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Terms Of Service Last updated on 11/15/2006 Please read the TOS carefully before accessing or using this Site. ACCEPTANCE OF TERMS Welcome to the MyBaby web site, which is located at MyBaby.com (the "Web Site"). The following Terms Of Service ("TOS") contain the terms and conditions that govern your use of the Web Site and MyBaby Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the MyBaby Service. Use of the MyBaby Web Site constitutes acceptance of these TOS. If you do not agree to all of the terms and conditions contained in the TOS, do not access or use this Site. MyBaby reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the MyBaby Web Site. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Web Site and the MyBaby Service. Your continued use of the MyBaby Web Site following posting of a change notice or new TOS on the MyBaby Web Site will constitute binding acceptance of the changes. If you breach any of the TOS, your authorization to access or use this Site, Services and Materials automatically terminates, and any Materials downloaded or printed from the Site in violation of the TOS must be immediately destroyed. THE SITE MyBaby, its affiliates and agents ("MyBaby") make this Web site and all other websites of MyBaby with links to the TOS (collectively, the "Site"), and the Materials and Services, available for your access and use subject to the TOS. "Materials" means all information, data, documents (e.g. white papers, press releases, datasheets, FAQs, emails, etc.), communications, downloads, files, text, images, photographs, graphics, videos, webcasts, publications, content, tools, resources, software, code, programs and products made available or enabled via the Site by MyBaby or users of this Site. "Services" means all services and resources offered or enabled via the Site by MyBaby and users of this Site, including download areas, tools services, product and other information services and communications services such as bulletin boards, calendars, chat areas, communities, e-mail, forums (including lab and user to user forums), newsgroups, personal webpages, photo albums and other message or communication facilities designed to enable you to communicate with others (collectively, "Communications Venues"). All Materials provided by MyBaby are referred to collectively as "MyBaby Materials". All user-supplied Materials are referred to collectively as "User Materials". Certain Services may involve collaboration and file-sharing services among a specified group. Materials posted by users in such group in conjunction with such collaboration and file-sharing Services are referred to collectively as "Shared Content". The group of persons among which such collaboration and file sharing involving Shared Content takes place is referred to herein as the "Work Group". All User Materials that are not Shared Content shall be referred to herein as "User Content". INTELLECTUAL PROPERTY; LIMITED LICENSE TO USERS; TRADEMARK INFORMATION The Materials and Services, as well as their selection and arrangement, are protected by copyrights, trademarks, patents, trade secrets and all other intellectual property and proprietary rights (collectively, "Intellectual Property Rights"), and any unauthorized use of the Materials or Services may violate such laws and the TOS. Except as expressly provided herein, MyBaby and its suppliers do not grant any express or implied rights to use the Materials and Services. You agree not to copy, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license, sublicense or reverse engineer the Site, Materials or Services, any portions of the Site, Materials or Services or the selection and arrangement of the Site, Materials or Services, except as expressly authorized herein. In addition, you agree not to use any data mining, robots or similar data gathering and extraction methods in connection with the Site, Services or Materials. The trademarks, logos and service marks ("Marks") displayed on this Site are the property of MyBaby or other third parties. You are not permitted to use the Marks without the prior written consent of MyBaby or such third party that may own the Marks. MyBaby and the MyBaby logo are trademarks of MyBaby. USE OF SITE AND SERVICES You agree to use the Services only to access, download, utilize, post, send or receive Materials in an appropriate manner as related to the particular Materials or Services being accessed or used by you. As some examples of improper activities when accessing or using the Site, Services or Materials, you agree that you shall not:
When using Services or Materials, you will be subject to any posted guidelines, rules or licenses applicable to such Services or Materials, in addition to the TOS. Materials and Services provided by third parties (collectively, the "Third-Party Services") are governed by separate agreements accompanying such Materials and Services. MyBaby offers no guarantees and assumes no responsibility or liability of any type with respect to the Third-Party Services, including any liability resulting from incompatibility between a Third-Party Service, MyBaby Materials, MyBaby provided Services or another Third-Party Service. You agree that you will not hold MyBaby responsible or liable with respect to the Third-Party Services. MyBaby, in its sole discretion, may (but has no obligation to) monitor or review the Materials and Services at any time. MyBaby may at any time without notice and in its sole discretion: (a) terminate a Service, access to or use of any Materials or an