Last Revised: May 5, 2022
IMPORTANT: PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”), CAREFULLY. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE (BUT ARE NOT LIMITED TO) VARIOUS LIMITATIONS AND EXCLUSIONS, A BINDING ARBITRATION CLAUSE, A CLASS ACTION WAIVER, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
All About The Mom provides an online blog and related informational services relating to motherhood (hereinafter the “Platform”). The Platform may be accessible by website (including through the Site), mobile application, or other technology as designated by All About The Mom from time to time.
By using or accessing the Platform, you acknowledge and agree to comply with and be legally bound by the terms and conditions of these Terms, whether or not you become a registered user of the Platform. These Terms govern your access to and use of the Platform and constitute a binding legal agreement between you and All About The Mom.
By accessing, browsing, submitting any information, to or through, or otherwise in any manner using the Platform, and linking to these Terms or by accessing, submitting any information to or through, or otherwise in any manner using any service offered on or though this Platform, You acknowledge that you have read and understand, and agree to be bound by and to comply with all of these Terms. If you do not agree to all of these Terms without any modification by you, you are not authorized to and must not access or use this Platform or any feature, functionality or service offered on or though this Platform.
Any person who visits, uses, or accesses this Platform is referred to as a User. Users are also referred to in these Terms as “You”, “you”, “Your”, or “your.” If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
A. “All About The Mom Content” means all Content that All About The Mom makes available through the Platform including any Content licensed from a third party, but excluding User Content.
B. “All About The Mom Software” means any software, html or other code, at any time or from time to time, in whole or in part, comprising the Platform or utilized by All About The Mom through the Platform.
C. “All About The Mom”, “we”, “us”, or “our,” shall refer to ProMedia, Inc.
D. “Collective Content” means All About The Mom Content and User Content.
E. “Content” means any text, graphics, images, music, software (excluding any All About The Mom Software), audio, video, information or other electronically stored data.
F. “Governmental Authority” means any domestic or foreign, federal, state, local, provincial, county, or municipal or supra national government or political subdivision thereof, or any agency, instrumentality, subdivision, court, tribunal, commission or other authority of such government or political subdivision, or any self-regulated, private, non-governmental or quasi-governmental organization, body or authority (to the extent that the rules, regulations or orders thereof have the force of Law).
G. “Intellectual Property Rights” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
H. “Law” or “Laws” means, as amended from time to time, any domestic or foreign federal, state, local, provincial, county or municipal or supra national Law (including common law), rule, regulation, statute, treaty, constitution, ordinance, decree, code, proclamation, policy, procedure, guideline, standard, order, judgment, or other legally enforceable requirement enacted, issued, adopted, promulgated, enforced, ordered or applied by any governmental authority.
I. “Platform” has the meaning ascribed to it in the second paragraph of these Terms, above.
J. “Services” means collectively all services All About The Mom offers through the Platform to Users, including the Site, any User Feature, All About The Mom Content, and All About The Mom Software, among others.
K. “Site” means the website located at www.allaboutthemom.com or its sub-domains.
L. “User Content” means all Content that a User provides, posts, uploads, publishes, submits, transmits, or makes available on the Platform.
M. “User Feature” means any feature or functionality of the Platform which All About The Mom may designate from time to time for use by Users for or in connection with the All About The Mom Services.
N. “User” means any person or entity that uses or accesses the Platform or any User Feature.
II. Acknowledgements and Disclaimers
A. Explanation of Services and Acknowledgements
ALL ABOUT THE MOM PROVIDES A BLOG, INFORMATION SERVICES, AND CERTAIN MARKETING THROUGH THE PLATFORM. YOU ACKNOWLEDGE THAT THE INFORMATION CONTAINED ON THE PLATFORM IS FOR ENTERTAINMENT PURPOSES ONLY AND DOES NOT CONSTITUTE PROFESSIONAL ADVICE OF ANY KIND, WHETHER MEDICAL OR OTHERWISE
NEITHER WE NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY ASPECT OF THE PLATFORM TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE PLATFORM WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY MEMBER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY OR WITHIN THE PLATFORM WILL BE TIMELY, CURRENT OR SECURE, OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE PLATFORM OR THAT WE WILL CORRECT ANY DEFECTS.
