Last updated: July 16th, 2018
These terms and conditions (the “Terms”) apply to the website located at https://www.smartduvet.com/ and all associated sites (collectively, the “Site”) operated by Smartduvet (“Smartduvet”, “we”, or “us”). The use of the Site, including the purchase of the Product (as defined below), is subject to the Terms.
You agree to use the Site only for its intended purpose. You must use the Site in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Site are prohibited. You may not (i) attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, or the technology and equipment supporting the Site (ii) frame or link to the Site without permission (iii) use data mining, robots, or other data gathering devices on or through the Site (iv) post advertising or marketing links or content, except as specifically allowed by these Terms (v) use the Site in an illegal way or to commit an illegal act in relation to the Site or that otherwise results in fines, penalties, and other liability to Smartduvet or others; or (vi) access the Site from a jurisdiction where it is illegal or unauthorized.
ABILITY TO ACCEPT THE TERMS
By using the Site, you affirm that you are able and legally competent to agree to and comply with these Terms. If you do not agree to these Terms or if you are not legally competent to agree to them do not use the Site. In any case, you affirm that you are over the age of 13, as the Site is not intended for children under 13. If you are under 13 years of age, then please do not use the Website. If you are a parent or guardian that provides consent to your teenager’s registration with and use of the site, you agree to be bound by these Terms in respect of such teenager’s use of the site.
Copyright : Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips and written and other materials (together, with “Marks” (as defined below), “Smartduvet Content”) is the property of Smartduvet or its licensors, partners or affiliates and is protected by Canadian and international copyright laws. The compilation of this Site is the exclusive property of Smartduvet and is protected by Canadian and international intellectual property laws. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes. You may use the materials or content on this Site only with our prior written and express authorization.
Trademarks: All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to Smartduvet, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without the prior written consent of Smartduvet, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.
Limited license: We grant you a limited license to use the Site for personal use only. Consequently, this grant does not allow you to do any of the following: (a) resell or make any commercial use of this Site or any of the contents of this Site; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of this Site not intended to be so read. This includes using or directly viewing the underlying HTML or other code from this Site except as interpreted and displayed in a web browser; (c) copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post or transmit any of the contents of this Site (including any Marks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; or (d) use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods on the contents of the Site or to collect any information from the Site or any other user of the Site.
PAYMENTS AND SHIPPING
The price for the purchase of the Product will be displayed to you on the Site. The price displayed do not include taxes. Any applicable taxes will be communicated to you before you place an order. The Site currently uses third parties to process payments. Our third-party payment processors accept payments through various credit cards, including but not limited to Visa and MasterCard.
For the delivery of the Product, you must be present at the scheduled time and delivery address. If you are not present at the time of delivery, Smartduvet reserves the right to leave the package with a secure receiving authority (including but not limited to doorman, concierge, or building package center). The product will be delivered with an instruction manual for the installation, the use and the maintenance of the Product. You are responsible to read the whole carefully and to comply with it. The Company IS NOT responsible for all non-respect of the instruction manual.
YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. We stand behind our Product. Each Product that is manufactured by Smartduvet and purchased directly from Smartduvet or authorized retailers of Smartduvet is covered by the Terms. The Product Warranties are incorporated by reference into these Terms.
The Product is covered by a one (1) year limited warranty (“Warranty”). This limited Warranty gives you specific legal rights. This limited Warranty extends to the Product manufactured by Smartduvet, purchased directly from Smartduvet or Smartduvet’s authorized retailers, and located in the United States or Canada. This limited Warranty extends to the original purchaser of the Product who is located in the United States or Canada. The “original purchaser,” for the purposes of this Warranty, is the first purchaser of the Product from Smartduvet or Smartduvet authorized retailer. The Limited Warranty is not transferable. Please retain a copy of your receipt as proof of purchase.
This limited Warranty applies to defects due to faulty workmanship or materials, subject to the limitations described in this warranty. This limited Warranty does not cover the (i) normal wear and tear as a result of washing and intended use (ii) Damage cause by physical abuse, negligence, improper installation or misuse (iii) Damage cause by Acts of God or other natural forces (iv) Replacement of any non-defective pieces of the Product (if you one component of the Product is defective, then we will replace the defective component only) (v) Any Product sold by resellers who are not authorized retailers of Smartduvet.
In the event of a Defect and in order to get the benefit of this limited Warranty, you must return your Product to Smartduvet and provide Smartduvet with proof of the original date of purchase. Evidence of a Defect and any claims must be sent to the address set forth at the end of these Terms. In the event of a Defect, Smartduvet will ship a replacement Product to you.
DISCLAIMER, LIMITATION ON LIABILITY REGARDGING THE WARRANTY : TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, THE PRODUCT IS PROVIDED “AS IS” AND THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SET FORTH IN THIS LIMITED WARRANTY, IN NO EVENT WILL SMARTDUVET OR ITS SUPPLIERS BE LIABLE FOR PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THE PRODUCT OR ITS USE BY YOU OR ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, PRODUCT LIABILITY OR OTHERWISE. THIS LIMITATION WILL APPLY EVEN IF SMARTDUVET HAS BEEN ADVISED OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SMARTDUVET’S TOTAL LIABILITY WILL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY.
CONTENT YOU SUBMIT
From time to time, the Site permit the submission of content, such as comments, blogs and product reviews, generated by you and others users (“User Content“). You are solely responsible for your own User Content and the consequences of posting or publishing it. Any User Content or other material, information or ideas that you submit to or post or publish on the Site is non-confidential and non-proprietary.
