Terms of Use


PLEASE READ THESE WEB SITE TERMS OF USE CAREFULLY BEFORE USING THIS WEB SITE (THE "WEB SITE"). THESE WEB SITE TERMS OF USE (THE "TERMS OF USE") GOVERN YOUR ACCESS TO AND USE OF THE WEB SITE. THE WEB SITE IS AVAILABLE FOR YOUR USE ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS OF USE SET FORTH BELOW. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, DO NOT ACCESS OR USE THE WEB SITE. BY ACCESSING OR USING THE WEB SITE, YOU AND THE ENTITY YOU ARE AUTHORIZED TO REPRESENT ("YOU" OR "YOUR") SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF USE.

1. User Eligibility

The Web Site is provided by Diamond Mattress and available only to entities and persons over the age of legal majority who can form legally binding agreement(s) under applicable law. If You do not qualify, You are not permitted to use the Web Site.

2. Scope of Terms of Use

These Terms of Use govern Your use of the Web Site and all applications, software, and services (collectively, "Services") available on the Web Site, except to the extent such Services are the subject of a separate agreement. Specific terms or agreements may apply to the use of certain Services and other items provided to You on the Web Site ("Service Agreement(s)"). Any such Service Agreements accompany the applicable Services or are listed in association with or through a hyperlink associated with the applicable Services.

3. Modifications

Diamond Mattress may revise and update these Terms of Use at any time. Your continued usage of the Web Site after any changes to these Terms of Use will mean You accept those changes. Any aspect of the Web Site may be changed, supplemented, deleted or updated without notice at the sole discretion of Diamond Mattress. Diamond Mattress may also change or impose fees for products and services provided through the Web Site at any time in its sole discretion. Diamond Mattress may establish or change, at any time, general practices and limits concerning other Diamond Mattress products and services in its sole discretion.

4. Diamond Mattress Privacy Policy

The Diamond Mattress Privacy Policy governs the use of information collected from or provided by You at the Web Site. With respect to any individual whose personal information is provided by You to Diamond Mattress, You represent to Diamond Mattress that You have obtained all necessary consents for the processing of such personal information contemplated by the Services You are using and by the Diamond Mattress Privacy Policy, including the transfer of such data to the United States or other countries whose laws may not provide the same level of protection for the personal data as the laws of the country of origin of such individual.

View our Privacy Policy

5. License and Ownership

Any and all intellectual property rights ("Intellectual Property") associated with the Web Site and its contents (the "Content") are the sole property of Diamond Mattress, its affiliates or third parties. The Content is protected by copyright and other laws in both the United States and other countries. Elements of the Web Site are also protected by trade dress, trade secret, unfair competition, and other laws and may not be copied or imitated in whole or in part. All custom graphics, icons, and other items that appear on the Web Site are trademarks, service marks or trade dress ("Marks") of Diamond Mattress, its affiliates or other entities that have granted Diamond Mattress the right and license to use such Marks and may not be used or interfered with in any manner without the express written consent of Diamond Mattress. Except as otherwise expressly authorized by these Terms of Use, You may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the Intellectual Property of the Web Site in any way without Diamond Mattress's or the appropriate third party's prior written permission. Except as expressly provided herein, Diamond Mattress does not grant to You any express or implied rights to Diamond Mattress's or any third party's Intellectual Property.

Diamond Mattress grants You a limited, personal, nontransferable, nonsublicensable, revocable license to (a) access and use only the Web Site, Content and Services only in the manner presented by Diamond Mattress, and (b) access and use the Diamond Mattress computer and network services offered within the Web Site (the "Diamond Mattress Systems") only in the manner expressly permitted by Diamond Mattress. Except for this limited license, Diamond Mattress does not convey any interest in or to the Diamond Mattress Systems, information or data available via the Diamond Mattress Systems (the "Information"), Content, Services, Web Site or any other Diamond Mattress property by permitting You to access the Web Site. Except to the extent required by law or as expressly provided herein, none of the Content and/or Information may be reverse-engineered, modified, reproduced, republished, translated into any language or computer language, re-transmitted in any form or by any means, resold or redistributed without the prior written consent of Diamond Mattress. You may not make, sell, offer for sale, modify, reproduce, display, publicly perform, import, distribute, retransmit or otherwise use the Content in any way, unless expressly permitted to do so by Diamond Mattress.