ALTHOUGH WE TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES, WORMS, TROJANS OR OTHER MALICIOUS SOFTWARE (“MALWARE”) OR OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, ALL ABOUT THE MOM DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH CONTAMINATING OR DESTRUCTIVE PROPERTIES.
IN NO EVENT WILL ALL ABOUT THE MOM BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR ANY INFORMATION OBTAINED THROUGH THE SERVICES, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (EVEN IF ALL ABOUT THE MOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMITTED BY LAW.
III. Modification of Platform or Terms
All About The Mom reserves the right, at its sole discretion, to modify the Platform or to modify these Terms at any time and without prior notice, and without penalty. If we modify these Terms – which may include updating, revising, amending, supplementing, restating, or terminating these Terms – we will either post the modification on the Platform or otherwise provide you with notice of the modification. Please also refer to the “Last Updated” date indicated at the beginning of these Terms. Through continued access or use of the Platform after All About The Mom has posted a modification thereon or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must discontinue use of the Platform.
IV. User Eligibility
The use of this Platform is intended for persons who are 18 years of age or older. Any access to or use of any User Features, or the Platform by anyone under 18 is prohibited. By accessing or utilizing any User Features on or through the Platform you represent and warrant that you are 18 years of age or older. Persons under the age of 18 may not avail themselves to any of the All About The Mom Services, unless accompanied by an eligible User over the age of 18. In any event, by becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by all of these Terms.
V. All About The Mom Communications
By becoming a User, you acknowledge that we may from time to time and as needed communicate with you by various means, including via e-mail, text message, telephone calls, and push notifications to the telephone number you provide to us, in relation to your use of the Platform, among others. Please note that this may include communications generated by automatic telephone dialing systems or other methods and systems, which will deliver prerecorded messages sent by or on behalf of All About The Mom, its affiliated companies or other Users, including but not limited to: operational communications concerning the Platform, use of User Features or other Services, and updates concerning new and existing features on the All About The Mom Platform.
In other instances, we will seek your consent to receive our communications before contacting you by asking you to “opt-in” to such communications. This may include receiving our newsletter, promotions and promotional materials provided by All About The Mom or third parties, and updates and news concerning All About The Mom.
Where we have already received your opt-in consent to receive certain communications, IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER SUCH “OPT-IN” COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS THAT ARE PROVIDED TO YOU ON THE PLATFORM OR VIA THE COMMUNICATION, IF APPLICABLE (e.g. the “unsubscribe” button in our promotional emails). Standard text messaging charges applied by your telephone phone carrier will apply to text messages we send.
VI. User Conduct
You understand and agree that you alone are responsible, at your sole cost and expense, for compliance with any and all Laws that may apply to your use of the Platform or any feature thereof. In connection with your use of the Platform, you must not, and you agree that you shall never do or attempt to do any of the following:
1. violate any applicable Law;
2. use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other features or services contained in or comprising the Platform;
4. use the Platform or any part thereof or any feature or functionality accessed on or through the Platform for any commercial or other purposes that are not expressly permitted by these Terms;
5. copy, store or otherwise access or use any information contained on or accessed through the Platform for purposes not expressly permitted by these Terms;
6. infringe the rights of any person or entity, including without limitation, any intellectual property, privacy, publicity or contractual rights;
7. interfere with or damage the Platform, or any part thereof or any feature or functionality accessed on or through the Platform – whether through the use of viruses, cancel bots, Trojans, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or otherwise;
8. use the Platform, or any part thereof or any feature or functionality accessed on or through the Platform to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
9. use the Platform, or any part thereof or any feature or functionality accessed on or through the Platform for or in connection with the distribution of unsolicited commercial email (“spam”);
10. stalk, harass, or bully any other user of the Platform;
11. recruit or otherwise solicit any User to participate in a third party services or websites that are competitive to All About The Mom, without All About The Mom’s prior written approval;
12. impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
13. use automated scripts to collect information from or otherwise interact with the Platform;
14. post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, or rights of publicity or privacy, (ii) violates, or encourages any conduct that would violate, any applicable Law or regulation or would give rise to civil liability, (iii) is fraudulent, false, misleading or deceptive, (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (vi) is violent or threatening or promotes violence or actions that are threatening to any other person, or (vii) promotes illegal or harmful activities or substances;
15. systematically retrieve data or other content from the Platform to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
16. use, display, mirror or frame the Platform, or any individual element within or comprising any part or feature of the Platform, All About The Mom’s name, any All About The Mom trademark, service mark, trade dress, logo or other proprietary source identifiers, any materials or information, or the layout and design of any page or form contained on a page of the Platform;
17. access, tamper with, or use non-public areas of the Platform, All About The Mom’s computer systems, or the technical delivery systems of All About The Mom’s providers;
18. attempt to probe, scan, or test the vulnerability of any All About The Mom system or network or breach any security or authentication measures;
19. avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by All About The Mom or any of All About The Mom’s providers or any other third party (including another user) to protect the Platform; or
20. attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Platform or any feature or functionality thereof.
