HAPPIEST BABY, INC.
TERMS OF SALE
Updated October 31, 2023
1. YOUR ACCEPTANCE
By purchasing any product, software, and/or services and support (“Products” or “Services”) from Happiest Baby, Inc. (“HBI”) whether through www.happiestbaby.com, one of HBI’s mobile applications or other websites (the “Websites”) or otherwise, you agree to be bound by these terms of sale (the “Terms of Sale”). These Terms of Sale govern your purchase of HBI’s Products and Services. If you do not agree to any of these terms, do not purchase Products or Services from HBI.
THESE TERMS OF SALE INCLUDE AN ARBITRATION CLAUSE WHICH WAIVES YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT.
2. PRICES; SHIPPING AND TAX
All prices on the Websites are shown in U.S. dollars; exclusive of any taxes, shipping and handling charges unless otherwise specified by HBI. All items are subject to availability and HBI reserves the right to impose quantity limits on any order, to reject all or part of an order and to discontinue Products or Services without notice, even if you have already placed your order. All prices are subject to change without notice. You agree that you are responsible for paying any taxes applicable to your HBI purchases. HBI reserves the right to prohibit purchases of any Products to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.
3. AVAILABILITY, ERRORS & INACCURACIES
HBI’s acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted by HBI or shipped or that the price or availability of an item has been confirmed. Your order is subject to cancellation by HBI, in HBI’s sole discretion. Unless otherwise agreed to by HBI, payment must be received by HBI prior to HBI’s acceptance of an order.
HBI attempts to be as accurate as possible and eliminate errors on HBI’s Websites; however, HBI does not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on a Website, in an order confirmation, in processing an order, delivering a product or service or otherwise, HBI reserves the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. To the fullest extent permitted by law, your remedy in the event of such error is to cancel your order and obtain a refund.
4. SHIPPING AND HANDLING; RISK OF LOSS; NO EXPORT BY YOU
Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Websites passes to the purchase upon delivery to the carrier. When HBI ships to you or per your directions, you agree to pay the shipping and any handling charges shown on the Websites when your order is placed. HBI reserves the right to increase, decrease, and add or eliminate charges from time to time and without prior notice. You agree to check all charges before placing an order for Products or signing up for Services. If specified, certain items may be eligible for pick up at one of HBI’s authorized representative’s locations with free shipping to that point (however, some exclusions may apply, and HBI reserves the right to add shipping and handling charges once HBI posts them on the Websites). Generally, shipping is by standard ground delivery unless you specify an expedited delivery. All orders are shipment contracts, not destination contracts, including orders shipped to HBI’s authorized representative for pick-up, if applicable. Any shipping times shown on the Websites are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of HBI’s product for export out of the country to which you indicated in your order that the product is to be shipped.
5. PAYMENT; CREDIT FOR REFUNDS
Only valid credit cards or other payment methods acceptable to HBI may be used and all refunds will be credited to the same card or, in HBI’s discretion, other methods. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize HBI to charge your order (including taxes, shipping, handling and any other amounts described on the Websites) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. You must resolve any problem HBI encounters in order to proceed with your order.
Products sold by HBI are for your personal use only. You agree to use the Product only for lawful purposes, and in a way that does not infringe the rights of, restrict or inhibit anyone else’s use and enjoyment of the Product. You agree not to do any of the following:
a) License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Product other than as authorized by HBI;
b) Attempt to probe, scan, or test the vulnerability of any Product or breach any security or authentication measures, or to modify, make derivative works of, disassemble, reverse engineer, decompile or otherwise attempt to gain the source code for any Product except as expressly permitted by law;
c) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by HBI or any of HBI’s providers or any other third party (including another user) to protect the Product;
d) Access the Product in order to build a similar or competitive offering to HBI;
e) Upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, or properties connected to the Product;
f) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
g) Violate any applicable law or regulation; or
h) Encourage or enable any other individual to do any of the foregoing.
To the fullest extent allowed by law, HBI is not responsible for damage or liability caused by (i) use of the Products or Services for purposes other than for which the Products or Services are designed or intended, or use in extreme temperature, humidity or other environmental conditions, or use of the Products or Services in violation of written instructions provided by HBI (which may be provided at the time of purchase or on the Websites), (ii) normal wear and tear or aging, or improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by HBI to service the Products. THE FOREGOING EXCEPTIONS DO NOT APPLY TO HBI’S OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL CONDUCT.
7. REVIEW OF ORDERS
As part of HBI’s order processing procedures, HBI may screen received order requests for fraud or other types of unauthorized or illegal activity. HBI reserves the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If HBI suspects fraudulent, unauthorized or illegal activity, HBI may reject your order or HBI may contact you at the phone number or email address you provided to confirm your order. HBI also reserves the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. HBI takes these measures to protect HBI’s customers as well as ourselves from fraud or other unauthorized or illegal activity.
8. AGREEMENT TO CONDUCT TRANSACTIONS ELECTRONICALLY; RECORDING; COPIES
You agree that all of your transactions with or through the Websites may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If HBI decides to proceed non-electronically, those transactions will still be governed by the remainder of these Terms of Sale unless you enter into different terms provided by HBI. You are responsible to print or make an electronic copy of these Terms of Sale and any other contract or disclosure that we are required to provide to you.
9. TELEPHONE COMMUNICATIONS
Telephone communications with HBI may be routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing HBI with a phone number as your contact number, you expressly authorize HBI to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of pre-recorded or auto-dialed calls, using that phone number.
10. SUBSCRIPTION SERVICES
HBI may from time to time offer through HBI’s Websites various types of services available through subscription in connection with HBI’s Products or Services, including re-billable monthly subscriptions, prepaid annual or semi-annual subscriptions, or other periodic subscriptions. With respect to subscription services subject to recurring periodically billing and/or automatic renewal, you agree that HBI may periodically submit charges to your designated method of payment without further authorization from you, until you provide prior notice to HBI that you wish to terminate this authorization or to change your method of payment. All subscription fees are payable in advance through the term of the subscription. You agree to keep your contact information, billing information and credit card information (if applicable) up to date. All subscription payment obligations are non-cancellable and non-refundable. You are responsible for and guarantee payment of all subscription fees.
11. RETURN POLICY
If you are the original purchaser of a new Product (other than a Digital Product, as defined below) and you are not satisfied with the Product for any reason, you may return it to HBI in its original condition and packaging within thirty (30) days of the original purchase and receive a refund. Returns may be subject to restocking and return shipping fees. After purchase, a Digital Products is not eligible for return or a refund, unless otherwise specified by HBI. A “Digital Product” means a product that is available through downloading or via streaming.
12. RETURN PROCESS
To return a Product to HBI, you must first obtain a Return Merchandise Authorization (RMA) number from a customer support representative at HBI. HBI may ask for additional information upon request. All returns must be received within five business days of requesting a Return Merchandise Authorization (RMA). If the return is not postmarked within five business days of the RMA request, the refund will be cancelled. Products returned after the expiration of the RMA number will be returned to the purchaser. Once an RMA number is obtained, your Product must be shipped together with proof of purchase and all accessories, either in its original packaging or packaging affording an equal degree of protection, to the HBI authorized distribution facility identified by an HBI customer support representative. Failure to return any of the accessories may result in a delay of refund payment or service and/or result in a reduction of your refund, a credit to HBI or an invoice for the missing accessories.
13. NO MEDICAL ADVICE
HBI makes no warranty or representation that the use of any Product or Service (with or without any third-party product or service) constitutes medical treatment. You understand and acknowledge that neither HBI’s Products nor its associated Services will dispatch emergency authorities in the event of an emergency. Furthermore, HBI’s customer support cannot be considered a medical resource. If you have an emergency or a medical concern, it is your responsibility to seek medical assistance.
14. DISCLAIMER OF WARRANTIES
The warranty for the Product and Services, if any, is set forth in the applicable Limited Warranty.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY EXPRESS WARRANTIES APPLICABLE TO OUR PRODUCTS, AS SPECIFIED ON OUR WEBSITES AND/OR IN MATERIALS ON OR IN THE PRODUCT PACKAGING AND THE REMEDIES SET FORTH THEREIN AND IN THESE TERMS OF SALE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. HBI DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW.
15. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT SHALL HBI, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, PROFITS, REVENUE OR DIMINUTION IN VALUE) DAMAGES ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN WARNED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, HBI’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE PRODUCTS OR SERVICES SHALL BE MORE THAN THE GREATER OF $100, OR THE AMOUNTS PAID BY YOU TO US OR OUR AUTHORIZED RESELLER FOR THE PAST TWELVE MONTHS OF THE SERVICES IN QUESTION. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. TO THE FULLEST EXTENT BY LAW HBI WILL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT OR YOUR RELIANCE THEREO, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
16. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE
(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:
• Claims can be filed with AAA online at www.adr.org;
• Arbitrators must be neutral and no party may unilaterally select an arbitrator;
• Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
• Parties retain the right to seek relief in small claims court for certain claims, at their option;
• The initial filing fee for the consumer is capped at $200;
• The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
• 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 to HBI; you can contact HBI’s customer service team by emailing firstname.lastname@example.org. 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”). 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. In order to make the arbitration most convenient to you, HBI agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in Los Angeles County; (c) in any other location to which you and HBI both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, 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 16 (“Dispute Resolution and Agreement to Arbitrate”) after the date you last accepted this Agreement (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 16, 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 16 will survive any termination of this Agreement and will continue to apply even if you stop using the Product or Services.
17. GENERAL TERMS
a) Modifications. HBI reserves the right to make changes to these Terms from time to time. Please ensure that you have read and agreed with HBI’s most recent Terms when you use the Services. HBI will take reasonable efforts to notify you when we make material revisions or modifications to these Terms by posting a notice or new version of these Terms on HBI’s Website or providing direct notice to you. Your continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms of Sale.
These Terms may be modified by you only by obtaining HBI’s written consent in an agreement signed by an officer of HBI, or as set forth herein.
b) Governing Law. These Terms of Sale shall be governed by the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the Agreement to Arbitrate provision above, the parties irrevocably consent to bring any action to resolve or enforce claims arising under or relating to this Agreement in the federal or state courts in Los Angeles, California, and each of the parties irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Each party 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. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the Services or this agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the Agreement to Arbitrate herein, HBI may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
d) Entire Agreement/Severability. These Terms of Sale constitute the entire agreement between you and HBI regarding the sale of Products and Services. Any failure by HBI to exercise or enforce any right or provision of these Terms of Sale shall not operate as a waiver of such right or provision. The section titles are for convenience only and have no legal or contractual effect. If any provision of these Terms of Sale is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
e) Force Majeure. Except for payment obligations under these Terms of Sale, 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, acts of terrorism, natural disasters, pandemics, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
f) Assignment. These Terms of Sale, and any associated rights or obligations, may not be assigned or otherwise transferred by you without HBI’s prior written consent. HBI may assign these Terms of Sale without restriction. These Terms of Sale are binding upon any permitted assignee.
g) Notifications. HBI may provide notifications to you as required by law or for marketing or other purposes via (at its option) email, mobile notifications, hard copy, or posting of such notice on HBI’s Website. HBI is not responsible for any automatic filtering you or your network provider may apply to email notifications.
h) Limits on Claims. To the fullest extent permitted by law, you agree that any claim or cause of action arising out of or related to these Terms of Sale must be filed within one (1) year after such claim or cause of action arose or be forever barred, regardless of any time limit set forth in any statute or law to the contrary.
i) No Waiver. No provision of these Terms shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of or delay in exercising any right or remedy under these Terms shall operate as a waiver or estoppel of any right, remedy or condition.
j) Contact. In the event of any questions or comments or to request further information, HBI may be contacted at 3115 South La Cienega Boulevard, Los Angeles, California 90016, by email at email@example.com or by phone at 1-855-424-6323.
k) Copyright/Trademark Information. Copyright © 2023, Happiest Baby, Inc. All rights reserved. All trademarks, logos, and service marks ("Marks") displayed on the Services are the property of HBI, HB Innovations, Inc., or of their respective holders. You are not permitted to use any of the Marks without prior written consent of HBI. HBI reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.