HAPPIEST BABY, INC.
END USER LICENSE AGREEMENT
Updated June 16, 2020
By using Happiest Baby, Inc.’s product (“Product”), you are also using Product software (“Product Software”) that is embedded in the Product. Your use of the Product Software is governed by the terms of this End User License Agreement (“EULA”) between you and Happiest Baby, Inc. (“HBI”, “we”, “us”, “our”). If you do not agree to the terms of this EULA, HBI will not and does not license the Product Software to you and you must not use the Product Software and may choose to promptly return the Product for a refund of the Product purchase price by contacting HBI at the address below.
This EULA governs your access and use of the Product Software.
Your use of (a) the website located at www.happiestbaby.com, happiestbaby.co.uk, happiestbaby.eu and our sub-domains (each, a “Site”); (b) certain software that may be downloaded to your mobile device (and any updates thereto) (an “App”); and (c) services available through the Site and App (“Services”), is governed by HBI’s Terms of Service located on our Site. Your purchase of the Product (excluding the Product Software) is governed by the HBI Limited Warranty, the terms of which are provided with the Product or located on our Site. This EULA does not govern your use of the Site, Services, or App, or your purchase of the Product (excluding the Product Software).
This is a legal agreement. By accessing and using the Product Software, you are accepting and agreeing to this EULA on behalf of yourself or the entity you represent in connection with the access. You guarantee that you have the right, authority, and capacity to accept and agree to this EULA on behalf of yourself or the entity you represent. You guarantee that you are of sufficient legal age in your jurisdiction or residence to use or access the Product Software and to enter into this EULA. If you do not agree with any of the provisions of this EULA, you should cease accessing or using the Product Software.
If you are in Germany, the contract language is German.1. LICENSE
Subject to the terms of this EULA, HBI grants to you a limited, non-exclusive, non-transferable license, without rights to sublicense, to use one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own and/or control and solely for use in conjunction with the Product for your personal, non-commercial use.2. RESTRICTIONS
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact HBI and provide HBI an opportunity to create such changes as are needed for interoperability purposes). You are prohibited from releasing the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of HBI for each such release.3. AUTOMATIC SOFTWARE UPDATES
HBI may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed, without providing any additional notice or receiving any additional consent. By accepting this EULA, you consent and agree to any and all automatic Updates. If you do not want such Updates, your remedy is to stop using the Product. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates HBI provides. Should you refuse to install an update, HBI will not be held liable for any resulting Product lack of conformity.4. OWNERSHIP
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights in it are the exclusive property of HBI and/or its licensors. HBI and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. You hereby grant us a worldwide, transferable license to use, modify, translate, and create derivative works from any and all suggestions or feedback provided by you with respect to the Product Software, and to use, copy, reproduce, publish, communicate to the public and redistribute your suggestions or feedback and create derivative works of them, on any material and by any media, for research and development purposes or for promotional or commercial puproses, for the whole duration of the intellectual property rights underlying on your suggestions or feedbacks without compensation. You also agree that HBI does not waive any rights to use similar or related ideas previously known to HBI, developed by its employees or obtained from other sources.5. THIRD-PARTY COMPONENTS
The Product Software may include software (including open-source software), content, data or other materials that are owned by persons other than HBI (“Third-Party Components”) and are subject to license terms that accompany such Third-Party Components and you acknowledge and agree that these accompanying license terms govern their use. If you would like a list of our Third-Party Components and their accompanying terms, please write to us using at the details provided below and we will be happy to share a copy of this information with you. However, for the open-source software you can find the license terms here. Nothing in this EULA limits your rights under, or grants you rights that supersede, the license terms that accompany any Third-Party Components. You are bound by and shall comply with all license terms for such Third-Party Components. For your convenience, we may provide a list of the Third- Party Components contained in the Product Software on our Site. If required by any license for a particular Third-Party Component, HBI makes the source code to such Third-Party Component, and any of HBI’s modifications to such Third-Party Component as required, available by written request to HBI at: email@example.com or 3115 S La Cienega Blvd, Los Angeles, CA 90016.6. TERM AND TERMINATION
This EULA is effective on the date you first use the Product Software or Product, and shall continue for as long as you own the Product, unless this EULA is terminated in accordance with this section. Both parties may terminate this EULA at any time if there is a compelling reason; a compelling reason means if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period. You may terminate this EULA effective immediately upon written notice to HBI. However, upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 16 (inclusive) will remain in effect, after any such termination.7. LIABILITY
