Terms of Service - test
Updated August 20, 2021
These terms and conditions (the “Terms”) apply to Marlow Inc.'s ("Marlow", "we", "our", or "us")(a) website located at www.casper.com and all associated sites collectively, the "Sites") (b) retail locations operated by Marlow ("Marlow Store") and (c) any Product (as defined below) that is offered on the Sites, in any Casper Store or by any bona fide third party retailer, online or e-commerce platform or other third party channel (each, a "Third Party Seller"). Please read these Terms carefully. By (i) visiting, accessing, or otherwise using in any way the Sites or any Casper Store (the "Services"), or (ii) by ordering, purchasing, receiving or using any products or services offered by Casper through the Sites, a Casper Store or a Third Party Seller (the "Products"), you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of the Sites or a Casper Store, without limitation or qualification. If you do not agree to these Terms, you may not access or use the Services or order, purchase, receive, or use the Products. If you have any questions about the Terms, please contact us at firstname.lastname@example.org.
These Terms provide that all disputes between you and Casper relating to these Terms, your use of or access to the Services and/or your order, purchase, receipt or use of the Products 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. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section XVII (Dispute resolution) for the details regarding your agreement to arbitrate any disputes with Casper.
II. Electronic communication
When you visit any of Sites, or send us e-mails, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on any Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.
If you choose to receive marketing text messages from us, either via our Sites or by sending a text message indicating your consent, you consent to receive marketing or promotional SMS text messages from us sent through an automatic system. You can opt out of receiving any further text messages by replying “STOP”. For help, reply “HELP” to any text message.
If you change or deactivate the phone number you provided, you agree to update your phone number to prevent us from inadvertently communicating with anyone who acquires any phone number previously attributed to you.
None of our Sites or any part of our Sites is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, DO NOT USE OR ACCESS ANY SITE.
If you are using a Site on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you (a) are an authorized representative of that Organization; (b) have the authority to bind that Organization to these Terms; and (c) agree to be bound by these Terms on behalf of that Organization.
Unless otherwise noted, all content included on any site, featured in any Marlow Store or on any Product, including images, illustrations, designs, icons, photographs, video clips and written and other materials (together, “Marlow Content”) is the property of Marlow or its licensors, partners or affiliates and is protected by United States and international copyright laws. The compilation of each Site is the exclusive property of Marlow and is protected by United States and international intellectual property laws. Any unauthorized use of any Marlow Content on any 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 a Site only with our prior written and express authorization. To inquire about obtaining authorization to use the materials or content on the Sites, please contact us at email@example.com.
All trademarks, service marks, and trade names (collectively the “Marks”) that appear on any Site, in any Marlow Store or on any Product are proprietary to Marlow, 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 Marlow, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Sites.
VI. Limited license and access to the Sites
We grant you a limited license to use the Sites 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 the Sites or any of the contents of the Sites; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Sites not intended to be so read. Including using or directly viewing the underlying HTML or other code from the Sites 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 the Sites (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 Sites or to collect any information from the Sites or any other user of the Sites.
VII. Accounts, forms, registrations and passwords
You represent and warrant that the information you provide to Marlow upon creating an account on any Site and at all other times will be true, accurate, current, and complete.
To facilitate future purchases on the Sites, you may choose to create an account by providing an e-mail address and password. Please note that you may choose to use the Site and make purchases without creating an account. If you do create an account, your account is personal to you, and you may not share your account information with, or allow access to your account by, any third-party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Sites and to preserve the confidentiality of your username and password, and any device that you use to access the Sites.
You agree to notify us immediately of any breach in secrecy of your log-in information.
If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third-party, you agree to immediately notify Marlow by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Casper and others due to any unauthorized use of your account.
VIII. Fees and payments; shipping; In-home setup -; Third Party Seller purchases
The price for Products available for purchase through any Site will be displayed to you on that Site. The price for Products available for purchase through any Casper Store will be displayed next to or adjacent to the Product. In each case, the prices displayed do not include taxes. Prices for the Products may be displayed in US dollars or in local currency, depending on the location from which you purchase the Products. Any applicable taxes will be communicated to you before you place an order. There is no charge for shipping of Products unless otherwise indicated. Additional shipping fees apply for Hawaii, Alaska, the Northwest Territories, Yukon and Nunavut, unless otherwise indicated.
The Sites and the Casper Stores currently use third parties to process payments. Our third-party payment processors accept payments through various credit cards, including Visa, MasterCard, American Express and Discover, as detailed on the applicable payment screen. You may also finance your purchase of Products through Affirm (in the United States) or PayBright (in Canada), as detailed on the payment screen.