All About The Mom at all times has the right to investigate and may prosecute violations of any of the foregoing to the fullest extent of the Law.
All About The Mom may access, preserve and disclose any of your information if we are required to do so by Law or enforceable legal obligation, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against All About The Mom, (ii) to comply with a lawful and enforceable request by law enforcement, judicial body, or other public authorities, or in connection with a legal obligation, or other enforceable legal process (for example, court order, subpoena, warrant, etc.), (iii) enforce or administer our agreements with users (iv) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (v) protect the rights, property or safety of All About The Mom, its users, or members of the public. You acknowledge that All About The Mom has no obligation to monitor your access to or use of the Platform but has the right to do so for the purpose of operating and improving the Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the lawful and enforceable order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. All About The Mom reserves the right, at any time and without prior notice, to remove or disable access to any materials that All About The Mom, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform.
VII. Intellectual Property and User License Agreement
A. General Intellectual Property Provisions
The Platform is protected by copyright, trademark, and other Laws of the United States and foreign countries. You acknowledge and agree that the Platform, Services, and All About The Mom Content, including all associated Intellectual Property Rights, are the exclusive property of All About The Mom and its licensors (hereinafter “All About The Mom Intellectual Property”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform or Collective Content. All trademarks, trade names, and source identifiers of All About The Mom used on or in connection with the Platform are trademarks or registered trademarks of All About The Mom. Trademarks, trade names, and any other source identifiers of third parties used on or in connection with the Platform are used for identification purposes only and may be the property of their respective owners.
Nothing in these Terms grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance, to any User or any other person of any right, title or interest in or to any of All About The Mom Intellectual Property therein, including but not limited to any trademark, trade name, service mark or other proprietary identifying symbols used by us from time to time on or in connection with the Platform, or any feature or functionality thereof. No User or other person may use any of All About The Mom Intellectual Property without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion. All goodwill arising from or incident to any use of All About The Mom Intellectual Property shall inure exclusively to us or our third party licensors as applicable.
You agree you shall not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property infringement claim with respect to the Platform.
C. Notice of Infringement
All About The Mom respects applicable intellectual property Laws and expects all Users to do the same. It is All About The Mom’s policy to terminate in appropriate circumstances access of Users who repeatedly infringe or are believed to be repeatedly infringing the rights of Intellectual Property owners. Claims of trademark, copyright, or patent infringement or any other alleged Intellectual Property violations should be sent to All About The Mom’s designated agent.
If you are an intellectual property owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged infringements taking place on or through the Platform by submitting a complete Notice of Alleged Infringement as described below and delivering it to All About The Mom. Upon receipt of the Notice as described below, All About The Mom will take whatever action, in its sole discretion, it deems appropriate, including removal of the alleged infringing content from the Platform.
Notice of Alleged Infringement
1. Provide your mailing address, telephone number, and, if available, email address.
2. Identify the intellectual property that you claim has been infringed by providing a comprehensive list of the items (works, trademarks, etc.) that you claim have been infringed. If your work is registered with the United States Patent and Trademark Office, United States Copyright Office, or other intellectual property office or jurisdiction, you must include copies of the registration certificates or information sufficient to confirm that such work is in in fact protected.
