BabyQ.com Terms of Use Agreement

Effective Date: April 4, 2014

About Us

BabyQ.com (“Website” or “Application”) is owned and operated by BabyQ, LLC (“BabyQ”). BabyQ was created by Mark Gostine, MD and Gareth Forde, M.D. Ph.D. after analyzing more than 39,000 pregnancies. Their findings revealed that mothers could easily optimize their weight gain and have healthier pregnancies and babies, and that optimal weight maintenance during pregnancy may lead to better health for mother and child after delivery. These findings inspired the two physicians to develop the BabyQ Website and Application, which are designed to assist expectant mothers in making healthy decisions throughout their pregnancies.

 

General

This Terms of Use agreement (“Agreement”) sets forth the terms to which all visitors and users of the Website and Application agree to be bound. You use the Website and Application at your own risk.

YOU HAVE A DUTY TO READ THIS AGREEMENT. YOUR USE OF THE WEBSITE AND APPLICATION CONSTITUTES YOUR MANIFESTATION TO AND INTENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE EXPRESSLY PROHIBITED FROM USING THE WEBSITE AND APPLICATION AND MUST TERMINATE YOUR USE OF THE WEBSITE AND APPLICATION IMMEDIATELY.

BABYQ RESERVES THE RIGHT TO MODIFY, LIMIT, DISCONTINUE, OR REPLACE THE WEBSITE AND APPLICATION AND THIS AGREEMENT IN ITS SOLE AND ABSOLUTE DISCRETION. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT ON A REGULAR BASIS TO KEEP YOURSELF INFORMED OF ANY MODIFICATIONS. IN THE EVENT BABYQ MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE OR APPLICATION OR THIS AGREEMENT, YOUR USE OF THE WEBSITE OR APPLICATION AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT HERETO.

Your violation of any term or condition of any term of this Agreement may result in the immediate termination of your Member account and the disabling of your access to the Website and/or Application.

BabyQ allows you to take a brief survey in order to determine your BabyQ score. The BabyQ score is calculated to provide a computer-generated assessment of your pregnancy health. Depending on the survey results and your due date, BabyQ will send personalized tips straight to your smartphone to help improve your BabyQ score.  A higher score increases the likelihood of a healthier pregnancy, mother, and baby.

 

Account Registration and Membership

Registration for a BabyQ Basic Membership on the Website and Application is free. BabyQ may offer a BabyQ Premium Membership on the Website and Application to provide additional services to such Premium Members, in which users may choose to participate for a fee.

In order to use BabyQ.com, you must voluntarily provide information, including that set forth in the Privacy Policy incorporated into this Agreement, to create a profile.  Your profile contains information provided by you, and BabyQ does not endorse you or discriminate based upon any information provided by you or made available for population of your profile.  Personal profile information will be used in a manner that is consistent with the Privacy Policy.

You have a duty to ensure that the information that you provide through your Member Account is truthful, current, complete, and accurate. You understand and agree that you have an ongoing duty to update and keep current the information provided through your Member Account if and when that information changes. You are expressly prohibited from creating a Member Account that impersonates another person, contains offensive or obscene language, or otherwise violates the rights of a third party. You expressly agree that you will not register more than one Member Account and that you will not use your Member Account to interfere with or disrupt a third party’s enjoyment and use of the Website or Application.

By creating an account, you agree that BabyQ and BabyQ’s designees and agents, may contact you by any means that you provide, including, but not limited to, by email.  You further represent and warrant that you are not bound by or a party to any exclusive arrangement or agreement, whether contractual or otherwise, that would prohibit you from using the Website, the Application, or its associated services.

Members agree to provide BabyQ with accurate, up to date, and complete information. Members understand and agree that they have an ongoing duty to update their information if and when it changes.

Members agree to keep their Member Accounts secure from unauthorized access. Members further agree that they alone are responsible for their own Member Account, and Members accept full responsibility for any and all use of their own Member Account, whether authorized or unauthorized. In the case of unauthorized access to a Member Account, Member agrees to contact BabyQ immediately.