For in-home setup and mattress removal, a customer or adult must be present at the scheduled time and delivery address. If no adult is present at the time of delivery, Casper reserves the right to leave the package with a secure receiving authority (e.g., doorman, concierge, or building package center). All mattresses removed using Casper’s in-home setup must be in sanitary condition. in-home setup fees are final and will not be refunded in the event you return any of the Products.
Third Party Seller purchases.
Casper may offer certain of its Products through Third Party Sellers. Casper does not control any Third Party Seller, and your order, purchase, receipt or use of any Product provided by any Third Party Seller is a transaction solely between you and such Third Party Seller. Each Third Party Seller may have their own terms, guidelines or rules independent of these Terms, and you are fully responsible for reviewing and abiding by any such terms, guidelines or rules. All access and use of any site controlled by a Third Party Seller or any retail locations operated by a Third Party Seller are at your own risk.
IX. Gift and offer codes; Referral Program
From time to time, Casper may offer qualified consumers “gift codes” or “offer codes” through a variety of promotional activities and communications (collectively referred to herein as “offer codes”) that are redeemable towards a purchase on any Site or in any Casper Store, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Casper in its sole discretion. Only valid offer codes provided or promoted by Casper will be honored at checkout. Codes supplied or promoted by third parties unauthorized by Casper (including any unauthorized third-party websites) will not be considered valid. Codes supplied or promoted by Third Party Sellers are not valid for use on the
Sites or in any Casper Store, and are subject to the terms and conditions set by such Third Party. Each offer code promoted by Casper is non-transferable and valid for single use on an item (or items) of merchandise as determined by Casper. Offer codes may not be combined, are valid only on full-priced items unless stated otherwise, may not be used on any items that are marked as “Final Sale” or "Clearance" unless stated otherwise, and may not be used in conjunction with the Casper Referral Program. Customers are limited to the use of a single offer code per order. Offer codes cannot be used toward purchase of non-branded merchandise, packaging or applicable taxes. For online purchases, the code must be entered in the ‘offer code’ field at checkout. Casper is not responsible for lost, stolen or corrupted codes or any unauthorized use of 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 merchandise is returned. If an offer code provides for free or discounted item(s) with a qualifying purchase, the full retail value of the free or discounted item(s) will be deducted from any refunded amounts if the free or discounted item(s) are not returned with the qualifying product. Expiration dates may apply to each offer code. Offer codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Requests not complying with all offer code requirements will not be honored.
From time to time, Casper may also engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of the brand. When you receive an offer code via a third-party source, such as a television or radio show host, please note that such individuals may have been compensated by Casper for their statements.
Casper offers brand advocates the opportunity to refer friends to participate in the Casper Referral Program. For the terms and conditions of the Casper Referral Program, which are incorporated by reference into these Terms, please see Referral Terms. Offer codes may not be used in conjunction with the Casper Referral Program.
We stand behind our Products. For specific warranty information applicable to our Products, please see https://casper.com/warranty (together, the “Product Warranties”). The Product Warranties are incorporated by reference into these Terms. To the extent there is a conflict between the terms of any Product Warranty and these Terms, the terms of the applicable Product Warranty shall govern.
If you are dissatisfied or believe there is a defect in any of your Products, please review the relevant warranty and, if you believe that you are entitled to take advantage of those terms, please contact us at email@example.com.
XI. Refunds and returns; cancellation
Cancellations. You may cancel an order placed through the Sites or at any Casper Store at any time prior to shipment.
Returns. Subject to the exceptions set forth below, you may return any Product purchased from the Sites or any Casper Store within the applicable Product's trial period, each "Trial Period” beginning upon your receipt of such Product, (each, a "Trial Period"), provided that the Product you are returning is located in the United States (not including US territories) or Canada, after the 30-Night Adjustment Period (if the Product is a Casper mattress), and subject to the conditions described below. You can find a summary of our Trial Periods policy here. You can also learn more about the 30-Night Adjustment Period here. Any refunds will be issued in the form of the original payment. If you purchased a Product from the Sites or in a Casper Store using an offer code or gift code, the dollar value of any offer code will not be refunded or credited back if any or all of the merchandise is returned. Please note that we do not refund any shipping costs or fees.
