The Mom365.com websites (each a “Site” and collectively, the “Sites”) are owned and operated by Mom365, Inc. (“Mom365”). These Mom365.com Terms and Conditions (“Terms”) set forth the terms and conditions under which you may access and use each Site and any services available on the Sites (the “Services”), such as, for example and if applicable, Mom365 Photography, Baby Portrait Page, Mom365 original parenting editorial content, Mom365 Community social media features, and the Mom365 gift store, as available.
BY ACCESSING AND/OR USING EITHER SITE AND/OR ANY SERVICES, YOU AGREE TO THESE TERMS. If you do not agree to any of these Terms, then do not access or use the Sites or Services.
WE MAY UPDATE OR CHANGE THESE TERMS AT ANY TIME. SUCH UPDATES AND/OR CHANGES MAY APPLY TO ONE OR MORE OF THE SITES. WHEN WE DO UPDATE OR CHANGE THE TERMS, WE WILL ALSO REVISE THE "LAST UPDATED" DATE AT THE TOP OF THE TERMS ON THE SITE(S) TO WHICH SUCH UPDATE OR CHANGE APPLIES. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE CURRENT TERMS.
You can read the current version of the Terms at www.mom365.com/AboutUs/Terms-And-Conditions.aspx
AS APPLICABLE. YOUR CONTINUED ENTRY TO AND/OR USE OF THE SITE(S) TO WHICH SUCH REVISED TERMS APPLY AFTER WE POST ANY REVISED TERMS CONSTITUTES YOUR AGREEMENT TO ANY SUCH REVISED TERMS.
PLEASE NOTE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS OR ON THE SITES TO THE CONTRARY, THE SITES ARE PROVIDED WITHOUT ANY WARRANTY AND SUBJECT TO LIMITATIONS ON OUR LIABILITY. THESE TERMS ARE CONTAINED IN SECTIONS 6 AND 7 BELOW.
1. Your Use of the Sites and Services
1.1. Subject to your compliance with these Terms, Mom365 grants you a non-exclusive, limited, revocable, non-transferable license to use the applicable Site(s) and Services. You may only use the Sites to view Content, to view and post User Information and to make legitimate inquiries. You may not use the Sites for any other purposes, including without limitation, to make any false or fraudulent inquiries.
1.2. The Sites and the content provided in the Sites, including any text, scripts, graphics, images, music, video, button icons, audio and video clips, digital downloads, data compilations, software, interactive features and the like (collectively, “Content”), may not be copied, reproduced, altered, modified, republished, displayed, performed, used to create derivative works, framed, mirrored, uploaded, posted, transmitted, modified, sold, transferred, sub-licensed, distributed, disassembled, decompiled, or reverse engineered without the written permission of Mom365, its third party advertising partners and/or its licensors and other contributors to the Sites, except that you may download, display and print the Content that you are authorized to access, solely for informational and non-commercial, personal use; provided that you (a) do not remove any title, trademark, copyright and/or restricted rights notices contained on such Content, and (b) strictly comply with the provisions of these Terms.
1.3. You agree not to, without first obtaining our express written permission, (a) use any of our trademarks as metatags on other web sites, (b) use either Site in any manner that is illegal or impairs the operation of the Site or its availability or usage by others, (c) use or access, or attempt to use or access, any portion of either Site for which you are not given access by us. Without limiting the generality of the foregoing, you agree not to circumvent, disable or otherwise interfere with security features of either Site and/or the Services, and/or features that prevent or restrict use or copying of either Site and/or any Content. You agree not to insert any code or product or manipulate either Site in any way that affects the user’s experience including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load (as determined by Mom365 in its sole discretion) on either Site. You further agree not to use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any data gathering or extraction method in connection with your use of either Site except for customary search engines used in accordance with automated instructions directed to search engines and available on the applicable Site.
1.4.1. Registered Users. If you successfully register with one or both of our Sites, you will be considered a “Member” of and will have an “Account” for the Site(s) for which you successfully registered. You are responsible for maintaining the confidentiality of any usernames, passwords, other account information, or any other tools and/or data that afford you access to restricted areas of either Site or the Services. You are fully responsible for all activities that occur under your password or Account. Thus, if you share Account information with others for the purpose of shared viewing of any portion of the Site, you are responsible for all users of such information, whether or not their use is actually or expressly authorized by you. You agree to immediately notify Mom365 of any unauthorized use of your password or Account or any other breach of security. Mom365 cannot and will not be liable for any loss or damage arising from your failure to comply with the Terms. We may revoke your registration at any time and for any reason (or no reason), with or without notice to you. Upon any such revocation, you will not be considered a Member.
