HAPPIEST BABY, INC.
TERMS OF SERVICE
Updated April 1, 2017
1. OVERVIEW
Happiest Baby, Inc., together with its subsidiaries and affiliates (“HBI”, “us”, “we” or “our”), provides online and other electronic services via our website at www.happiestbaby.com (“Website”) and via our mobile smartphone applications (“Apps”), collectively referred to herein as our “Services.” HBI offers certain physical products (“Products”) that contain our technology (“Product Software”) and work in conjunction with our Services.
These terms of service (“Terms”) govern your access to and use of HBI Services. This is a legal agreement between you and HBI, so please read these Terms carefully.
By clicking “I Agree” to these Terms, installing an App, setting up a user account, and/or by accessing and using the Services (including the Website and/or App), you expressly agree to, and consent to be bound by the Terms of this agreement on behalf of yourself or the entity you represent in connection with the access. You represent and warrant that you are of sufficient legal age in your jurisdiction or residence to use or access the services, and that you have the right, authority, and capacity to accept and agree to these Terms on behalf of yourself or the entity you represent. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, OR DISAGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, PLEASE STOP USING THE SERVICES IMMEDIATELY.
These Terms govern your use of the Services. Your use of the Website is governed by the applicable Terms of Use (“Terms of Use”) posted on the Website and such Terms of Use shall control over these Terms with respect to the use of the Website. Your purchase of a Product is governed by the Limited Warranty provided with the purchase of that Product (“Limited Warranty”), and by the applicable Terms of Sale for such Product, and the Limited Warranty and/or Terms of Sale shall control over these Terms with respect to the Product. The Product Software, as well as any part of an App that is downloaded to your smartphone (and any updates thereto) (“Licensed Software”) is licensed and governed by the applicable End User License Agreement (“EULA”) or such Licensed Software, and the EULA shall control over these Terms with respect to the use of Licensed Software. Our Privacy Policy and any other legal notices provided via the Service are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services. Specific parts of the Services may include additional or different terms relating to the use of the Services or the rights or obligations of you or HBI. In the event of a conflict between such terms and these Terms of Service, such specific terms shall control. If you do not agree to the specific terms, please stop using the Services.
2. ABILITY TO ACCEPT TERMS OF USE
You affirm that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use.
Our Services are available only to individuals that can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to minors under the age of eighteen (18). By requesting to use, registering to use and/or using the Website, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof.
The Website is intended for people 18 or over. HBI will not knowingly collect any personally identifiable information from children under 13. You must identify your age during the registration process. HBI takes the Children’s Online Privacy Protection Act of 1998 (COPPA) as well as all FTC regulations very seriously.
NOTWITHSTANDING THE FOREGOING, HBI DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY MISSTATEMENTS AND/OR MISREPRESENTATIONS MADE BY ANY USERS OF THE WEBSITE WHETHER POSTED ON THE WEBSITE OR INCLUDED IN A PROFILE. USERS DO HEREBY REPRESENT, UNDERSTAND AND AGREE TO HOLD HBI HARMLESS FOR ANY MISSTATEMENTS AND/OR MISREPRESENTATIONS MADE BY ANY USERS OF THIS WEBSITE WHETHER POSTED ON THE WEBSITE OR INCLUDED IN A PROFILE.
3. ACCOUNTS
To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. All required registration information you submit must be truthful and accurate, and you must maintain the accuracy of such information, including your correct email address, so we may send you notifications and other account-related communication. Your use of the Services must not violate any U.S. or other applicable law or regulation.
You are entirely responsible for maintaining the confidentiality of the login name and password that you create. You agree to use strong passwords (e.g. that contain upper and lower case letters, numbers and symbols), and to maintain the confidentiality of your password. You shall be responsible for all uses of your account and login information, whether or not authorized by you. You agree to notify us immediately of any unauthorized use of your account, login information or password, and you should immediately change your password to prevent further unauthorized use. We are not liable for any loss or damage arising from your failure to comply with the above requirements. You grant us the right to use your registration information and any other information you provide in connection with the operation of the Service. We may also use the contact information that you submit to provide you with notices and promotional offers as set forth in our Privacy Policy.
