HAPPIEST BABY, INC.

END USER LICENSE AGREEMENT

Updated September 24, 2023

By using Happiest Baby, Inc.’s products (“Product”) and mobile applications (“App”), you are also using the software (“HBI Software”) that is embedded in the Product or the App. Your use of the HBI 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 HBI SOFTWARE TO YOU AND YOU MUST NOT USE THE HBI 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 HBI Software. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 7 AND 12 CAREFULLY.

Your use of (a) our websites, including the websites located at happiestbaby.com, happiestbaby.com.au, happiestbaby.co.uk, happiestbaby.eu and our sub-domains (each, a “Site”); and (b) services available through the Site and App (“Services”), is governed by the Terms of Service located on our Site. Your purchase of the Product (excluding the HBI Software) is governed by the Terms of Sale and the Limited Warranty, provided with the Product or located on our Site. This EULA does not govern your use of the Site or Services, or your purchase of the Product (excluding the HBI Software).

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE HBI SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS OR USE. YOU GUARANTEE 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 GUARANTEE THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE HBI 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 HBI SOFTWARE.

If you are in Germany, the contract language is German.

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 HBI 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 HBI Software or make the HBI Software available to any third party, (b) copy or use the HBI Software for any purpose other than as permitted in Section 1, (c) use any portion of the HBI 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 HBI Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the HBI 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 HBI 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 HBI Software and related services (“Updates”). These may be automatically installed, without providing any additional notice or receiving any additional consent. By accepting this EULA, you consent and agree to any and all automatic Updates. If you do not want such Updates, you must stop using the Product. You acknowledge that you may be required to install Updates to use the Product and the HBI Software and you agree to promptly install any Updates HBI provides. If you refuse to install an update, HBI will not be held liable for any resulting Product lack of conformity.

4. OWNERSHIP
The HBI 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 HBI Software not expressly granted to you in this EULA. The HBI 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 HBI and its designees, the unlimited, irrevocable, sublicensable, perpetual right to reuse, redistribute, modify and create derivative works from all of your suggestions and feedback provided by you with respect to the HBI Software for any purpose and in any media without compensation, and you represent and warrant that all “moral rights” in uploaded materials have been waived. For the avoidance of doubt, HBI may use, copy, reproduce, publish, communicate to the public and redistribute your submissions and its content for any purpose. 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 HBI 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. Third-Party Components and their accompanying terms are located at www.happiestbaby.com/pages/third-party-software and www.happiestbaby.com/pages/open-source-notice. 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. 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.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND 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 is effective on the date you first use the HBI Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated in accordance with this section. Both parties may terminate this EULA at any time if there is a compelling reason; a compelling reason means if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period. 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 HBI Software, but the terms of Sections 2 through 16 (inclusive) will remain in effect, after any such termination.

7. LIABILITY
7.1 U.S. and Canada Residents Only. If you reside in the United States or Canada, this Section 7.1 applies to you instead of Section 7.2.
To the fullest extent permitted by applicable law, in no event will HBI, its employees, agents, officers, directors, licensors, suppliers, distributors or retailers be liable for any indirect, consequential, special, punitive, exemplary, or incidental damages, including lost profits or revenue, diminution in value or goodwill, business interruption, lost data, service interruption, computer damage, system failure or the cost of substitute products or services arising out of or relating to the HBI Software, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not HBI knew or should have known of the possibility of such damages, even if a limited remedy set forth herein is found to have failed of its essential purpose. To the fullest extent permitted by law, HBI’s aggregate liability arising out of or in connection with this EULA and your use of the HBI Software shall not exceed the amounts you have paid or owe to HBI in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. This limitation is cumulative and will not be increased by the existence of more than one claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between HBI and you.
7.2 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 7.2 applies to you instead of Section 7.1.
Nothing in this document shall exclude or limit (a) any person's liability for death or personal injury caused by negligence, (b) liability for malice and gross negligence, (c) claims based on the German Product Liability Act (“Produkthaftungsgesetz”), (d) liability for explicit guarantees made by HBI, (e) data protection breaches, (f) liability for fraud, or (g) our liability for breach of our statutory or contractual obligations. Nothing in this EULA is intended to affect your legal rights as a consumer.
Apart from the aforementioned cases, in cases of slight negligence, HBI is only liable for a breach of an essential contractual obligation and only to the following extent: HBI will not be liable to you for any losses or damages suffered by you that 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 is caused by a force majeure event. “Essential contractual obligations”, for the purpose of this provision, are the obligations that must be performed in order to achieve the purpose of the contract, and on the performance of which you may therefore generally rely.
In addition, except in France, HBI's total cumulative liability for slight negligence, arising from or related to the HBI 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.
HBI does not guarantee any specific results from the use of the HBI Software. This clause does not deprive you of your statutory warranties as a consumer.

