Last Updated: June 14, 2019
Welcome to the BlueSmart, Inc. (“BlueSmart”) websites located at www.bluesmartmia.com, bluesmartmia.com, bluesmart.ai (the “Sites”). BlueSmart strives to create new ways for people to care for their families by providing easy access to a child’s Feeding Data (as defined below) when the child uses our feeding bottles (“BlueSmart Bottles”), as well as providing useful food related tips based on available studies and average population data. These Terms of Service (“Terms”) govern your use of our smart feeding system (including the software embedded in our BlueSmart Bottles, our Sites, the BlueSmart application (“App”), memberships and other services owned or operated by BlueSmart (collectively, the “Services”). By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please do not use the Services.
Changes to the Terms and Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site, updating the “Last Updated” date or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BlueSmart WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Who Can Use BlueSmart?
You may use the Services only if you are over 13 years of age and are not barred from receiving Services under applicable law.
Creating an Account
In order to use certain features of the Services, including the App and interactive features on the Sites, you’ll have to create an account (“Account”). You can do this via the Site or the App. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
In order to take advantage of the complete features of our Services, you will need a device such as computer, tablet or mobile device (each a “Device”) with the requisite software and Internet access. The maintenance and security of this equipment may influence the performance of the Services and it is your responsibility to ensure that the Device functions properly.
Your Content on the Services
For purposes of these Terms: (i) “Content” means text, graphics, data, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “Your Content” means any Content that Account holders (including you) provide to be made available through the Services including without limitation, your child’s date of birth, weight, height, photos, feeding records and food logs (all consolidated feeding data about your child such as the time of feeding, time it took him/her to feed, temperature of the milk or liquid in the BlueSmart Bottle, angle of feeding, amount of time the milk was in the BlueSmart Bottle, etc. collectively referred to as “Feeding Data”). Content includes without limitation Your Content.
You further grant to BlueSmart a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to de-identify and combine Your Content with the de-identified Content of other users of our Services (“Aggregated Content”), and to copy, modify, create derivative works based upon, publicly display, publicly perform and distribute the Aggregated Content.
You are solely responsible for all Your Content. You represent and warrant that: (i) you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms and (ii) Your Content and the use and provision of Your Content to be made available through the Services will not infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity, privacy or confidentiality.
BlueSmart’s Rights in Content and Services
Subject to your rights in Your Content, BlueSmart and its licensors exclusively own all right, title and interest in and to the Content, the Services and the underlying technology, including all associated intellectual property rights in the foregoing anywhere in the world. BlueSmart also exclusively owns all copyright rights in the organization of the Feeding Data, but not to the Feeding Data itself. You acknowledge that the Services and Content are protected by patent, copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in App Granted by BlueSmart
Subject to your compliance with these Terms, BlueSmart grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a Device that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. BlueSmart reserves all rights in and to the App not expressly granted to you under these Terms.
Things You Can Do On the Services
Subject to your compliance with these Terms, BlueSmart grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Content (except Your Content), Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by BlueSmart or its licensors, except for the licenses and rights expressly granted in these Terms.
Things You Cannot Do On The Services
Except to the extent permitted by law, you may not do any of the following while accessing or using the Service:
Post Your Content that (i) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (ii) is fraudulent, false, misleading or deceptive; (iii) is defamatory, obscene, pornographic, vulgar, sexually explicit or offensive; (iv) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; or (v) is violent or threatening or promotes violence or actions that are threatening to any person or entity.
Use, display, mirror or frame the Services or any individual element within the Services, BlueSmart’s name, any BlueSmart trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without BlueSmart’s express written consent;
Access or tamper with non-public areas of the Services, BlueSmart’s computer systems, or the technical delivery systems of BlueSmart’s providers;
Attempt to probe, scan or test the vulnerability of any BlueSmart system or breach any security or authentication measures;
Circumvent any technological measure implemented by BlueSmart or any of BlueSmart’s providers or any other third party (including another user) to protect the Services or Content;
Access the Services or Content through the use of any mechanism other than through the Services or BlueSmart API;
Modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that BlueSmart provides to you or any other part of the Services;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing.
Our Enforcement Rights
We are not obligated to monitor access or use of the Services, Content (including Your Content) or to review or edit any Content or Your Content, but we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, we may cooperate with law enforcement authorities to prosecute users who violate the law. We reserve the right (but are not required) to investigate violations of these Terms and any conduct that affects the Services, and remove or disable access to the Services, any Content (including Your Content) at any time and without notice, and at our sole discretion, if we determine that the Content, Your Content, or your use of the Services is objectionable or in violation of these Terms.
Use Common Sense
Use of the Services should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany the BlueSmart Bottle or Services.
