDs, and e-mail addresses) without their consent; (g) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over our Website or services, or that you have a contractual obligation to keep confidential (notwithstanding its availability on our Website or services); or (h) engage in any other conduct that restricts or inhibits anyone's use or enjoyment of our Website or Services, or which, as determined by NBC, may harm NBC or users of AmericasMattress.com or expose them to liability. Further, you agree that you will not (i) use any robot, spider or other automatic device, process or means to access our Website or services, (ii) use any manual process to monitor or copy any of the material on our Website or services or for any other unauthorized purpose without the prior written consent of NBC, (iii) use any device, software or routine that interferes with the proper working of our Website or services, (iv) attempt to interfere with the proper working of our Website or services, (v) take any action that imposes an unreasonable or disproportionately large load on NBC’s infrastructure, or (vi) access, reload or "refresh" transactional pages, or make any other request to transactional servers, more than once during any three (3) second interval.
Orders and Payment
Prices remain valid while they are listed and offered on this Website. Product availability may be limited. Products may not be available for immediate delivery. NBC reserves the right, without liability or prior notice, to revise or cease to make available any or all products. The price of the products ordered will be the price posted on the website as of the date of the order.
Orders are not binding on NBC unless accepted by NBC. Acceptance is determined at the sole discretion of NBC and Orders can be rejected for any reason at any time.
Your form of payment will be confirmed at the time you place your order. Your payment will be processed and your credit or debit card charged upon submission of your order to NBC. Payment via credit or debit card is subject to the approval of the financial institution issuing your card. If the card information that submitted is incorrect or invalid, we cannot process your order. Neither NBC nor any of its suppliers or service providers has any liability if your financial institution fails to accept or honor your card for any reason.
When applicable, taxes will be added as a separate charge to be paid by you. Prices on products specified do not include any city, state or federal excise taxes, including, without limitation: shipping and handling charges; taxes on manufacture; sales, use, receipts, excise, gross receipts, gross income, occupation, import and export taxes or similar taxes; or customs charges or duties or other charges imposed by governmental entities. You are responsible for all such taxes and charges.
You may not cancel or change an order after 48 hours of submitting the order without the written consent of NBC.
All products purchased via the Website will be shipped F.O.B. NBC's facilities to your local retailer. Title and risk of loss shall pass to you at the point at which NBC turns over possession of the products to any of the following: you, your agent, or a common carrier and not necessarily the final destination shown on the order.
Limited Product Warranty
NBC warrants that the products will be free of defects in material and workmanship. For complete warranty details, please visit Serta’s warranty website at: http://www.serta.com/Serta-The-Worlds-Best-Mattress-Warranty-Submit-online-Product-Registration.html.
THE FOREGOING WARRANTY IS THE ENTIRE AND EXCLUSIVE WARRANTY REGARDING THE PRODUCTS AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS PROVIDED HEREIN, NBC MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS BEING SOLD, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY, AND NO SUCH PERSONS HAVE AUTHORITY TO MODIFY ANY ASPECT OF ANY WARRANTY OR CREATE ANY OTHER WARRANTIES. PRODUCTS ARE SOLD WITH THE EXPRESS UNDERSTANDING THAT THEIR LIFE AND FITNESS FOR PURPOSES ARE INDETERMINATE AND LARGELY DEPEND ON APPLICATION AND OPERATING CIRCUMSTANCES. NO WARRANTY IS MADE WITH RESPECT TO ACCESSORIES OR COMPONENT PARTS NOT MANUFACTURED BY NBC. NBC IS NOT LIABLE IN ANY EVENT FOR MODIFICATIONS, ALTERATIONS, MISUSE, MISAPPLICATIONS, INSTALLATIONS OR REPAIRS MADE TO PRODUCTS BY YOU OR OTHERS OR FOR DAMAGE CAUSED THERETO BY NEGLIGENCE, ACCIDENT, OVERLOADING OR IMPROPER USE BY YOU OR OTHERS. THE REMEDY OF REPAIR, REPLACEMENT OR REFUND PROVIDED FOR HEREIN IS THE CUSTOMER’S EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THIS LIMITED WARRANTY.