You may allow others to act as your agent to use the Website and/or Application.  You understand and agree that any user that you authorize to have access to your Member Account has the capacity to contract and is your authorized legal agent.  You agree to bear the ultimate responsibility for any access to your User Account, whether authorized or unauthorized, and you agree to hold harmless and indemnify BabyQ for any damages that arise out of or in relation to the use of your User Account.

BabyQ reserves the right to restrict access to, suspend, disable, or delete your Member Account at any time, in its sole discretion, and without prior warning. You are expressly prohibited from selling, leasing, lending, assigning, or otherwise transferring your Member Account.

 

BabyQ is HIPPA-Compliant

BabyQ collects your protected health information (PHI) through surveys through its Website and Application in a manner that is compliant with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a United States law. BabyQ has adopted numerous measures to ensure that it remains in compliance with HIPAA and any business associate agreements it enters into. To learn more about BabyQ’s security policies and measures and they manner in which such PHI is collected, used, and stored, please read the Privacy Policy, which is also incorporated into this Agreement.

 

Representations and Warranties

You represent, warrant, and agree that you have the right, power, and legal capacity to enter into this Agreement and to accept and adhere to the rights, obligations, and duties granted under its terms. Persons under the age of eighteen (18) may not use or register for the Website or Application. You warrant that you are a human individual that is eighteen (18) years of age or older. You warrant that you are not prohibited from assenting to this Agreement by any preexisting Agreement.

If you are using the Website and/or Application on behalf of a third party, you warrant that you are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.

You represent, warrant, and agree to:

  • comply with the terms of this Agreement in good faith.
  • not use the Website and/or Application outside of the uses specifically provided for under this Agreement.
  • not use the Website and/or Application in any way that violates the rights of third parties, and you agree to comply with any and all applicable local, national, state, provincial, and international laws, treaties, and regulations.
  • not post false, misleading, or defamatory content.
  • not distribute viruses, malware, spyware, spam, chain letters, or any other harmful or unsolicited files or communications.
  • not use, modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, harvest, collect or sell information about users of the Website and/or Application or any other content or information found on the Website and/or Application in any form or by any means, in whole or in part, without the prior written consent of BabyQ.
  • not make any derivative works of the Website and/or Application or delete or modify, in any way, any copyright, trademark, or other proprietary notices that appear on the Website and/or Application.
  • not use the Website and/or Application to sell or offer for sale any goods or services of any kind, without the prior written consent of BabyQ.

You understand and agree that:

  • BabyQ may use, not use, lease, sell, and/or destroy any data or information related to the Website or Application without notice at its sole discretion.
  • BabyQ does not warrant or guarantee that compliance with this Agreement will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights.  Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use the Website or Application.  Website and Application are operated in the United States and BabyQ makes no representation that its Website and/or Application or services are appropriate, lawful, or available for use in other locations.
  • BabyQ provides a Website and Application service and takes no responsibility and cannot be held liable or responsible for transactions entered into by or between users of the Website and/or Application, whether through Member Accounts or otherwise.
  • BabyQ makes no representations or warranties as to the truth or falsity of any information submitted to the Website and/or Application or provided by a user of the Website and/or Application, the legality, quality, or safety of the services offered through the Website and/or Application, or the qualifications associated with any Member Account.
  • BabyQ cannot be held liable for any user’s failure to truthfully or accurately disclose their identity.
  • You will hold harmless, defend, and indemnify BabyQ for any and all claims, demands, judgments, liabilities, costs, or fees, including reasonable attorneys fees, arising out of or relating to disputes over transactions entered into through the Website and Application. Your agreement to defend BabyQ under this section will not provide you with the right or ability to control BabyQ’s defense.