Feedback and Submissions
If you submit comments, ideas, or feedback to us, you agree that we can use them without any restriction or compensation to you. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Contests and Giveaways
Additional terms and conditions may apply to contests, giveaways and other promotions sponsored by BlueSmart and its partners. It is your responsibility to carefully review those terms and conditions.
You Agree to Receive Alerts and Notifications
As part of your use of the Services, you may receive notifications, alerts, or emails about the Services. If you choose to provide your mobile phone number, you may receive SMS messages relating to your use of the Services. We will not send you promotional or marketing SMS messages without obtaining your separate, written consent, which is not required for you to use the Services. You agree to the receipt of these communications. You can control receipt of these communications from your account settings. You are responsible for any messaging or data fees you may be charged by your wireless carrier for receiving SMS notifications.
We Are Not Responsible For Third-Party Links on the Services
The Services may contain links to third-party websites, apps, services and resources (collectively “Third-Party Services”) that are not under BlueSmart’s control. We provide these links only as a convenience and are not responsible for the content, products or services that are available from Third-Party Services. You acknowledge sole responsibility and assume all risk arising from your use of any Third-Party Services.
If you violate these Terms, we reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such termination, we may delete Your Content and other information related to your account. You can remove Your Content by specifically deleting it. However, in certain circumstances, some of Your Content (such as posts and comments you make) may not be removed and copies of Your Content may continue to exist on the Services. You may also cancel your Account at any time by contacting Customer Support at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the Services or your Account, the following provisions of these Terms will survive: Your Content on The Services; BlueSmart’s Rights in Content and Services; Our Enforcement Rights; Feedback and Submission Policy; Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT. YOU ASSUME THE ENTIRE RISK AS TO YOUR USE OF THE SERVICES AND CONTENT. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
OUR GOAL IS TO PROVIDE YOU WITH EASY ACCESS TO YOUR CHILD’S FEEDING DATA AND FEEDING HABITS FROM ANYWHERE AS WELL AS PROVIDE GENERALLY HELPFUL INFORMATION AND PRACTICAL TIPS ABOUT THE AVERAGE POPULATION BASED ON GENERALLY AVAILABLE HEALTH RELATED STUDIES, VIA OUR SERVICES. HOWEVER, WE MAKE NO ENDORSEMENTS, REPRESENTATIONS OR WARRANTIES OF ANY KIND ABOUT ANY CONTENT, INFORMATION, DATA, SUGGESTIONS OR PRACTICAL TIPS THAT WE PROVIDE VIA OUR SERVICES. EACH CHILD IS DIFFERENT AND WE DO NOT PROVIDE ANY HEALTH RELATED RECOMMENDATIONS FOR YOUR CHILD. WE DO NOT CLAIM THAT OUR DATA OR CONTENT IS ACCURATE, RELIABLE OR EFFECTIVE, OR THAT USE OF FEEDING DATA WE PROVIDE OR INFORMATION AND TIPS YOU RECEIVE THROUGH THE SERVICES WOULD PROVIDE ANY HEALTH BENEFITS OR ANY RESULTS AT ALL. OUR SERVICES ARE PROVIDED MERELY AS A CONVENIENCE AND SHOULD NOT BE RELIED UPON TO TAKE ANY HEALTH RELATED DECISIONS OR ACTIONS. PLEASE BE AWARE, IF YOU RELY ON ANY CONTENT, FEEDING DATA OR SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK AND BLUESMART IS NOT RESPONSIBLE FOR ANY CONSEQUENCE OR LIABILITY THAT MIGHT ARISE FROM SUCH RELIANCE.
You will indemnify and hold harmless BlueSmart and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Services, (ii) Your Content, or (iii) your breach of any representations or warranties hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
Limitation of Liability
NEITHER BLUESMART NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BLUESMART HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL BLUESMART’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEEDS THE AMOUNTS YOU HAVE PAID FOR THE BLUESMART BOTTLE. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to you.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLUESMART AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and BlueSmart agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide BlueSmart with written notice of your desire to do so by email or regular mail at email@example.com or 1451 Grant Road, Suite 200, Mountain View, CA 94042 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide BlueSmart with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide BlueSmart with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide BlueSmart with an Arbitration Opt-out Notice, you acknowledge and agree that you and BlueSmart are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and BlueSmart otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and BlueSmart otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and BlueSmart submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. BlueSmart will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, BlueSmart will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to the Terms and Services” section above, if BlueSmart changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of BlueSmart’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and BlueSmart in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between BlueSmart and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between BlueSmart and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without BlueSmart’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. BlueSmart may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Any notices or other communications provided by BlueSmart under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. BlueSmart’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of BlueSmart. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.