Terms of Use for Baby’s Journey Smart Sync Baby Monitor Application

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE BABY’S JOURNEY SOFTWARE. BY USING THE BABY’S JOURNEY SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE BABY’S JOURNEY SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE BABY’S JOURNEY SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK “DISAGREE/DECLINE”. FOR BABY’S JOURNEY SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

THE BABY’S JOURNEY SOFTWARE IS NOT INTENDED AS A SUBSTITUTE FOR PROPER SUPERVISION OR PARENTING. LEAVING A CHILD OR INFANT ALONE COULD RESULT IN SEVERE INJURY AND/OR DEATH.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

IMPORTANT NOTE: This software may be used to access a remote video camera. It is licensed to you only for access and reproduction of video and/or photos to a video camera to which you own or you are authorized or legally permitted to access. Remote access of a video camera is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to reproduce, broadcast, access or permit access to a remote camera you should contact your legal advisor. ACCESSING A REMOTE VIDEO CAMERA TO WHICH YOU ARE NOT AUTHORIZED MAY SUBJECT YOU TO SEVERE CRIMINAL AND CIVIL PENALTIES AND/OR CIVIL LIABILITY.

  1. General. The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “Baby’s Journey Software”) are licensed, not sold, to you by Baby’s Journey Inc. (“Baby’s Journey”) for use only under the terms of this License, and Baby’s Journey reserves all rights not expressly granted to you. The rights granted herein are limited to Baby’s Journey’s and its licensors’ intellectual property rights in the Baby’s Journey Software and do not include any other patents or intellectual property rights. You own the media on which the Baby’s Journey Software is recorded but Baby’s Journey and/or Baby’s Journey’s licensor(s) retain ownership of the Baby’s Journey Software itself. The terms of this License will govern any software upgrades provided by Baby’s Journey that replace and/or supplement the original Baby’s Journey Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. This software enables access to Baby’s Journey’s video streaming server which enables the user to remotely connect, view and capture video and photographs from select video camera monitors. This software also enables access to mHealth’s Platform, which enables the user to tack milestones for the user’s baby’s health. Use of the Baby’s Journey Software requires Internet access and requires you to accept additional terms of service and privacy policies, which will be presented to you before you can remotely connect to a compatible remote video camera and/or use the mHealth Platform. This software also allows a user to post video, audio, and/or photos capture from the remote video camera to other social media services, such as Facebook and Twitter. Use of those services may require you to accept additional terms of service applicable to those social media services.
  2. Permitted License Uses and Restrictions. This License allows you to install and use the Baby’s Journey Software. The Baby’s Journey Software may be used to access a remote video camera and view a live video stream therefrom. You may share your account with up to four (4) devices. The Baby’s Journey Software may also be used to capture photographs and video from a remotely accessible video camera. You may only access, capture, and disseminate video, audio and photographs from a remote video camera so long as you own the remote video camera you are accessing or are otherwise authorized or legally permitted to access. YOU ACKNOWLEDGE THAT ACCESSING A REMOTE VIDEO CAMERA TO WHICH YOU ARE NOT AUTHORIZED MAY SUBJECT YOU TO SEVERE CRIMINAL AND CIVIL PENALTIES AND/OR CIVIL LIABILITY. You may make a copy of the Baby’s Journey Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Baby’s Journey Software or any part thereof. THE BABY’S JOURNEY SOFTWARE IS NOT INTENDED AS A SUBSTITUTE FOR PROPER SUPERVISION OR PARENTING. LEAVING A CHILD OR INFANT ALONE COULD RESULT IN SEVERE INJURY AND/OR DEATH. THE BABY’S JOURNEY SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE BABY’S JOURNEY SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
  3. Transfer. You may not rent, lease, lend or sublicense the Baby’s Journey Software. You may, however, make a one-time permanent transfer of all of your license rights to the Baby’s Journey Software to another party, provided that: (a) the transfer must include all of the Baby’s Journey Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Baby’s Journey Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Baby’s Journey Software reads and agrees to accept the terms and conditions of this License.
  4. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from Baby’s Journey if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Baby’s Journey Software and delete all copies, full or partial, of the Baby’s Journey Software.
  5. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE BABY’S JOURNEY SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BABY’S JOURNEY SOFTWARE IS PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BABY’S JOURNEY AND BABY’S JOURNEY’S LICENSORS (COLLECTIVELY REFERRED TO AS “BABY’S JOURNEY” FOR THE PURPOSES OF SECTIONS 5 AND 6) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE BABY’S JOURNEY SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BABY’S JOURNEY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE BABY’S JOURNEY SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE BABY’S JOURNEY SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE BABY’S JOURNEY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE BABY’S JOURNEY SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BABY’S JOURNEY OR A BABY’S JOURNEY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE BABY’S JOURNEY SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
  6. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL BABY’S JOURNEY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE BABY’S JOURNEY SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BABY’S JOURNEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Baby’s Journey’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of the purchase price of the product or three hundred fifty dollars ($350.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
  7. Export Law Assurances. You may not use or otherwise export or re-export the Baby’s Journey Software except as authorized by United States law and the laws of the jurisdiction in which the Baby’s Journey Software was obtained. In particular, but without limitation, the Baby’s Journey Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria), or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Baby’s Journey Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
  8. Government End Users. The Baby’s Journey Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
  9. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of Rhode Island, as applied to agreements entered into and to be performed entirely within Rhode Island between Rhode Island residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
  10. Arbitration. YOU AND BABY’S JOURNEY AGREE TO RESOLVE ALL DISPUTES AND CLAIMS BETWEEN US IN INDIVIDUAL BINDING ARBITRATION. THAT INCLUDES, BUT IS NOT LIMITED TO, ANY CLAIMS ARISING OUT OF OR RELATING TO: (i) ANY ASPECT OF THE RELATIONSHIP BETWEEN US; (ii) THIS AGREEMENT; OR (iii) YOUR USE OF THE BABY’S JOURNEY SOFTWARE. IT APPLIES REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT, STATUTE, FRAUD, UNFAIR COMPETITION, MISREPRESENTATION OR ANY OTHER LEGAL THEORY.

