END-USER LICENSE AGREEMENT (“EULA”)
Date of Last Revision: 12.Sep.2017
- The H&P mobile application or service that you have downloaded, and any accompanying online or electronic documentation (collectively, the “App”), have been produced by and are the property of H&P. H&P is referred to as “us”, “we”, and “our” in this EULA. We are a company registered in England and Wales, with company number 07895461 and registered office address Philips Centre, Guildford Business Park, Guildford, GU2 8XG. You can contact us by post to our registered office address or by email to [email protected]
- THE TERMS AND CONDITIONS BELOW SET OUT THE AGREEMENT BETWEEN YOU (“you”) AND US FOR THE PURCHASE, DOWNLOAD, INSTALLATION AND USE OF THE APP (AND ANY IN APP PURCHASES) SO PLEASE READ THIS CAREFULLY.
- ALL USE OF THE APP IS SOLEY FOR USE BY USERS IN ACCORDANCE WITH THIS EULA. ANY USE, REPRODUCTION OR REDISTRIBUTION OF THE APP NOT IN ACCORDANCE WITH THIS EULA IS EXPRESSLY PROHIBITED.
- THE EULA LIMITS H&P’S LIABILITY AS SET OUT IN CLAUSE 17 BELOW.
- IF YOU ARE UNDER THE AGE OF 18 YOU MUST GET YOUR PARENT OR GUARDIAN’S PERMISSION TO DOWNLOAD, INSTALL AND USE THE APP.
- YOUR USE OF THE APP REQUIRES YOU TO HAVE AN APPLE ITUNES OR GOOGLE ACCOUNT. YOUR ACCESS TO THE APP WILL BE LINKED TO YOUR ITUNES OR GOOGLE ACCOUNT AND YOU ARE REQUIRED TO COMPLY WITH ALL APPLICABLE APPLE AND GOOGLE POLICIES TO USE THE APP, INCLUDING FOR ANY IN-APP PAYMENTS, IF APPLICABLE.
- PLEASE NOTE THAT USE OF THE APP IS FOR INFORMATIONAL PURPOSES ONLY, DOES NOT PROVIDE MEDICAL ADVICE OR DIAGNOSIS, IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR ANY MEDICAL ADVICE CONCERNING YOU OR YOUR CHILDREN, AND YOU SHOULD ALWAYS CONTACT YOUR MEDICAL ADVISORS IF YOU REQUIRE MEDICAL RELATED ADVICE. IN TURN, YOU UNDERSTAND THAT DATA YOU PROVIDE VIA THE APP DOES NOT CONSTITUTE PROTECTED HEALTH INFORMATION, AS DEFINED UNDER THE US HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (“HIPAA”) OR UNDER SIMILAR LEGISLATION IN YOUR LOCAL JURISDICTION.
ABOUT THE APP
- The App allows you to store and record all information about your baby and pregnancy. The App also provides general information that you may find useful for pregnancy and parenting. The App is not intended to be a replacement for the advice you receive from your medical advisors.
iOS Users: The following terms of this clause 4 are the terms which we are required by Apple to notify you of and obtain your consent in respect of using the App:
You and we acknowledge that this EULA is concluded between you and us only, and not with Apple Inc, nor any subsidiary or affiliate company of Apple Inc, (“Apple”). You also acknowledge that we are solely responsible for the App and the content thereof.
2. Grant of Licence
3. Maintenance and support
We are solely responsible for providing support and maintenance for the App. You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
4. Product claims
You acknowledge that we, and not Apple, are responsible for addressing any claims you may have relating to the App or your possession and/or 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.
5. Intellectual Property Rights
You acknowledge that in the event of a third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, we shall be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property right infringement claim, and not Apple.
6. Legal Compliance
You represent and warrant that (i) you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country; and (ii) you are not listed on any US Government list of prohibited or restricted parties.
7. Third Party Beneficiary
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that when you accept the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.
8. Third Party Terms of Agreement
We use third party software and services provided by Facebook Twitter, Google+ and YouTube with the App. Use of the App is therefore subject to your acceptance and compliance of and with these third party terms and you agree to comply with the applicable third party terms and conditions when using the App.
Android Users: By downloading the App from Google Play https://play.google.com/store?hl=en_GB you acknowledge that you have reviewed and accepted the Google Play Terms of Service https://play.google.com/intl/en-GB_uk/about/play-terms.html and Google Play Terms of Business https://play.google.com/intl/en-GB_uk/about/device-terms.html. If you download the App from another online market for software applications that operate on devices powered by the Android operating system, you acknowledge that you have reviewed and accepted the terms of services applicable to such market.