8. LIMITATIONS OF HBI SOFTWARE
HBI MAKES NO WARRANTY OR REPRESENTATION THAT THE USE OF THE PRODUCT OR HBI SOFTWARE (WITH OR WITHOUT ANY THIRD-PARTY PRODUCT OR SERVICE) CONSTITUTES MEDICAL TREATMENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT HBI’S PRODUCT AND HBI SOFTWARE IS NOT AN EMERGENCY NOTIFICATION SYSTEM AND NEITHER WILL DISPATCH EMERGENCY AUTHORITIES IN THE EVENT OF AN EMERGENCY. FURTHERMORE, HBI’S CUSTOMER CARE AND SUPPORT CONTACTS ARE NOT A MEDICAL RESOURCE. IF YOU HAVE AN EMERGENCY OR A MEDICAL CONCERN, IT IS YOUR RESPONSIBILITY TO SEEK MEDICAL ASSISTANCE.
THE HBI SOFTWARE PROVIDES YOU INFORMATION (“PRODUCT INFORMATION”) REGARDING YOUR BABY. ALL PRODUCT INFORMATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” ACCESSING OR USING ANY PRODUCT INFORMATION THROUGH THE HBI SOFTWARE IS NOT A SUBSTITUTE FOR DIRECT CARE OF YOUR BABY.

9. EXPORT COMPLIANCE
The HBI Software and related technology may be subject to export or import regulations. You shall not, directly or indirectly, export, re-export or release the HBI Software to, or make the HBI 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, Switzerland, and member states of the European Economic Area, and HBI makes no representation that the HBI 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 HBI 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. THE FOREGOING INDEMNIFICATION DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.

10. CONSENT TO USE OF NON-PERSONAL DATA
HBI may collect, store and use information - including but not limited to technical information about your equipment on which the HBI Software is installed, accessed and used - to facilitate the provision of HBI Software updates, product support, and other services to you (if any) related to it. HBI may use this information, as long as it does not personally identify you, to improve the performance of the HBI Software, develop Updates, verify your compliance with this EULA and enforce HBI’s rights in and to the HBI Software.

11. WARRANTY DISCLAIMER
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) HBI PROVIDES THE HBI SOFTWARE “AS-IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND; (II) 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; (III) HBI DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE HBI SOFTWARE; AND (IV) HBI MAKES NO WARRANTY THAT THE HBI SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL THE PRODUCT INFORMATION, THE HBI 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, HBI SOFTWARE, OR PRODUCT.

12. GOVERNING LAW; JURISDICTION; DISPUTE RESOLUTION
Neither the U.N. Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act shall apply to this EULA or any dispute arising under this EULA.
As a consumer, you will benefit from any mandatory provisions of the law of the country in which you reside. Nothing in these Terms affects your rights as a consumer to rely on such mandatory provisions of local law.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION ON PARTICIPATION IN CLASS ACTION LAWSUITS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS BELOW MAY NOT APPLY TO YOU.

12.1 U.S. and Canada Residents Only. If you reside in the United States, this Section 12.1 applies to you instead of Sections 12.2 or 12.3.

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.

(a) Dispute Resolution. The dispute resolution process consists of: (1) an informal negotiation with HBI’s customer service team; and, if the dispute remains unresolved, (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this section). The Consumer Arbitration Rules provide, among other things:

o Claims can be filed with AAA online at www.adr.org;
o Arbitrators must be neutral and no party may unilaterally select an arbitrator;
o Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
o Parties retain the right to seek relief in small claims court for certain claims, at their option;
o The initial filing fee for the consumer is capped at $200;
o The consumer can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
o The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.