 

No Medical Advice

The material contained on this Website and/or Application is for informational purposes only.  It is not the intention of BabyQ to provide medical advice. If you are seeking specific medical advice related to your pregnancy or any other health-related issue, BabyQ urges you to consult with a qualified physician for answers to your health-related questions.  Nothing contained in the site is intended to be for medical diagnosis or treatment. The information should not be considered complete or up to date, nor should it be relied on to suggest a course of treatment for a particular individual. It should not be used in place of a visit, call, consultation or the advice of licensed physician or other qualified health care provider.  If you have a medical emergency, contact your doctor or call 911.  BabyQ does not recommend or endorse any specific treatment, tests, physicians, products, procedures, opinions, or other information on the Website and/or Application.  Your reliance upon any information provided by BabyQ, BabyQ contractors and employees, others appearing on this Website and/or Application at invitation by BabyQ, or other visitors or users of this Website and/or Application is solely at your own risk.

 

 

User-Generated Content

BabyQ may provide you with the ability to submit user generated content to the Website and Application, which may include but is not limited to text, photos, videos, and other content (collectively “User Generated Content”). Except as otherwise licensed herein, you own all rights in and to your User Generated Content.

By submitting User Generated Content to the Website and/or Application, you grant BabyQ a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User Generated Content for the customary and intended purposes of the Website and/or Application and any purpose related thereto, including, without limitation, to reproduce, prepare derivative works, distribute copies, perform, display, and use any of the User Generated Content. These purposes may include, but are not limited to, providing you or third parties with the Website and/or Application or its associated products and services and archiving or making backups of the Website and/or Application. You agree to waive all moral rights in and to your User Generated Content across the world, whether you have or have not asserted moral rights in or to your User Generated Content. By submitting User Generated Content to the Website and/or Application, you further agree to waive all rights of publicity or privacy with respect to the User Generated Content submitted.

You warrant that any User Generated Content that you submit to the Website and/or Application will not violate the rights of third parties, including, without limitation, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.

If BabyQ receives a notice of copyright infringement, that notice will be handled in compliance with the Digital Millennium Copyright Act.

You acknowledge and agree that BabyQ is an interactive computer service provider under Section 230 of the Communications Decency Act. Though BabyQ may edit, remove, or control the content displayed through the Website and/or Application, you agree that BabyQ will not be considered an information content provider and will not be held liable for the republication of defamatory or otherwise tortious content created by third parties, whether through the Website and/or Application or otherwise.

You further acknowledge that BabyQ is allowed to use your email address and other information provided by you to customize content on the Website and/or Application or for any other purpose, as further described in the Privacy Policy.

 

Copyright

BabyQ.com the BabyQ Application, and their associated content and services are © 2014 BabyQ, LLC.

BabyQ respects the intellectual property rights of others and is committed to helping third parties protect their rights. Users are prohibited from posting content that violates another party’s intellectual property rights. Unless otherwise stated, this Website and/or Application and all content within this site are the property of BabyQ and are protected by copyright and other intellectual property laws.

If you believe that a BabyQ user has infringed upon your copyright rights, please provide BabyQ with a notice of copyright infringement in compliance with § 512 of the Digital Millennium Copyright Act. Once BabyQ receives a notice of copyright infringement so in compliance, BabyQ will act in a reasonably timely manner to remove or disable access to the allegedly infringing content, and will make a good faith attempt to notify the user who uploaded of the allegedly infringing content. The user who uploaded the content may respond to BabyQ with a counter-notification if they believe the content subject to a notice of copyright infringement was not infringing any intellectual property rights.

To comply with § 512 of the Digital Millennium Copyright Act, the notice of copyright infringement to BabyQ must also contain the following information:

  • Identification of the copyrighted work(s) alleged to have been infringed
  • The location of the copyrighted work(s) on the Website and/or Application
  • A statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law
  • A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the copyright owner
  • Your contact information, such as an address, telephone, fax number, or email address
  • The physical or electronic signature of a person authorized to act on behalf of the copyright owner

Or, if you are a user that believes that content subject to a notice of copyright infringement is not actually infringing, you may submit a counter-notification. The counter-notification must contain the following:

  • Identification of the specific materials that have been removed from the Website and/or Application
  • A statement that you consent to the jurisdiction of the federal district court in which your address is located or, if you are outside of the US, that you consent to the jurisdiction of the federal courts located in the State of Michigan
  • A statement that you will accept service of process from the notifying party
  • A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of mistake or misidentification
  • Your contact information, such as an address, telephone, fax number, or email address
  • Your physical or electronic signature

Notifications of copyright infringement and counter-notifications may be submitted to BabyQ, 2815 Lake Drive SE, Grand Rapids, Michigan 49506, with a copy to mgostine@procaresystems.com and to the BabyQ Copyright Agent, seddy@shrr.com with “DMCA NOTICE” in the subject line.