The individual who creates an Account is considered to be the “Owner” of the Products associated with that Account and is the “Owner” of that Account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” These Terms (including our Privacy Policy) apply to all uses of the Services by Authorized Users. Authorized Users may have the ability to use the Services and monitor and control the Products via our Apps, Website or Services. Authorized Users may also have the ability to view information and content across the Owner’s Products and Services. Authorized Users are responsible for their own actions in connection with the Products and Services, but Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Account and Products and related Services. If you are an Owner, you should authorize only those individuals that you trust to access your Account, Products, and Services. If you have an Authorized User and do not wish to be bound by these Terms, please decline the invitation and do not use the Services.
4. TERM & TERMINATION
These Terms remain in effect as long as you continue to use the Services, or until terminated in accordance with the provisions of these Terms. You may stop using our Services any time. We reserve the right to suspend or terminate your rights to access or use the Services at any time, with or without cause, and with or without notice (provided that we will attempt to give reasonable notice of any suspension or termination). For example, we may suspend or terminate your use if you are not complying with these Terms, or use the Services in any way that would cause us legal liability or disrupt others’ use of the Services. We may also change or remove at any time any features currently offered as part of the Services, or the Services themselves. Upon termination, your account and right to use the Services will automatically terminate. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account. The provisions of Sections 5(d), 6(b), 6(e), 6(h) and 7-13 and any other provisions contained herein which by their nature or effect are required or intended to be observed after termination of these Terms will survive the termination and remain binding.
5. ACCESS TO SERVICES
Our Services are designed to be used in conjunction with our Products containing our Product Software (e.g., Happiest Baby Snoo Smart Sleeper), which you may purchase from us or one of our partners.
A. Access. Subject to these Terms, HBI grants you a limited, non-transferable, non-exclusive right (without the right to sublicense) to access and use the Services by (i) using the Website in connection with, and solely for the purpose of, controlling and monitoring the Products you own or are authorized to control and monitor or otherwise accessing a Service explicitly provided by HBI for your use (the “Permitted Purpose”), and (ii) installing and using Apps solely on your own handheld mobile device (e.g., iPhone or Android smartphone) and solely for the Permitted Purpose.
B. Updates. From time to time, HBI may develop bug fixes, patches, new functionality, updates, upgrades and other modifications to improve the performance of the Services and/or the Products (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. By using the Products, you consent to any and all automatic Updates. If you do not want such Updates, please stop using the Services and the Product, and terminate the Account. If you do not terminate a previously created Account, you may receive Updates automatically. You may also be asked to install Updates yourself, and you agree to promptly install any Updates provided by HBI. Updates are subject to these Terms together with any additional terms that may be provided with such Updates. Your continued use of the Service and Product following such Updates is your agreement to all such additional terms.
C. Content. Certain materials may be displayed or performed on the Services including, but not limited to text, data, graphics, images, video, audio, photographs, articles, and other materials (“Content”). The Content may be owned by us or by others, including other users of the Services or our third-party partners. Use of the Services does not confer ownership rights to the Content. Except as may be expressly granted by us, you may use the Content solely for your personal, non-commercial use in connection with the Services. We do not accept any responsibility or liability for any content posted by third parties on the Services, including content posted by you or other users. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit any Content or other proprietary rights not owned by you in any way that violates any third party right.
D. The Content may include information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate in connection with the Services, or that you contribute in any manner to the Services. You represent and warrant that you have all rights necessary to do so. You hereby grant us a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display, reformat, modify, create derivative works of, excerpt, translate, distribute or otherwise use your User Submissions in connection with providing the Services. HBI reserves the right to remove any Content, including your User Submissions, from the Services at any time for any reason or for no reason at all.