Content Submitted or Posted
You are solely responsible for the information and other content that you (a) submit to NBC, whether orally or in any other form, (b) publish or display (hereinafter, "post") on or through our Website, or (c) transmit to other users (collectively, "User Content"). You will not submit to NBC, post on or through our Website or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to NBC, any NBC service provider or any other user. If information provided to NBC, a supplier, a service provider, or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify NBC of such change or make or post the appropriate changes yourself. By submitting User Content to NBC or posting it to any area of our Website, including without limitation, message boards, profiles, forums, and contests, you automatically grant to NBC and its affiliates an irrevocable, royalty-free, perpetual, fully paid nonexclusive right (including moral rights) and worldwide license to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute such User Content (in whole or in part) and to prepare derivative works of, or incorporate into other works (in any form, media or technology now known or later developed, for the full term of any rights that may exist in such content) such User Content, and to grant and authorize sublicenses thereof (through multiple tiers). You also represent and warrant that you have the right to grant or that the holder of any rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant, the license stated above. If you post User Content in any public area of our Website, you also permit any user to access, display, view, store and reproduce such User Content for personal use and any other use consistent with the use for which it was intended. Subject to the terms of this User Agreement, the owner of any User Content placed on our Website retains any and all rights that may exist in such User Content.
Monitoring and Enforcement
NBC acts as a passive conduit for the online distribution and publication of posted User Content and assumes no responsibility and has no obligation to screen or monitor User Content or any other user communications or information. However, NBC reserves the right to review and remove any posted User Content that, in its sole judgment, violates this User Agreement, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, AmericasMattress.com users or is not consistent with the purpose of our Website or services (including with respect to any material NBC has been notified, or has reason to believe, constitutes a copyright infringement). NBC also may expel users and prevent further access to our Website and services for violating this User Agreement or applicable laws, rules or regulations or acting in any manner that is abusive, disruptive, offensive or illegal, violates the rights of, or harms or threatens the safety of, AmericasMattress.com users or is not consistent with the purpose of our Website or services. NBC may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes that such User Content could create liability for NBC, damage NBC’s or the America’s Mattress brand or public image, or cause NBC to lose (in whole or in part) the services of its suppliers. NBC can neither review all material before it is posted on our Website or services, nor ensure prompt removal of objectionable material after it has been posted. Accordingly, NBC assumes no liability for any action or inaction regarding transmissions, communications or content provided by third parties. NBC reserves the right to take any action it deems necessary to protect the personal safety of users and the public; however, NBC has no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph. NBC does not represent or guarantee the truthfulness, accuracy, or reliability of User Content or any other communications posted or transmitted by users, suppliers or service providers or endorse any opinions expressed by users, suppliers or service providers. You acknowledge that any reliance on material posted by or information received from other users or any suppliers or service providers will be at your own risk. You are solely responsible for your interactions with other users. NBC reserves the right, but not the obligation, to monitor disputes between you and other users.
You acknowledge and agree that:
- YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK AND IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. NBC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE WEBSITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Because our Website is provided to you "AS IS," you agree that NBC shall not be liable to you or to any third party for any delay in delivery of, or failure to deliver, any of your communications, or other information you submit using our Website. Because our Website is provide to you "AS AVAILABLE," you agree that NBC shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website or of your ability to access it.
- NBC also disclaims any warranty that (i) our Website will meet your requirements, (ii) our Website's operation will be uninterrupted, timely, secure, or error-free, and (iii) any information or communication that may be obtained from the use of our Website (including but not limited to, our retailers' pricing information) will be accurate or reliable (and NBC disclaims any liability for damages that may arise from your reliance on any such information or communication).
- You assume the full responsibility and risk for any damage to your computer or other consequences that result from your downloading any information, software, or other materials through our Website. NBC shall have no liability for any damage to your computer, including loss of data that results from your downloading any such materials.
Some states do not allow the disclaimer of implied warranties, so this provision may not apply to you.
Limitation of Liability
YOU AGREE THAT NBC SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, SUCH AS DAMAGES FOR LOST PROFITS OR LOSS OF GOODWILL, USE, OR DATA (EVEN IF NBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), THAT RESULT FROM: (a) YOUR USE OF OR INABILITY TO USE THE WEBSITE; (b) ACCESS TO OR ALTERATION OF YOUR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION IN AN UNAUTHORIZED MANNER; (c) REPRESENTATIONS OR CONDUCT OF ANY THIRD PARTY RELATED TO THE WEBSITE; (d) ANY OTHER MATTER RELATING TO THE WEBSITE; or (e) RESULTING FROM THE SALE OR USE OF THE PRODUCTS,WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL THE LIABILITY OF NBC IN CONNECTION WITH THIS WEBSITE OR THE SALE OR USE OF ANY PRODUCTS EXCEED THE PRICE OF ANY PRODUCTS ORDERED THROUGH THIS WEBSITE. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitations may not apply to you.
