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Terms and Conditions

The Clever Baby, LLC
Website Terms and Conditions and Terms of Sale

 

Please Read Carefully.

Updated:  December 20, 2021

This website terms and conditions and terms of sale (“Terms”) is between The Clever Baby, LLC (collectively, “The Clever Baby”, “we”, “our”, and “us”) and you (collectively, “you” and “your”) and governs your access to and/or use of our website located at www.thecleverbaby.com and any websites The Clever Baby has now or acquires in the future (the “Website”) and applies to the purchase and sale of products on the Website. If you do not agree with this Terms and the privacy notice set forth at <LINK>, you shall not view and/or otherwise use the Website and/or purchase any products from us.

YOU ACCEPT THIS TERMS BY VIEWING AND/OR OTHERWISE USING THE WEBSITE AND/OR WHEN YOU PURCHASE PRODUCTS FROM OUR WEBSITE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TERMS, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS OR AGREEMENTS THAT ARE OR MAY BE ESTABLISHED BY THE CLEVER BABY FROM TIME TO TIME AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND THE CLEVER BABY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. 

  1. OVERVIEW AND ORDERS

The Clever Baby developed a patent pending baby product and may develop other baby products from time to time that are made available for purchase on the Website. You agree to only use the Website and make purchases on the Website in accordance with this Terms and you agree to provide true, accurate and current information in connection thereto. You will comply with all applicable laws, rules and/or regulations when accessing and/or using the Website and making purchases on the Website.      

  1. PRIVACY NOTICE

By accessing and/or using our Website, you agree to the Privacy Notice located here <insert link to Privacy Notice> (“Privacy Notice”) and consent to any personal information we may obtain about you being collected, stored and/or otherwise processed in accordance with the Privacy Notice and this Terms.

  1. ELIGIBILITY

The Website is not intended for children under the age of thirteen (13) and you must be at least eighteen (18) years of age or older to access and/or use the Website.  By accessing and/or using the Website, you represent and warrant that you are at least eighteen (18) years of age.  No one under the age of eighteen (18) may use the Website, provide any information on the Website or to us.  The ‘Children’s Online Privacy Protection Act’ requires that companies obtain verifiable parental consent before they knowingly collect personally identifiable information online from children under the age of thirteen (13). The Clever Baby does not knowingly collect or solicit information from children under the age of thirteen (13). If we learn we have collected personal information from a child under the age of thirteen (13), we will delete the information. If you think someone under the age of thirteen (13) has provided us with personal information, please contact us at dataprivacy@thecleverbaby.com. 

  1. COMMUNICATIONS FROM THE CLEVER BABY

When accessing and/or using the Website or purchasing products on our Website, you are communicating with us electronically, and consent to receive communications from us electronically. We will communicate with you by posting notices on the Website and by email if you provide your email address to us.  You may continue to receive electronic communications from The Clever Baby (which may include without limitation promotional and advertising material and information about The Clever Baby) unless or until you elect to opt-out of receiving such communications and notify us at dataprivacy@thecleverbaby.com that you no longer desire to receive communications from us. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

  1. UPDATES TO TERMS

Changes. The Clever Baby may update this Terms in its sole discretion, at any time, in whole or in part. If The Clever Baby makes changes and/or modifications that impact your use of and/or access to the Website, we will post notice of the change and/or modification and change the ‘Updated’ date set forth above. You agree that your continued use of the Website and/or purchase on the Website following changes and/or modifications will constitute acceptance of such changes and/or modifications. We may also provide you with additional forms of notice as appropriate under the circumstances.  If you do not agree to the changes, you shall not use the Website or make purchases on the Website after the effective date of the changes and/or modifications. Please revisit this Terms regularly to ensure that you stay informed of any changes and/or modifications.

