Compliance With The Can-Spam Act. You agree to abide by the CAN-SPAM Act (15 U.S.C. §§7701-13) when utilizing the Site and contacting other users by email. You may not use the Site to bombard individuals or groups with uninvited commercial email, sexually explicit commercial email or engage in other activities in violation of the CAN-SPAM Act, such as, but not limited to: (a) harvesting email addresses from the Site; (b) falsifying or using misleading header information; or (c) using deceptive subject lines. You may not promote your or others’ products or services through uninvited commercial emails or any other means without our express written consent. We will not be liable for any direct, indirect, incidental, special, consequential or punitive damages of any kind resulting from your failure to adhere to the CAN-SPAM Act or any other applicable laws. You agree to indemnify, defend and hold harmless MattressPHD, its affiliates, officers, directors, employees, consultants, attorneys and agents from any and all third-party claims, liability, damages, and/or costs (including, but not limited to, attorneys’ fees) arising from your activities in violation of the CAN-SPAM Act or any other applicable laws. The terms of this Agreement will inure to the benefit of our successors, assignees and licensees. You warrant and represent that you will cooperate fully in the defense of any claim. However, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.
Right To Terminate And/Or To Block Access. We reserve the right to terminate, block or restrict your access to, or use of, the Site for any breach or suspected violation of any provision of this Agreement. In such an event, we may terminate this Agreement, restrict, suspend or terminate your access to and use of the Services immediately and without notice or liability, with or without cause, and it will not limit any other rights or remedies which are available to us. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use or access the Services. Termination is your sole right and exclusive remedy if you are not satisfied with the Services. Upon the effective date of any such termination, your right to access and use the Services shall immediately cease.
Use License: Permission is granted to temporarily download one copy of the materials
(information or software) on the Site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
modify or copy the materials;
use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
attempt to decompile or reverse engineer any software contained on the Site;
remove any copyright or other proprietary notations from the materials; or
transfer the materials to another person or “mirror” the materials on any other server.
This license shall automatically terminate if you violate any of these restrictions and may be terminated by MattressPHD.com at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
Disclaimer: WE DO NOT WARRANT OR GUARANTEE UNINTERRUPTED ACCESS TO THE SITE, OR ANY WEBSITE LINKED TO THE SITE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THIS SITE AND ANY INFORMATION ON THIS SITE.
WE PROVIDE ANY AND ALL SERVICES AND INFORMATION ON AN “AS IS” BASIS AND GRANT NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Further, we do not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on the Site or otherwise relating to such materials or on any websites linked to this Site.
Limitations: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MATTRESSPHD, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES NOR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF THE SITE OR ANY SERVICES, REGARDLESS IF CAUSED BY NEGLIGENCE OR GROSS NEGLIGENCE OF MATTRESSPHD AND REGARDLESS OF THE FORM OF ACTION, THE BASIS OF THE CLAIM, OR WHETHER OR NOT MATTRESSPHD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BEYOND THE MONETARY AMOUNT YOU PAID FOR THE SERVICES.
IN THE EVENT YOU HAVE ANY DISPUTE WITH ONE OR MORE THIRD PARTIES AS A RESULT OF YOUR USE OF MATTRESSPHD THE SITE OR THE SERVICES, OR ARE IN ANY WAY DAMAGED AS A RESULT OF ANY THIRD PARTY IN CONNECTION THEREWITH, YOU HEREBY RELEASE AND COVENANT NOT TO SUE OR OTHERWISE MAKE A CLAIM, DEMAND OR FILE ANY LEGAL ACTION OR INSTITUTE ANY LEGAL OR REGULATORY PROCEEDINGS AGAINST US, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES AND SUPPLIERS FROM, FOR ANY CLAIMS, ACTIONS, DEMANDS OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL), OF WHATEVER KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, WHETHER FORESEEABLE OR NOT, DISCLOSED OR UNDISCLOSED.
IF YOUR ARE A CALIFORNIA RESIDENT, BY ACCEPTING THIS AGREEMENT YOU ARE WAIVING CALIFORNIA CIVIL CODE SECTION 1542 WHICH STATES THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
The materials appearing on the Site could include technical, typographical, or photographic errors. We do not warrant that any of the materials on the Site are accurate, complete, or current. We may make changes to the materials contained on the Site at any time without notice. We do not, however, make any commitment to update the materials.
As a courtesy to our users, we may provide links to other websites or resources owned and operated by third parties. We have no control over such websites and resources; therefore, you acknowledge and agree we are not responsible for the availability of such external websites or resources and are not responsible or liable for any content, advertising, products, services or other materials on or otherwise made available via such websites or resources. You further acknowledge and agree we shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with the use of or reliance on, any such content, goods or services. Use of any such content, goods or services is at the user’s own risk.
We reserve the right to modify the terms of this Agreement or any other terms and conditions on the Site at any time, without notice, and it is your responsibility to periodically review the Site, along with this Agreement, for revisions. Revisions to terms and conditions on the Site and/or this Site become effective immediately upon posting (the “Effective Date”). By using the Site you are agreeing to be bound by the most current version of these Terms and Conditions.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our attorneys’ fees, expert fees’ and other costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions contained in this Agreement and/or the Site, and/or (b) your use of the Services. We may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement that may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and upon notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding obligation to defend will end; however, your duty to indemnify shall continue.
This Agreement shall be governed in accordance with the laws of the State of California, USA, notwithstanding any conflict-of-law provisions to the contrary. Additionally, you also agree that the UN Convention on Contracts for the International Sales of Goods and the Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement or any interpretation or disputes relating thereto. All disputes under this Agreement shall be resolved by litigation in the federal or state courts located in the State of California, USA, Maricopa County, and each Party irrevocably consents to the jurisdiction of such courts and hereby waives any jurisdictional or venue defenses available.
If any proceeding or action shall be brought to recover any amount under this Agreement, or for or on account of any breach hereof, or to enforce or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to recover from the other party, as part of the prevailing party’s costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court and/or arbitrator, and shall be made a part of any award or judgment rendered (regardless of whether or not the matter is contested).
This Agreement is personal to you and you may not assign this Agreement or the rights and obligations hereunder to any third party. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. Any provision of this Agreement which by its nature must survive the termination of this Agreement in order to give effect to its meaning shall survive such termination, including but not limited to the ownership, intellectual property rights and licensing provisions set forth in this Agreement.
You agree that any claim or defense arising out of or related to the use of the Site or Services, or otherwise relating to this Agreement, must be brought or asserted within one (1) year after the action or inaction occurred that gave rise to such claim or defense or will be forever barred, regardless of any statute of limitations, time of discovery statute or rule, savings statute, tolling statute or doctrine, equitable doctrine, or other theory that may be used to extend the time in which a claim or defense can be asserted.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their agreement. It shall not be modified or amended except in writing or Site posting by MattressPHD. The Site, as posted and amended in the future, and this Agreement, as posted and amended in the future, shall be the valid document respecting the rights and obligations of you and MattressPHD.
In the event of a breach or threatened breach by you of any of the provisions of this Agreement pertaining to intellectual property or unauthorized use of the Site, you hereby consent and agree that we shall be entitled to obtain, as a matter of right hereby granted, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief. Upon the issuance of any injunctive relief, we shall be entitled to recover from you, as part of our costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court, and shall be made a part of any award or judgment rendered (regardless of whether or not the matter is contested).