HAPPIEST BABY, INC.
TERMS OF USE
Updated April 1, 2017
1. YOUR ACCEPTANCE
A. By using and/or visiting this website, www.happiestbaby.com (the “Website”), you signify your agreement to (1) these terms and conditions (the “Terms of Use”), and (2) the Website’s Privacy Policy, hereby incorporated herein by reference. If you do not agree to any of these terms or the Privacy Policy, do not use the Website. The Website is owned and operated by Happiest Baby, Inc. (“HBI” “we”, “us” or “our”).
B. We may change these Terms of Use at any time in our sole discretion and if HBI makes any material changes, we will notify you by sending you an email to the last email address you provided to us (if any) and posting the revised Terms of Use on the Website. Therefore, you agree to promptly notify us of any changes in your email address. Any changes to these Terms of Use will be effective upon the earlier of the dispatch of the email notice to you or the date of posting of notice of the changes on the Website and shall be evidenced by a new date shown above. These changes will be effective immediately for new users of the Website. HBI may require you to provide consent to the updated Terms of Use before further use of the Website is permitted. Otherwise, your continued use of the Website constitutes your acceptance of the changes. Please regularly check the Website to view the then-current Terms of Use. Nothing in the Terms of Use shall be deemed to confer any third-party rights or benefits unless specifically stated to the contrary herein.
C. PLEASE NOTE THAT THESE TERMS OF USE CONTAIN A DISPUTE RESOLUTION SECTION (SECTION 14) THAT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY.
2. WEBSITE
These Terms of Use apply to all users of the Website. The Website may contain links to third-party websites that are not owned or controlled by HBI. HBI has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, HBI will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly release HBI from any and all liability, direct or indirect, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any third-party website, or any failures and/or disruptions to your computer system arising from your use of any third-party website.
3. GENERAL USE OF THE WEBSITE – PERMISSIONS AND RESTRICTIONS
HBI hereby grants you permission to access and use the Website as set forth in these Terms of Use provided that:
A. You agree not to distribute in any medium any part of the Website without HBI’s prior written authorization.
B. You agree not to commercially use the Website without the prior written authorization of HBI in each instance. Prohibited commercial uses include but are not limited to any of the following actions taken without HBI’s express written approval:
I. sale of access to the Website or its related services on another website;
II. use of the Website or its related services and products for the primary purpose of gaining advertising or subscription revenue; and
III. any use of the Website or its related services and products in competition with HBI or HBI’s content.
C. You agree not to use or launch any automated system, including without limitation, robots, spiders, screen scrapers, offline readers, or systems that access the Website in a manner that sends more request messages to the HBI servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. HBI reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website, including but not limited to comments and/or emails, for any commercial solicitation purposes.
D. You will otherwise comply with the terms and conditions of these Terms of Use and all applicable local, national, and international laws and regulations.
E. Your purchase of products from this Website is subject to HBI’s Terms of Sale which set forth terms and conditions applicable to the order, delivery and return of products offered through this Website. The Terms of Sale shall control over these Terms of Use with respect to the purchase of HBI products. We reserve the right to cancel any purchase made via the Website, even if it has been previously confirmed by us in writing, as a result of incorrect or mistaken pricing or product description or insufficient inventory. If we do cancel a purchase, you will receive a full refund or credit as appropriate and you acknowledge and agree that, to the fullest extent permitted by law, a refund or credit is your sole remedy.
F. Your use of any web or app based service offered in connection with this Website or an HBI app or product (collectively, a “Service”) is subject to the Terms of Service (“Terms of Service”) applicable to such Service, and the Terms of Service shall control over these Terms of Use with respect to the use of the Service.
G. HBI reserves the right to in its sole discretion, filter, censor, edit or regulate information and content provided by third parties on this Website, including third-party Disclosures (as defined in Section 4(E) herein) and any other information provided, including but not limited to comment and/or other interactive areas. HBI neither endorses nor is responsible for (and under no circumstances shall be liable for) the contents, accuracy or reliability of such information and content.
4. YOUR USE OF CONTENT ON THE WEBSITE
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content on the Website.
A. The content on the Website, including without limitation, the text, books, CDs, DVDs, software, graphics, forums, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks, logos, insignias and other intellectual property contained therein (“Marks”), are owned by or licensed to HBI, subject to copyright and other intellectual property rights under the law. Content also includes the “look and feel” of the Website (including its design, layout, color combinations, button shapes and other graphical elements) which are protected by HBI’s or its licensors’ and licensees’ service marks, trademarks and copyrights. Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of HBI. HBI reserves all rights not expressly granted in and to the Website and the Content.
B. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of Content for any commercial purposes.
C. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Website or the Content.
D. HBI grants you a limited, revocable, non-sublicensable license to display the Content solely for your personal use in connection with viewing the Website. Any rights not expressly granted herein are hereby reserved by HBI.