 

  1. USE OF THE WEBSITE AND PURCHASING PRODUCTS

Right to Use. This Terms permit you to use the Website for your personal, non-commercial use only.  The Website contains material which is owned by or licensed to The Clever Baby or to which The Clever Baby otherwise has permission to use.  The Clever Baby grants you a limited, nonexclusive, non-transferable, non-sublicensable, revocable right to view the Website and make purchases on the Website; provided the foregoing is done in accordance with the terms and conditions set forth herein and any additional terms, conditions and policies set forth by The Clever Baby. You agree not to reproduce, modify, distribute, create derivative works from, publicly display, publicly perform, republish, download, transmit, store, license, sell and/or re-sell any content, software, products and/or information obtained from and/or accessed through the Website without the prior express written permission of The Clever Baby.

 

Right to Deny Access and At Your Risk. The Clever Baby retains the right, in its sole and absolute discretion, to deny access to the Website to anyone at any time and for any reason. While we use reasonable efforts to keep the Website accessible, the Website may be unavailable from time to time. You understand and agree that there may be interruptions to the Website due to circumstances within The Clever Baby’s control (i.e.: routine maintenance) and outside of The Clever Baby’s control. You acknowledge and agree that the use of the Website is at your own risk. The Website and The Clever Baby’s products may be modified, updated, suspended and/or discontinued at any time as determined by The Clever Baby in its sole and absolute discretion and without notice and/or liability and you acknowledge and agree that you are aware of this and any risks related thereto. 

Prohibited Use and Conditions. Any access to and/or use of the Website and/or information provided by The Clever Baby other than as specifically authorized herein, without The Clever Baby’ prior written consent, is strictly prohibited. Without limiting the foregoing, you are responsible for your actions while accessing and/or using the Website, and you shall not use the Website in any manner that violates applicable law, contract, intellectual property or other third-party rights. You shall not: 

  • restrict or interfere with another user’s ability to use or enjoy the Website;
  • overburden The Clever Baby’s infrastructure in any manner and/or otherwise damage and/or impair the functionality of the Website;
  • gather email addresses through harvesting or automated means;
  • post or transmit unauthorized or unsolicited advertising, promotional materials, and/or any other forms of solicitation to other users;
  • attempt to access any portion of the Website that is not public and/or override any security measures that are in place;
  • introduce any virus, ‘Trojan Horse’, worm or other similarly harmful programming routines or automated systems, including, ‘robots’ or ‘botnets’, that flood the system with information at an unreasonable rate;
  • impersonate any other person or entity, use a disguised identity and/or use any misleading and/or false information or statements for any purpose, including but not limited to, gaining access to another user’s account;
  • provide content that is harmful, offensive, inaccurate, abusive, indecent, harassing, defamatory, obscene or otherwise inappropriate language including without limitation, bigotry, racism, discrimination, hatred or profanity;
  • sell, resell, copy, reproduce, redistribute or display publicly the Website or content on the Website other than expressly permitted by The Clever Baby;
  • modify content on the Website in any way, such as the removal of any proprietary rights notices or markings; and/or
  • create a link to the Website from another website or document without prior written consent from The Clever Baby. 

Furthermore, The Clever Baby grants you the rights set forth herein, subject to the following conditions:

  • you hereby represent and warrant to The Clever Baby that (a) all information provided to The Clever Baby by you is true, complete and accurate in all respects, and (b) you are authorized to submit such information to The Clever Baby;
  • you shall not decompile, modify, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Website and/or The Clever Baby’s products;
  • you may not access all or any part of the Website in order to build a product or service which competes with the Website and/or The Clever Baby’s products;
  • you shall not copy or imitate part or all of the design, layout, or look-and-feel of the Website and/or The Clever Baby’s products, in any form or media;
  • you shall not access any content on the Website via automated means including without limitation crawling, scraping and/or caching;
  • you agree not to intentionally hold The Clever Baby and/or their employees and/or directors up to public scorn, ridicule or defamation;
  • you will prevent unauthorized access to and/or use of the Website and notify The Clever Baby promptly of any such unauthorized access and/or use;
  • you will not attempt to do any of the following: access data not intended for you, monitor the Website for data gathering purposes and/or interfere with the Website in relation to any user in any manner;
  • you will not attack the Website via a denial-of-service attack or a distributed denial-of-service attack; and/or
  • you shall not use the Website for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Website provided.