 

Disclaimer of Warranties

BABYQ DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIAIBLITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE AND/OR APPLICATION OR ANY GOODS OR SERVICES LINKED TO OR THROUGH THE WEBSITE AND/OR APPLICATION. BABYQ PROVIDES THE WEBSITE AND APPLICATION ON AN AS-IS BASIS AND WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.

BABYQ WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONTENT POSTED ON THE WEBSITE AND/OR APPLICATION, ANY THIRD PARTY LINKS POSTED ON THE WEBSITE AND/OR APPLICATION, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE AND/OR APPLICATION, INCLUDING WITHOUT LIMITATION ARTWORK. BABYQ DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, UNAUTHORIZED ACCESS, DESTRUCTION OF IDENTITY, OR ALTERATION OF OR TO THE WEBSITE AND/OR APPLICATION. BABYQ RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AND/OR APPLICATION AT ANY TIME.

BABYQ IS NOT RESPONSIBLE FOR THE REPRESENTATION OR CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER, USER OR ADVERTISER OF WEBSITE AND/OR APPLICATION.

 

Ownership of Website, Application, and Content

BabyQ is the owner or licensee of all rights in and to the Website and Application, the trademarks displayed on the Website and Application and any and all copyrights, trade secrets, patent rights, or other proprietary or personal rights contained within or displayed upon the Website and Application. The Website and Application is subject to all applicable intellectual property and other laws.

You are expressly prohibited from using BabyQ’s trademarks, trade names, trade dress, design marks, trade secrets, or copyrightable works outside of the uses expressly stated in this agreement and without the prior written consent of BabyQ.

BabyQ grants you a limited, revocable, non-exclusive, non-sublicensable, and royalty free license to use the Website and Application. This limited license automatically terminates upon a breach of any of the terms of this Agreement.

You warrant and agree that you will not make any derivative works of the Website and/or Application or delete or modify, in any way, any copyright, trademark, or other proprietary notices that appear on the Website and/or Application.

You are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website and/or Application, whether in whole or in part, without the prior written consent of BabyQ.

BabyQ is always seeking ways to enhance your user experience. If you have any meaningful and substantive suggestions, ideas, proposals or material that you would like to see incorporated into your user experience, you may contact BabyQ. BabyQ is not liable for the disclosure of such material, and any disclosure of such information for improvement of the Website or Application is nonconfidential. You shall receive no profit for such suggestions, ideas, proposals or other material, and you grant BabyQ a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your suggestions, ideas, proposals or material for any purpose, including, without limitation whatsoever.

 

Prohibited Use of Website and Application

You agree that you will not use the Website or Application to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website or Application.

Specifically, you are prohibited from the following conduct, without limitation:

  • Circumventing BabyQ’s technological or security protection mechanisms;
  • Misusing another user’s personal information;
  • Interfering with the operation of the Website or Application;
  • Impersonating another or creating multiple alias accounts;
  • Attempting to gain access to the private data or personal information of a user of the Website or Application or a third party;
  • Transmitting unsolicited commercial messages, or spam, through the Website or Application or to users of the Website or Application;
  • Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or Application or third parties;
  • Posting or transmitting content that constitutes fraud, an unwanted commercial solicitation, a phishing scam, or a chain letter;
  • Posting or transmitting content that is inaccurate, false, misleading, offensive, derogatory, obscene, profane, sexually oriented, racially offensive, or otherwise harmful;
  • Using a script, robot, spider, scraper, or other automated technology to access the Website or Application;
  • Posting or transmitting content that threatens or encourages bodily harm or the destruction of property;
  • Posting or transmitting content that infringes upon the intellectual property rights or other personal or proprietary rights of other users of the Website or Application or third parties;
  • Posting or transmitting content that violates any term or condition of this Agreement; or
  • Posting or transmitting content, or using the Website or Application in a manner that violates any law, statute, regulation, or ordinance, or treaty, whether local, state, provincial, national, or international.

