These Birch Living Terms and Conditions apply to the website and all other online properties (the "Site") owned and operated by Helix Sleep, Inc., d/b/a Birch Living ("Birch", "we", or "us"). The use of the Site, including the purchase of any Products (as defined below) 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 or products obtainable or accessible through the Site. If you have any questions about the Terms, please contact us at firstname.lastname@example.org.
We provide the Site in order to enable you to browse and purchase Birch mattresses ("Mattresses"), Birch foundations ("Foundations"), Birch mattress pads ("Pads"), Birch bed frames (“Bed Frames”), Birch pillows (“Pillows”), Birch sheets (“Sheets”), Birch plush pillow tops (“Pillow Top”) (collectively, the "Products").
II. Electronic Communications.
When you visit the Site, send us e-mails, live chat, or enter an email address anywhere on the Site, 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.
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.
Images of people, places and/or products posted on this Site are either the property of Birch or 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), "Birch Content") is the property of Birch or its licensors, partners or affiliates and is protected by United States and international copyright laws. The compilation of this Site is the exclusive property of Birch and is 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 email@example.com.
All trademarks, service marks, and trade names (collectively the "Marks") that appear on this Site are proprietary to Birch, 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 Birch, which may be withheld at our sole discretion, 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, de-compile, 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 Birch upon creating an account on the Site and at all other times will be true, accurate, current, and complete.
To facilitate future purchases on the Site, you may choose to create a user account by providing an e-mail address, password, and/or order information. 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 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 Birch by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Birch and others due to any unauthorized use of your account.
VIII. Fees and Payment; Shipping.
Prices. The price for Products available for purchase through the Site will be displayed to you on the Site in US dollars. The prices displayed include all fees and taxes, except for applicable state taxes and fees which are displayed at checkout. There is no charge for standard shipping with the exception of shipments to Hawaii and Alaska. Please see "Shipping" below for more information.
Payments. The Site uses multiple third party options for payments.
1) Stripe Inc. ("Stripe") is used to process payments via Shopify Payments. Stripe accepts payments through various credit cards, including Visa, MasterCard, American Express, Discover and Diners Club, as detailed on the applicable payment screen.
2) Affirm, Inc. ("Affirm"), Klarna, Inc. ("Klarna"), and/or Cognical, Inc. (“Zibby”) are used to process financed payments, as detailed on the applicable payment screen.
3) PayPal Holdings, Inc. ("PayPal") can be used to process payments, as detailed on the applicable payment screen.
4) Amazon.com, Inc. (“Amazon Pay”) can be used to process payments, as detailed on the applicable payment screen.
United States Dollars. All monetary transactions on the US Site take place in U.S. dollars.
Canadian Dollars. All monetary transactions on the Canadian Site take place in Canadian dollars.
Shipping. When you place an order for a Product through the Site, the Product will be shipped to the address you designate as the "Shipping Address" during the check-out process. Shipping address changes must be made within 24 hours of when the order is placed / order confirmation is sent. Please note that we do not refund any shipping costs or fees.
IX. Refunds and Returns; Cancellation.
Warranty. Your Mattress is covered by a limited, 25-year warranty (the " Mattress Warranty"). Your Foundation is covered by a limited, 5-year warranty (the "Foundation Warranty"). Your Pad is covered by a limited, 1-year warranty (the "Pad Warranty"). Your Bed Frame is covered by a limited lifetime warranty (the “Bed Frame Warranty”). Your Pillow is covered by a limited 3-year warranty (the “Pillow Warranty”). Your Sheets are covered by a limited 3-year warranty (the “Sheets Warranty”). Your Pillow Top is covered by a limited, 1-year warranty (the “Pillow Top Warranty”). If there is an issue with any of your Products, then please review the Warranty page and e-mail us at email@example.com. The Mattress Warranty, Foundation Warranty, Pad Warranty, Bed Frame Warranty, Pillow Warranty, Sheets Warranty, and Pillow Top Warranty are incorporated by reference into these Terms. To the extent there is a conflict between the terms of the Mattress Warranty, Foundation Warranty, Pad Warranty, Bed Frame Warranty, Pillow Warranty, Sheets Warranty, Pillow Top Warranty and these Terms, the terms of the Mattress Warranty, Foundation Warranty, Pad Warranty, Bed Frame Warranty, Pillow Warranty, Sheets Warranty, and Pillow Top Warranty will govern with respect to Products purchased from Birch.
Cancellations. Orders may be cancelled at anytime prior to the order being shipped/packaged for shipping.