The Clever Baby shall not be subject to any obligations of confidentiality regarding any information and/or materials submitted through the Website and/or in relation to purchase of products on the Website except as otherwise expressly specified in this Terms and/or the Privacy Notice and/or as otherwise required by law. The commercial use, reproduction, transmission or distribution of any information or other material available through the Website without the prior written consent of The Clever Baby is strictly prohibited.  The Clever Baby may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.  The Clever Baby has the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.  YOU INDEMNIFY AND HOLD HARMLESS THE CLEVER BABY AND ITS AFFILIATES, SUBSIDIARIES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE CLEVER BABY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE CLEVER BABY OR LAW ENFORCEMENT AUTHORITIES.

 

Purchasing Products.  If you desire to order The Clever Baby’s products, you can do so on the Website. In such event, you agree that your order is an offer to buy all products listed in your order pursuant to this Terms. All orders must be accepted by us or we will not be obligated to sell the products to you. We may choose not to accept orders in our sole and absolute discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.  Prices posted on the Website may be different than the prices for The Clever Baby’s products that are offered on other websites or in physical retail establishments. All prices, discounts and promotions posted on this Website are subject to change without notice and without liability. The price charged for a product will be the price in effect at the time the order is placed and will be set out in the shopping cart and in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes, duties, charges for shipping, handling, packaging or other similar expenses. All such taxes and charges will be added to your order total, and will be itemized in your shopping cart and in your order confirmation email. Any shipping dates we provide are estimates only and cannot be guaranteed, and we are not liable for any delays in shipment.  In the event you desire to return a product, please contact us at returns@thecleverbaby.com to initiate your return. 

 

We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies or omissions at any time and to cancel any orders arising from such occurrences.  We may offer promotions from time to time on the Website that may affect pricing and that are governed by terms and conditions separate from this Terms. If there is a conflict between the terms for a promotion and this Terms, the promotion terms will govern. Terms of payment are within The Clever Baby’s sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept most major credit/debit cards for purchases. You represent and warrant that: (i) the credit card information you supply to us is true, correct and complete; (ii) you are duly authorized to use such credit card for the purchase; (iii) charges incurred by you will be honored by your credit card company; and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order.  You represent and warrant that you are buying products from the Website for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the United States. Please see the Privacy Notice for more information about how we handle your personal information. 

 

  1. OWNERSHIP

The Website and its entire contents, features and functionality and The Clever Baby’s products listed on the Website are owned by The Clever Baby, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary right laws. Any redistribution or reproduction of part or all of the contents of the Website and/or The Clever Baby products, including but not limited to text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, trade dress, logos, slogans, and/or proprietary technology currently used or which may be developed and/or used in the future in any form is prohibited. As between the parties, The Clever Baby and/or its licensors are the sole owner of: (i) the Website and information provided by The Clever Baby; (ii) any data or metadata created, aggregated, or generated by access to and/or use of the Website; and (iii) all of its source code, object code, software, content, copyrights, trademarks, patents, improvements, enhancements, derivatives, and any other intellectual property rights related to (i) and (ii) or included therein. Subject to the limited rights expressly granted hereunder, The Clever Baby and/or its third party licensors reserve all right, title and interest in and to the Website and related information and The Clever Baby’s products, including without limitation all related worldwide intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.  Any use of the Website and/or any purchase on the Website not expressly permitted by this Terms is a breach of this Terms and may violate copyright, trademark, and other laws.

 

  1. TRADEMARKS

The Clever Baby name, The Clever Baby logos, The Clever Baby marks and all related names, logos, product and service names, designs, and slogans are trademarks of The Clever Baby or its affiliates or licensors. You must not use such marks without the prior written permission of The Clever Baby.

