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    HAPPIEST BABY, INC.
    END USER LICENSE AGREEMENT

    Updated November 15, 2019

     

    By using Happiest Baby, Inc.’s product (“Product”), you are also using Product software (“Product Software”) that is embedded in the Product. Your use of the Product Software is governed by 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 and may choose to promptly return the Product for a refund of the Product purchase price by contacting HBI at the address below.

    This EULA governs your access and use of the Product Software.

    Your use of (a) the website located at www.happiestbaby.com 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 and Terms of Use 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 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 promise 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 promise 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 this EULA, you should cease accessing or using the Product Software.

    1. LICENSE

    Subject to the terms of this EULA, HBI grants to you a limited, non-exclusive, 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 and/or control and solely for use in conjunction with the Product for your personal, non-commercial use.

    2. RESTRICTIONS

    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). 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. 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.

    4. OWNERSHIP

    The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights in it are the exclusive property of HBI and/or 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 and 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 (including open-source 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. If you would like a list of our Third-Party Components and their accompanying terms, please write to us using at the details provided below and we will be happy to share a copy of this information with you. However, for the open-source software you can find the license terms here. 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. 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: opensource@happiestbaby.com or 3115 S La Cienega Blvd, Los Angeles, CA 90016.

    6. TERM AND TERMINATION

    This EULA is 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 of its term(s) herein. You may terminate this EULA effective immediately upon written notice to HBI. However, 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. LIABILITY

    Nothing in this document shall exclude or limit (a) any person's liability for death or personal injury caused by negligence or (b) liability for fraud. Nothing in this EULA 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 this EULA - loss or damage is reasonably foreseeable if either it is obvious at the time you accepted this EULA 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 this EULA, or any other failure by us.

    HBI's total cumulative liability for breach of any term, condition, guarantee, representation or warranty (express or implied) arising from or related to the Product Software, whether in contract or tort or otherwise, shall not exceed the fees actually paid by you to HBI or HBI's authorised 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.

    You acknowledge that the Product Software cannot be guaranteed to be error free and further acknowledge that the existence of any such errors will not constitute a breach of this EULA. HBI does not guarantee any specific results from the use of the Product Software. Although HBI takes reasonable precautions to prevent the existence of computer viruses and/or other malicious programs in the Product Software, we cannot guarantee that there will not be any.

    8. 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 statement 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.

    9. COLLECTION AND USE OF INFORMATION

    Our Privacy Policy explains what personal information we collect, why we collect it, how we use it, the controls 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.

    10. CONFIDENTIALITY

    “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, before 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.

    11. EXPORT COMPLIANCE

    The Product Software and related technology may be subject to export or import regulations. 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. The Product is available for use in the following countries: United States, Canada, Australia, United Kingdom and all other European Union member states, and HBI makes no representation that the Product Software included in the Product is appropriate or available for use in any other countries or territories. 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. Unless this breach results from HBI's own negligence, recklessness or intentional conduct, 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.

    12. GOVERNING LAW; JURISDICTION

    We will do our best to resolve any disputes over this EULA.
    This EULA, its subject matter and its formation, are governed by English law. However, if you are a consumer and resident of any European Union country you will benefit from mandatory provisions of, and legal rights available to you under, the laws of that country. Nothing in this EULA 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.

    13. NOTICES

    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.

    14. SEVERABILITY

    If any provision of this EULA is invalid, illegal or unenforceable in any jurisdiction, that provision or part must, to that extent, be treated as deleted from EULA for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of this EULA.

    15. WAIVER

    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.

    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 may 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.

    16. QUESTIONS OR ADDITIONAL INFORMATION

    If you have questions regarding this EULA, please contact us at: customercare-eu@happiestbaby.com or by writing to us at 3115 S La Cienega Blvd., Los Angeles, CA 90016, USA.

    HBI is registered in United Kingdom under company number 332646312.