YOUR USE OF THE APP
- By downloading, installing or using the App, you confirm that you are either over 18 years of age, or if you are under 18 years old, that you are 13 years of age and older and you have obtained your parent or guardian’s consent to download, install and use the App.
- You understand that the App is not intended to provide you medical advice, diagnosis or treatment. If you think you may have a medical emergency, please call your doctor or an emergency medical-care professional immediately. Never disregard professional medical advice or delay in seeking it because of something you have read via the App. You should always seek the advice of your qualified healthcare professionals with any questions or concerns you may have regarding potential health conditions. We do not recommend or endorse any specific tests, healthcare providers, physicians, products, treatments, therapeutics, pharmaceuticals, devices, procedures, opinions or other information that may be mentioned through the App.
- You acknowledge that we have no control over how other users use the App and therefore we have no control over the quality of information posted on the service. Accordingly we give no warranties or representations with respect of the accuracy or reliability of any content made available via the App and the service generally.
- We back up content created on the App via Heroku (see https://www.Heroku.com) and Amazon Web Services or “AWS” (see https://aws.amazon.com/). Use of AWS and Heroku is subject to their applicable terms and conditions in force from time to time, including those terms available at https://aws.amazon.com/service-terms/ and https://www.heroku.com/policy/tos and https://www.heroku.com/policy/privacy. You consent to your data being backed up to Heroku and AWS.
- Subject to the privacy settings in the App as set by you, we may send you push notifications to your device while the App is installed, including while the App is not running in the foreground or in the background.
OWNERSHIP OF THE APP AND CONTENT
- All intellectual property in the App is owned by us and/or our licensors.
- All intellectual property rights in the App and content on the App, including all musical samples, text, AI, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features and all other content ("Content") belongs to us and/or our licensors. All rights reserved.
- You are not sold the App or any Content, but are granted a personal, restricted, worldwide, revocable licence to use the same for your own non-commercial private entertainment on the terms set out in clause 4.2.
LINKS TO WEBSITES AND THIRD PARTY SERVICES
- The App may provide you with certain functionalities to share your Data (as defined below in clause 8), with third party services such as Google+, Twitter or Facebook. It is your responsibility to ensure that you adhere to the terms and conditions of such third party platforms when sharing your Data. You should consider the type of Data you wish to share as due to the nature of the internet, it is not always possible to permanently remove any pictures or other information you share.
- To the extent that the App allows you to upload any text, pictures, data or other information (“Data”), then you acknowledge that we may copy, store, adapt, modify, and use the Data to enable us to provide the App and Data to you.
- We do not make any Data you upload available to other users of the App, unless you expressly opt in to sharing your Data with users, such as your friends or family members.
- You confirm that your Data shall not infringe the intellectual property rights or privacy rights of any third party or defame any person. You agree to compensate us for any loss we may suffer from a third party claim arising from a breach by you of this confirmation.
- You agree that you shall not use the App to send any abusive or offensive material, or any other material which we deem to be generally objectionable, or for any commercial purposes.
- After you delete your account, your Data shall remain on our servers for a limited period of time as part of our backup system.
FURTHER CONTENT AND UPGRADES
- We may offer further in-app content and upgrades to the App for you to purchase, download, install and use in the App (“Further Content”). We grant you a non-exclusive, personal, revocable, non-transferable licence to use the Further Content which you have purchased in the App.
- When you make an in-app purchase of any Further Content, that purchase will be completed either through the distributor from whom you originally purchased the app, or through another third party payment processor (the “Distributor”) and:
- you agree to comply with the terms, conditions and policies of the Distributor in respect of that purchase as are of have been notified to you;
- when making such a purchase of Further Content (for example, for an upgrade to the App which removes advertisements, or for additional content) you will be given the opportunity to agree to receive that Further Content either immediately or as soon as practicable, and by accepting that opportunity you acknowledge that as soon as supply of that Further Content begins you will lose your right to change your mind, cancel the purchase and receive a refund as referred to below;
- following a purchase of Further Content, you can change your mind and cancel that purchase for any reason and receive a full refund, until the earlier of: (i) the time you receive Further Content after deciding to accept supply of that Further Content; and (ii) 14 days from the date upon which you purchased that Further Content.
