Van Winkle’s Terms and Conditions

Effective Date of Current Policy: June 9, 2015

These Van Winkle’s Terms and Conditions apply to the website (the “Site”) which is owned by Van Winkle’s parent company, Casper Sleep, Inc. (collectively referred to as “we”, “our” or “us”). The use of the Site is subject to the following terms and conditions (the “Terms”). Please read these Terms carefully. By using this Site, you agree to these Terms as well as any other terms, guidelines or rules that apply to any portion of this Site, without limitation or qualification. If you do not agree to these Terms, then you must exit the Site immediately and discontinue any use of the information accessible through the Site. If you have any questions about the Terms, please contact us at legal@vanwinkles.com

I. Privacy

We have adopted a Privacy Policy that you should refer to in order to fully understand how we collect and use your information. The Privacy Policy is hereby incorporated into these Terms by reference.

II. Electronic Communications

When you visit the Site, 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 this 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.

III. Eligibility

No part of the Site is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER.

If you are using the 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.

IV. Copyright

Images of people, places and/or products posted on this Site are either our property or the property of our licensors. 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), “Van Winkle's Content”) is our property or the property of our licensors, partners or affiliates, as applicable, and is protected by United States and international copyright laws. The compilation of this Site is our exclusive property and protected by United States 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. To inquire about obtaining authorization to use the materials or content on this Site, please contact us at legal@vanwinkles.com.

V. Trademarks

All trademarks, service marks, and trade names (collectively the “Marks”) that appear on this Site are proprietary to us, or the other respective owners of such Marks. You may not display or reproduce the Marks in any manner without our prior written consent, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Site.

VI. Limited License and Site Access

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.

VII. Accounts, Forms, Registrations and Passwords

You represent and warrant that the information you provide to us upon creating an account or when signing up for our newsletters or other services on the Site, and at all other times, will be true, accurate, current, and complete.

You may choose to create an account by providing an e-mail address and password. 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 Site and to preserve the confidentiality of your username and password, and any device that you use to access the Site.

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 us by e-mail at legal@vanwinkles.com. You will be solely responsible for the losses incurred by us and others due to any unauthorized use of your account.

VIII. Feedback

We appreciate hearing from our users and welcome your comments regarding the Site. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (“Creative Ideas”), we will (a) own, exclusively, all now known or later discovered rights to the Creative Ideas; (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Creative Ideas; and (c) be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

IX. Content You Submit to Van Winkle’s

From time to time, we may allow you to post comments, photos, or other information and materials on the Site (collectively, “User Content”). We welcome your comments regarding our Site or Site content; however, any User Content you submit on the Site must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties, including other Site users, and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.

By posting User Content on the Site, you hereby grant us 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 User Content you post to the Site, for any purpose, including without limitation the promoting and marketing of our Site. You further grant us a royalty-free license to Use the name, image, and likeness of any person identifiable in any User Content you post to the Site. By posting any User Content, 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 User Content. Except for materials provided to you by us through the Site, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of User Content that you post to the Site, or you have all rights, licenses, consents, and releases that are necessary to grant to us the rights in your User Content as contemplated under the Terms, and (ii) the User Content you post to the Site 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 us 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 User Content that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred, as determined by us in our sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.

Monitoring. We have no obligation to monitor this Site or any portion thereof. However, we reserve the right to review any User Content and remove, delete, redact or otherwise modify such User Content, in our sole discretion, at any time and from time to time, without notice or further obligation to you. We have no obligation to display or post any User Content. Subject to our Privacy Policy, we reserve the right to disclose, at any time and from time to time, any information or posted content that it deems necessary or appropriate, including without limitation to satisfy any applicable, law, regulation, contractual obligation, legal, dispute process, or governmental request.

X. 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 Site infringe your copyright, you (or your agent) may send us 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 Site 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 us to locate the material on the Site;
  • 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 us 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 Site should be sent to 45 Bond Street, Second Floor, New York, NY 10012 or copyright@vanwinkles.com. 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.

XI. Links to Other Websites

The Site may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them. Please be aware that we are not and cannot make any claim or representation regarding, and we accept no responsibility for, the quality, content, nature or reliability of web sites accessible from this Site, or web sites linking to this Site.

XII. Use of Site

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:

  • attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Site, user accounts, or the technology and equipment supporting the Site;
  • frame or link to the Site without permission;
  • use data mining, robots, or other data gathering devices on or through the Site;
  • 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 Site 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 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 us or others; or
  • access the Site from a jurisdiction where it is illegal or unauthorized.

XIII. Disclaimer

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 Site 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 Site at any time, including hours of operation or availability of the Site 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 Site. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release us of all claims, demands, and damages in disputes among users of the Site. You also agree not to involve us in such disputes. Use caution and common sense when using the Site.

Content Accuracy. 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 make no promises and disclaim all liability of specific results from the use of the Site.

Released Parties Defined. “Released Parties” include us and our affiliates, officers, employees, agents, partners, and licensors.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES 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 SITE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED 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.

XIV. LIMITATION ON LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED 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 (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR YOUR USE OF OUR CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.

You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Van Winkle's Content, or (iii) your breach of these Terms. We will provide notice to you promptly of any such claim, suit, or proceeding.

XV. Dispute Resolution

These Terms and the relationship between you and us will be governed by the laws of the State of New York without regard to its conflict of law provisions. You and we agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Site under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, will be conducted in New York County in the State of New York. You covenant not to sue us in any other forum.

You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Site, purchase of a Mattress, or these Terms:

  • YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY
  • YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE; AND
  • YOU MUST FILE ANY CLAIM WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE OR IT IS FOREVER BARRED.

XVI. Termination

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.

XVII. We Reserve the Right to Update and Revise these Terms at Any Time

From time to time we review these Terms to ensure that they comply with applicable law. Consequently, we reserve the right to update and revise these Terms at any time. You will know if these Terms have been revised since your last visit to the website by referring to the “Effective Date of Current Policy” date at the top of this page; provided, however, that we will endeavor to provide you with prior notice of any material changes. Your use of our website constitutes your acceptance of these Terms as amended or revised by us from time to time, and you should therefore review these Terms regularly to ensure that you are aware of its terms.

XVIII. Severability

If any of these Terms is be 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.

XIX. Waiver

Our failure to partially or fully exercise any rights or our waiver of any breach of these Terms by user shall not prevent our subsequent exercise of such right or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy.

XX. Entire Agreement

These Terms constitute the entire agreement between the user and us with respect to this Site and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to this Site. 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.