1.4.2. Unregistered Users. The Services and pages of a Site available to users that are not members (each an “Unregistered User”) of a Site and Members of the Site vary. Unregistered Users do not have access to all of the Content and/or Services available to Members. If you are an Unregistered User of either Site, you agree not to use or access, or attempt to use or access, any Content and/or Services on that Site that are intended only for Members.
1.5. Payments for purchases. If you purchase any items from our Sites, you agree to pay Mom365 for such purchases in accordance with the pricing schedule and payment terms that Mom365 may issue from time-to-time. All amounts payable hereunder must be made by a credit card designated by you, or by such other form of payment as Mom365 may permit from time-to-time. Handling fees and sales tax will apply. All fees are payable in U.S. dollars.
1.6. Payments not received or honored. If payment is made by credit card and Mom365 does not receive payment from the applicable card issuer or its agents, or if payment is made by check and the check is not honored, you agree to pay all amounts due immediately upon demand. If payment is made by check, and the check is returned, Mom365 may collect the payment electronically. Service charges may apply.
1.7. Refunds and Exchanges. Shipping and handling fees are not refundable. Personalized and certain other products (e.g., digital brag books, digital key chains and digital photo ornaments) are not refundable unless defective. The Celebrate Baby CD is not refundable unless the CD is returned with the photo package (where applicable) and is unopened. To request a refund or exchange for your purchase, contact our Customer Care Center at (866) 284-0620 within 10 days of receiving your order.
2. User Information and Conduct Guidelines
2.1. If you provide any information and/or other content (including, without limitation, photographs) to us (collectively, “User Information”), you agree to provide only true, accurate, current and complete information.
2.2. By uploading or otherwise submitting User Information to either Site, you (a) grant Mom365 a royalty-free, non-exclusive, worldwide, irrevocable and sublicensable (through multiple tiers) perpetual license to use, modify, create derivative works from, store, transmit, distribute, publish, copy, publicly display and publicly perform, any User Information in any format or medium now known or later developed, with or without attribution; (b) grant Mom365 a royalty-free, non-exclusive, worldwide, irrevocable, and sublicensable (through multiple tiers) perpetual license to use and exploit your username, persona, likeness and/or image in connection with such User Information, for any and all purposes, whether commercial or non-commercial, without any obligation to you; and (c) represent and warrant to Mom365 that you have the right to upload or otherwise submit such User Information to us and to grant Mom365 the licenses granted in this section.
2.3. You agree to comply with all applicable laws regarding online conduct and acceptable User Information, including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
2.4. You agree to use discretion and adhere to the family-oriented spirit of Mom365. You agree not to use either Sites or the Services to:
2.4.1. upload, post, email, transmit or otherwise make available (“Post”) any User Information:
• that is unlawful, discriminatory, harmful, threatening, violent, indecent, inflammatory, pornographic, profane, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, false or inaccurate, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
• that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or that would otherwise violate any law, or contractual or fiduciary relationship (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• that is misleading, deceptive or fraudulent;
• that infringes, violates or misappropriates any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
• that contains any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.
2.4.2. Harm minors in any way;
2.4.3. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
2.4.4. Violate any applicable local, state, national or international law, rule, regulation or ordinance, intentionally or unintentionally;
2.4.5. Violate the privacy rights of or "stalk" or otherwise harass another;
2.4.6. Collect, use or store personal data about other users;
2.4.7. Transmit or otherwise transfer any Content to any other computer, server, websites, or other medium for mass distribution or for use in any commercial enterprise; and/or
2.4.8. Supply material support or resources to organizations designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act.
2.5. Your further agree not to use either Site or Services to (a) promote a business or any products or services (with the exception of in-home daycares, for which ads may be posted in local metro Mom or State groups); (b) urge others to vote in contests;
2.6. You acknowledge that Mom365 has no obligation to pre-screen User Information contributed to either Site. However, Mom365 has the right, but not the obligation, at any time and without prior notice, to edit, refuse, remove or disable any content (including your User Information) that is available via either Site, with no liability or obligation to you. Without limiting the generality of the foregoing, Mom365 may edit or remove any User Information you submit to either Site that Mom365, in its sole discretion, deems abusive, defamatory, obscene, unlawful, or otherwise unacceptable, and you waive any moral rights you may have with respect to changes in the User Information.