 

Indemnification

You agree that you will hold harmless, defend, and indemnify BabyQ, including its members, employees, agents, affiliates, directors, officers, and board members, from and against all claims, damages, liabilities, penalties, costs, and judgments, including attorneys’ fees, that arise out of or in connection with your use of the Website or Application (including, without limitation, any purchase made therein), your violation of a term or provision of this Agreement, or your violation of the rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify BabyQ will survive the termination or failure of this Agreement and your use of the Website and Application.  Your obligation to defend BabyQ under the terms of this Agreement will not provide you with the right to control BabyQ’s defense, and BabyQ reserves the right to control its defense regardless of your contractual requirement to defend BabyQ.

 

Assignment

You are prohibited from assigning your rights and duties under this Agreement to a third party. BabyQ reserves the right to assign its rights and duties under this Agreement at any time, including in a sale of BabyQ or the Website and/or Application.  In the event of an assignment by BabyQ, you understand and agree that BabyQ may share any information collected for any purpose, as set forth in the Privacy Policy.

 

Remedies

Any failure on the part of BabyQ in seeking relief for any breach of any duty under this Agreement will not waive the right of BabyQ to seek relief for any subsequent breach.

You agree that the Website and Application are located in the State of Michigan. You agree that the Website and Application do not give rise to personal jurisdiction over BabyQ in jurisdictions other than the State of Michigan. This Agreement will be interpreted under and governed by the laws and legal principles of the laws of the United States of America and the State of Michigan, without regard to conflicts of laws principles or statutes.

 

Jurisdiction and Choice of Laws

You understand and agree that BabyQ and the Website and Application are located in the State of Michigan for all legal and non-legal purposes. You also agree that the Website and Application does not give rise to personal jurisdiction over BabyQ in states other than the State of Michigan. This Agreement will be governed by and interpreted under the laws of the State of Michigan without regard to its conflicts of laws principles. Any dispute that arises out of or in relation to this Agreement or your use of the Website and Application will be resolved by arbitration.

 

Arbitration

You agree that any claim or dispute that you may have against BabyQ will be exclusively resolved through arbitration. 

YOU AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE AND/OR APPLICATION, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN MICHIGAN AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF MICHIGAN AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND BABYQ AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF MICHIGAN IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND BABYQ AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.

 

Consent to One-Year Statute of Limitations 

YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION TO THE WEBSITE AND/OR APPLICATION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU AGREE THAT YOU WILL NOT START OR PARTCIPATE IN ANY CLASS ACTION LAWSUIT RELATED IN ANY WAY TO THE USE OF THIS WEBSITE AND/OR APPLICATION.

 

Severability

If any provision of this Agreement is held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall remain valid and unimpaired and shall continue in full force and effect.

 

No Waiver

You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.

 

Delegation of Rights and Duties

BabyQ reserves the right to delegate any of its duties under this Agreement to any other person, entity, or subcontractor. Under no circumstances are you permitted to transfer the rights provided to you by this Agreement.

 

Integration

This Agreement, along with the Privacy Policy constitute the entire agreement between the parties with respect to the Website and Application. There are no further understandings, agreements, or representations with respect to the Website and/or Application that is not specified in this Agreement or those specified in this subsection.

 

Notices

All notices to BabyQ must be in writing to 2815 Lake Drive SE, Grand Rapids, Michigan 49506, with a copy to mgostine@procaresystems.com.

All rights not expressly granted herein are reserved to BabyQ, LLC.  © 2014 BabyQ, LLC.