 

  1. YOUR CONTENT

During the course of your access to and/or use of the Website and/or purchase of products on the Website, you may enter, post and/or upload content and information (collectively, “Your Content”). You shall have exclusive title and ownership rights, including all intellectual property rights, throughout the world in all Your Content. You are solely responsible for ensuring Your Content and any and all communications regarding Your Content sent through or associated with the Website meet any and all applicable laws and regulatory and compliance guidelines. You hereby grant The Clever Baby and our affiliates and service providers (and each of their and our respective licensees, successors, and assigns) a worldwide, perpetual, non-exclusive, royalty-free, irrevocable, assignable, sub-licensable, transferable license to use reproduce, modify, perform, display, distribute, and otherwise disclose to third parties Your Content for any purpose. You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, and/or reliability. You represent and warrant that you own and/or have the necessary rights to use, authorize the use or and grant the rights set forth herein related to Your Content. You acknowledge and agree that we may disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

 

Please carefully choose Your Content. You agree to indemnify, defend and hold The Clever Baby harmless for any disputes and/or claims concerning Your Content. Notwithstanding anything herein to the contrary, The Clever Baby does not endorse any of Your Content in any way. You acknowledge and agree that You have no expectation of privacy with regard to any of Your Content. The Clever Baby may reject, refuse to post and/or delete Your Content, in its sole and absolute discretion, without liability, take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including without limitation if we believe that Your Content violates this Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for The Clever Baby.  Notwithstanding anything herein to the contrary, The Clever Baby is not obligated to take any action not required by law.  If you become aware of misuse of the Website by any person, please contact us at dataprivacy@thecleverbaby.com.      

 

  1. RELIANCE ON INFORMATION POSTED

The information presented on or through the Website is made available solely for general information purposes. The Clever Baby does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. The Clever Baby disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.  We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

  1. FEEDBACK

If you choose to submit any questions, comments, ideas, suggestions, inventions, or other information (“Feedback”) to The Clever Baby, such Feedback is non-confidential and will become the sole property of The Clever Baby. The Clever Baby will be able to use any Feedback for any purpose including the developing, creating and/or marketing of products or services and you acknowledge The Clever Baby will give no credit or compensation to you and you have no rights to the same. The Clever Baby has no obligations to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion. 

 

  1. THIRD PARTY CONTENT, LINKED SITES, THIRD PARTY PRODUCTS

Third Party Content. The Clever Baby may provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or emailed or otherwise transmitted through the Website (“Third Party Content”). The third party from whom or which any such Third Party Content originates is solely responsible for it and The Clever Baby assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, The Clever Baby does not control or endorse such Third Party Content and has no liability of any kind to you or any third party for any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, not necessarily those of The Clever Baby. 

Linked Sites.  As stipulated in this Terms, The Clever Baby does not exert any control over any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party. The Clever Baby may, from time to time, include hyperlinks (“Link(s)”) to other websites operated and maintained by third parties. Such Links are provided for reference and convenience only. The Clever Baby does not control and is not responsible for the contents, availability, or policies of any website or application accessed via a Link. The Clever Baby has made no attempt to verify any information contained in any such Links. Furthermore, The Clever Baby is not a party to or responsible for any access, use or transactions you may engage in with third parties, even if you learn of such parties from The Clever Baby.  If you click on Links, you do so at your own risk and you acknowledge and agree that The Clever Baby is not liable for any claims and/or damaged related thereto. We encourage you to be aware when leaving the Website and to read the terms and conditions and privacy notice of each Link that is visited. The Clever Baby reserves the right to terminate any Link at any time in its sole and absolute discretion. The Clever Baby disclaims all warranties, express and implied, as to the accuracy, validity, and legality and/or otherwise of any materials and/or information contained on such Links. 

Third Party Products. There may be third-party products, services, software, and/or social networks (collectively “Third Party Products”) integrated into the Website. Please be aware that The Clever Baby is not affiliated with any Third Party Products or the companies or providers that own or control such Third Party Products. You agree to release The Clever Baby and such third party providers from any liability related to your use of any Third Party Products or any costs or charges related to such Third Party Products. In order to use any Third Party Products, you may be required to agree to that company’s terms and conditions and/or privacy notice. You agree to comply with the foregoing when using the Website. Where you decide to use such Third Party Products, The Clever Baby is not a party to any contracts created between you and the provider of such Third Party Product.  The Clever Baby is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with any Third Party Products.

  1. TERMINATION

The Clever Baby reserves the right, in its sole and absolute discretion, to block you or terminate your access to the Website or any portion thereof at any time and/or prevent you from making purchases on the Website, without notice, without liability and for any reason including without limitation if The Clever Baby suspects, in its sole and absolute discretion, that you (by information, investigation, conviction, settlement or otherwise) have violated any of the terms and conditions set forth herein, the Privacy Notice, any other policies provided by The Clever Baby, or if you engage (or we suspect you have engaged) in an improper or fraudulent manner in connection with your access to and/or use of the Website. In the event you share the access granted hereunder with any person or entity, and/or misuse the Website by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, The Clever Baby will consider your access as having been acquired by fraud and/or misrepresentation and will terminate your access immediately, without liability. In such event, The Clever Baby retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by you.

If we block you from our Website and/or from making purchase on our Website, you may not access and/or use our Website. If you commit fraud and/or falsify information in connection with your use of the Website, you shall be liable for any and all damages that we suffer, and we may pursue legal action through relevant local and national law enforcement authorities and may notify your ‘Internet Service Provider’ of any fraudulent activity we associate with you and/or your access to and/or use of the Website. Upon termination, the provisions of this Terms are by their nature intended to survive termination (including without limitation any disclaimers, limitations of liability and indemnities) shall survive such termination. 

  1. ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on the Website that contain typographical errors, inaccuracies, and/or omissions. We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, and/or omissions; and/or (iii) make changes to prices, content, promotion offers, service and/or product descriptions, specifications, and/or other information without obligation to issue any notice of such changes.

 

  1. COPYRIGHT COMPLAINTS

We reserve the right to block access to and/or remove material that we believe in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties and remove and discontinue service to repeat offenders. Should you believe anything on the Website infringes on any copyright that you own or the copyright of others, you may notify the copyright agent (“Copyright Agent”) at The Clever Baby, Attn: Copyright Agent, c/o Meyer Law, Ltd., 20 W. Kinzie, 17th Floor, Chicago, Illinois 60654. We will respond to clear notices of copyright infringement when you provide the following information: (i) signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) description of the copyrighted work that is claimed to be infringed upon; (iii) description of where the material that is claimed to be infringed upon is located on the Website; (iv) information reasonably sufficient to permit contact (i.e.: an address, telephone number, and an e-mail address at which the complaining party may be contacted); (v) statement that the complaining party has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) statement by the complaining party, made under penalty of perjury, that complaining party is authorized to act on behalf of the intellectual property owner of the right that is allegedly infringed. 

The Copyright Agent will not remove content from the Website in response to phone or email notifications regarding allegedly infringing content, since a valid ‘DMCA’ notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf.  Please submit such notifications by mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Website.  All other inquiries directed to the Copyright Agent will not be responded to. 

  1. INDEMNIFICATION

You agree to indemnify, defend and hold The Clever Baby and its affiliates, partners, officers, directors, employees, representatives and agents, harmless from and against any and all claims, demands, proceedings, actions, costs, liabilities, losses, awards, fees, damages of any kind, expenses (including without limitation attorney’s fees) arising out of and/or in relation to: (i) your use, misuse and/or abuse of the Website and/or The Clever Baby’s products; (ii) Your Content (including without limitation claims related to intellectual property infringement); (iii) any use of the Website and/or The Clever Baby’s products in breach of this Terms and/or Privacy Notice; (iv) your violation of any law and/or the rights of a third party; and/or (v) fraud you commit and/or your intentional misconduct and/or negligence.  

 

  1. DISCLAIMER

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: THE WEBSITE, PRODUCTS AND INFORMATION GIVEN BY THE CLEVER BABY TO YOU ARE PROVIDED ON AN ‘AS IS’, ‘AS AVAILABLE’ BASIS, EXCEPT AS EXPRESSLY SET FORTH IN THIS TERMS. THE CLEVER BABY, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY PROVIDERS, SUPPLIERS, RETAILERS AND VENDORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, COMPLETENESS OR RELIABILITY, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY OTHER WARRANTY, CONDITION, GUARANTEE AND/OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. THE CLEVER BABY, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, SUPPLIERS, AND VENDORS DO NOT REPRESENT AND/OR WARRANT THAT ACCESS TO THE WEBSITE AND/OR THE CLEVER BABY INFORMATION WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE AND/OR ERROR-FREE, AND/OR LOSS AND/OR SECURITY BREACH OF TRANSMITTED INFORMATION, AND/OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH ACCESS TO AND/OR USE OF THE WEBSITE AND/OR THE CLEVER BABY INFORMATION. THE CLEVER BABY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT. YOU UNDERSTAND THAT THE CLEVER BABY CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT INFORMATION AVAILABLE FOR DOWNLOAD FROM THE INTERNET OR THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA.  NO ADVICE AND/OR INFORMATION, WHETHER ORAL AND/OR WRITTEN, OBTAINED BY YOU FROM THE CLEVER BABY OR THROUGH YOUR ACCESS TO AND/OR USE OF THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS.  TO THE FULLEST EXTENT PROVIDED BY LAW, THE CLEVER BABY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR INFORMATION OBTAINED THROUGH THE WEBSITE OR RELATED TO YOUR DOWNLOADING OF ANY INFORMATION POSTED ON THE WEBSITE, OR ON ANY WEBSITE LINKED TO IT.  THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

  1. LIMITATION OF LIABILITY

YOUR ACCESS TO AND/OR USE OF THE WEBSITE AND PURCHASE OF THE CLEVER BABY’S PRODUCTS IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE CLEVER BABY AND ITS THIRD PARTY SERVICE PROVIDERS, PARTNERS, SUPPLIERS, RETAILERS, AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTIES FOR DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES ARISING OUT OF AND/OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE WEBSITE, PURCHASE AND/OR USE OF THE CLEVER BABY’S PROUCTS, YOUR INABILITY TO ACCESS THE WEBSITE AND/OR INFORMATION AND/OR LINKS ON THE WEBSITE, INCLUDING WITHOUT LIMITATION THOSE DAMAGES RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL AND/OR EQUITABLE THEORY, EVEN IF THE CLEVER BABY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS OR LIMITATIONS HEREIN MAY NOT APPLY TO YOU IN SUCH LIMITED CIRCUMSTANCE. IN SUCH STATES, THE CLEVER BABY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOLWEDGE AND AGREE THAT THE CLEVER BABY’S MAXIMUM AND CUMULATIVE LIABILITY HEREUNDER, FOR ANY REASON, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS YOU HAVE ORDERED THROUGH THE WEBSITE.

YOU HEREBY AGREE TO RELEASE THE CLEVER BABY AND THIRD-PARTY SERVICE PROVIDERS, PARTNERS, SUPPLIERS, RETAILERS, AND VENDORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE OR THE CLEVER BABY INFORMATION. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction in which any other statute or common law principles of similar effect applies, you waive the application of such statute or common law with respect to the claims, demands and damages (actual and consequential) released under this Section.

