HAPPIEST BABY, INC.
TERMS OF SERVICE
Updated December 29, 2020
1. OVERVIEW
In these Terms, when we refer to "HBI", "we", "us" or "our", we are referring to Happiest Baby, Inc. with registered address of 3115 South La Cienega Boulevard, Los Angeles, California 90016, which is also our main trading address; Phone number +44 808 164 4528; Email address: customercare-eu@happiestbaby.com. The App publication director is Dr. Harvey Karp.
These terms of service (“Terms”) govern your use of our mobile application (“App”) and the services made available via the App and our products ("Products") (together “Services"). This is a legal agreement between you and HBI, so please read these Terms carefully.
By clicking “Submit” to these Terms when installing the App, you expressly agree to, and consent to be bound by, these Terms. You guarantee 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. 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.
2. OTHER TERMS
These Terms govern your use of the Services. Your purchase of one of our Products is governed by the applicable Terms of Sale for such Product. We also provide a limited warranty for many of our Products ("Limited Warranty"). If there is a conflict or inconsistency between those documents and these Terms, the Terms of Sale or Limited Warranty will take precedence over these Terms. The software in our Products ("Product Software") is separately licensed and governed by the applicable End User License Agreement (“EULA”). Again, if there is a conflict or inconsistency between the EULA and these Terms, the EULA will take precedence over these Terms.
Our Privacy Policy, accessible here, explains what personal information we collect, why we collect it, how we use it, the controls and the rights you have over your personal information and the procedures that we have in place to protect your privacy. It applies to personal information we collect through the App and through our Products.
3. REGISTRATION / ACCOUNTS
To use the Services, you must register for a user account (“Account”) and provide certain information about you, 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.
For German residents: By sending off the registration form, you submit a binding offer to conclude a contract to use the Services. Our provision of the registration form does not yet constitute a binding offer. The contract is only concluded when you activate your Account.
You are 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). You are responsible for all uses of your account and login information, whether or not authorized by you (except where any unauthorized use is our fault). You agree to notify us as soon as you can 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 (except where any unauthorized use is our fault).
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 by the Owner to access an Owner’s Products and Services are “Authorized Users.” These Terms 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 App, 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 the Owner also 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 are asked to become 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 until they are 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 if you break these Terms (provided that we will give reasonable notice of any suspension or termination, except if not legally possible). For example, we may suspend or terminate your use of the Services 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 replace or remove at any time any features currently offered as part of the Services, or the Services themselves – however, we will only do that where we are making improvements, and will not do this where it detracts from the Services you are currently receiving.
Upon termination of these Terms, 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 of these Terms which by their nature or effect are required or intended to be observed by you after termination of these Terms will survive the termination and remain binding on you.
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 for you and your Authorized Users (and no-one else) to access and use the Services by
(i) using App 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 our App only on your own handheld mobile device (e.g., iPhone or Android smartphone) and only 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 Product Software (“Updates”). You acknowledge that some of these may cause some or all of the Services and/or Products to be unavailable for a period. These may be automatically installed without providing any additional notice or receiving any additional consent. By accepting these Terms, you agree 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. You may also be asked to install Updates yourself, and if this is the case you agree to promptly install any Updates provided by HBI. Refusing to install an Update may result in loss of app functionality and sub-optimal performance. Updates are subject to these Terms together with any additional terms that may be provided with such Updates, which will be notified to you in advance. Should you not agree with these new Terms, you will be entitled to terminate these Terms at any time.
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 on your ownership rights to the Content. 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 promise that you have all rights necessary to do so.
If you are a resident of France: You grant us a nonexclusive, worldwide, royalty-free 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 or improving the Services, for the whole duration of the IP or exclusive rights underlying on your User Submissions.
If you are a resident of Germany: You grant us a nonexclusive, worldwide, royalty-free and transferable right to access, display, reformat, modify, create derivative works of, excerpt, translate, distribute or otherwise use your User Submissions, solely for the duration of this agreement and solely for the purpose of providing the Services or improving 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 Services 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. If you use these Other Services, an interface may be created with such Other Services, and where applicable and required 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. Also, 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 these 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 statement about the safety of any Other Services. Accordingly, HBI is not responsible for your use of any Other Service.
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. Access Outside Certain Countries. Although our website and App 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. 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. However, you will be bound by these Terms wherever you access or use the Services. The use of the Services or Products are supported in the following countries: United States of America, Canada, Australia, United Kingdom, Belgium, France, Germany, Italy, Luxembourg, Netherlands, Denmark, Ireland, Greece, Portugal, Spain, Austria, Finland, Sweden, Cyprus, Czechia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania, Croatia, Serbia, and Belarus.
6. RESTRICTIONS
The Services are provided by us for your personal use only. You agree to use 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 Services. You agree not to do any of the following:
a) Post, upload, publish, submit or transmit any Content via our Services 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, Products, our website 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 Product, Services, 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 Product or Services 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 Services, Licensed Software or Product;
h) Access or attempt to access the Services by means other than through the App, Products, our website 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 mailbombing 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) Breach 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 breaches of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who break the 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 breach 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, attempted repair by anyone other than a facility authorized by HBI to service your Product. HOWEVER, THESE EXCEPTIONS DO NOT APPLY TO YOUR RIGHTS AS A CONSUMER, OR TO THE BREACH OF OUR LEGAL OR CONTRACTUAL OBLIGATIONS, OUR 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 may be subject to sporadic interruptions and failures for a variety of reasons constitutive of force majeure events, including but not limited to Wi-Fi network intermittency, broadband Internet service provider uptime, mobile Internet service provider uptime, and/or reliability of mobile smartphone notifications (such as “push” notifications). You acknowledge these limitations and that they may impact on the reliability and availability of the Services. Furthermore, the Services may be suspended temporarily without notice for security reasons, system failure, urgent maintenance and repair, or other circumstances.