By submitting User Content, you represent and warrant to Smartduvet that: (i) your User Content does not violate any applicable law, rule or regulation, any copyright, trademark, trade secret, patent or other intellectual property right, any right of privacy or publicity of any third party (ii) you own or have the legal right to use and authorize Smartduvet to use your User Content, including written consent to use of any product or the name, voice, likeness or any other applicable personal rights of each identifiable person featured or referenced in your User Content (iii) you will retain all of your ownership rights in and to your User Content.
By submitting User Content to Smartduvet, you hereby grant to Smartduvet a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, sublicensable (through multiple tiers) and transferable right and license to use, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including but not limited to over the Internet, broadcast television or any other uses or media) your User Content, in whole or in part, including future rights that Smartduvet (or its successor) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed to the maximum extent permitted by applicable law.
You also waive your moral rights to the User Content, and hereby grant each user of the Site a non-exclusive license to access your User Content through the Site and to use, access, watch, reproduce, distribute, transmit, forward, display and perform such User Content in whole or in part, to the extent permitted by the Site under these Terms.
Smartduvet does not endorse any User Content or any opinion, recommendation, or advice expressed therein. Smartduvet reserves the right but is not obligated to monitor User Content or other content sent to or through the Sites. Smartduvet takes no responsibility for and expressly disclaims any and all liability in connection with User Content. Smartduvet has the right to refuse, remove or delete any User Content and/or to terminate any user’s access to the Site if Smartduvet determines, in its sole and absolute discretion, that such User Content or user violates or has violated these Terms.
WE MAKE NO PROMISES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL LIABILITY OF SPECIFIC RESULTS FROM THE USE OF THE SITE.
We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Site. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Services. Use the Site at your own risk.
We are not responsible for any disputes or disagreements between you and any third-party you interact with using the Site. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. To the fullest extent permitted by law, you release Smartduvet of all claims, demands, and damages in disputes among users of the Site. You also agree not to involve us in such disputes.
EXCEPT AS EXPRESSLY PROVIDED IN THE WARRANTY, YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW: (A) YOUR USE OF THE SITE AND PRODUCT IS AT YOUR SOLE RISK, AND THE SITE AND PRODUCT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SMARTDUVET INCLUING ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY “PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCT OR SERVICES LISTED ON THE SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE PARTIES MAKE NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SITE WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
LIMITATION ON LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD-PARTY ON THE SITE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SITE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF SMARTDUVET CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
IN NO EVENT WILL SMARTDUVET OR ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DISTRIBUTORS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR VIA OTHER CHANNELS, INCLUDING BUT NOT LIMITED TO PHONE AND EMAIL, BE LIABLE TO ANY USER OF THE SITES OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES OR ANY INFORMATION CONTAINED THEREIN, INCLUDING USER CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF SMARTDUVET HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
You hereby acknowledge that the preceding limitation on liability will apply to all content, merchandise and services available through the Sites or other channels. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such jurisdictions liability is limited to the fullest extent permitted by law. Regardless of the previous paragraphs, if Smartduvet is found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount in dispute not to exceed the total amount which you paid to us in the twelve (12) months prior to the action giving rise to the liability or (b) CAD $100. Regardless of the previous paragraphs, if Smartduvet is found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount in dispute not to exceed the total amount which you paid to us in the twelve (12) months prior to the action giving rise to the liability or (b) $100.
These Terms provide that all disputes between you and Smartduvet relating to these Terms or your use of the Site or Product will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. EXCEPT WHERE PROHIBITED BY LAW, YOU AND SMARTDUVET AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
The validity, interpretation, construction, and performance of these Terms shall be governed by the laws of Quebec, without giving effect to its principles of conflict of laws.
EXCEPT WHERE PROHIBITED BY LAW any controversy, claim or dispute arising out of, relating to, or in respect of these Terms, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration. The seat of the arbitration shall be the same as the provincial or territorial law governing these Terms. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial. All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat, and each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, subject to the requirements for arbitration hereunder, with respect to the terms of, and the transactions and relationships contemplated by, these Terms. Notwithstanding this provision, a party to these Terms may take such steps as are permitted or required to enforce an award made by an arbitrator. The existence of the arbitration and any element of the arbitration, including any award, shall be confidential. The deemed undertaking rule in shall apply. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THESE TERMS. YOU AGREE THAT YOU WILL NOT CONTEST VENUE, AND YOU WAIVE ANY RIGHTS THAT YOU MAY HAVE TO INITIATE, TRANSFER, OR CHANGE THE VENUE OF ANY LITIGATION ARISING FROM OR RELATED TO THESE TERMS.
You agree to defend, indemnify and hold harmless Smartduvet, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Site; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; This defense and indemnification obligation will survive these Terms and your use of the Site.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Site, and to block or prevent future access to and use of this Site for any reason or no reason. Upon termination, these Terms will still apply.
Either party’s failure to partially or fully exercise any rights or waiver of any breach of these Terms by the other party shall not prevent such party’s subsequent exercise of such right or be deemed a waiver by such party of any subsequent breach by the other party of the same or any other term of these Terms.
If any of these Terms are deemed invalid, void, or for any reason unenforceable, that term will be severed and will not affect the validity and enforceability of any remaining term or condition.
These Terms (including any document or terms expressly incorporated into these Terms) constitute the entire agreement between you and Smartduvet with respect to this Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to this Site.
CHOICE OF LAW
These Terms will be governed and construed in accordance with the laws of the Province of Quebec, Canada. If a lawsuit, arbitration or court proceeding is permitted under these Terms, then you and Smartduvet agree to submit to the personal and exclusive jurisdiction of the courts located within the Province of Quebec, Canada.