NBC’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO NBC FOR THE SERVICE, INFORMATION OR PRODUCT ON WHICH SUCH CAUSE OF ACTION IS BASED.
You agree to indemnify and hold harmless NBC and its affiliates, third party information providers, suppliers, service providers, licensors, contractors and others involved in our Website or the delivery of services or information over our Website, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (a) your use of our Website or services, or any information obtained therefrom, in violation of this User Agreement, (b) your breach of this User Agreement, (c) any breach of your representations and warranties set forth above and/or (d) any content that you post on or through our Website or services.
Serta Perfect Sleeper®, Perfect Day®, and all other Serta slogans, logos, and product and service names used on this Website are trademarks owned by Serta, Inc. America’s Mattress®, and all other America’s Mattress slogans, logos, and product and service names used on this Website are trademarks owned by NBC. Except with respect to the creation of a link to our Website in accordance with Serta's Linking Terms, you agree not to display or use such trademarks, in any manner, without the written permission of Serta. Names, brands and marks of third parties may be the trademarks or registered trademarks of their respective owners and are used by NBC subject to license, or used for identification purposes only. Subject to the terms of this User Agreement, users on our Website may post trademarks of third parties in connection with their sale of those products. Users are expressly forbidden to misuse those marks.
The content that NBC provides on our Website, including, but not limited to, text, graphics, images, and logos, are proprietary to either Serta, Inc., NBC, or the party that has provided the content to us and is protected by U.S. and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights. NBC is the sole and exclusive owner of its compilation of this content on our Website, and this compilation is also protected by U.S. and international copyright laws. You are authorized to use the content only for legitimate purposes related to your role as a user. You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit or distribute any of the material on our Website or services without the prior written consent of NBC, except to: (a) store copies of such materials temporarily in RAM, (b) store files that are automatically cached by your Web browser for display enhancement purposes, and (c) print a reasonable number of pages of our Website; provided in each case that you do not alter or remove any copyright or other proprietary notices included in such materials. Unpermitted copying of any of this content could lead to copyright infringement. Neither the title nor any intellectual property rights to any information or material in our Website or services are transferred to you, but remain with NBC or the applicable owner of such content. NBC expects you to respect its copyright rights, as well as the copyright rights of others.
You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of NBC to terminate the registration of any customer who repeatedly infringes the copyright rights of others upon receipt of proper notification to NBC by the copyright owner(s) or the legal agent(s) of the copyright owner(s). If you believe that your copyrighted work or trademark has been uploaded, posted or copied to our Website and is accessible in a way that constitutes copyright or trademark infringement, please provide our agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where the material that you claim is infringing is located on our Website; (4) your address, telephone number, and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
We have designated Mr. Stephen Day as our agent to receive notices of claims of copyright or trademark infringement or other nonconformance to this User Agreement. You can contact Mr. Day as follows:
2600 Forbs Avenue
Hoffman Estates, IL 60192
Attn: America’s Mattress Website Management
NBC is not be liable if it is unable to perform any of its obligations contained in these terms and conditions due to, directly or indirectly, the failure of NBC's supplier to deliver; sabotage; failure or delays in transportation, utility service or communication systems; any labor or industrial dispute; shortages of labor, fuel, supplies or equipment; war; flood; explosion; natural disaster or terrorism; or any other event beyond the control of NBC.
You agree that this User Agreement describes the entire agreement between us with respect to its subject matter. The Website was created and is operated under the laws of the State of Illinois. NBC makes no representation that materials on our Website are appropriate or available for use in other locations. If you access our Website from other locations, you are responsible for complying with local laws. The laws of the State of Illinois will control the terms and conditions provided in this User Agreement, without giving effect to any principles of conflict of laws. You agree that exclusive jurisdiction over any cause of action arising out of this User Agreement or our Website or services shall be in the State or Federal courts of the United States located in or near Chicago, Illinois. If a court of competent jurisdiction finds that any provision of this User Agreement is invalid or unenforceable, we both agree that the other provisions of this User Agreement will remain in full force and effect. You agree that regardless of any applicable law to the contrary, you cannot file a claim or cause of action arising out of or related to the America’s Mattress Website or this User Agreement more than one (1) year after such claim or cause of action arose. NBC’s failure to insist upon or enforce strict performance of any provision of this User Agreement will not constitute a waiver of that provision.