Trial Period Exceptions. Any Product that is (a) marked as “Final Sale” or "Clearance," (b) sold through the Casper Rest Stop (https://reststop.casper.com/) or (c) purchased as part of a "bundled" product offering (each such offering, a "Bundle"), to the extent not accompanied by the entire Bundle, may not be returned or exchanged, except in the event of a Defect, as defined in the applicable Product Warranty, or unless otherwise specified. See additional information here.
Return Procedure. Return shipping is free, provided that you are returning the Product from within the United States (not including US territories) or Canada. Refunds will be issued in the form of the original payment. Please follow the instructions below to return your Product.
Mattress: If you want to return your Casper mattress, we would be happy to arrange a return pick-up after the 30-Night Adjustment Period if the mattress is within the applicable Product’s Trial Period, please e-mail Casper at firstname.lastname@example.org to arrange a return pick-up.
Bed Frame and Other Furniture: If you want to return a bed frame or any other furniutre purchase within the applicable Product's Trial Period, please e-mail Casper at email@example.com to arrange a return pick-up. If you purchased your Casper bed frame or other furniture purchase with a Casper mattress, including as part of a Bundle, the applicable Trial Period will be the same as the Trial Period for the Casper mattress.
Other Products: If you want to return any other Product within the applicalbe Product's Trial Period, please log-in to your Casper account, click on the Returns page and select the item you would like to return. Please follow the instructions and confirm the return. After confirmation, you will receive an e-mail containing a complimentary UPS shipping label for you to apply to the box as well as a return receipt. Please place the Product you would like to return, along with the return receipt, in the box, affix the shipping label to the outside of the box, and drop off the box at your nearest UPS location. All returns must be delivered to UPS prior to the expiration of the applicable Product’s Trial Period.
Return Conditions. The following conditions also apply to Product returns:
- Products must be in donatable condition to be eligible for return (e.g., no stains, tears or other soiling including odors).
- Products may not be returned from outside the United States or Canada.
- Customers may return a maximum of two (2) of each particular Product per initial order, validated by a customer name or shipping address (i.e. please try a Product first—we are happy to send you more later!)
- If at least one of a particular Product type is returned from an initial order, that customer or shipping address will not be eligible for additional Trial Periods on subsequent orders of that particular Product (e.g. if you return a Casper pillow, you will not be eligible for the applicable Trial Period on future Casper pillow orders).
- For Bundles, (i) an entire Bundle may be returned and (ii) the longest Trial Period applicable to any Product included in that Bundle will be applicable Trial Period for the entire Bundle.
Title. Risk of loss and title for Products purchased from Casper pass to you upon delivery of such Products (by Casper or our manufacturer) to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.
Third Party Seller Returns and Refunds. Notwithstanding anything provided in these Terms, including this Section XI, the return of any Product(s) ordered, purchased or received from any Third Party Seller and any refunds issued in connection with such Product(s) will be subject to the terms and conditions of such Third Party Seller. Please contact the Third Party Seller from which you ordered, purchased or received the Product for their applicable terms and conditions regarding returns and refunds.
XII. Content you submit to Casper
From time to time, Casper may allow you to post reviews, comments, photos, or similar materials on the Sites (collectively, “Reviews”). We welcome your comments regarding our Products and services, including our Sites.
By posting a Review on any Sites, you hereby grant Casper an unrestricted, assignable, sublicensable, perpetual, royalty-free, fully paid-up license throughout the world to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all Reviews you post to the Sites, for any purpose, including promoting and marketing Casper and the Products. You further grant Casper a royalty-free license to Use the name, image, and likeness of any person identifiable in any Review you post to the Sites. By posting a Review, you waive any and all rights of publicity, privacy or any other rights of a similar nature, in addition to any moral rights you may have in your Review. Except for materials provided to you by Casper through the Sites, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of Reviews that you post to the Sites, or you have all rights, licenses, consents, and releases that are necessary to grant to Casper the rights in your Reviews as contemplated under the Terms, and (ii) the Reviews you post to the Sites do not (A) infringe, misappropriate or violate the rights of any party or entity, including a third-party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Casper to obtain any licenses from or make any payments in any amounts to any third-party throughout the world.
No Objectionable Content. You agree not to submit Reviews that: (i) are or could be interpreted to be unlawful, infringing, defamatory, slanderous, libelous, inaccurate, unlawful, harmful, maligning, profane, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, hatred, or in volitation of any rights of any third-parties as determined by Casper in its sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
XIII. Digital Millennium Copyright Act
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the Sites infringe your copyright, you (or your agent) may send Casper a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked.