6. Restrictions on Use of the Web Site

In addition to other restrictions set forth in these Terms of Use, You agree that:

(a) You shall not disguise the origin of information transmitted through the Web Site. (b) You will not place false or misleading information on the Web Site. (c) You will not use or access any service, information, application or software available via the Web Site in a manner not expressly permitted by Diamond Mattress. (d) You will not input or upload to the Web Site any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Web Site or Information or that infringes the Intellectual Property (defined below) rights of another. (e) Certain areas of the Web Site are restricted to customers of Diamond Mattress. (f) You may not use or access the Web Site or the Diamond Mattress Systems or Services in any way that, in Diamond Mattress's judgment, adversely affects the performance or function of the Diamond Mattress Systems, Services or the Web Site or interferes with the ability of authorized parties to access the Diamond Mattress Systems, Services or the Web Site. (g) You may not frame or utilize framing techniques to enclose any portion or aspect of the Content or the Information, without the express written consent of Diamond Mattress.

7. Links

(a) Outbound Links. The Web Site may contain links to third-party Web Sites and resources (collectively, "Linked Sites"). These Linked Sites are provided solely as a convenience to You and not as an endorsement by Diamond Mattress of the content on such Linked Sites. Diamond Mattress makes no representations or warranties regarding the correctness, accuracy, performance or quality of any content, software, service or application found at any Linked Site. Diamond Mattress is not responsible for the availability of the Linked Sites or the content or activities of such sites. If You decide to access Linked Sites, You do so at Your own risk. In addition, Your use of Linked Sites is subject to any applicable policies and terms and conditions of use, including but not limited to, the Linked Site's privacy policy. (b) Inbound Links. Linking to any page of the Web Site other than to http://www.diamondmattress.com through a plain text link is strictly prohibited in the absence of a separate linking agreement with Diamond Mattress. Any web site or other device that links to http://www.diamondmattress.com or any page available therein is prohibited from (a) replicating Content, (b) using a browser or border environment around the Content, (c) implying in any fashion that Diamond Mattress or any of its affiliates are endorsing it or its products, (d) misrepresenting any state of facts, including its relationship with Diamond Mattress or any of its affiliates, (e) presenting false information about Diamond Mattress products or services, and (f) using any logo or mark of Diamond Mattress or any of its affiliates without express written permission from Diamond Mattress.

8. Submissions

Diamond Mattress does not accept ideas, concepts, or techniques for new services or products through the Web Site ("Comments"). If such Comments are received, You acknowledge that (a) they will not be considered confidential or proprietary, (b) Diamond Mattress and its affiliates are under no obligation to keep such information confidential, and (c) Diamond Mattress will have an unrestricted, irrevocable, world-wide, royalty-free right to use, communicate, reproduce, publish, display, distribute, and exploit such Comments in any manner it chooses.

9. Termination

You agree that Diamond Mattress, in its sole discretion, may terminate or suspend Your use of the Web Site, the Diamond Mattress Systems, Information, Services and Content at any time and for any or no reason in its sole discretion, even if access and use continues to be allowed to others. Upon such suspension or termination, You must immediately (a) discontinue use of the Web Site, and (b) destroy any copies You have made of any portion of the Content. Accessing the Web Site, the Diamond Mattress Systems, Information or Services after such termination, suspension or discontinuation shall constitute an act of trespass. Further, You agree that Diamond Mattress shall not be liable to You or any third party for any termination or suspension of Your access to the Web Site, the Diamond Mattress Systems, Information and/or the Services.

10. Disclaimer of Warranties

DIAMOND MATTRESS MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, THE SERVICES, THE INFORMATION OR THE CONTENT. THE USE OF SAME IS AT YOUR OWN RISK.

THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, THE INFORMATION, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN "AS IS" BASIS. DIAMOND MATTRESS, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. DIAMOND MATTRESS AND ITS AFFILIATES, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, SECURITY OR TIMELINESS OF THE CONTENT, INFORMATION OR SERVICES PROVIDED ON OR THROUGH THE USE OF THE WEB SITE OR THE DIAMOND MATTRESS SYSTEMS. NO INFORMATION OBTAINED BY YOU FROM THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED BY DIAMOND MATTRESS IN THESE TERMS OF USE.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THESE TERMS OF USE ARE FAIR AND REASONABLE.

11. Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT DIAMOND MATTRESS IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, DIAMOND MATTRESS IS RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DIAMOND MATTRESS, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE WEB SITE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OF OR INABILITY TO USE THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, INFORMATION, SERVICES OR THE CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DIAMOND MATTRESS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS OF USE ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.

12. Compliance with Law Including Export Control

You agree to use the Web Site in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not, in the sole judgment of Diamond Mattress, negatively reflect on the goodwill or reputation of Diamond Mattress and shall take no actions which would cause Diamond Mattress to be in violation of any laws, rulings or regulations applicable to Diamond Mattress.

Diamond Mattress and the Web Site are based in the United States. The United States and certain other jurisdictions control the export of products and information. You agree to comply with all such applicable restrictions and not to export or re-export the Content (including any software or the Services) to countries or persons prohibited under the United States or other applicable export control laws or regulations. If You access and download the Content (including any software or the Services) or Information, You represent that You are not in a country where such export is prohibited or are not a person or entity to which such export is prohibited. You are solely responsible for compliance with the laws of Your local jurisdiction and any other applicable laws regarding the import, export, or re-export of the Content (including any software or the Services).

13. Forward-looking Statements

Except for historical information contained herein, the statements made in this Web Site constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Such forward-looking statements involve certain risks and uncertainties, including statements regarding the intent, belief or current expectations of Diamond Mattress and its management regarding the company's strategic directions, prospects and future results. Certain factors may cause actual results to differ materially from those contained in the forward-looking statements, including economic and other conditions in the markets in which we operate, our competitive environment, long-term regulatory, economic and other effects from the events of September 11, 2001, strikes, work stoppages and slowdowns, governmental regulation, increases in aviation and motor fuel prices, cyclical and seasonal fluctuations in our operating results, and other risks discussed in the company's filings with the Securities and Exchange Commission, which discussions are incorporated herein by reference.

14. Jurisdiction

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY EXPRESSLY AGREE THAT ANY PROCEEDING ARISING OUT OF OR RELATING TO YOUR USE OF THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, INFORMATION, SERVICES AND CONTENT SHALL BE INSTITUTED IN A STATE OR FEDERAL COURT SITTING IN THE COUNTY OF FULTON, STATE OF GEORGIA, UNITED STATES OF AMERICA AND YOU EXPRESSLY WAIVE ANY OBJECTION THAT YOU MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH PROCEEDING. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, INFORMATION, SERVICES AND/OR CONTENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE.

15. Governing Law and Language

To the fullest extent permitted by law, these Terms of Use are governed by the internal substantive laws of the State of Georgia, U.S.A. excluding (i) Georgia’s conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. To the fullest extent permitted by law, the controlling language for these Terms of Use is English. Any translation has been provided for Your convenience, and You may view the English language version by (a) returning to the home page for the country that You have selected, (b) selecting the English link at the top of the page, and (c) then clicking on the link to the Web Site Terms of Use located at the bottom of the page.

16. General

You may not assign these Terms of Use or any of Your interests, rights or obligations under these Terms of Use. If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

17. Written Document

You may preserve these Terms of Use in written form by printing them for Your records, and You waive any other requirement that these Terms of Use be evidenced by a written document.

18. Complete Agreement

EXCEPT AS EXPRESSLY PROVIDED IN A SEPARATE LICENSE, SERVICE OR OTHER WRITTEN AGREEMENT BETWEEN YOU AND DIAMOND MATTRESS OR IN THE APPLICABLE DIAMOND MATTRESS RATE AND SERVICE GUIDE OR DIAMOND MATTRESS TARIFF, THESE TERMS OF USE CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND DIAMOND MATTRESS WITH RESPECT TO THE USE OF THE WEB SITE, THE DIAMOND MATTRESS SYSTEMS, AND ANY SOFTWARE OR SERVICE, INFORMATION AND CONTENT CONTAINED THEREIN, AND SUPERSEDE ALL DISCUSSIONS, COMMUNICATIONS, CONVERSATIONS AND AGREEMENTS CONCERNING THE SUBJECT MATTER HEREOF.

19. Customer Service

Questions or comments regarding the Web Site may be submitted to Diamond Mattress Customer Service.
 
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