END USER LICENSE AGREEMENT
Updated June 22, 2017
By using the software (“Product Software”) that is embedded in the Happiest Baby, Inc. product (“Product”), you agree to 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.
Your use of (a) the website located at www.happiestbaby.com.au 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 EULA governs your access and use of the Product Software. THIS EULA REQUIRES YOU TO ARBITRATE DISPUTES, WAIVES YOUR RIGHT TO A JURY TRIAL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF – PLEASE READ SECTIONS 8 AND 13 CAREFULLY.
This EULA gives you specific legal rights, and you may also have other legal rights in addition hereto, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
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 REPRESENT AND WARRANT 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 REPRESENT 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 THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
Subject to the terms of this EULA, HBI grants to you a limited, non-exclusive, non-assignable, 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 or control and solely for use in conjunction with the Product for your personal, non-commercial use.
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). To the fullest extent permitted by law, 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 using the Product, 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. If you do not cease using the Product, you will receive Updates automatically. 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.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of HBI and 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 an unrestricted, transferable license to use any all suggestions or feedback provided by you with respect to the Product Software, without limitation. HBI may use, copy, modify, publish, or redistribute your submission and its contents for any purpose and in any way without any compensation to you. 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, 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. 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 and any breach by you of any Third-Party Component license shall also be a breach of this EULA. 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: firstname.lastname@example.org or 1833 Centinela Ave., Santa Monica, CA 90404, USA.
THE THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. HBI AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, AND ANY WARRANTIES REGARDING THE SECURITY, QUIET POSSESSION, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES.
6. TERM AND TERMINATION
This EULA and the license granted hereunder are 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. HBI may terminate this EULA at any time if you fail to comply or breach with any term(s) herein. You may terminate this EULA effective immediately upon written notice to HBI. 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 18 (inclusive) will remain in effect, after any such termination.
7. WARRANTY DISCLAIMER
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HBI PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. HBI, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. HBI DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. HBI MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND HBI DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND OCCUPANTS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) HBI BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT OR PRODUCT SOFTWARE, EVEN IF HBI KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) HBI’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCT AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO HBI OR HBI’S AUTHORIZED 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 DISCLAIMS ALL LIABILITY OF ANY KIND OF HBI’S LICENSORS AND SUPPLIERS.
9. 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 warranty or representation 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.” We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct care of your baby.
10. COLLECTION AND USE OF INFORMATION
You acknowledge that HBI may, directly or indirectly through the services of third parties, collect and store information regarding use of the Product Software and about equipment on which the Product Software is installed or through which it otherwise is accessed and used, through: (a) the provision of maintenance and support services; and (b) security measures included in the Product Software.
You agree that HBI may use such information for any purpose related to any use of the Product Software by you or on your equipment, including but not limited to: (a) improving the performance of the Product Software or developing Updates; and (b) verifying your compliance with the terms of this EULA and enforcing the HBI’s rights, including all intellectual property rights in and to the Product Software.
“Confidential Information” shall mean the Product Software and all other information disclosed to you that HBI characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of HBI. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify HBI in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with HBI in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify HBI prior to such disclosure to allow HBI an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with HBI in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
12. EXPORT COMPLIANCE
The Product Software and related technology may be subject to Australian export control laws and may be subject to export or import regulations in other countries. 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. 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. You will indemnify and hold HBI harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including legal fees) arising from or relating to any breach by you of your obligations under this section.
13. GOVERNING LAW; ARBITRATION
The courts in some countries will not apply the State of California, USA, law to some types of disputes. If you reside in one of those countries, then where the State of California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of the State of California, USA, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. To the fullest extent permitted by law, any dispute or claim relating to this EULA or the Product Software 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. 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 email@example.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.
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.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
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 writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
If any provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The invalid, illegal or unenforceable provision may be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
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 Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. HBI will have no responsibility to provide maintenance or support services with respect to the Product Software.
The parties are independent contractors.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of HBI, that any actual or threatened breach of any provision of this EULA will constitute immediate, irreparable harm to HBI for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
19. QUESTIONS OR ADDITIONAL INFORMATION
If you have questions regarding this EULA, please contact us at: firstname.lastname@example.org or by writing to us at 1833 Centinela Ave., Santa Monica, CA 90404, USA.