- We are under a legal duty to supply Further Content you purchase in accordance with this EULA. Nothing in this EULA will affect your legal rights including those set out in the box below:
Summary of key legal rights in respect of Further Content which you buy
Notwithstanding any other term in this EULA, Further Content must be as described, fit for purpose and of satisfactory quality:
if your Further Content is faulty, you're entitled to a repair or a replacement.
if the fault can't be fixed, or if it hasn't been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back.
if you can show the fault has damaged your device and we haven't used reasonable care and skill, you may be entitled to a repair or compensation.
- If you wish to withdraw from a contract to buy Further Content in accordance with clause 9(2) above, you may complete and return the following form to us:
(Complete and return this form only if you wish to withdraw from the contract)
To Philips Consumer Lifestyle B.V. Philips Centre, Guildford Business Park, Guildford, GU2 8XG, United Kingdom, or [email protected]
I hereby give notice that I cancel my contract of Further Content,
Ordered details: [please explain what you ordered and when],
From: [enter your name here],
Address: [enter your email or postal address],
Signature: [sign here only if you are sending this by post]
Date: [please enter the date here]
- You may delete cookies and other similar tools from your device by deleting the App.
- The App has been developed to work on the latest version of the iOS and Android operating systems at the time of its release. Apple or Google may from time to time update the iOS or Android software (as applicable), and we will endeavour, but not be obligated, to update the App if applicable to ensure that its functionality and performance continues with any updated iOS or Android release. It is your obligation to ensure that you are using the latest public release of the iOS or Android software.
- Where the App displays in app banner advertising, please note we are not responsible for the choice of the advert as all advertising is managed by Apple, Google, Facebook Analytics or another advertisement provider.
- You may delete cookies and other similar tools from your device by deleting the App. For iOS users, you can also opt out of personalised adverts by visiting https://support.apple.com/en-gb/HT202074 on your iOS device. You can opt-out if you wish not to have information used by Facebook for the purpose of serving you interest-based ads (if you are located in Europe: https://www.youronlinechoices.eu/; if you are located elsewhere: https://www.aboutads.info/choices/ or https://youradchoices.ca/).
- We may, from time to time, make available within the App adverts from our third party sponsors / partners based on your Due Date and Location (such adverts are targeted at a selected audience based on aggregated user information and do not disclose identifiable individuals). These adverts are chosen by us as we feel they will be relevant to you. These adverts cannot be removed or opted out of as they form part of the business model in making available the App.
INDEMNITY / COMPENSATION
- You agree to indemnify (compensate) us, defend and hold us harmless from and against all claims, damages, expenses, costs and liabilities (including reasonable legal fees) relating to or arising from your use of the App or arising from any breach or suspected breach of this EULA by you or your violation of any law or the rights of any third party.
TERM AND TERMINATION
- This EULA takes effect upon your download, installation and/or use of the App and remains effective until terminated by either you or us. You may terminate this EULA at any time by removing the App from the device on which you have installed it. The EULA shall automatically terminate if you fail to comply with any term or condition of this EULA. Upon termination you shall cease all use of the App and delete all copies of the App.
- We reserve the right to modify, suspend or discontinue the App and its associated services with or without notice. You shall not hold us liable for any such modification or discontinuance.
- The following clauses of the EULA shall survive termination: Clause 6 (Ownership), Clause 13 (Indemnity/compensation), Clause 14 (Term and Termination), Clause 16 (General Provisions), Clause 17 (Limitation of Liability), Clause 19 (Severance) and Clause 20 (Jurisdiction).
SUPPORT AND CONTACTING US
- The App is provided “as is”. However if you need any help and support please email [email protected] and we shall endeavour to assist you.
- This EULA sets out the complete understanding and agreement between us and you and may only be amended or waived in writing by us. No waiver by us of any failure by you to comply with or perform a provision of EULA shall be deemed to be a waiver of any preceding or succeeding failure. In the event that any of the provisions of this EULA are held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
- This EULA is personal to you. You may not assign, sub-license, transfer or dispose of the rights licensed under this agreement.
- You may only use the App for your personal, private and non-commercial use. You may not reproduce, distribute, publically display or perform, translate, modify, adapt, create derivative works from, deconstruct, reverse engineer, decompile or disassemble in any manner the App, or any part of it, including but not limited to any character, graphic, associated software or proprietary communications protocol used by the software or any utilities, applications, emulators or tools derived therefrom, save to the extent that such rights cannot be excluded by law.