E. Third Party. The Service may be used in connection with other products and services, and may contain links and interfaces to, as well as content and data from, third-party websites, apps, products and services (“Other Services”). Any links and interfaces are provided solely as a convenience to you. By accessing or using these Other Services, you are consenting to the creation of an interface with such Other Services, and agreeing that HBI may exchange information and control data with such Other Services regarding you, your Authorized Users, your Products and use of the Services, including your and your Authorized Users’ personal information, in order to enable the Other Service interface and functionality, and its use by such Other Services. Once this information is shared with the Other Services, its use will be governed by the third party’s privacy policy and not by our Privacy Policy. Moreover, use of such Other Services is governed by separate terms and conditions provided by the providers of the applicable product or service. You should review the terms of use and privacy policies of such Other Services before enabling or using them. We do not exercise control over such Other Services. We do not endorse the materials contained on Other Services, and are not responsible for the performance of the Other Services. You acknowledge and agree that HBI makes no representation or warranty about the safety of any Other Services. Accordingly, HBI is not responsible for your use of any Other Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Other Services.
F. System Requirements. Our Services are designed to work with: (i) a working Wi-Fi network that is positioned to communicate reliably with the Products and is connected to an always-on broadband Internet connection; (ii) a valid user account; (iii) a supported mobile smartphone with a working cellular data connection; and (iv) a working Product that is powered on. It is your responsibility to ensure that you have all required system elements and that they are compatible, up to date, and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
G. Open Source. Certain independent, third party code may be included in the Service that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software, and you are responsible for compliance with these Terms and any applicable Open Source Notice terms on our Website.
H. Access Outside Certain Countries. Although the Website and Apps may be accessible worldwide, our Products and Services are not designed for use in all countries, and some or all of the features of the Service may not work or be appropriate for use in a particular country. To the fullest extent permitted by law, HBI accepts no responsibility or liability for any damage or loss caused by your access or use of the Services or Products in a country not specifically approved by us. You will be bound by these Terms wherever you access or use the Services.
I. Paid Services. Certain Services may be provided for a fee. You are responsible for paying all applicable fees in connection with the Services selected by you in accordance with these Terms and any applicable Terms of Sale on our Website.
6. RESTRICTIONS
The Services are provided by us for your personal use only. You agree to use the Website and the Services only for lawful purposes, and in a way that does not infringe the rights of, restrict or inhibit anyone else’s use and enjoyment of the Website or Services. You agree not to do any of the following:
a) Post, upload, publish, submit or transmit any Content via our Service that: (i) infringes, misappropriates or violates a third party’s intellectual property rights, or rights of publicity or privacy; (ii) violates any law, statute, ordinance or regulation, or encourages any conduct that would violate, any applicable law or regulation; (iii) is harmful, fraudulent, false, misleading or deceptive; (iv) is threatening, abusive, harassing, tortious, defamatory, obscene, pornographic, vulgar, libelous, or otherwise objectionable; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances; (viii) impersonates any person or entity, including without limitation any employee or representative of HBI; (ix) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (x) attempts, in any manner, to obtain the password, account, or other security information from any other user; (xi) is intended to perform any of the activities hereunder;
b) Use, display, mirror, frame, reformat or redistribute the Services, or any individual element within the Services, HBI’s name, any HBI trademark, logo or other proprietary information, or the layout and design of any page, form, software or output, without HBI’s express written consent;
c) License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or access the Services other than through the App, Website, Product or other method authorized by HBI;>
d) Use the Services in any manner which degrades the user experience, reliability, speed, or operation of the Services, or any underlying hardware or software thereof;
e) Access, tamper with, or use non-public areas of the Service, including HBI’s computer systems, servers, networks, or the technical delivery systems of HBI’s providers;
f) Attempt to probe, scan, or test the vulnerability of any HBI Product, Service, Licensed Software, system or network or breach any security or authentication measures, or to modify, make derivative works of, disassemble, reverse engineer, decompile or otherwise attempt to gain the source code for any HBI Product or Service except as expressly permitted by law;
g) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HBI or any of HBI’s providers or any other third party (including another user) to protect the Service. Licensed Software or Product;
h) Access or attempt to access the Services by means other than through the App, Website, Product or other interface that is provided by HBI;
i) Access the Services in order to build a similar or competitive offering to HBI;
j) Upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product; or properties connected to the Service or Product;
k) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation using the Services or in connection with the Services;
l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
m) Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
n) Use the Service to impersonate any person or send altered, deceptive or false source-identifying information, or misrepresent your affiliation with any person or entity;
o) Violate any applicable law or regulation; or
p) Encourage or enable any other individual to do any of the foregoing.
