Happiest Baby, Inc. Terms of Use
LAST UPDATED: August 26, 2015
1) Your Acceptance
A. By using and/or visiting this website, www.happiestbaby.org (the “Website”), you signify your agreement to (1) these terms and conditions (the “Terms of Use”), and (2) the Website’s Privacy Notice, found at Privacy Policy and incorporated herein by reference. If you do not agree to any of these terms or the Privacy Notice, 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 12) 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
A. 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 relieve HBI from any and all liability 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 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 that HBI finds, in its sole discretion, to be in competition with HBI or HBI’s content.
C. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses 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 (e.g. comments, email) 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. 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 a refund or credit is your sole remedy.
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, nonsublicensable 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.
5) Digital Millennium Copyright Act
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 electronic mail
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: Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, 11400 W. Olympic Blvd., 9th Floor, Los Angeles, California 90064. 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’s customer service through contact page. You acknowledge that if you fail to comply with all of the requirements of this Section 5(A), 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. 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.
6) Warranty Disclaimer
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 911 IMMEDIATELY.
7) Limitation of Liability
IN NO EVENT SHALL HBI, ITS OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, LICENSEES, REPRESENTATIVES OR AGENTS, 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, 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.
8) Indemnity
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; or (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive these Terms of Use and your use of the Website.
9) 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.
10) 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.
11) 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.
12) Dispute Resolution/Mandatory Arbitration/No Class Actions
These Terms of Use or 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.
You and HBI agree to resolve any disputes between us in accordance with this Section 12. If you believe that HBI has not adhered to the Terms of Use or you have any dispute with HBI, please contact us. We will do our best to address your concerns and each party agrees to attempt to resolve any disputes with the other amicably.
Except as provided herein, you and HBI agree that we will resolve any disputes between us that we cannot resolve as provided above through binding and final arbitration instead of through court proceedings. All such controversies, claims, counterclaims, or other disputes arising between you and HBI relating to the Website or the Terms of Use (each a “Dispute”) shall be submitted for binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). If AAA is not available to arbitrate, the parties shall agree to select an available alternative dispute resolution provider (“ADR Provider”) and the rules of such provider shall govern all aspects of the arbitration. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
For any claim where the total amount of the award sought is $10,000 or less, AAA (or ADR Provider, if applicable), you and HBI must abide by the following rules: (a) the arbitration will be conducted solely based on written submissions; and (b) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA (or ADR Provider, if applicable) rules and the hearing (if any) will be held in Los Angeles County, California, unless the parties agree otherwise on a specific location.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, HBI will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or HBI from seeking action by federal, state, or local government agencies. You and HBI also have the right to bring qualifying claims in small claims court. In addition, 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.
Neither you nor HBI may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Dispute. Disputes may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or HBI’s individual Disputes. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
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.
13) 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, your use thereof and any products or services purchased via 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. 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.