Mattress, Foundation, Pad, Bed Frame, Pillow, Sheets, and Pillow Top. Each of these Products come with the 100 night sleep trial guarantee which begins on the date of delivery. To initiate a return, contact the Customer Experience team by sending an email to firstname.lastname@example.org including your order confirmation number and reason for return. Return requests must be received within the 100 night period post-delivery. Due to the nature of the product and the break-in period, we do require you to have your Mattresses, Pad, and Pillow Top for 30 nights post-delivery before we can initiate a return. Return requests received on day 101 or beyond will not be eligible for return. Return logistics is free and will be scheduled by the Birch team. Reimbursements will not be made for customers who schedule their pickup separately. Return requests from an international address will not be accepted or eligible for return/refund. Birch retains the right, in its sole discretion, to reject a return request. Returns must be initiated by the original purchaser of the Product.
Exchanges. A Mattress, Foundation, Frame, Pillow Top, or Pad exchange ("Exchange") is defined as the return of one Mattress, Foundation, Frame, Pillow Top, or pad in exchange for another Mattress, Foundation, Frame, Pillow Top, Pad of a different size, free of charge, within the 100 night sleep trial. Birch reserves the sole right to approve or deny any Exchange request on a case-by-case basis. In no scenario will Birch allow more than one (1) Exchange per customer. Additionally, Birch may decide to honor an Exchange with a new version of the Product in its sole discretion. To initiate an Exchange, the customer must contact Birch via email at email@example.com. Birch will not accept any Exchange requests from an address outside of the United States. Pillows and Sheets are not eligible for an Exchange.
Refunds. A full refund for the purchase price of an item, net of any discount or gift code, is given to purchases of products eligible under each product’s specific return policy. If you make a purchase that includes multiple products as part of a bundle or with a promotional discount and you return the entire multiple product purchase, you will be refunded the entire amount paid less any discount or offer code, per the terms of each product’s return policy. If you return one or more items from a bundle, and the discount you received is greater than the unit price(s) of the item(s) you wish to return, then you will not receive a refund. If you return one or more items from a bundle, and the discount you received is less than the unit price(s) of the item(s) you wish to return, you will be refunded the unit price(s) of the item(s) you wish to return less the discounted amount, per the terms of each product’s return policy. In no case can a product given for free as part of a bundle or promotional discount be returned for a refund.
Title. Risk of loss and title for Products purchased from Birch pass to you upon delivery of such Products (by Birch or our manufacturer) to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.
Birch offers a Refer-a-Friend program. For more information on the terms and conditions of the program, please go to referral terms.
XI. Gift and Offer Codes.
From time to time, Birch may offer qualified consumers "gift codes", "offer codes", or "bundle discounts" through a variety of promotional activities and communications (collectively referred to herein as "offer codes") that are redeemable towards a purchase on www.birchliving.com
, while supplies last, and subject to certain merchandise exclusions or any other restrictions as may be determined and communicated by Birch in its sole discretion.
Affirm. Offer codes may not valid on purchases made through Affirm, a third-party lending service.
Klarna. Offer codes may not valid on purchases made through Klarna, a third-party lending service.
Zibby. Offer codes may not valid on purchases made through Zibby, a third-party lending service.
Spokespeople. From time to time, Birch 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 Birch for their statements.
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.
XIII. Content You Submit to Birch.
From time to time, Birch may allow you to post reviews, comments, photos, or similar materials on the Site, via email, or through other communications (collectively, "Reviews"). We welcome your comments regarding our products and services, including our Site and Products. However, any Reviews you submit to Birch must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory or unlawful material.
By posting a Review on the Site, via email, or through other communication, you hereby grant Birch 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 Site, via email, or through other communications, for any purpose, including promoting and marketing Birch and Helix Sleep, Inc.. You further grant Birch a royalty-free license to Use the name, image, and likeness of any person identifiable in any Review you post to the Site, vie email, or other communication. 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 Birch through the Site, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of Reviews that you post to the Site, email, or other communication, or you have all rights, licenses, consents, and releases that are necessary to grant to Birch the rights in your Reviews as contemplated under the Terms, and (ii) the Reviews you post to the Site, email, or other communication 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 non-consensual recording, or otherwise), or (C) require Birch 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 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 Birch in its sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code.
XIV. 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 Birch 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 Birch 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 Birch 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 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.
XV. 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 making 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.
XVI. 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 Birch or others; or
access the Site from a jurisdiction where it is illegal or unauthorized.
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 Birch from 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 Birch and its 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, UNLESS SPECIFICALLY PROVIDED FOR IN ARTICLE IX (REFUNDS AND RETURNS; CANCELLATION- WARRANTY), 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.
XVIII. 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 BIRCH HAS 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 BIRCH 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 Birch Content, or (iii) your breach of these Terms. We will provide notice to you promptly of any such claim, suit, or proceeding.
XIX. Dispute Resolution.
These Terms and the relationship between you and Birch will be governed by the laws of the State of New York without regard to its conflict of laws provisions. You and Birch 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 Birch 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 Product, 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.
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.
XXI. 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 and our then- current policies and procedures. 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. Your use of our website constitutes your acceptance of the terms 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.
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.
XXIII. Entire Agreement.
These Terms constitute the entire agreement between the user and Birch 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.