We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
To the fullest extent allowed by law, HBI is not responsible for damage or liability caused by (i) use of the Products and Services for purposes other than for which the Products and Services are designed or intended, or use in improper temperature, humidity or other environmental conditions, or use of the Products or Services in violation of written instructions provided by HBI (which may be provided at the time of purchase or on our Website), (ii) normal wear and tear or aging, or improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by HBI to service your Product. THE FOREGOING EXCEPTIONS DO NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.
7. LIMITATION OF SERVICES
a) Availability. While we aim for our Services to be highly reliable and available, we do not guarantee that they will be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond HBI’s control, including but not limited to Wi-Fi network intermittency, broadband Internet service provider uptime, mobile Internet service provider uptime, reliability of mobile smartphone notifications (such as “push” notifications), and/or reliability of other third-party products and services to which our Services or Products may be integrated with. You acknowledge these limitations and agree that HBI is not responsible for any damages allegedly caused by the failure or delay of the Services. Furthermore, Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. To the fullest extent permitted by law you agree that you will not be entitled to any refund or rebate for such suspensions.
b) Privacy. Please review the Privacy Policy for information regarding the data that HBI may collect from users of the Products and Services, including any Content or User Submissions. HBI cares about the integrity and security of your personal information. However, HBI cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. To the fullest extent permitted by law you acknowledge that you provide your personal information at your own risk.
c) Not for Medical Use. You acknowledge and agree that the Products and Services are not intended for or certified for medical use. HBI makes no warranty or representation that the use of the Products or Services (with or without any third-party product or service) or the information provided to you by our Services or any Content found on the Services constitutes medical treatment or medical advice. You understand and acknowledge that HBI’s Products or Services will not dispatch emergency authorities in the event of an emergency. Furthermore, HBI’s customer care and support contacts cannot be considered a medical resource. If you have an emergency or a medical concern, it is your responsibility to seek medical assistance.
d) Content. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and to the fullest extent permitted by law you hereby release us from all liability for you having acquired or not acquired Content through the Services. FOR NEW JERSEY RESIDENTS, THE FOREGOING RELEASE DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.
e) App Providers. You acknowledge and agree that the availability of the Apps is dependent on third-party websites from which you download the Apps (e.g., the App Store from Apple® or the Android® app market from Google® – respectively an “App Provider”). You agree that: (i) these Terms are agreed upon between you and HBI, and not with the App Provider, and HBI (not the App Provider) is solely responsible for the App; (ii) the App Provider has no obligation to furnish any maintenance and support services with respect to the App; (iii) in the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider may refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. As between the App Provider and HBI, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to any warranty will be the sole responsibility of HBI; (iv) the App Provider is not responsible for addressing any claims that you or any third party may have relating to the App or your possession or use of the App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation; (v) in the event of any third-party claim that the app or your possession or use of that App infringes a third party’s intellectual property rights, as between App Provider and HBI, HBI will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by these Terms; (vi) the App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App and that, upon your acceptance of these Terms, the App Provider will have the right to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof; (vii) to the extent the terms and conditions for the App provided by the App Provider (“App Terms”) are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms or any applicable EULA, the more restrictive or conflicting terms and conditions in these Terms and/or the EULA shall apply.
