HAPPIEST BABY, INC.
TERMS AND CONDITIONS OF SALE
Updated December 14, 2020
1) YOUR ACCEPTANCE
- By purchasing any product, software, and/or services and support (“Products” or “Services”) from Happiest Baby, Inc. (“HBI” “we”, “us” or “our”) whether through www.happiestbaby.com.au or one of our apps or other websites (the “Websites”) or otherwise, you signify your agreement to these terms and conditions (the “Terms of Sale”). If you do not agree to any of these terms, do not purchase Products or Services from HBI.
- We may change these Terms of Sale 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 Sale on the Websites. Therefore, you agree to promptly notify us of any changes in your email address. Any changes to these Terms of Sale 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 Websites and shall be evidenced by a new date shown above. In addition to this document, the terms contained within the other HBI documents referenced in this Agreement may apply to your purchase. These changes will be effective immediately for new purchasers of Products or Services from us (but will not affect purchases of Products or Services made before the date of the change). HBI may require you to provide consent to the updated Terms of Sale before further product purchases are permitted. Otherwise, your purchase of products after any changes in the Terms of Sale constitutes your acceptance of the changes. Nothing in the Terms of Sale shall be deemed to confer any third-party rights or benefits unless specifically stated to the contrary herein.
- PLEASE NOTE THAT THESE TERMS OF SALE CONTAIN AN ARBITRATION SECTION THAT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, TO HAVE A TRIAL BY JURY, OR TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM.
2) PRICES; SHIPPING AND TAX
All prices on the Websites are shown in United States Dollars, with GST included. The prices are exclusive of any shipping and handling charges unless otherwise specified by us. All items are subject to availability and HBI reserves the right to impose quantity limits on any order, to reject all or part of an order and to discontinue Products or Services without notice. All prices are subject to change without notice. You agree that you are responsible for paying any taxes applicable to your purchases from us. We reserve the right to prohibit purchases of any products to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.
3) AVAILABILITY, ERRORS & INACCURACIES
Our acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted by us or shipped or that the price or availability of an item has been confirmed. We attempt to be as accurate as possible and eliminate errors on our Websites; however, to the extent permitted at law, we do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. To be clear, where we sell you a Product or Service based on a description and there is an error in this description, your rights under the Australian Consumer Law will still apply. In the event of a clear error, whether on a Website, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to reasonably correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. To the fullest extent permitted by law, your remedy in the event of such error is to cancel your order and obtain a refund.
4) SHIPPING & HANDLING; RISK OF LOSS; NO EXPORT BY YOU
Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Websites passes to the purchaser upon delivery to the carrier. When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Websites when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges and the total price before placing an order or signing up for a service. If specified, certain items may be eligible for pick up at one of our authorized representative’s locations with free shipping to that point (however, some exclusions may apply, and we reserve the right to add shipping and handling charges once we post them on the Website). Generally, shipping is by standard ground delivery unless you specify an expedited delivery. All orders are shipment contracts, not destination contracts, including orders shipped to our authorized representative for pick-up, if applicable. Any shipping times shown on the Websites are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of our product for export out of the country to which you indicated in your order that the product is to be shipped.
5) PAYMENT; CREDIT FOR REFUNDS
Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our discretion, other methods. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Websites) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. You must resolve any problem we encounter in order to proceed with your order.
All Products sold by us are for your personal use only. You agree to use the Product 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 Product. You agree not to do any of the following:
- a) License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Product except as expressly permitted by law;
- b) Attempt to probe, scan, or test the vulnerability of any products 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 except as expressly permitted by law;
- c) 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 Product;
- d) Access the Product in order to build a similar or competitive offering to HBI;
- e) 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, or properties connected to the Product;
- f) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the service;
- g) Violate any applicable law or regulation;
- h) Encourage or enable any other individual to do any of the foregoing.
To the fullest extent allowed by law, HBI is not responsible for damage or liability caused by (i) use of the Products or Services for purposes other than for which the Products or Services are designed or intended, or use in improper temperature, humidity or other environmental conditions, or use of the Products or Services in violation of written instructions provided by HBI (which may be provided at the time of purchase or on our Websites), (ii) normal wear and tear or aging, or improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by HBI to service the Products.
7) REVIEW OF ORDERS
As part of our order processing procedures, we may screen received order requests for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
8) AGREEMENT TO CONDUCT TRANSACTIONS ELECTRONICALLY; RECORDING; COPIES
You agree that all of your transactions with or through the Websites may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded by notifying you and seeking consent ahead of the time. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms of Sale unless you enter into different terms provided by us. You are responsible to print or make an electronic a copy of these Terms of Sale and any other contract or disclosure that we are required to provide to you.
9) SUBSCRIPTION SERVICES
We may from time to time offer through our Websites various types of services available through subscription in connection with our Products or Services, including re-billable monthly subscriptions, prepaid annual or semi-annual subscriptions, or other periodic subscriptions. With respect to subscription services subject to recurring periodically billing and/or automatic renewal, you agree that we may periodically submit charges to your designated method of payment without further authorization from you, until you provide prior notice to us that you wish to terminate this authorization or to change your method of payment. All subscription fees are payable in advance through the term of the subscription. You agree to keep your contact information, billing information and credit card information (if applicable) up to date.