3. Identify the material that you claim is 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, including at a minimum, if applicable, the URL of the link shown on the Platform where such material may be found.
4. Provide your full legal name and electronically sign and affirm the following statement: “I hereby affirm that I have a good faith belief that the disputed use of the material is not authorized by the owner, its agent, or the law (e.g., as a fair use). I affirm that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the Intellectual Property or of an exclusive right under the Intellectual Property that is allegedly infringed.”
5. Deliver this Notice, with all items completed, to All About The Mom by email to [email protected].
D. All About The Mom License
All About The Mom grants Users a limited, non-exclusive, non-transferable license, to (i) access and use the Platform and any All About The Mom Software; (ii) access and view any All About The Mom Content solely for your use of the Platform and (iii) access and view any User Content to which you are permitted access, solely for your use of the Platform. You have no right to sublicense the license rights granted in this section. You agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise to All About The Mom Intellectual Property, except for the licenses and rights expressly granted in these Terms.
E. User Content License
All About The Mom may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to All About The Mom a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of, or to promote or market the Platform. All About The Mom does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Platform. Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of all User Content that you make available through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to All About The Mom the rights in such User Content, as contemplated under these Terms, and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or All About The Mom’s use of the User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary rights or Intellectual Property, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
If you provide any suggested improvement(s) to the Platform or any feature or functionality thereof (each a “Suggestion” and collectively “Suggestions”) to All About The Mom, we will own all right, title and interest (including any Intellectual Property Rights) in and to any Suggestion even if the person making the Suggestion has designated the Suggestion as confidential or proprietary. All About The Mom shall be entitled to use and exploit any Suggestion without restriction. You must, and hereby do, irrevocably assign to All About The Mom all right, title and interest (including all Intellectual Property Rights) in and to all Suggestions (if any) and agree to provide us or our designees with any assistance we may or they may reasonably request or require from time to time to further document, perfect and maintain our rights in any Suggestion.
VIII. Affiliate Marketing; Third Party Websites, Applications, Links, and Resources
The Platform may contain links to or otherwise interface or connect with third party websites or resources, such social media sites and payment processors. You acknowledge and agree that All About The Mom is not responsible or liable for (i) the availability or accuracy of such websites or resources or (ii) the content, products, or services on or available from such websites or resources.
AFFILIATE MARKETING DISCLAIMER:
In addition, in some instances and from time to time we may provide through the Platform links to certain third party products and services and those links may be affiliate links. If you click on those links and chose to make a purchase from such a third party, we may in certain instances earn a small commission from that third party. The commission is paid to us by the third party, not from you and you will incur no additional cost.
Links to such websites or resources do not imply any endorsement by All About The Mom of any third party websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
IX. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, OR ANY FEATURE OR SERVICE ACCESSED OR OFFERED ON OR THROUGH THE PLATFORM REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ALL ABOUT THE MOM NOR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS OR AFFILIATES, SHALL BE LIABLE TO ANY USER, ANY USER, ANY GUESTS OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR FOR ANY DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS IN CONNECTION WITH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SYSTEM OR ANY SERVICE OR ANY PART THEREOF, (II) THE PROVISION OF OR FAILURE TO PROVIDE, OR ANY INTERRUPTION OF, ANY ALL ABOUT THE MOM SERVICE OR ANY OTHER SERVICE, (III) ANY INFORMATION, SOFTWARE, PRODUCT, SERVICE, DATA, FILE, CONTENT, OR MATERIALS STORED ON, OBTAINED THROUGH, UPLOADED TO OR DOWNLOADED FROM THE SYSTEM OR ANY SERVICE, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING, (IV) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR CONTENT, OR (V) ANY ACCESS TO OR USE OF, OR ANY INABILITY TO ACCESS OR USE ANY CONTENT OR MATERIALS.