b) Not for Medical Use. You acknowledge and agree that the Products and Services are not intended for or certified for medical use, or constitute a medical device. HBI makes no statement 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. 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.
c) Content. You acknowledge that all Content accessed by you using the Services is at your own risk. Whilst we try to ensure our Content is accurate, 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.
d) App Providers. You acknowledge and agree that the availability of the App is dependent on third- party websites from which you download the App (e.g., the App Store from Apple® or the Android® app market, Google Play® 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 the 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.
e) 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 when using the Services for complying with (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.
f) Third-Party website Links and Referrals. Our Services may include links to websites operated by third parties (“Third-Party Websites”) and referrals to third-party traders (“Referred Traders”). Such Third- Party Websites and Referred Traders are not under our control. HBI provides these links and referrals solely for your convenience and does not make any statements with respect to such Third-Party Websites or Referred Traders. Your use of these Third-Party Websites and Referred Traders is at your own risk.
8. OWNERSHIP AND INTELLECTUAL PROPERTY
You acknowledge that all intellectual property rights, including copyright, patents, trademarks, and trade secrets, in the Product, Licensed Software, and Services (including our websites and App) 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 restriction. By agreeing to these Terms, by uploading or otherwise providing to us, you hereby grant HBI a non-exclusive worldwide license to reuse, redistribute, modify and create derivative works from any feedback, comments or suggestions that you may upload or otherwise provide to us, for our promotional, commercial or research purposes and in any media, including on HBI websites, social networks pages (Facebook, Twitter, Instagram, Pinterest, Youtube, TikTok, etc.) or on sharing platforms, on promotional emails or catalogs, in the App or with any documentation coming with the Products, without compensation, for the whole duration of the intellectual property or exclusive rights underlying on your feedback, comments or suggestions and you guarantee that your feedback does not infringe on any moral rightsand you confirm that all “moral rights” in uploaded materials have been waived.
9. LIMITATION OF LIABILITY
Nothing in these Terms shall exclude or limit (a) any person's liability for death or personal injury caused by intent or negligence, (b) liability for fraud, intent and gross negligence or (c) any liability for breach of our legal or contractual obligations. Nothing in these Terms is intended to affect your legal rights as a consumer.
HBI will not be liable to you for any losses or damages suffered by you that: (i) were not reasonably foreseeable by you and us at the time you accepted these Terms (except in the case of malice or gross negligence) - loss or damage is reasonably foreseeable if either it could have been foreseen at the time you accepted these Terms that it may happen or, both you and we knew it might happen, for example, if you and we discussed it; or (ii) are not caused by us breaking a term of these Terms, or any other failure by us; (iii) result from a force majeure event.
HBI does not guarantee any specific results from the use of the Services, except as provided for in these Terms.
10. BETA TESTING
Certain unreleased features (“Beta Features“) of the HBI Software may be made available to you through the Products or Services for testing (“Beta Test”). Your participation in a Beta Test will be governed by the terms of this section.
In the course of a Beta Test, we may ask you to provide feedback and comments (together, “Feedback”), regarding your experience with Beta Features to enable us to evaluate any errors or problems you may experience. You hereby assign to HBI all right, title and interest in any and all Feedback, including problems and ideas for enhancements of the Beta Features provided by you during a Beta Test, and all property rights therein, including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights. HBI may use Feedback for any purpose and may reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. HBI is not obligated to maintain any Feedback in confidence, or to respond to any Feedback.
Beta Features are not at the level of performance or compatibility of a final, generally available product offering. Beta Features may not operate correctly and may be substantially modified prior to first commercial release, or withdrawn. Beta Features are provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of Beta Features remains with User. To the fullest extent permitted by applicable law, Happiest Baby disclaims all warranties associated with Beta Features, including without limitation, warranties of merchantability and fitness for a particular purpose and non-infringement.
11. DISPUTE RESOLUTION
We will do our best to resolve any disputes over these Terms.
These Terms, their subject matter and its formation, are governed by English law, except if you are a French resident (then French law applies) or a German resident (then German law applies). However, if you are a consumer and resident of any other European Union country you will benefit from mandatory provisions of, and legal rights available to you under, the laws of that country. Nothing in these Terms 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. For clarity, if you are a French resident, you can always bring proceedings in front of French competent courts, and if you are a German resident, you can always bring proceedings in front of German competent courts.
12. GENERAL
a) Modifications. We may change these Terms subject to the modification procedure described below at any time to reflect changes in or to: (i) relevant laws or regulatory requirements; (ii) our business; (iii) security, technical or operational issues; (iii) Products and/or Services; and/or (iv) the App's functionality or features. The modification procedure however does not apply to any limitations of our core performance obligations or extensions of your obligations.
If we change these Terms in the cases set out above, we will notify you of these changes before the amendment is scheduled to take effect via e-mail or via the app through a pop-up.
By accepting revised Terms or remaining silent for the notification period you agree to comply with them, unless you prove that you did not have a chance to review them.
b) Notifications. HBI may provide notifications to you as required by law or for 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 App. HBI is not responsible for any automatic filtering you or your network provider may apply to email notifications.
c) Contact. In the event of any questions or comments or to request further information, we may be contacted at 3115 South La Cienega Boulevard, Los Angeles, California 90016, or by email at customercare-eu@happiestbaby.com.
d) Copyright/Trademark Information. Copyright © 2020 Happiest Baby, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of HBI, HB Innovations, Inc., or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of HBI, HB Innovations, Inc., or such respective holders. HBI and HB Innovations, Inc. reserve 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.