Ameda Baby App Terms & Conditions
Updated: December 14, 2022th, 2022
Ameda, Inc. (“Ameda,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our proprietary mobile app, which is accessible through tablets, smart phones, and other devices (the “App”).
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. NO MEDICAL ADVICE
You acknowledge and agree that Ameda does not, through the App, or otherwise, provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that Ameda does not evaluate the need to seek medical attention. Ameda only provides the platform through which you can capture and track your breastfeeding and pumping information. The App and the Ameda Content (as defined below) are for informational purposes only, and are not intended as a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the App and/or the Ameda Content. You acknowledge and agree that by accessing and using the App, you are not entering into a doctor-patient or provider-patient relationship with Ameda. If you think you may have a medical emergency, call your doctor or 911 immediately. Reliance on the App and the Ameda Content is solely at your own risk.
2. DESCRIPTION AND USE OF THE APP
The App allows you to track your breastfeeding and pumping sessions, including but not limited to, setting up reminders for pumping and breastfeeding.
3. LICENSE TO USE THE APP
The App is currently provided to you free of charge. We reserve the right to institute new or additional fees, at any time upon notice to you.
5. COMMUNITY GUIDELINES
Ameda’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the App, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
- You will comply with all applicable laws in your use of the App and will not use the App for any unlawful purpose;
- You will not upload, post, e-mail, transmit, or otherwise make available any content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will not “stalk,” threaten, or otherwise harass another person;
- You will not access or use the App to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the App through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the App through hacking, password or data mining, or any other means;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the App;
- You will not use any robot, spider, scraper, or other automated means to access the App for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the App for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
You will let us know about inappropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
We reserve the right, in our sole and absolute discretion, to deny you access to the App, or any portion of thereof, without notice, and to remove any content that does not adhere to these Community Guidelines.
The App is only available for individuals aged 18 years or older. If you are under 18 years of age, please do not use the App. By registering as a Registered User, you represent and warrant that you are at least 18 years of age.
7. USE OF PERSONAL INFORMATION
If you would like to use the App, you will need to download the App from the Apple, Android or any other app store through which the App is made available to you using your app store credentials. Upon downloading the App, you will be required to register by creating an account as a registered user (“Registered User”). During the registration process, we will ask you to provide your name and e-mail address and create a username and password for your account. When creating the account, you must provide true, accurate, current, and complete information. You represent and warrant that all information you provide to us is truthful and accurate, and you will maintain the accuracy of such information. You are responsible for the confidentiality of your account. You will promptly inform us of any need to deactivate a user name or password. We reserve the right to delete or change your user name and/or password at any time and for any reason.
9. INTELLECTUAL PROPERTY
We retain all right, title and interest in and to the App, and all software and other technology relating to the App. As between us and you, we retain all right, title and interest in and to all content available through the App (the “Ameda Content”). The Ameda Content may be owned by us or our licensors, and is protected under both United States and foreign laws. Unauthorized use of the Ameda Content may violate copyright, trademark, and other laws. You have no rights in or to the Ameda Content, and you will not use the Ameda Content except as permitted under this Agreement and the functionality of the App. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Ameda Content. You may not sell, transfer, assign, license, sublicense, or modify the Ameda Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Ameda Content in any way for any public or commercial purpose. The use or posting of the Ameda Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Ameda Content automatically terminates and you must immediately destroy any copies you have made of the Ameda Content.
The trademarks, service marks, and logos of Ameda (“Ameda Trademarks”) used and displayed on the App are registered and unregistered trademarks or service marks of Ameda. Other company, product, and service names located on the App may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Ameda Trademarks, the “Trademarks”). Nothing on the App should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Ameda Trademarks insures to our benefit.
Elements of the App are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Ameda Content may be retransmitted without our express, written consent for each and every instance.
10. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
11. ACCESSING AND DOWNLOADING THE APP FROM ITUNES
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Ameda and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Ameda.
- You acknowledge that, as between Ameda and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
12. NO WARRANTIES; LIMITATION OF LIABILITY
NONE OF AMEDA, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “AMEDA PARTIES”) ENDORSE ANY AMEDA CONTENT PROVIDED THROUGH THE APP, AND/OR ANY OPINION, RECOMMENDATION OR ADVICE EXPRESSED THROUGH THE APP. NONE OF THE AMEDA PARTIES IS A PARTY TO, OR HAS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO, OR FOR ANY RESULTS CAUSED BY USING THE APP, INCLUDING WITHOUT LIMITATION, ANY DEATH, BODILY INJURY OR HEALTH PROBLEMS YOU MAY SUFFER. FOR THE AVOIDANCE OF DOUBT, THE FOREGOING SENTENCE DOES NOT APPLY TO CONSUMERS LOCATED IN NEW JERSEY.
THE AMEDA CONTENT PROVIDED ON THE APP, AND IN ANY OTHER COMMUNICATIONS FROM OR PROVIDED THROUGH THE APP IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU THINK YOU OR YOUR FAMILY MEMBER(S) MAY HAVE A MEDICAL EMERGENCY, CALL 911 OR GO TO THE EMERGENCY ROOM IMMEDIATELY.
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NONE OF THE AMEDA PARTIES MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND THE AMEDA PARTIES HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT ANY AMEDA PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE APP, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE APP, SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
THE APP MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE APP. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE APP AT ANY TIME WITHOUT NOTICE.
13. EXTERNAL SITES
The App may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold harmless the Ameda Parties from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Ameda Party in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) any misuse of the Ameda Content, or the App; or (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
15.COMPLIANCE WITH APPLICABLE LAWS
The App is based in the United States, and are intended to be used only by residents of the United States. We make no claims concerning whether the App, or the Ameda Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the App, or the Ameda Content from outside of the United States,you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
16.TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the App, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the App at any time without prior notice or liability.
In the event of a dispute arising under or relating to this Agreement, the App or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Ameda from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Ameda’ proprietary interests.
18.CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Illinois for purposes of any such action by us.
20.CONTROLLING LAW; EXCLUSIVE FORUM
The Agreement and any action related thereto will be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of Illinois for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
If the Agreement is terminated in accordance with the termination provision in Section 16 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2022 Ameda, Inc. All rights reserved.