The notice must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the works that have been allegedly infringed;
- Identification of the copyrighted work alleged to have been infringed (or if multiple copyrighted works located on the Sites are covered by a single notification, a representative list of such works);
- Identification of the specific material alleged to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Casper to locate the material on the Sites;
- Your name, address, telephone number, and e-mail address (if available);
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Casper a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the Sites should be sent to 175 Greenwich St., Floor 39, New York, NY 10007 or firstname.lastname@example.org. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
XIV. Use of the Sites
You agree to use each Site only for its intended purpose. You must use the Sites in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Sites are prohibited. You may not:
- attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Sites, user accounts, or the technology and equipment supporting the Sites;
- frame or link to the Site without permission;
- use data mining, robots, or other data gathering devices on or through the Sites;
- post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
- disclose personal information about another person or harass, abuse, or post objectionable material;
- sell, transfer, or assign any of your rights to use the Sites to a third-party without our express written consent;
- post advertising or marketing links or content, except as specifically allowed by these Terms;
- use the Sites in an illegal way or to commit an illegal act in relation to the Sites or that otherwise results in fines, penalties, and other liability to Casper or others; or access the Site from a jurisdiction where it is illegal or unauthorized.
XIV. Use of the Sites
We do not represent or guarantee the truthfulness, accuracy, or reliability of content, posted by third parties. You accept that any reliance on material posted by third-party service providers will be at your own risk. By using the Sites you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate. We may change, suspend, or discontinue any aspect of the Sites at any time, including hours of operation or availability of the Sites or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third-party you interact with using the Sites. 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 Casper of all claims, demands, and damages in disputes among users of the Sites. You also agree not to involve us in such disputes. Use caution and common sense when using the Sites.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of any 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 Sites. Use the Sites at your own risk.
We make no promises and, to the fullest extent permitted by law, disclaim all liability of specific results from the use of the Sites.
Released Parties Defined. “Released Parties” include Casper and its affiliates, officers, employees, agents, partners, and licensors.
EXCEPT AS EXPRESSLY PROVIDED IN THE MATTRESS WARRANTY, SHEETS WARRANTY, PILLOWS WARRANTY, MATTRESS TOPPER WARRANTY, DOG BED WARRANTY, FOUNDATION WARRANTY, MATTRESS PROTECTOR WARRANTY, BED FRAME WARRANTY, DUVET AND BLANKET WARRANTY, ADJUSTABLE BASE WARRANTY, FURNITURE WARRANTY, GLOW WARRANTY, OR ANY OTHER PRODUCT WARRANTY FOR PURCHASED PRODUCTS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW: (A) YOUR USE OF THE SERVICES, SITES AND PRODUCTS IS AT YOUR SOLE RISK, AND THE SERVICES, SITES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES LISTED ON THE SITES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SITES WILL MEET YOUR REQUIREMENTS, (ii) THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, GOOD OR SERVICE AVAILABLE ON THE SITES, IN ANY CASPER STORE OR THROUGH ANY THIRD PARTY SELLER WILL MEET YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE SITES WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITES 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.
XVI. Limitation on liability
Generally. In the interest of resolving disputes between you and Casper in the most expedient and cost effective manner, you and Casper agree that any dispute arising out of or in any way related to these Terms, your use of the Sites or the Services or the purchase, receipt, order or use any of the Products will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms, your use of the Sites, the Services, or the purchase, receipt, order or use of any of the Products, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND CASPER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of the Section entitled “Generally” directly above, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Casper will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Casper. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or electronic mail (“Notice”). Casper’s address for Notice is: 175 Greenwich St., Floor 39, New York, NY 10007 or email@example.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Casper may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Casper must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Casper will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Casper in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, Casper will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, New York, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Casper for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND CASPER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Casper agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Casper makes any future change to this arbitration provision, other than a change to Casper’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Casper’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Casper.
Enforceability. If the Section entitled “No Class Actions” is found to be unenforceable or if the entirety of this Section XVII is found to be unenforceable, then the entirety of this Section XVII will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described directly below will govern any action arising out of or related to these Terms or your use of or access to the Sites, any Casper Store, the Services or the purchase, receipt, order or use of Products.
Choice of Law; Venue. These Terms will be governed and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. If a lawsuit or court proceeding is permitted under these Terms, then you and Casper agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within New York, New York.
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. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
XXII. Entire agreement
Except as explicitly noted above, these Terms (including any document or terms expressly incorporated into these Terms) constitute the entire agreement between you and Casper with respect to the Services and/or the purchase, receipt, order or use of the Products and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Services and/or the purchase, receipt, order or use of the Products. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved.