HAPPIEST BABY, INC.
TERMS AND CONDITIONS OF SALE
Updated April 1, 2017
1) YOUR ACCEPTANCE
A. By purchasing any product, software, and/or services and support (“Products” or “Services”) from Happiest Baby, Inc. (“HBI” “we”, “us” or “our”) whether through www.happiestbaby.com or one of our apps or other websites (the “Websites”) or otherwise, you signify your agreement to these terms and conditions (the “Terms of Sale”). If you do not agree to any of these terms, do not purchase Products or Services from HBI.
B. This is a binding agreement. As an Agreement between HBI and yourself, it may NOT be altered, supplemented, or amended by any other document unless the new document is signed by both you and HBI. We may change these Terms of Sale at any time in our sole discretion and if HBI makes any material changes, we will notify you by sending you an email to the last email address you provided to us (if any) and posting the revised Terms of Sale on the Websites. Therefore, you agree to promptly notify us of any changes in your email address. Any changes to these Terms of Sale will be effective upon the earlier of the dispatch of the email notice to you or the date of posting of notice of the changes on the Websites and shall be evidenced by a new date shown above. In addition to this document, the terms contained within the other HBI documents referenced in this Agreement may apply to your purchase. These changes will be effective immediately for new purchasers of products from us. HBI may require you to provide consent to the updated Terms of Sale before further product purchases are permitted. Otherwise, your purchase of products after any changes in the Terms of Sale constitutes your acceptance of the changes. Nothing in the Terms of Sale shall be deemed to confer any third-party rights or benefits unless specifically stated to the contrary herein.
C. PLEASE NOTE THAT THESE TERMS OF SALE CONTAIN AN ARBITRATION SECTION (SECTION 16) THAT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION OR TO HAVE A TRIAL BY JURY, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM AND THE RIGHT TO ENGAGE IN DISCOVERY.
2) 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 us. All items are subject to availability and HBI reserves the right to impose quantity limits on any order, to reject all or part of an order and to discontinue Products or Services without notice, 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 purchases from us. We reserve the right to prohibit purchases of any Products to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.
3) AVAILABILITY, ERRORS & INACCURACIES
Our acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted by us or shipped or that the price or availability of an item has been confirmed. 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 our acceptance of an order.
We attempt to be as accurate as possible and eliminate errors on our Websites; however, we do 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, we reserve 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 & 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 deliver to the carrier. When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Websites when your order is placed. We reserve the right to increase, decrease, and add or eliminate charges from time to time and without prior notice. 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 our authorized representative’s locations with free shipping to that point (however, some exclusions may apply, and we reserve the right to add shipping and handling charges once we post them on the 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 our authorized representative for pick-up, if applicable. Any shipping times shown on the Websites are estimates only – actual delivery dates may vary. You agree that you will not obtain or direct shipment of our product for export out of the country to which you indicated in your order that the product is to be shipped.
5) PAYMENT; CREDIT FOR REFUNDSV
Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our discretion, other methods. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Websites) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. You must resolve any problem we encounter in order to proceed with your order.
All Products sold by us are for your personal use only. You agree to use the Product only for lawful purposes, and in a way that does not infringe the rights of, restrict or inhibit anyone else’s use and enjoyment of the Product. You agree not to do any of the following:
a) License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Product 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 improper temperature, humidity or other environmental conditions, or use of the Products or Services in violation of written instructions provided by HBI (which may be provided at the time of purchase or on 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 our order processing procedures, we may screen received order requests for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
8) AGREEMENT TO CONDUCT TRANSACTIONS ELECTRONICALLY; RECORDING; COPIES
You agree that all of your transactions with or through the Websites may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms of Sale unless you enter into different terms provided by us. You are responsible to print or make an electronic a copy of these Terms of Sale and any other contract or disclosure that we are required to provide to you.
9) 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 us with a phone number as your contact number, you expressly authorize us 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
We may from time to time offer through our Websites various types of services available through subscription in connection with our Products or Services, including re-billable monthly subscriptions, prepaid annual or semi-annual subscriptions, or other periodic subscriptions. With respect to subscription services subject to recurring periodically billing and/or automatic renewal, you agree that we may periodically submit charges to your designated method of payment without further authorization from you, until you provide prior notice to us that you wish to terminate this authorization or to change your method of payment. All subscription fees are payable in advance through the term of the subscription. You agree to keep your contact information, billing information and credit card information (if applicable) up to date. 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 the 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 us in its original condition within thirty (30) days of the original purchase and receive a full refund. After purchase, a Digital Products is not eligible for return or a refund, unless otherwise specified by us. A “Digital Product” means a product that is available through downloading or via streaming.
12) RETURN PROCESS
To return a Product to us, you must first obtain a Return Merchandise Authorization (RMA) number from a customer support representative at HBI. We may ask for additional information upon request. Issued RMA numbers are valid for thirty days from issuance; Products returned after the expiration of the RMA number will be returned to the purchaser. Once an RMA number is obtained, your Product must be shipped freight prepaid at your expense, together with proof of purchase and all accessories, either its original packaging or packaging affording an equal degree of protection, to the HBI authorized distribution facility identified by our customer support representative. Failure to return any of the accessories may result in a delay of refund payment or service and/or result in a reduction of your refund, a credit to HBI or an invoice for the missing accessories.
13) THE PRODUCTS ARE NOT MEDICAL DEVICES
Neither the SNOO Smart Sleeper nor any of the other Products offered by HBI are medical devices. 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 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.
14) DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY EXPRESS WARRANTIES APPLICABLE TO OUR PRODUCTS, AS SPECIFIED ON OUR WEBSITES AND/OR IN MATERIALS ON OR IN THE PRODUCT PACKAGING AND THE REMEDIES SET FORTH THEREIN AND IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. 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
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS AND EXCLUSIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HBI, ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE IN CONTRACT, WARRANTY, TORT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER LOSSES (OTHER THAN THE COST OF THE PRODUCT OR SERVICE OR ITS REPLACEMENT) THAT ARISE DIRECTLY OR INDIRECTLY OUT OF YOUR PURCHASE OR USE OF A PRODUCT OR SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, HBI’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE ORIGINAL PURCHASE PRICE PAID FOR THE PRODUCT THAT CAUSED SUCH DAMAGE. CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE NOT APPLICABLE TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, HBI IS NOT LIABLE FOR ANY DAMAGES ARISING FROM OR RELATING TO THE PRODUCTS UNLESS SUCH DAMAGES ARE THE RESULT OF OUR NEGLIGENT, RECKLESS OR INTENTIONAL ACTS OR OMISSIONS; AND TO THE FULLEST EXTENT PERMITTED BY LAW WE ARE NOT LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
16) GOVERNING LAW; ARBITRATION
You agree that these Terms of Sale, and any claim, dispute, action, cause of action, issue, or request for relief relating to these Terms of Sale and your purchase of Products or Services from us, will be governed by the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. To the fullest extent permitted by law, any dispute or claim relating to the Terms of Sale or an HBI Product or Services will be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court (except that you may assert claims in small claims court if your claims qualify). The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. To the fullest extent permitted by law we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Notwithstanding the foregoing, YOU MAY OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out by emailing written notification to HBI at firstname.lastname@example.org 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. Your decision to opt-out of this Section will have no adverse effect on your relationship with HBI. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in any court having jurisdiction to enjoin infringement or other misuse of intellectual property rights.
17) GENERAL TERMS
These Terms of Sale, including information linked from or incorporated herein, constitute the entire agreement between you and HBI with respect to your purchase of Products and Services from HBI and supersede all prior or contemporaneous communications, agreements and proposals with respect to those Products and Services. The parties agree that, to the fullest extent permitted by law, neither the United Nations Convention on Contracts for the International Sale of Goods nor any applicable law that would imply any terms into these Terms of Sale applies to these Terms of Sale. No provision of these Terms of Sale shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of or delay in exercising any right or remedy under these Terms of Sale shall operate as a waiver or estoppel of any right, remedy or condition. If any provision of these Terms of Sale is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer or sublicense any of your rights or obligations under these Terms of Sale without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.