 

  1. DISPUTE RESOLUTION

Disputes. We want to address your concerns without filing a formal legal case. Before filing a claim against The Clever Baby, you agree to try to resolve the dispute informally by sending a letter to us describing your claim to: The Clever Baby, Attn: Legal Department, c/o Meyer Law, Ltd., 20 W. Kinzie, 17th Floor, Chicago, Illinois 60654. We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days after submission (or within a time period as otherwise agreed to by both parties), you and/or The Clever Baby agree to resolve any claims related to this Terms through final and binding arbitration. Any and all controversies, disputes, demand, counts, claims, or causes of action (collectively “Actions”) between you and The Clever Baby or The Clever Baby employees, directors, officers, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration, except as set forth under ‘Exceptions to Agreement to Arbitrate’ or for any claims that you or The Clever Baby may take claims to small claims court if the dispute qualifies for hearing by such a court. In all cases, any Actions must be commenced within one (1) year after the cause of action arises. 

Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting The Clever Baby within thirty (30) days from the date that you first became subject to this arbitration provision. You must write us at The Clever Baby, Attn: Opt-Out Arbitration, c/o Meyer Law, Ltd., 20 W. Kinzie, 17th Floor, Chicago, Illinois 60654. If you opt out, neither you nor The Clever Baby can require the other to participate in an arbitration proceeding. 

Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described above, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be held in Cook County, Illinois USA or any other location we agree to. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You and The Clever Baby must abide by these rules: (a) the arbitration shall be conducted on an individual basis and not in a class, consolidated or representative action and the arbitrator shall not award class-wide relief; (b) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (c) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law. With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in the paragraph above is found invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party.  

Exceptions to Agreement to Arbitrate. Either you and/or The Clever Baby may assert claims, if they qualify, in small claims court in Cook County, Illinois.  Notwithstanding anything herein to the contrary, the parties acknowledge and agree that The Clever Baby may bring an Action as further described in Section 22 below and/or any lawsuit for injunctive relief to stop unauthorized use and/or abuse of the Website and/or The Clever Baby’s products, breach of The Clever Baby’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights), and/or your failure to comply with applicable privacy laws without first engaging in arbitration and/or the informal dispute-resolution process described herein. 

Waiver. There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, THE CLEVER BABY AND YOU ARE EACH WAIVING ITS RESPECTIVE RIGHTS TO SUE IN COURT, INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR 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. 

  1. GEOGRAPHIC RESTRICTIONS

The Clever Baby headquarters in located in the State of Illinois in the United States. The Clever Baby provides this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

 

  1. CALIFORNIA USERS

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about The Clever Baby must be sent to our agent for notice to dataprivacy@thecleverbaby.com. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. 

 

  1. GOVERNING LAW & VENUE

This Terms shall be governed by, construed and enforced in accordance with the substantive laws of the State of Illinois, without regard to its conflict of laws principles. The parties further agree that any such Action related to breach of The Clever Baby’s confidential information, failure to act in accordance with and/or breach of The Clever Baby’s rights and restrictions related to The Clever Baby’s intellectual property and/or your failure to comply with applicable laws shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein.  You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

 

  1. MISCELLANEOUS

You may not assign your rights and/or obligations under this Terms to any other party without our prior written consent. We may assign our rights and/or obligations under this Terms to any other party at our discretion. If any provision and/or term of this Terms shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term and/or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them. If an applicable law is in conflict with any part of this Terms, this Terms will be deemed modified to conform to the law and the other provisions will not be affected by any such modification. No waiver by either you and/or The Clever Baby of any breach and/or default and/or failure to exercise any right allowed under this Terms is a waiver of any preceding and/or subsequent breach and/or default and/or a waiver and/or forfeiture of any similar and/or future rights under this Terms. This Terms along with the Privacy Notice constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.

 

  1. CONTACT US

If you would like to request additional information regarding this Terms or if you have feedback about our Website or question about The Clever Baby’s products, please contact us at dataprivacy@thecleverbaby.com.

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