f) Compliance with Law. Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not HBI) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including but not limited to (i) any laws relating to the recording or sharing of video or audio content obtained through the Services that includes third parties, or (ii) any laws requiring notice to or consent of third parties with respect to your use of HBI Products.
g) Third-Party Website Links and Referrals. The Websites may contain links to other websites operated by third parties (“Third-Party Websites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Websites and Referred Vendors are not under our control. HBI provides these links and referrals solely for your convenience and does not make any representations with respect to such Third-Party Websites or Referred Vendors. Your use of these Third-Party Websites is at your own risk. Please see the Terms of Use for further information.
h) Release Regarding Third Parties. HBI is not responsible for third parties or their products and services, including Other Services, Third-Party Websites and Referred Vendors. HBI hereby disclaims and to the fullest extent permitted by law you hereby discharge, waive and release HBI and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND SIMILAR PROVISIONS IN OTHER JURISDICTIONS) IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING RELEASE DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.
8. OWNERSHIP AND INTELLECTUAL PROPERTY
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Licensed Software, and Services (including the Websites and Apps) are owned by HBI or its affiliates and/or licensors. Your possession, access, and use of the Product, Licensed Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. HBI and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services and Licensed Software are licensed to you, not sold, under these Terms. Except as expressly set forth in these Terms, these Terms do not grant you any right, title, or interest in the Services or any Content.
You may not use Content you obtain from our Services in any public or commercial way, nor may you copy or incorporate any of the Content into any other work, including your own website without our prior written consent.
We appreciate it when users send us feedback, but please only provide feedback, comments, or suggestions that you agree we may use without limitation. By uploading or otherwise providing any feedback, comments or suggestions to us, you hereby grant HBI and its designees, the unlimited, irrevocable, perpetual right to reuse, redistribute, modify and create derivative works from such items for any purpose and in any media without compensation, and you warrant that all “moral rights” in uploaded materials have been waived.
9. INDEMNIFICATION
To the fullest extent permitted by law, you agree to defend, indemnify, and hold HBI, its officers, directors, employees, affiliates, agents, licensors, and suppliers, harmless from and against any damages, claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, (i) your or your Authorized Users’ use of the Products, Licensed Software, Website, App or Services, including without limitation your negligence and willful misconduct, (ii) your or your Authorized Users’ violation of law or third party right, (iii) any User Submissions or feedback you provide; (iv) your or your Authorized Users’ violation of these Terms; or (v) your use or reliance upon Other Services, Third-Party Websites or Referred Vendors. THIS INDEMNIFICATION SECTION DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS, INTENTIONAL OR WILLFUL CONDUCT. HBI reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without HBI’s prior written consent.
10. WARRANTY DISCLAIMERS
a) THE WARRANTY FOR THE PRODUCT AND LICENSED SOFTWARE, IF ANY, ARE SET FORTH IN THE APPLICABLE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.
b) THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND HBI AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
c) HBI AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HBI OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
d) HBI MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND HBI WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. HBI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
e) HBI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE (INCLUDING THOSE FROM OTHER SERVICES, THIRD PARTIES OR REFERRED VENDORS), AND HBI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
f) WHEN YOU INVITE AUTHORIZED USERS OR OTHER THIRD PARTIES TO USE YOUR PRODUCTS OR SERVICE, YOU ASSUME ALL RESPONSIBILITY FOR THEIR USE, AND ANY DAMAGES THAT THEY MAY CAUSE TO YOU, HBI, OR ANY THIRD PARTY.
11. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT SHALL HBI, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, PROFITS, REVENUE OR DIMINUTION IN VALUE) DAMAGES ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN WARNED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, HBI’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE PRODUCTS OR SERVICES SHALL BE MORE THAN THE GREATER OF $100, OR THE AMOUNTS PAID BY YOU TO US OR OUR AUTHORIZED RESELLER FOR THE PAST TWELVE MONTHS OF THE SERVICES IN QUESTION. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. TO THE FULLEST EXTENT BY LAW HBI WILL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT OR YOUR RELIANCE THEREO, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, HBI IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATING TO USE OF THE SERVICES OR THESE TERMS OF USE UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS; AND TO THE FULLEST EXTENT PERMITTED BY LAW WE ARE NOT LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
12. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES, WAIVES YOUR RIGHT TO A JURY TRIAL, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. To the fullest extent permitted by law, any dispute or claim relating to these Terms or Services, Licensed Software or Products will be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court (except that you may assert claims in small claims court if your claims qualify). The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. To the fullest extent permitted by law we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. The Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration. Notwithstanding the foregoing, YOU MAY OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out by emailing written notification to HBI at customercare@happiestbaby.com that includes your (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with HBI through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with HBI. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in any court having jurisdiction to enjoin infringement or other misuse of intellectual property rights.
13. COPYRIGHT POLICY
a) If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an e-mail address; (v) 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 (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
b) Our designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, Happiest Baby, Inc., 1833 Centinela Avenue, Santa Monica, CA 90404, tel: 310-476-4440, fax: 310-476-4401, email: legal@happiestbaby.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to HBI customer service through our contact page. You acknowledge that if you fail to comply with all of the requirements of this Section 12, your DMCA notice may not be valid.
c) Promptly after receipt of a valid removal notification, we will remove or disable access to the allegedly infringing content in accordance with requirements of the DMCA. We will also notify the party that posted it of your claim that the material is infringing and will give that party an opportunity to send us a written counter-notification. If we receive a valid counter-notification, we will forward it to you and you must then notify us within 10 business days that you have filed an action seeking a court order to restrain the other party from engaging in the allegedly infringing activity. If we receive such notification from you, we will not restore the material. If we do not receive such notification from you, we may reinstate the material.
14. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, agree to comply with all applicable laws regarding intellectual property and/or the transmission of technical data exported from the United States or the country in which you reside.
15. GENERAL
a) Modifications. HBI reserves the right to make changes to these Terms from time to time. Please ensure that you have read and agreed with our most recent Terms when you use the Services. We will take reasonable efforts to notify you when we make material revisions or modifications to these Terms by (i) posting a notice or new version of these Terms on our Website, or (ii) providing direct notice in a communication to your customer account (if you have one), or otherwise in some manner through the Service that we deem reasonable. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services.
These Terms may be modified by you only by obtaining our written consent in an agreement signed by an officer of HBI, or as set forth herein.
b) Governing Law. The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country's laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the arbitration requirement in Section 11, HBI may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and HBI regarding the use of the Services. Any failure by HBI to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
e) Force Majeure. Except for the payment of fees due under these Terms, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
f) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without HBI’s prior written consent. These Terms may be assigned by HBI without restriction. These Terms are binding upon any permitted assignee.
g) Notifications. HBI may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on our Website. HBI is not responsible for any automatic filtering you or your network provider may apply to email notifications.
h) Limits on Claims. To the fullest extent permitted by law, you agree that any claim or cause of action arising out of or related to these Terms or the use of the Services, must be filed within one (1) year after such claim or cause of action arose or be forever barred, regardless of any time limit set forth in any statute or law to the contrary. THIS SECTION DOES NOT APPLY TO NEW JERSEY RESIDENTS.
i) Contact. In the event of any questions or comments or to request further information, we may be contacted at 1833 Centinela Avenue., Santa Monica, CA 90404, or by email at customercare@happiestbaby.com.
j) Copyright/Trademark Information. Copyright © 2017, Happiest Baby, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of HBI or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of HBI or such respective holders. HBI reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.<