IN THE EVENT THAT NOTWITHSTANDING THE PROVISIONS OF THE FOREGOING PARAGRAPHS OF THIS SECTION, WE (OR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES OR THIRD PARTY LICENSORS OR SUPPLIERS) ARE FOUND LIABLE TO ANY USER, USER OR GUEST OR OTHERWISE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THE AGGREGATE AMOUNT OF ALL SUCH LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO US BY USER OR YOU (AS APPLICABLE) FOR AND WITH RESPECT TO THE PARTICULAR SERVICES THAT GIVE RISE TO SUCH CLAIM IN WHICH THE CAUSE OF ACTION ACCRUED.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree and must at all times indemnify, defend and hold All About The Mom and its third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors, managers and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) any User or other person’s use of or access to the Platform in a manner not authorized by these Terms, or in violation of any applicable laws, (ii) Content including any claim involving infringement or misappropriation of third party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of User Content, (iii) any breach by User or any other person of any term or condition of these Terms, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of User or any other person using or accessing the Platform.
We will promptly notify you of any claim which we become aware of and which we believe to be subject to indemnification under this Section; provided that our failure to promptly notify you shall not affect your indemnification obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim(s) with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you (nor any Person acting on your behalf) may enter into any settlement without All About The Mom’s prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim.
XI. Dispute Resolution
If you reside in the United States, you and All About The Mom 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 to the use of the Platform (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief (and associated legal relief) in a court of competent jurisdiction to redress or prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights. You acknowledge and agree that you and All About The Mom are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding. Further, unless both you and All About The Mom 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.
B. Rules and Governing Law
This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. 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. 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 form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute 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.
D. Location and Procedure
Unless you and All About The Mom otherwise agree, the arbitration will be conducted in Miami-Dade County, Florida, United States. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and All About The Mom 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 damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the 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.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Modification” section above, if All About The Mom 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) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of All About The Mom’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 All About The Mom 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).
XII. General Provisions
A. General Rules of Construction
For purposes of these Terms: (i) whenever the context requires, the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include the masculine and feminine genders. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of these Terms. As used in these Terms: (i) the words “hereof”, “hereunder”, “herein” and words of similar import refer to these Terms as a whole and not to any particular provision of these Terms; (ii) the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (iii) except as otherwise expressly indicated, all references in these Terms to “Sections”, “Subsections”, “Paragraphs”, “Schedules”, “Exhibits” are intended to refer to sections, subsections or paragraphs of these Terms; and (iv) the word “or” means “and/or”.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by All About The Mom (i) via email (in each case to the address that you provide) or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
C. Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Florida and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Miami-Dade County, Florida or a United States District Court, Southern District of Florida located in Miami-Dade County, Florida for any actions for which the parties retain the right 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, as set forth in the Dispute Resolution provision.
If any provision of these Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of these Terms, and the application of such provision to persons, entities, or circumstances other than those with respect to which it is held invalid, shall not be affected.
E. Waiver and Enforceability
The failure of All About The Mom to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that 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 All About The Mom. 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. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
F. Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
G. Term and Termination
These Terms are effective upon your access and use of the Platform or of any User Feature, as amended by any modifications made by All About The Mom as outlined at the start of these Terms. You may discontinue your use of User Features at any time, for any reason. We may revoke your permission to access the Platform or any or all User Features, at any time, for any reason, with or without notice to you. We reserve the right to refuse access to the Platform or any User Feature to any User for any reason not prohibited by applicable Law. Either party may terminate the Terms for any reason upon written notice to the other party.
Sections I (Definitions), II (Acknowledgments and Disclaimers), VII (Intellectual Property and User License Agreement), IX (Limitation of Liability), X (Indemnification), XI (Dispute Resolution), and XII (General Provisions) shall survive termination of these Terms.
I. Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between All About The Mom and you regarding the Platform, any Services rendered via the Platform, and these Terms supersede and replace any and all prior oral or written understandings or agreements between All About The Mom and you regarding the Platform.
These Terms are neither assignable, transferrable nor delegable by you whether by operation of Law or otherwise. Any attempt by you to assign, transfer, or delegate any of these Terms, will be null and void and of no effect. All About The Mom may assign, transfer or delegate these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the respective parties, their successors and permitted assigns.
K. How to Contact Us
If you have any questions regarding these Terms or our privacy practices, you can contact us at:
Attn: Lisa Friedman
13499 BISCAYNE BLVD., TS6
MIAMI, FL 33181
Toll-free: (786) 868-0331
Or by email at: [email protected]