2.7. Mom365 provides a venue for visitors to Post their User Information. While Mom365 has the right to edit, refuse, remove or disable any User Information for any reason, it is otherwise not involved in the writing or posting of the User Information. As a result, Mom365 has no control over and does not guarantee the quality, accuracy or legality of User Information. If you post any User Information, you are fully responsible for your own User Information and the consequences of posting or publishing it. You acknowledge that by using either Site, you may be exposed to User Information that is offensive or objectionable.
2.8. In the event that you have a dispute with another user of either Site and/or the Services, you release Mom365 and its officers, members, employees and service providers from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
2.9. If you provide any comments, ideas, know-how, instructions, suggestions, information, and/or other feedback to us regarding either Site or any Services available on either Site (collectively, “Feedback”), such Feedback shall be owned exclusively by Mom365. To the extent you have or obtain any intellectual property right in or to any Feedback, you shall be deemed to assign all right, title and interest therein, if any, to Mom365 as of the date such right first vests in you.
3. Intellectual Property
3.1. Except for User Information and Content that is in the public domain, the Sites and all Content, as well as the selection and arrangement of the Content, is owned by (or licensed to) Mom365 or its suppliers and is protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided herein. Except as otherwise expressly provided in these Terms, all rights in and to the Sites and Content are expressly reserved by Mom365.
3.2. MOM365, MOM365 and all other all trademarks, service marks and logos (“Marks”) contained on the Sites are either trademarks or registered trademarks of Mom365 or its licensors, and, except as expressly provided above, may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of Mom365 or its licensors and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
4.1. The Sites may provide links to other websites solely as a convenience to you. The inclusion of links to such websites does not imply any sponsorship, affiliation or endorsement of the material on such websites or with their operators. We have no control over such sites and resources or their privacy policies; shall not be responsible for the content of any other site; and make no representation or warranty regarding any other websites or the contents or materials on such websites. If you decide to access other websites, you do so at your own risk. You agree not to hold Mom365 responsible for the content or operation of such websites.
4.2. Subject to the further provisions of this section, we welcome links to the Sites from other web sites. If we demand that you not link to one or both of the Sites, or any portion of one or both of the Sites, you agree that you will not, directly or indirectly, link to the Site(s) or such portion of the Site(s) as directed in our demand, at any time after such demand is made.
Mom365 may, in its sole discretion, suspend, change or terminate your access to and use of the Sites, Services and/or Accounts, with or without notice, at any time, without liability to you, any other user or any third party, and you agree that (a) if your authorization to enter the Sites or use the Services is terminated, you will not thereafter enter, or attempt to enter, the Sites or use, or attempt to use, the Services, directly or indirectly, and (b) if your authorization to enter the Sites or use the Services is suspended, you will not thereafter enter, or attempt to enter, the Sites, or use, or attempt to use, the Services, directly or indirectly, until your suspension is removed and we give you express notice thereof. Without limiting the generality of the foregoing, Mom365 reserves the right to terminate your access to and use of the Sites, Services and/or Accounts: (v) if you provided Mom365 with false or misleading registration information; (w) if you interfered with other users or the administration of the Services or Sites; (x) upon a request by law enforcement or other governmental authorities; (y) if Mom365 receives any report(s) or otherwise has reason to believe that you have infringed the copyrights or other intellectual property rights of any third party; or (z) if you otherwise violated these Terms.
1.2. Health and Information Disclaimer.
Any use or reliance on Content and/or Services shall be at your own risk and Mom365 shall not be liable to you or any third party for any reliance on, or decision made in connection with, such Content and/or Services. No Content and/or Services are intended to be, nor should be construed as, medical advice or a medical diagnosis and are not intended in any way to (a) supersede or be a substitute for any medical provider’s judgement, evaluation or treatment, (b) define the standard of care, or (c) be a proper method of care. You are urged and advised to seek the advice of a physician or other specialist in the applicable area before using any Content and/or Service.
7. Limitation of Liability.
EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL MOM365 BE LIABLE FOR (A) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, THE LOSS, DELAY OR INABILITY TO ACCESS OR USE ANY OF THE SITES AND/OR SERVICES, THE LOSS OF ANY CONTENT OBTAINED THROUGH THE SITES, AND/OR THE INACCURACY OF ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, AND/OR (B) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND/OR OTHERWISE ARISING OUT OF THE USE OR PERFORMANCE OF THE SITES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT), IN EACH OF (A) AND (B) ABOVE WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE AND EVEN IF MOM365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
Mom365 assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any Content, User Information and/or settings. Any Content downloaded or otherwise obtained through the use of either Site or the Services is at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the download of such Content. Under no circumstances will Mom365 be liable in any way for any User Information, including, but not limited to, for any errors or omissions in any User Information, or for any loss or damage of any kind incurred as a result of the use of any User Information posted, emailed or otherwise transmitted to or through either Site.