7.1 U.S. Residents Only. If you reside in the United States, this Section 7.1 applies to you instead of Section 7.2.
To the maximum extent permitted by applicable law, in no event will HBI be liable for any consequential, special, exemplary, or incidental damages, including lost profits, lost data, service interruption, computer damage, system failure or the cost of substitute products or services arising out of or relating to the Product Software, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not HBI knew or should have known of the possibility of such damages, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will HBI’s aggregate liability arising out of or in connection with this EULA and your use of the Product Software exceed the amounts you have paid or owe to HBI in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. This limitation is cumulative and will not be increased by the existence of more than one claim. HBI disclaims all liability of any kink of HBI’s licensors and suppliers. The limitations of damages set forth above are fundamental elements of the basis of the bargain between HBI and you.
7.2 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 7.2 applies to you instead of Section 7.1.
Nothing in this document shall exclude or limit (a) any person's liability for death or personal injury caused by negligence, (b) liability for malice and gross negligence, (c) claims based on the German Product Liability Act (“Produkthaftungsgesetz”), (d) liability for explicit guarantees made by HBI, (e) data protection breaches, (f) liability for fraud, or (g) our liability for breach of our statutory or contractual obligations. Nothing in this EULA is intended to affect your legal rights as a consumer.
Apart from the aforementioned cases, in cases of slight negligence, HBI is only liable for a breach of an essential contractual obligation and only to the following extent: HBI will not be liable to you for any losses or damages suffered by you that were not reasonably foreseeable by you and us at the time you accepted this EULA - loss or damage is reasonably foreseeable if either it is obvious at the time you accepted this EULA that it may happen or, both you and we knew it might happen, for example, if you and we discussed it or is caused by a force majeure event. “Essential contractual obligations”, for the purpose of this provision, are the obligations that must be performed in order to achieve the purpose of the contract, and on the performance of which you may therefore generally rely.
In addition, except in France, HBI's total cumulative liability for slight negligence, arising from or related to the Product Software, whether in contract or tort or otherwise, shall not exceed the fees actually paid by you to HBI or HBI's authorised reseller for the Product at issue in the prior 12 months (if any). This limitation is cumulative and will not be increased by the existence of more than one incident or claim.
HBI does not guarantee any specific results from the use of the Product Software. This clause does not deprive you of your statutory warranties as a consumer, as described in the Terms of Sale.8. LIMITATIONS OF PRODUCT SOFTWARE
You acknowledge that the Product and Product Software are not a medical device or an emergency notification system. HBI makes no statement that the use of the Product or Product Software (with or without any third-party product or service) constitutes medical treatment. You understand and acknowledge that HBI’s Product or Product Software 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.
The Product Software provides you information (“Product Information”) regarding your baby. All Product Information is provided “as is” and “as available.” In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct care of your baby.9. EXPORT COMPLIANCE
The Product Software and related technology may be subject to export or import regulations. You shall not, directly or indirectly, export, re-export or release the Product Software to, or make the Product Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Product is available for use in the following countries: United States, Canada, Australia, United Kingdom and members states of the European Economic Area, and HBI makes no representation that the Product Software included in the Product is appropriate or available for use in any other countries or territories. You agree to strictly comply with all such laws, regulations and rules, and acknowledge that you have the responsibility to obtain authorization to export, re-export or import the Product Software and related technology, as may be required.10. CONSENT TO USE OF NON-PERSONAL DATA
HBI may collect, store and use information - including but not limited to technical information about your equipment on which the Product Software is installed, accessed and used - to facilitate the provision of Product Software updates, product support, and other services to you (if any) related to it. HBi may use this information, as long as it does not personally identify you, to improve the performance of the Product Software, develop Updates, verify your compliance with this EULA and enforce HBI’s rights in and to the Product Software.11. GOVERNING LAW; JURISDICTION; DISPUTE RESOLUTION
Neither the U.N. Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act shall apply to this EULA or any dispute arising under this EULA.