(b) Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and HBI each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. HBI will contact you at the email address you have provided; you can contact HBI’s customer service team by emailing customercare@happiestbaby.com. If after a good faith effort to negotiate one of us feels the dispute cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. To initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

(c) Agreement to Arbitrate. You and HBI agree that any dispute, claim or controversy arising out of or relating to this Agreement, your relationship with HBI or your use of the Product or any HBI’s services (collectively, “Disputes”) will be settled by binding arbitration (“Arbitration Agreement”) before a single arbitrator. If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, the arbitrator will decide that issue.

(d) Exceptions to Arbitration Agreement. You and HBI each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights and (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

(e) Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (“AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.

(f) Modification to AAA Rules - Arbitration Hearing/Location. If you reside in the United States, the place of arbitration shall be Los Angeles, with sufficient video conferencing facilities such that you can fully deal with the arbitration proceedings without the necessity to be physically present in Los Angeles. If you reside in Canada, the place of arbitration shall be Toronto, with sufficient video conferencing facilities such that you can fully deal with the arbitration proceedings without the necessity to be physically present in Toronto.

You and HBI each agree that for any claim or counterclaim under $25,000, arbitration shall be conducted by solely the submission of documents to the arbitrator.

(g) Modification of AAA Rules - Attorney’s Fees and Costs. HBI will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, HBI agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA Rules, to recover attorneys’ fees and expenses if it prevails in arbitration.

(h) Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

(i) Jury Trial Waiver. You and HBI acknowledge and agree that by accepting the Terms and Conditions, we are each waiving the right to a trial by jury as to all arbitrable disputes.

(j) No Class Actions or Representative Proceedings. You and HBI acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all disputes between us. Further, unless you and HBI both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this Subsection is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.

(k) Severability. Except as provided herein, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

(l) Changes. Notwithstanding anything to the contrary in this Agreement, if HBI changes this Section 12 after the date you last accepted this Agreement to Arbitrate (or accepted any subsequent changes to it), you may reject any such change by sending HBI written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date below. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and HBI in accordance with the provisions of this Section 12, Dispute Resolution and Agreement to Arbitrate, in effect on the date you last accepted these Terms (or accepted any subsequent changes to these Terms).

(m) Survival. Except as provided herein, this Section 12 will survive any termination of this Agreement and will continue to apply even if you stop using the Product or Services.

(n) Choice of Law for U.S. residents. These Terms shall be governed by the laws of the State of California without regard to its conflict of laws principles. Subject to the Agreement to Arbitrate provision above, you and HBI each irrevocably consents to bring any action arising under or relating to these Terms in the federal or state courts in Los Angeles, California. Each of us irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.

(o) Choice of Law for Canada residents. These Terms governed by the laws of the Province of Ontario without regard to its conflicts of law principles and the applicable federal laws of Canada. Subject to the Agreement to Arbitrate provision above, you and HBI each irrevocably consents to bring any action arising under or relating to these Terms in the Courts of the Province of Ontario. Each of us irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.

12.2 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 12.2 applies to you instead of Sections 12.1 or 12.3.

These Terms, their subject matter and formation, are governed by English law. However, if you are a consumer and resident of any EEA country you will benefit from mandatory provisions of, and legal rights available to you under, the laws of that country. For example, English law governs this contract but French consumers cannot be deprived of French law rules and German consumers cannot be deprived of German law rules. Nothing in these Terms 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, including, for example, for French consumers, in front of the competent French courts and for German consumers, in front of the competent German courts.

12.3 Australia Residents Only. If you reside in Australia, this Section 12.3 applies to you instead of Sections 12.1 and 12.2.

These Terms 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 these Terms and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled; 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 to or from either party under these Terms, which right and power shall be reserved exclusively to an arbitration proceeding in accordance herewith.

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 text form.