area of the Site where Materials are posted or submitted; and (b) disclose any information related to your use of a Service or Material, or the substance of any of your posted or submitted Materials, as MyBaby deems necessary to comply with applicable law, regulation, legal process or governmental request. You agree to use extra care when disclosing any personally identifiable information about yourself or your children in any Services or when you post or otherwise submit any Materials. If you are required to establish an account in connection with a particular Service or Material, you must complete the designated registration process for such Service or Material. All required registration information that you provide must be current, complete and accurate and kept up to date on a prompt, timely basis. If required, you must also choose a user name and password for such account. It is your sole responsibility to keep your account number, user name, password and other sensitive information confidential. If you become aware of any unauthorized use of your account or any other breach of security, you shall notify MyBaby immediately. If any Services or Materials provide password-restricted access to your sensitive information (including customer lists and contractual terms), then by accessing or using this Site and setting up a password-restricted account for such Services or Materials, you consent to MyBaby's display of such information via such Services or Materials and accept all risks of unauthorized access to such information. USE OF MYBABY MATERIALS AND USER CONTENT Except as indicated to the contrary elsewhere on this Site, you may view, download, and print the MyBaby Materials and User Content available on this Site subject to the following conditions:
Use of the MyBaby Materials or User Content for any other purpose is expressly prohibited and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. SUBMITTED MATERIALS All of your User Materials that you post on or otherwise submit via the Site and Services shall not be confidential information or trade secrets owned by you or any other party. You will receive no compensation for any use of your User Materials. MyBaby may, but is not required to, post or use any of your User Materials that you may post or otherwise submit. MyBaby does not pre-screen User Materials that users provide or otherwise submit via the Site or Services; however, MyBaby may remove any posted or submitted User Materials from the Site or any Service for any reason without notice in its sole discretion. By posting or submitting your User Materials, you represent and warrant that you own or otherwise control all of the Intellectual Property Rights and other rights to your User Materials as described in these TOS, including all the rights necessary for you to post or submit your User Materials. In addition, by posting or otherwise submitting your User Materials that contain images, photographs, pictures, videos, webcasts or that are otherwise graphical in whole or in part ("Images"), you represent and warrant that: (a) you own the copyright in such Images, or that you have obtained all necessary license(s) from the copyright owner(s) of such Images to use such Images, or portions thereof, in keeping with your use in connection with the Site, the Services and as otherwise permitted by these TOS; (b) you have the rights necessary to grant the licenses and sublicenses described in these TOS; and (c) you have received consent from any and all persons depicted in such Images to use the Images as set forth in these TOS, including the distribution, public display, public performance and reproduction of such Images. By posting or otherwise submitting Images, you grant to MyBaby and all other users of this Site permission to use your Images in connection with their use permitted by these TOS (including making prints and gift items incorporating such Images), including an unrestricted, irrevocable, non-exclusive, worldwide, royalty-free and fully paid up license under all Intellectual Property Rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate, transmit and reformat your Images, with or without having your name attached to such Images, in any manner or form and for any purpose, with full rights to sublicense such rights through multiple tiers of distribution. You will receive no compensation with respect to the use of your Images. You are solely and entirely responsible for all of your User Materials that you post or otherwise submit via the Site or Services. You shall assume all risks associated with the use of your User Materials including any reliance on the accuracy, completeness or usefulness of your User Materials. MyBaby does not guarantee the accuracy, integrity or quality of your User Materials. You acknowledge and agree that by accessing or using the Site or Services, you may be exposed to User Materials from others that are offensive, indecent or otherwise objectionable. MYBABY'S RIGHTS TO SUBMITTED USER MATERIALS For all of your User Materials that you post or otherwise submit to the Site, including (a) comments to Communications Venues, (b) feedback, (c) bug reports, (d) piracy reports or (e) product suggestions, you grant MyBaby and the users of this Site an unrestricted, irrevocable, non-exclusive, worldwide, royalty-free and fully paid up license under all Intellectual Property Rights to use, reproduce, publicly display, publicly perform, copy, edit, modify, translate, reformat, transmit and distribute such User Materials, with or without having your name attached to such