- You agree not to access or attempt to access the accounts of other users or to penetrate or attempt to penetrate the App’s security measures, or transfer files that contain viruses, Trojans or other harmful programs.
OUR LIMITATIONS OF LIABILITY
- NOTWITHSTANDING ANY OTHER TERM IN THIS CLAUSE 17, IN RESPECT OF FURTHER CONTENT YOU PURCHASE THROUGH THE APP THE WARRANTIES SET OUT IN CLAUSE 9(3) SHALL APPLY TO THAT FURTHER CONTENT.
- THE APP IS PROVIDED ‘AS IS’ AND ON AN ‘AS AVAILABLE’ BASIS WITHOUT ANY REPRESENTATION, ENDORSEMENT OR WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND/OR ACCURACY.
- WE DO NOT GUARANTEE THAT THE APP WILL BE (I) FREE OF ERRORS, VIRUSES OR BUGS OR OTHER DEFECTS; OR (II) THAT THE APP OR ANY INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE APP OR IN THE DOCUMENTATION WILL BE ACCURATE OR COMPLETE; OR (III) THAT ANY DEFECTS IN THE APP WILL BE CORRECTED.
- YOU ACKNOWLEDGE THAT RELIANCE ON ANY SUCH INFORMATION SHALL BE AT YOUR SOLE RISK.
- NOTHING IN THIS EULA SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATIONS OR FOR DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE BY US, OUR EMPLOYEES OR AGENTS.
- TO THE FULLEST EXTENT PERMISSABLE BY LAW, INCLUDING IN YOUR LOCAL JURISDICTION, WE EXCLUDE ALL OTHER LIABILITY FOR ANY LOSS OR DAMAGE, INCLUDING ANY LIABILITY OR DAMAGE TO ANY DEVICE OR COMPUTER SYSTEM.
- NOTHING IN THIS EULA SHALL LIMIT YOUR STATUTORY CONSUMER RIGHTS THAT CANNOT BE WAIVED AS A MATTER OF LAW.
- OUR ENTIRE LIABILITY TO YOU, AND TO THE EXTENT WE CAN NOT EXCLUDE IT, WHERE PERMISSABLE BY LAW, SHALL BE LIMITED TO THE PURCHASE PRICE OF THE APP AND ANY IN-APP PURCHASES.
- IN THE EVENT THAT APPLE OR GOOGLE REFUNDS YOU IN ACCORDANCE WITH THE APPLICABLE APP STORE TERMS OF SALE, THEN NONE OF GOOGLE, APPLE OR US WILL HAVE ANY FURTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM WITH THE FOREGOING WARRANTY. AS A CONDITION OF THE REFUND, YOU ARE REQUIRED TO DELETE THE APP.
CHANGES TO THE EULA
- We may change this EULA for any legal, regulatory or security reasons, or for any compliance with any changes that may be required by Google, Apple or any reason we decide. We will notify you of any changes and you will be required to accept the changes to continue to use the App.
- This App is not intended for use on devices on which the operating system does not match the default standard anymore (“Jailbreak Devices”). You agree that you will not attempt to install or use the App on any Jailbreak Device. Any attempt to install or use the App on a Jailbreak Device will constitute breach of this EULA, and may result in account termination, without refund, at the sole discretion of us. We are not liable for any damages resulting from the use on Jailbreak Devices.
- If any provision of this EULA is found by a court or regulator to be invalid or unenforceable the other provisions shall continue to apply.
GOVERNING LAW AND JURISDICTION
- Subject to your local consumer laws, and in the event of any dispute between you and us, and regarding this EULA and/or your use of the App, then the laws of England and Wales will apply. You agree that in the event we are unable to settle any dispute with you, then any court or arbitration proceedings shall be held in England, UK. Your statutory rights under consumer protection laws in your country of residence remain unaffected by this choice of law. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.
SPECIAL INFORMATION ON THE ONLINE DISPUTE RESOLUTION PLATFORM FOR CONSUMERS IN THE EUROPEAN UNION
- If we have not been able to resolve your complaint to your satisfaction and you have bought our products or services online, the European Commission has set up a service to help consumer residents in the European Union who have a complaint about goods or services bought online from traders established in the European Union. If you have a complaint and have not been able to get it resolved to your satisfaction, you can submit your complaint online through the online dispute resolution (ODR) platform. You can access the ODR platform here: https://ec.europa.eu/consumers/odr/.
- For questions regarding the ODR platform we are available at the following email address: [email protected]