10) VOLUNTARY RETURN POLICY
In addition to any other rights you have at law, if you are the original purchaser of a Produc t other than a Digital Product, and you are not satisfied with this Product for any reason, you may return it to us in its original condition within thirty (30) days of receiving the original purchase and receive a full refund. Digital Products are not eligible for return or a refund, unless otherwise specified by us or under applicable law (including the Australian Consumer Law). A “Digital Product” means a product that is available through downloading or via streaming.
11) VOLUNTARY RETURN PROCESS
To return a SNOO Smart Sleeper to us under our voluntary return policy described above, you must first obtain a Return Merchandise Authorization (RMA) number from a customer support representative at HBI. We may ask for additional information upon request. All returns under our voluntary return policy must be received within 10 days of requesting a Return Merchandise Authorization (RMA). If the return is not postmarked within 10 days of the RMA request, the refund will be cancelled. Products returned after the expiration of the RMA number will be returned to the purchaser. Once an RMA number is obtained, your Product must be shipped freight prepaid at your expense, together with proof of purchase and all accessories, either its original packaging or packaging affording an equal degree of protection, to the HBI authorized distribution facility identified by our customer support representative. Failure to return any of the accessories may result in a delay of refund payment or service and/or result in a reduction of your refund, a credit to HBI or an invoice for the missing accessories.
12) GENERAL RETURNS AND STATUTORY RIGHTS
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your services contract with us and to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are elso entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
13) AUSTRALIAN CONSUMER LAW
Except as otherwise contemplated in this clause 13, nothing in this document is intended to limit any of your rights under the Competition and Consumer Act 2010 (Cth).
If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any goods or services supplied by HBI in connection with this document and HBI’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clause 16 does not apply to that liability. Instead HBI’s liability for that failure is limited to (at HBI’s election):
- in the case of supply of goods, HBI replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
- in the case of supply of services, HBI supplying the services again or paying the cost of having the services supplied again,
to the extent it is fair and reasonable to do so.
14) MEDICAL EMERGENCIES
You understand and acknowledge that neither HBI’s Products nor its associated Services will 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.
15) DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY EXPRESS WARRANTIES APPLICABLE TO OUR PRODUCTS, AS SPECIFIED ON OUR WEBSITES AND/OR IN MATERIALS ON OR IN THE PRODUCT PACKAGING AND THE REMEDIES SET FORTH THEREIN AND IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW AND SUBJECT TO CLAUSES 12 AND 13, HBI DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS.
16) LIMITATION OF LIABILITY
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS AND EXCLUSIONS, BUT SUBJECT TO CLAUSE 13, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HBI, ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, TORT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER LOSSES (OTHER THAN THE COST OF THE PRODUCT OR SERVICE OR ITS REPLACEMENT) THAT ARISE DIRECTLY OR INDIRECTLY OUT OF YOUR PURCHASE OR USE OF A PRODUCT OR SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, HBI’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE PAID FOR THE PRODUCT THAT CAUSED SUCH DAMAGE.
17) GOVERNING LAW; ARBITRATION
These Terms of Sale are governed by the laws of Victoria (excluding its conflicts of law rules) and the applicable federal laws of Australia. To the fullest extent permitted by law, parties submit to the Courts of Victoria for any disputes arising under these terms 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 these terms shall be resolved by final and binding arbitration before a single arbitrator, in accordance with and subject to the Resolution Institute Arbitration Rules. The place of arbitration shall be Melbourne, with sufficient video conferencing facilities such that you can fully deal with the arbitration proceedings without the necessity to be physically present in Melbourne.
YOU AND HBI HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY, TO ASSERT OR PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS ACTION ARBITRATION, TO ASSERT OR PARTICIPATE IN A PRIVATE ATTORNEY GENERAL LAWSUIT OR PRIVATE ATTORNEY GENERAL ARBITRATION, AND TO ASSERT OR PARTICIPATE IN ANY JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION OF ANY KIND. HOWEVER, HBI WILL NOT INVOKE ITS RIGHT TO ARBITRATE ANY INDIVIDUAL CLAIM THAT YOU BRING IN SMALL CLAIMS COURT, AS LONG AS IT IS BROUGHT AND MAINTAINED AS AN INDIVIDUAL CLAIM.
The arbitrator shall have exclusive authority to resolve any arbitrability issues including any dispute over these terms or this arbitration provision’s scope, application, meaning and enforceability. The arbitrator 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 arbitrator 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. 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 agreement and to seek any injunctive or preliminary relief, or any award of specific performance; provided, however, that no such 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 under this agreement, which right and power shall be reserved exclusively to an arbitration 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 purchase Products or Services or agree to this agreement, whichever occurs first. 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 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.
18) GENERAL TERMS
These Terms of Sale, including information linked from or incorporated herein, constitute the entire agreement between you and HBI with respect to your purchase of Products and Services from HBI and supersede all prior or contemporaneous communications, agreements and proposals with respect to those Products and Services. The parties agree that, to the fullest extent permitted by law, neither the United Nations Convention on Contracts for the International Sale of Goods nor any applicable law that would imply any terms into these Terms of Sale applies to these Terms of Sale. No provision of these Terms of Sale shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of or delay in exercising any right or remedy under these Terms of Sale shall operate as a waiver or estoppel of any right, remedy or condition. If any provision of these Terms of Sale is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer or sublicense any of your rights or obligations under these Terms of Sale without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.