If, notwithstanding the foregoing, Mom365 or any third party provider or distributor is found liable for any loss or damage arising out of or in any way connected with these Terms, and/or the Services, the liability of Mom365 and the third party providers and distributors shall in no event exceed, in the aggregate, the greater of (a) the subscription fee and service charge, if any, for accessing the Sites or Services, or (b) US$100.00. Some states do not allow certain limitations of liability, so the foregoing limitation may not apply to you.
You hereby agree to indemnify and hold harmless Mom365 and its affiliates, and their officers, members, directors, employees, shareholders, information providers, suppliers, licensees, consultants and agents (collectively, "Indemnified Parties") from any and all third party claims, liabilities, damages, losses, debt, expenses, obligations, and/or costs (including, but not limited to, attorney’s fees) arising from or related to: (i) your use and/or access to either Sites or the Services; (ii) your violation, or alleged violation, of the Terms; (iii) any violation or infringement of any third party right (including without limitation any trademark, copyright, property, privacy or other proprietary right) by you or any other user of your Account; and (iv) any of your User Information, including, without limitation, any User Information posted or otherwise provided by you that infringes any copyright, trademark, or intellectual property right of any third party, that defames any person or violates any person's rights of publicity or privacy, or that otherwise violates these Terms.
9. Claims of Intellectual Property Infringement and Agent
If you believe your copyright or other intellectual property rights have been infringed by either Site, or the Content or Services, we ask that you please provide to Mom365’s Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512:
9.1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
9.2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
9.3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
9.4. Information reasonably sufficient to permit us to contact the complaining party;
9.5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
9.6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Send such notice as directed above to:
3613 Mueller Road
St. Louis, MO 63301
10. Governing Law
These Terms shall be deemed to be agreed to by you in St. Charles County, Missouri. These Terms, and all matters arising out of or relating to the Sites, the Services, and/or the these Terms, shall be governed by the laws of the State of Missouri, United States of America, without regard to its conflict of laws provisions and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to exclusive jurisdiction and venue in the federal courts sitting in Saint Louis, Missouri, unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in Saint Charles County, Missouri. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. To the extent allowed by applicable law, any claim or cause of action arising from or relating to these Terms and/or your access or use of either Site and/or Services must be brought within two (2) years from the date on which such claim or action arose or accrued. Mom365 controls and operates the Sites from its headquarters in the United States of America, and the Sites may not be appropriate or available for use in other locations. If you use either Site outside the United States of America, you are responsible for following applicable local laws.
11. Attorney’s Fees
If Mom365 takes any action to enforce these Terms or otherwise in connection with your use and/or entry of either Site and/or Services, you agree that if Mom365 prevails it will be entitled to recover from you, and you agree to pay, all reasonable and necessary attorney's fees and any costs of litigation, in addition to any other relief, at law or in equity, to which Mom365 may be entitled.
12. Injunctive Relief
You acknowledge that a violation or attempted violation of any provision of these Terms will cause irreparable damage to Mom365, the exact amount of which would be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that Mom365 shall be entitled as a matter of right to (a) an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of the Terms by you, or your affiliates, partners, or agents, and (b) recover from you any and all costs and expenses sustained or incurred by Mom365 in obtaining such an injunction, including, without limitation, reasonable attorneys’ fees. You agree that no bond or other security shall be required in connection with such injunction.
13. Cumulative Remedies.
No right or remedy conferred by these Terms is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
You may not transfer any rights, interests or obligations you may have to your Account or under these Terms without the prior written consent of Mom365. Mom365 may assign our rights under these Terms, in whole or in part, without your consent. Subject to the foregoing, these Terms shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors, heirs and permitted assigns.
The provisions of these Terms shall be deemed severable. In the event that any provision is determined to be illegal, unenforceable or void, then you shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent of the parties that these Terms shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of these Terms shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
The headings used in these Terms are included for convenience only and will not limit or otherwise affect the terms and conditions herein.
Mom365 may provide notice to you relating to these Terms by sending an e-mail to your last known e-mail address, if any, your last known postal address, if any, and/or posting a notice on the Site(s), and any such notice shall be deemed given and received on the earlier of the day it is sent to you or the day it is posted on the applicable Site.
A printed version of these Terms and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The failure of Mom365 to insist upon or enforce strict performance by you of any provision of these Terms shall not be construed as a waiver of any provision or right. Use of the Sites is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms.
You agree to report any violations of these Terms to us.