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.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

16. MODIFICATIONS
HBI reserves the right to make changes to this EULA from time to time. We will take reasonable efforts to notify you when we make material revisions or modifications to this EULA by (i) posting a notice or new version of this EULA on our website, or (ii) providing direct notice to you. Continued use of the HBI Software following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised EULA. If you do not agree to the new terms, please stop using the HBI Software. This EULA may be modified by you only by obtaining our written consent in an agreement signed by an officer of HBI.

17. FORCE MAJEURE
Except for the payment obligations due under this EULA, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, pandemics, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

18. QUESTIONS
If you have questions regarding this EULA, please email us at customercare@happiestbaby.com (U.S. and Canada residents), customercare-eu@happiestbaby.com (EEA and UK residents) or customercare-au@happiestbaby.com (Australia residents), or write to us at 3115 S La Cienega Blvd., Los Angeles, CA 90016, USA.

Updated November 9, 2020

By using Happiest Baby, Inc.’s products (“Product”) and mobile application (“App”), you are also using the software (“HBI Software”) that is embedded in the Product or the App. Your use of the HBI 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 HBI SOFTWARE TO YOU AND YOU MUST NOT USE THE HBI 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 HBI Software. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 7 AND 12 CAREFULLY.

Your use of (a) the website located at happiestbaby.com, happiestbaby.com.au, happiestbaby.co.uk, happiestbaby.eu and our sub-domains (each, a “Site”); and (b) services available through the Site and App (“Services”), is governed by the Terms of Use and Terms of Service located on our Site. Your purchase of the Product (excluding the HBI Software) is governed by the Terms of Sale and the Limited Warranty, provided with the Product or located on our Site. This EULA does not govern your use of the Site or Services, or your purchase of the Product (excluding the HBI Software).

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE HBI SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS OR USE. YOU GUARANTEE 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 GUARANTEE THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE HBI 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 HBI SOFTWARE.

If you are in Germany, the contract language is German.

  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 HBI 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.

  1. 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 HBI Software or make the HBI Software available to any third party, (b) copy or use the HBI Software for any purpose other than as permitted in Section 1, (c) use any portion of the HBI 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 HBI Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the HBI 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 HBI Software to any third party without prior written approval of HBI for each such release.

  1. AUTOMATIC SOFTWARE UPDATES

HBI may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the HBI Software and related services (“Updates”). These may be automatically installed, without providing any additional notice or receiving any additional consent. By accepting this EULA, you consent and agree to any and all automatic Updates. If you do not want such Updates, you must stop using the Product. You acknowledge that you may be required to install Updates to use the Product and the HBI Software and you agree to promptly install any Updates HBI provides. If you refuse to install an update, HBI will not be held liable for any resulting Product lack of conformity.

  1. OWNERSHIP

The HBI 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 HBI Software not expressly granted to you in this EULA. The HBI 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 HBI and its designees, the unlimited, irrevocable, sublicensable, perpetual right to reuse, redistribute, modify and create derivative works from all of your suggestions and feedback provided by you with respect to the HBI Software for any purpose and in any media without compensation, and you represent and warrant that all “moral rights” in uploaded materials have been waived.  For the avoidance of doubt, HBI may use, copy, reproduce, publish, communicate to the public and redistribute your submissions and its content for any purpose.  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.

  1. THIRD-PARTY COMPONENTS

The HBI 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. Third-Party Components and their accompanying terms are located at www.happiestbaby.com/pages/third-party-software and www.happiestbaby.com/pages/open-source-notice. 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. 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.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE THIRD-PARTY COMPONENTS ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND 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.

  1. TERM AND TERMINATION

This EULA is effective on the date you first use the HBI Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated in accordance with this section. Both parties may terminate this EULA at any time if there is a compelling reason; a compelling reason means if the terminating party, taking into account all the circumstances of the specific case and weighing the interests of both parties, cannot reasonably be expected to continue the contractual relationship until the agreed end or until the expiry of a notice period. 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 HBI Software, but the terms of Sections 2 through 16 (inclusive) will remain in effect, after any such termination.

  1. LIABILITY

7.1 U.S. and Canada Residents Only. If you reside in the United States or Canada, this Section 7.1 applies to you instead of Section 7.2.