E. Any creative ideas, suggestions or other materials you disclose or offer to us in connection with this Website ("Disclosures"), including e-mails to HBI or postings on interactive portions of this Website, shall be freely usable by HBI for any purpose whatsoever, including but not limited to publishing, developing, distributing and marketing content or services using such information. Any Disclosure is PROVIDED ON A NON-CONFIDENTIAL BASIS with no obligation on our part to keep such information secret. If you provide your name or other biographical information in connection with your Disclosure, such information will be considered part of your Disclosure and usable as provided in this Section, including by publicly identifying you as the source of the Disclosure. By uploading or otherwise providing any Disclosure to this Website or HBI, you hereby grant HBI and its designees, the unlimited, irrevocable, perpetual right to reuse, redistribute, modify or create derivative works from such Disclosure for any purpose and in any media without compensation, and you warrant that all “moral rights” in uploaded materials have been waived. You further grant us and our designees the right in our discretion to use any name or biographical information that you submit in connection with your content. You represent and warrant that you own or otherwise possess sufficient rights to your Disclosures for use as contemplated in these terms of use; that the Disclosure content is accurate; and that use of the Disclosure content you supply does not violate these Terms of Use and will not cause injury to any person or entity.
5. DEALINGS WITH ADVERTISERS
Your correspondence or other business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services from such providers, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser. You agree that HBI shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Website.
6. 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. HBI’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, Happiest Baby, Inc., 3115 South La Cienega Boulevard, Los Angeles, California 90016, 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, 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.
7. 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.
8. WARRANTY DISCLAIMERS
YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW. HBI, ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, LICENSEES, REPRESENTATIVES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. HBI, ITS LICENSORS AND LICENSEES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS WEBSITE. HBI, ITS LICENSORS AND LICENSEES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE WEBSITE, IF ANY, OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, IF ANY, AND HBI, ITS LICENSORS AND LICENSEES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES IF SUCH A TRANSACTION TAKES PLACE.
NOTHING STATED OR POSTED ON THE WEBSITE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE DISPENSATION OF MEDICAL ADVICE OR THE PRACTICE OF MEDICINE. ANY WEBSITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THE WEBSITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE WEBSITE IS NOT INTENDED TO OFFER OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ALWAYS SEEK THE ADVICE OF YOUR OWN PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY MEDICAL CONDITION. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR EMERGENCY SERVICES (911 IN THE UNITED STATES OF AMERICA) IMMEDIATELY.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW HBI, ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, LICENSEES, REPRESENTATIVES OR AGENTS, SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HBI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
NOTWITHSTANDING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW THE AGGREGATE LIABILITY OF HBI AND ITS LICENSORS AND LICENSEES, INCLUDING THEIR AFFILIATES AND ALL OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR THESE TERMS OF USE, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY WILL NOT EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE NON-REFUNDED OR NON-CREDITED AMOUNT YOU HAVE PAID TO HBI OR ITS LICENSORS AND LICENSEES IN THE CALENDAR MONTH IMMEDIATELY PRECEDING YOUR CLAIM.
YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES TO THESE TERMS OF USE, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE), AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS REGARDING YOUR USE OF THE WEBSITE AND THESE TERMS OF USE WOULD BE SUBSTANTIALLY DIFFERENT.
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 WEBSITE 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.
10. INDEMNITY
To the fullest extent permitted by law you agree to defend, indemnify and hold harmless HBI, its officers, directors, employees, representatives and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Website; (ii) your violation of any term of these Terms of Use; (iii) the Disclosures you supply; or (iv) your violation of any third-party right, including without limitation any copyright, property, or privacy right. THIS INDEMNITY SECTION DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT. This defense and indemnification obligation will survive these Terms of Use and your use of the Website.
11. 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 SITE WHETHER POSTED ON THE SITE 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 SITE WHETHER POSTED ON THE SITE OR INCLUDED IN A PROFILE.
12. ASSIGNMENT
These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by HBI without restriction
13. TERMINATION OF USE
HBI may, in its sole discretion, change, suspend or discontinue any aspect of the Website at any time with or without notice, including the availability of any Website feature, database, or Content. HBI may also impose limits on certain features and services or restrict your access to parts of the Website, or the entire Website, with or without notice, and without liability, at any time, in HBI’s exclusive discretion, for any reason or purpose, including, but not limited to, conduct that HBI believe violates these Terms of Use or other policies or guidelines posted on the Website. Upon any termination of these Terms of Use, you shall immediately discontinue your use of the Website and destroy all materials obtained from it.
14. DISPUTE RESOLUTION / MANDATORY ARBITRATION / NO CLASS ACTIONS
You agree that these Terms of Use and any claim, cause of action or dispute arising out of or related to the Terms of Use or your use of the Website shall be governed by the laws of the State of California, regardless of where you access the Website, and notwithstanding any conflicts of law principles. The United Nations Convention for the International Sale of Goods shall not apply to these Terms of Use.
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. You and HBI agree to resolve any disputes between us in accordance with this Section. To the fullest extent permitted by law, any dispute or claim relating to the Terms of Use or the Website will be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court. 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.
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: (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.
You and HBI retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms of Use, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms of Use. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms of Use. This Section will survive the termination of the Terms of Use or your relationship with HBI.
15. GENERAL
These Terms of Use, together with the HBI Privacy Policy and any other legal notices published by HBI on the Website, shall constitute the entire agreement between you and HBI concerning the Website and your use thereof. Specific areas or pages of this Website may include additional or different terms relating to the use of this Website or the rights or obligations of you or HBI. In the event of a conflict between such terms and these Terms of Use, such specific terms shall control. If you do not agree to the specific terms, please stop using the Website. If any provision of these Terms of Use is deemed invalid by an arbitrator or court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect to the maximum extent permitted by law. Any notices or acknowledgements that are specified in these Terms of Use may be made using any contact information provided by you. You specifically consent to receive communications from us electronically via any e-mail address you provide and agree that such electronic communications satisfy any legal requirement that such communications be in writing. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and HBI’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.