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Mom365 Terms and Conditions

Updated 6/8/17

GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS

 

1. Applicability.

(a) These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by the Mom365, Inc. ("Seller") to you ("Buyer").

(b) These Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

 

2. Orders.

Orders may be placed with a Seller’s representative at the hospital, by phone to Seller’s Customer Care Center at 866-284-0620, or by web at www.mom365.com.

 

3. Delivery.

(a) The goods will be delivered within a reasonable time, usually within 7-10 business days, after the receipt of Buyer's order and payment. Seller shall not be liable for any delays, loss or damage in transit.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods.

(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's order.

 

4. Non-delivery.

Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the charge respecting such Goods to reflect the actual products delivered.

 

5. Inspection and Rejection of Nonconforming Goods.

(a) Buyer shall inspect the Goods within thirty (30) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller’s Customer Care Center at 800-620-8479 of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's order; (ii) product's label or packaging incorrectly identifies its contents; or (iii) the CD, DVD, or Flash Drive is defective.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. To replace Nonconforming Goods or process a refund, the product must be returned if requested by Seller.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

6. Price.

(a) Buyer shall purchase the Goods from Seller at the price[s] (the "Price[s]") set forth in Seller's published price list and/or catalog in force as of the date of Buyer's order. All specifications, designs, availability and Pricing are subject to change without notification.

(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.

 

7. Payment Terms.

Buyer shall make all payments hereunder by check, paypal, cash, COD, money order or credit card and in US dollars. Returned checks may be collected electronically. Service charges may apply.

 

8. Limited Warranty.

(a) Seller warrants to Buyer that such Goods will conform to the specifications set forth in the catalog or on the Mom365 website in effect as of the date of the order and will be free from material defects in material and workmanship.

(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 8(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY

(a) WARRANTY OF MERCHANTABILITY;

(b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE;

(c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

(d) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.

(e) The Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

(f) Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods and, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.

(g) THE REMEDIES SET FORTH IN SECTION 8(F) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(A).

 

9. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.

(c) The limitation of liability set forth in Section 10(b) above shall not apply to liability resulting from Seller's gross negligence or willful misconduct.

10. Waiver.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege here under precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

11. Force Majeure.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

12. Governing Law and Jurisdiction.

All matters arising out of or relating to this Agreement shall be governed by the laws of the State of Missouri, 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 the 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.

 

13. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

14. Return Policy.

At Mom365, your satisfaction is our primary concern. If for any reason you are not satisfied with your order, please contact our Customer Care Center at 800-620-8479 within 10 days of receiving your package. Please have available your order number when you call. Many Mom365 products are customized and may not be refundable. To process a refund on accepted items, merchandise must be returned if requested. For most issues, we can arrange for the product to be remade at no further charge. We will otherwise provide a free merchandise credit. Celebrate Baby Digital Images and Welcome Baby Slideshow are not refundable unless the CD or Flash Drive is returned and unopened. Digital Download/Slideshow products are not refundable (see Digital Download/Slideshow Terms & Conditions). Shipping, handling and COD (where applicable) fees are not refundable. Refunds on individual components of Portrait Packages are credited at a prorated amount. This includes promotional items with purchase. When allowed, refunds will only be processed within 30 days of purchase.

 

15. Terms and Conditions for Digital Download/Slideshow Products.

With a Digital Download/Slideshow purchase, you will receive your purchased product via email and/or text.  Due to the instant accessibility of this content, once your order is transmitted, viewed, downloaded or shared, the sale is final and non-refundable.  Please download in a timely manner, and back up appropriately.  Digital Download/Slideshow products purchased from Mom365 are delivered as a link sent to the email address and/or cell phone number Mom provides to the Mom365 Photographer or Representative.  Please make sure you provide the correct email address and/or cell phone number when you complete your digital product purchase.  Applicable fees from your cell phone carrier may apply.  We cannot control access to the links and only give authorized access to the Mom who makes the purchase.