To the fullest extent permitted by applicable law, in no event will HBI, its employees, agents, officers, directors, licensors, suppliers, distributors or retailers be liable for any indirect, consequential,  special, punitive, exemplary, or incidental damages, including lost profits or revenue, diminution in value or goodwill, business interruption, lost data, service interruption, computer damage, system failure or the cost of substitute products or services arising out of or relating to the HBI Software, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not HBI knew or should have known of the possibility of such damages, even if a limited remedy set forth herein is found to have failed of its essential purpose. To the fullest extent permitted by law, HBI’s aggregate liability arising out of or in connection with this EULA and your use of the HBI Software shall not exceed the amounts you have paid or owe to HBI in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. This limitation is cumulative and will not be increased by the existence of more than one claim. The limitations of damages set forth above are fundamental elements of the basis of the bargain between HBI and you.

7.2 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 7.2 applies to you instead of Section 7.1.

Nothing in this document shall exclude or limit (a) any person's liability for death or personal injury caused by negligence, (b) liability for malice and gross negligence, (c) claims based on the German Product Liability Act (“Produkthaftungsgesetz”), (d) liability for explicit guarantees made by HBI, (e) data protection breaches, (f) liability for fraud, or (g) our liability for breach of our statutory or contractual obligations. Nothing in this EULA is intended to affect your legal rights as a consumer.

Apart from the aforementioned cases, in cases of slight negligence, HBI is only liable for a breach of an essential contractual obligation and only to the following extent: HBI will not be liable to you for any losses or damages suffered by you that 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 is caused by a force majeure event. “Essential contractual obligations”, for the purpose of this provision, are the obligations that must be performed in order to achieve the purpose of the contract, and on the performance of which you may therefore generally rely.

In addition, except in France, HBI's total cumulative liability for slight negligence, arising from or related to the HBI 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.

HBI does not guarantee any specific results from the use of the HBI Software. This clause does not deprive you of your statutory warranties as a consumer.

  1. LIMITATIONS OF HBI SOFTWARE

YOU ACKNOWLEDGE THAT THE PRODUCT AND HBI SOFTWARE ARE NOT A MEDICAL DEVICE OR AN EMERGENCY NOTIFICATION SYSTEM. HBI MAKES NO WARRANTY OR REPRESENTATION THAT THE USE OF THE PRODUCT OR HBI SOFTWARE (WITH OR WITHOUT ANY THIRD-PARTY PRODUCT OR SERVICE) CONSTITUTES MEDICAL TREATMENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT HBI’S PRODUCT OR HBI 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 HBI SOFTWARE PROVIDES YOU INFORMATION (“PRODUCT INFORMATION”) REGARDING YOUR BABY. ALL PRODUCT INFORMATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” ACCESSING OR USING ANY PRODUCT INFORMATION THROUGH THE HBI SOFTWARE IS NOT A SUBSTITUTE FOR DIRECT CARE OF YOUR BABY.

  1. EXPORT COMPLIANCE

The HBI Software and related technology may be subject to export or import regulations. You shall not, directly or indirectly, export, re-export or release the HBI Software to, or make the HBI 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 member states of the European Economic Area, and HBI makes no representation that the HBI 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 HBI 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. THE FOREGOING INDEMNIFICATION DOES NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.

  1. CONSENT TO USE OF NON-PERSONAL DATA

HBI may collect, store and use information - including but not limited to technical information about your equipment on which the HBI Software is installed, accessed and used - to facilitate the provision of HBI Software updates, product support, and other services to you (if any) related to it. HBI may use this information, as long as it does not personally identify you, to improve the performance of the HBI Software, develop Updates, verify your compliance with this EULA and enforce HBI’s rights in and to the HBI Software.

  1. WARRANTY DISCLAIMER

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) HBI PROVIDES THE HBI SOFTWARE “AS-IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND; (II)  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; (III) HBI DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE HBI SOFTWARE; AND (IV) HBI MAKES NO WARRANTY THAT THE HBI SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

YOU USE ALL THE PRODUCT INFORMATION, THE HBI 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, HBI SOFTWARE, OR PRODUCT.