Images, in any manner or form and for any purpose, with full rights to sublicense such rights through multiple tiers of distribution, and you also acknowledge and agree that MyBaby is free to use any ideas, concepts, know-how or techniques that you provide for any purpose without any compensation to you. You acknowledge and agree that MyBaby shall not be liable for any failure to store User Materials on the Site at any time. RESTRICTION AND TERMINATION OF USE MyBaby may block, restrict, disable, suspend or terminate your access to all or part of the Site, Services and Materials at any time in MyBaby�s sole discretion, without prior notice or liability to you. LINKS TO THIRD PARTY SITES The Site, Services or Materials may include links that will take you to other sites outside of the Site ("Linked Sites"). The Linked Sites are provided by MyBaby to you as a convenience and the inclusion of the links do not imply any endorsement by MyBaby of any Linked Site. MyBaby has no control of the Linked Sites and you therefore acknowledge and agree that MyBaby is not responsible for the contents of any Linked Site, any link contained in a Linked Site or any changes or updates to a Linked Site. You further acknowledge and agree that MyBaby is not responsible for any form of transmission (e.g. webcasting) received from any Linked Site. WARRANTIES AND DISCLAIMERS THE SITE, SERVICES AND MATERIALS, ARE PROVIDED BY MYBABY UNDER THESE TOS "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, MYBABY MAKES NO WARRANTY THAT (i) THE SITE, SERVICES OR MATERIALS WILL MEET YOUR REQUIREMENTS; (ii) THE SITE, SERVICES OR MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM. THE USE OF THE SITE, SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (iv) THE QUALITY OF THE SITE OR ANY SERVICES OR MATERIALS PURCHASED OR ACCESSIBLE BY YOU WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS OR DEFECTS IN THE SITE, SERVICES OR MATERIALS WILL BE CORRECTED. THIS SITE, SERVICES AND MATERIALS MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. MYBABY MAY MAKE CHANGES TO THE SITE, MATERIALS AND SERVICES, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SOFTWARE OR PRODUCTS LISTED, AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE. THE SITE, MATERIALS AND SERVICES MAY BE OUT OF DATE, AND MYBABY MAKES NO COMMITMENT TO UPDATE THE SITE, MATERIALS AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT: (i) MYBABY DOES NOT CONTROL, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES, INCLUDING THIRD-PARTY VENDORS AND THIRD PARTIES ACCESSIBLE THROUGH LINKED SITES; (ii) MYBABY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES; (iii) ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK; AND (iv) MYBABY SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES. MYBABY DOES NOT CONTROL OR ENDORSE THE MATERIALS FOUND IN ANY SERVICES AND SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE SITE, SERVICES AND ANY ACTIONS RESULTING FROM YOUR USE OF THE SITE AND MATERIALS AND PARTICIPATION IN ANY SERVICES. MANAGERS, HOSTS, PARTICIPANTS AND OTHER THIRD PARTIES ARE NOT AUTHORIZED MYBABY SPOKESPERSONS, AND THEIR VIEWS DO NOT NECESSARILY REFLECT THOSE OF MYBABY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MYBABY WILL HAVE NO LIABILITY RELATED TO USER MATERIALS ARISING UNDER INTELLECTUAL PROPERTY RIGHTS, LIBEL, PRIVACY, PUBLICITY, OBSCENITY OR OTHER LAWS. MYBABY ALSO DISCLAIMS ALL LIABILITY WITH RESPECT TO THE MISUSE, LOSS, MODIFICATION OR UNAVAILABILITY OF ANY USER MATERIALS. THE USE OF THE SITE, SERVICES OR THE DOWNLOADING OR OTHER USE OF ANY MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. MYBABY ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER FROM THE SITE OR IN CONNECTION WITH ANY SERVICES OR MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MYBABY OR VIA THE SITE, SERVICES OR MATERIALS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. MYBABY WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR ACCOUNT WITH RESPECT TO THE SITE OR ANY SERVICES OR MATERIALS, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS. INTERNATIONAL USERS This Site can be accessed from countries around the world and may contain references to MyBaby products, services and programs that are not available in your country. These references do not imply that MyBaby intends to announce such products, services or programs in your country. The Site is controlled, operated and administered by MyBaby Systems Incorporated from its offices within the United States of America. MyBaby makes no representation that the Site, the Services or Materials are appropriate or available for use at other locations outside the United States, and access to the Site from territories where the Site, the Services or Materials are illegal is prohibited. If you access the Site from a location outside the United States, you are responsible for compliance with all local laws. See the section on export control laws below for further information. PERSONAL INFORMATION AND PRIVACY MyBaby will use and protect your data, such as your name and address, in accordance with the MyBaby LINK, the contents of which are incorporated by reference into the TOS. Please be aware that your browser must be enabled to accept cookies in order for you to use certain Materials and Services or to purchase from the MyBaby online store. LIMITATION OF LIABILITY IN NO EVENT SHALL MYBABY, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND, OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF MYBABY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, AND ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH: (1) THE ACCESS OR USE OF OR THE INABILITY TO ACCESS OR USE THE SITE, SERVICES, OR MATERIALS; (2) THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR VIA THE SITE, SERVICES OR MATERIALS; (3) ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES; (4) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, USER MATERIALS OR OTHER DATA; (5) ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED; (6) ANY FAILURE TO STORE OR LOSS OF DATA, FILES, MATERIALS OR OTHER CONTENT; (7) ANY SERVICES AVAILABLE THAT ARE DELAYED OR INTERRUPTED; (8) ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE; OR (9) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY LINKED SITE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTIFICATION OF COPYRIGHT INFRINGEMENT MyBaby will, in appropriate circumstances, terminate the accounts of users who infringe the Intellectual Property Rights of others. MyBaby will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) ("DMCA"). If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this Site or on sites linked to from this Site or in connection with the Services or Materials, please provide, pursuant to the DMCA, written notification of claimed copyright infringement to the Designated Agent for this Site (identified below), which must contain the following elements:
MyBaby's Designated Agent for Notice of claims of copyright infringement can be reached as follows: By mail: Designated Agent Copyright Infringement Claims 350 Colchester, VT 05446 By telephone: By fax: By e-mail: UNSOLICITED IDEA SUBMISSION POLICY Any unsolicited ideas, including ideas for advertising campaigns, promotions, products, technologies, processes, materials, marketing plans or product names, that are sent to MyBaby for consideration via this Site shall not be considered or accepted by MyBaby, nor deemed confidential or proprietary information (including any original creative artwork, samples, demos or other works presented in connection therewith). SPAM E-MAIL AND POSTINGS In the event of your or others' access to or use of the Site, Services or Materials in connection with the transmission of spam newsgroup postings or unsolicited e-mail in violation of these TOS, you acknowledge and agree that MyBaby would be irreparably harmed thereunder and that monetary damages would be an insufficient and ineffective remedy; therefore you agree that MyBaby is entitled to obtain immediate injunctive relief against any such transmission (in addition to all other remedies available at law or in equity). MyBaby may without restriction block, filter or delete unsolicited e-mail. ADVERTISEMENTS AND PROMOTIONS MyBaby may run advertisements and promotions from third parties via the Site, Services or Materials in any manner or mode and to any extent. Your communications, activities, relationships and business dealings with any third parties advertising or promoting via the Site, Services or Materials, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, shall be solely matters between you and such third parties. You acknowledge and agree that MyBaby is not responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of such non-MyBaby advertisers on the Site or in connection with the Services or Materials. INDEMNITY AND LIABILITY You agree to indemnify and hold MyBaby and its officers, co-branders, other partners and employees harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your User Materials and any other content (e.g. computer viruses) that you may submit, post to or transmit through the Site (including a third party's use of such User Materials or content (e.g. reliance on the accuracy, completeness or usefulness of your User Materials)); (b) your access to or use of the Site, Services or Materials (including any use by your employees, contractors or agents and all uses of your account numbers, user names and passwords, whether or not actually or expressly authorized by you, in connection with the Site or any Services or Materials); (c) your connection to the Site, Services or Materials; (d) your violation of the TOS; (e) the actions of any member of your Work Group; (f) your infringement of any third party's Intellectual Property Rights when using any of the Software made available on the Site, Services or in any Materials; (g) your violation of any rights of any third party; (h) your access to or use of Linked Sites and your connections thereto; or (i) any dealings between you and any third parties advertising or promoting via the Site, Services or Materials. GOVERNING LAW AND JURISDICTION This Site (excluding linked sites) is controlled by MyBaby from its offices within the state of Vermont, United States of America. By accessing this Site, you agree that all matters relating to your access to, or use of, this Site shall be governed by the statutes and laws of the State of Vermont, without regard to the conflicts of laws principles thereof. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. You also agree and hereby submit to the exclusive personal jurisdiction and venue of the Superior Court of Chittenden County and the United States District Court for Vermont with respect to such matters. Miscellaneous Provisions If for any reason a court of competent jurisdiction finds any provision or portion of the TOS to be unenforceable, the remainder of the TOS will continue in full force and effect. These TOS constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the TOS will be effective only if in writing and signed by MyBaby.
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