As a consumer, you will benefit from any mandatory provisions of the law of the country in which you reside. Nothing in this EULA affects your rights as a consumer to rely on such mandatory provisions of local law.
11.1 U.S. Residents Only. If you reside in the United States, this Section 11.1 applies to you instead of Section 11.2.
This EULA is governed by the laws of the State of California (excluding its conflicts of law rules) and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in California will have exclusive jurisdiction for any dispute arising under this EULA. Parties agree to submit to the personal jurisdiction of the state and federal courts located in Los Angeles County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.
All disputes arising under this EULA shall be resolved exclusively and finally by binding individual arbitration. This means you and HBI waive any right to litigate disputes in a court or before a jury and neither party shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by or on behalf of any third party to an arbitration brought hereunder, or to arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. The arbitration will be administered by the American Arbitration Association (AAA), or JAMS. The arbitration panel shall have exclusive authority to resolve any arbitrability issues including any dispute over this EULA or this arbitration provision’s scope, application, meaning and enforceability. The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. If any portion of this arbitration agreement is found unenforceable, the unenforceable portion shall be severed and the remaining arbitration terms shall be enforced (but in no event will there be a class arbitration). Consumers may elect to pursue their claims in small-claims court rather than arbitration. HBI will be responsible for paying any individual consumer's arbitration/arbitrator fees. Notwithstanding the foregoing, HBI may apply to any relevant government agency or any court of competent jurisdiction to preserve its rights under this EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled, either against you or against a non-party; provided, however, that no such administrative or judicial authority shall have the right or power to render a judgment or award (or to enjoin the rendering of an arbitral award) for damages that may be due to or from either party under this EULA, which right and power shall be reserved exclusively to an arbitration panel proceeding in accordance herewith.
You may opt out of these arbitration procedures and/or the class action waiver above within 30 days of the date that you first use the Product Software or agree to this EULA, whichever occurs first. You may opt out by emailing written notification to HBI at firstname.lastname@example.org that includes: (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with HBI through arbitration and/or to be bound by the class action waiver. Your decision to opt-out of this section will have no adverse effect on your relationship with HBI.
11.2 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 11.2 applies to you instead of Section 11.1.
This EULA, its subject matter and its formation, are governed by English law. However, if you are a consumer and resident of any European Union country you will benefit from mandatory provisions of, and legal rights available to you under, the laws of that country. For example, English law governs this contract but French consumers cannot be deprived of French law rules. Nothing in this EULA affects your rights as a consumer to rely on these local law mandatory provisions and legal rights.
You and we both agree that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a consumer and resident of any other country you and we may also bring proceedings in that country, including, for example, for French consumers, in front of the competent French courts.
11.3 Canadian Residents Only. This EULA is governed by the laws of Canada and the province in which you reside. You expressly acknowledge the exclusive jurisdiction of the federal courts and province courts within the jurisdiction of the place of your principal residence for any dispute arising from this EULA, and you expressly submit to the exclusive personal jurisdiction of said courts for any such dispute.
11.4 Australian Residents Only. This EULA is governed by the laws of the State of Victoria, Australia. In the event that a dispute arises from this EULA, you agree to submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.12. NOTICES
Any notice to you may be provided by email to the address that you registered with HBI.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in text form.13. SEVERABILITY
If any provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, that provision or part must, to that extent, be treated as deleted from EULA for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this EULA.14. WAIVER
All waivers by HBI will be effective only if in writing. Any waiver or failure by HBI to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.15. QUESTIONS OR ADDITIONAL INFORMATION
If you have questions regarding this EULA, please contact us at: email@example.com or by writing to us at 3115 S La Cienega Blvd., Los Angeles, CA 90016, USA.
HBI is registered in United Kingdom under company number 332646312.