  1. GOVERNING LAW; JURISDICTION; DISPUTE RESOLUTION

Neither the U.N. Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act shall apply to this EULA or any dispute arising under this EULA.

As a consumer, you will benefit from any mandatory provisions of the law of the country in which you reside.  Nothing in this EULA affects your rights as a consumer to rely on such mandatory provisions of local law.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION ON PARTICIPATION IN CLASS ACTION LAWSUITS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS BELOW MAY NOT APPLY TO YOU.

12.1 U.S. Residents Only. If you reside in the United States, this Section 12.1 applies to you instead of Sections 12.2, 12.3 or 12.4

This EULA is governed by the laws of the State of California (excluding its conflicts of law rules) and the federal laws of the United States. To the fullest extent permitted by law, the state and federal courts located in California will have exclusive jurisdiction for any dispute arising under this EULA. Parties agree to submit to the personal jurisdiction of the state and federal courts located in Los Angeles County, California, 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 this EULA shall be resolved exclusively and finally by binding individual arbitration before a single arbitrator, administered by JAMS. The place of arbitration shall be Los Angeles, with sufficient video conferencing facilities such that you can fully deal with the arbitration proceedings without the necessity to be physically present in Los Angeles.

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 this EULA or this arbitration provision’s scope, application, meaning and enforceability.  The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. 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 EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled; 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 to or from either party under this EULA, 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 first use the HBI Software or agree to this EULA, whichever occurs first. You may opt out by emailing written notification to HBI at support@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 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.

12.2 Canada Residents Only. If you reside in Canada, this Section 12.2 applies to you instead of Sections 12.1, 12.3 or 12.4.

This EULA is governed by the laws of the Province of Ontario (excluding its conflicts of law rules) and the applicable federal laws of Canada. To the fullest extent permitted by law, parties submit to the Courts of the Province of Ontario for any disputes arising under this EULA, 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 this EULA shall be resolved exclusively and finally by binding individual arbitration before a single arbitrator, administered by JAMS.  The place of arbitration shall be Toronto, with sufficient video conferencing facilities such that you can fully deal with the arbitration proceedings without the necessity to be physically present in Toronto.

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 this EULA 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 EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled; 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 to or from either party under this EULA, 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 first use the HBI Software or agree to this EULA, whichever occurs first. You may opt out by emailing written notification to HBI at support@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 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.

12.3 EEA and UK Residents Only. If you reside in the European Economic Area or the United Kingdom, this Section 12.3 applies to you instead of Sections 12.1,12.2 or 12.4.

This EULA, its subject matter and its formation, are governed by English law. However, if you are a consumer and resident of any EEA country you will benefit from mandatory provisions of, and legal rights available to you under, the laws of that country. For example, English law governs this contract but French consumers cannot be deprived of French law rules. 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, including, for example, for French consumers, in front of the competent French courts.

12.4 Australia Residents Only. If you reside in Australia, this Section 12.4 applies to you instead of Sections 12.1, 12.2 or 12.3.

This EULA is 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 this EULA 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 this EULA 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 this EULA 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 EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled; 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 to or from either party under this EULA, 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 first use the HBI Software or agree to this EULA, whichever occurs first. You may opt out by emailing written notification to HBI at support@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 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.

 

  1. 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 text form.

  1. 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.

  1. 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.

The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

  1. MODIFICATIONS

HBI reserves the right to make changes to this EULA from time to time. We will take reasonable efforts to notify you when we make material revisions or modifications to this EULA by (i) posting a notice or new version of this EULA on our website, or (ii) providing direct notice to you. Continued use of the HBI Software following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised EULA. If you do not agree to the new terms, please stop using the HBI Software. This EULA may be modified by you only by obtaining our written consent in an agreement signed by an officer of HBI.

  1. FORCE MAJEURE

Except for the payment obligations due under this EULA, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, pandemics, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

  1. QUESTIONS

If you have questions regarding this EULA, please email us at: support@happiestbaby.com or write to us at 3115 S La Cienega Blvd., Los Angeles, CA 90016, USA.

HBI is registered in United Kingdom under company number 332646312.