However, this Section does not apply to the following types of claims or disputes, which you or Baby’s Journey may bring in any court with jurisdiction: (i) claims of infringement or other misuse of intellectual property rights, including such claims seeking injunctive relief; and (ii) claims related to or arising from any alleged unauthorized use, piracy or theft.

This Section does not prevent you from bringing your dispute to the attention of any federal, state, or local government agencies that can, if the law allows, seek relief from us for you.

An arbitration is a proceeding before a neutral arbitrator, instead of before a judge or jury. Arbitration is less formal than a lawsuit in court, and provides more limited discovery. It follows different rules than court proceedings, and is subject to very limited review by courts. The arbitrator will issue a written decision and provide a statement of reasons if requested by either party. YOU UNDERSTAND THAT YOU AND BABY’S JOURNEY ARE GIVING UP THE RIGHT TO SUE IN COURT AND TO HAVE A TRIAL BEFORE A JUDGE OR JURY.

You and Baby’s Journey agree to make reasonable, good faith efforts to informally resolve any dispute before initiating arbitration. A party who intends to seek arbitration must first send the other a written notice that describes the nature and basis of the claim or dispute and sets forth the relief sought. If you and Baby’s Journey do not reach an agreement to resolve that claim or dispute within 30 days after the notice is received, you or Baby’s Journey may commence an arbitration. Written notice to Baby’s Journey must be sent via postal mail to: ATTN: Arbitration Notice, Baby’s Journey Inc., 999 Main Street, Suite 703, Pawtucket, RI 02860.

The Federal Arbitration Act applies to this Section. The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes, as modified by this Agreement, both of which are available at http://www.adr.org. The arbitrator is bound by the terms of this Agreement. The AAA will administer the arbitration. It may be conducted through the submission of documents, by phone, or in person in the county where you live or at another mutually agreed location.

If you seek $500 or less, Baby’s Journey agrees to reimburse your filing fee and your share of the arbitration costs, including your share of arbitrator compensation, at the conclusion of the proceeding, unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. Baby’s Journey agrees not to seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims are frivolous or costs are unreasonable as determined by the arbitrator. If you seek more than $10,000, the arbitration costs, including arbitrator compensation, will be split between you and Baby’s Journey according to the AAA Commercial Arbitration Rules and the AAA’s Supplementary Procedures for Consumer Related Disputes, if applicable.

YOU AND BABY’S JOURNEY AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA’s PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. You and Baby’s Journey also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.

If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, you and Baby’s Journey agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in collective arbitration.

Notwithstanding this Section, you have the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.

This Section 10 shall apply to the maximum extent permitted by applicable law. If the laws of your jurisdiction prohibit the application of some or all of the provisions of this Section notwithstanding Section 9 (Controlling Law and Severability), such provisions will not apply to you.

  1. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the Baby’s Journey Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. Please note the Baby Monitor and Accessory remote video camera that the Baby’s Journey Software interoperates with is governed by a one year, limited warranty provided separately with the product packaging. No amendment to or modification of this License will be binding unless in writing and signed by Baby’s Journey. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.

Updated on May 27, 2015