Terms of Use

These Terms of Use are a legally binding contract between you and Momseze, Inc. (“Momseze,” “we,” or “us regarding your use ofMomseze’ssuite of online services and software applications (“Momseze” or the “Service”).

PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING MOMSEZE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE MOMSEZE PRIVACY POLICY (TOGETHER, THE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use Momseze.

MOMSEZE IS NOT DESIGNED OR INTENDED FOR USE IN EMERGENCY SITUATIONS. EMERGENCIES AND URGENT QUESTIONS SHOULD BE DIRECTED IMMEDIATELY TO QUALIFIED PROFESSIONALS (E.G., IN THE UNITED STATES, CALL 911 AND/OR VISIT AN URGENT CARE CENTER). MOMSEZE IS NOT INTENDED TO DIAGNOSE OR TREAT ANY MEDICAL CONDITION OR AUTOMATICALLY ALERT YOUR PHYSICIAN, HEALTHCARE PROVIDERS, OR EMERGENCY SERVICES TO POTENTIALLY SERIOUS MEDICAL CONDITIONS. YOU ARE RESPONSIBLE FOR ACTIVELY COMMUNICATING WITH AN OBSTETRICIAN, PEDIATRICIAN, SOCIAL WORKER,ORSIMILAR CAREGIVER.

MOMSEZE IS NOT A HEALTHCARE PROVIDER AND DOES NOT PROVIDE MEDICAL CARE OR ADVICE. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER, WHETHER OR NOT YOU HAVE USED THE SERVICE. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

These Terms provide that all disputes between you and Momseze will be resolved by BINDING ARBITRATION, to the fullest extent permitted under applicable law. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 27 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Momseze.

  1. Momseze Overview. Momseze is intended only to facilitate yourcommunication with and seeking advice from independent lactation consultants, sleep specialists, and other professionals and community members who offer support and advice to new mothers and parents, and obtaining related third-party products and services. You may not access or use Momseze for any other purpose. Momseze is not intended to diagnose or treat any medical condition, provide medical or therapeutic advice, or automatically alert you or your healthcare providers or emergency servicesto potentially serious medical conditions. You are solely responsible for any information, images, videos, or other content or materials you upload to or transmit throughMomseze (“Communications Data”).
  2. Your Consultants. Although the Service is intended to facilitate your access to a lactation consultant, Momseze does not itself provide any lactation consulting services. All of the lactation consultants providing services using the Momseze Service are independent contractors and use the Service as a way to communicate with you Any information or advice you may receive from a consultant comes from the consultant alone, and not from Momseze. Momseze does not provide, and has no obligation to monitor or review, such advice. Your interactions with lactation consultants via the Service are not intended to take the place of your relationship with your regular health care providers. Neither Momseze nor any of its subsidiaries, affiliates, or contractors shall be liable for any advice obtained from a consultant via the Service or for any other information obtained through the Service. Momseze does not endorse any specific tests, physicians, providers, medications, products or procedures that are recommended by consultants that may use the Service to communicate with you. The consultants whose services are available through the Service have represented to us that they are qualified to provide lactation consultation services and any other services they provide through the Service; however, it is your responsibility to request and review your consultant’s credentials, experience, and similar information. You, and not Momseze, are responsible for choosing your consultant. If you have any concerns about your consultant, including concerns about their credentials or experience, we encourage you to contact us at hifriendseze@momseze.com. Although Momseze requires lactation consultants to adhere to certain policies when providing services through the Service, we have no control over, and cannot guarantee the availability or quality of consulting services provided through the Service. We welcome your feedback about your experience with your consultant so that other users can benefit from that information.
  3. Eligibility. You must be at least 16years old to use Momseze’s services. By agreeing to these Terms, you represent and warrant to us that: (a) you are an individual who is at least 16years old; (b) you have not previously been suspended or removed from Momseze; (c) your registration and your use of Momseze is in compliance with all applicable laws and regulations; and (d) you have read and agree to our Privacy Policy, as further described in Section 16 below. If you are under the age of 18 and not an emancipated minor or its equivalent under applicable law, then you represent and warrant that you have obtained the consent of your parent or legal guardian to use the Momseze services.
  4. Accounts and Registration. To access most features of Momseze, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, location, email address,and/or other contact information, as well as certain information about your infant(s), such as their delivery date. You agree that the registration information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You understand and agree that as part of the registration process we may use this information to verify your eligibility to use Momseze. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at help@momseze.com.
  5. Location Based Services. Some of the features of the Service may enable Momseze to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you may be asked to enable certain features of your mobile phone, which enable Momsezeto identify your location through a variety of means, including GPS location, IP address, or cellular, Wi-Fi, or Bluetooth signals, as available. If you choose to disable any Location-based Services on your device, you may not be able to utilize certain features of the Service. By enabling Location-based Services, you agree and acknowledge that: (i) device data we collect from you is directly relevant to your use of the Service; (ii) Momseze may provide Location-based Services related to and based on your then-current location; and (iii) Momseze may use any such information collected in connection with provision of the Service.
  6. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees.Fees are also charged for purchases of other Products (as defined below) through the Service. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable, to the fullest extent permitted under applicable law. If Momseze changes the fees for the Service, including by adding additional fees or charges, Momseze will provide you advance notice of those changes. If you do not accept the changes, Momseze may discontinue providing the Service to you. Notwithstanding the foregoing, if you have entered into a separate written agreement with Momseze governing your use of Momseze which specifies the fees for the Service, such fees will remain as provided therein for the term of that agreement. Momsezeor its payment processor will charge the payment method you specify at the time of purchase. You authorize Momseze to charge all sums as described in these Terms, for the Products and Services you select, to that payment method. If you pay any fees with a credit card, Momseze may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Momseze to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take several business days for the update or cancellation to take effect.Only lactation consulting services provided through the Momseze Services are included in your payments to Momseze. You are solely responsible for paying any in-person consultants or healthcare providers you engage to provide services to you with respect to lactation or otherwise. Our lactation consultants are not allowed to charge you directly for any consulting services provided through the Momseze Service. We encourage you to inform us if any consultant solicits such a fee or charge for services offered through the Momseze Service.
  7. Licenses
    • Limited License. Subject to your ongoing compliance with these Terms, Momseze grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (i) install the mobile application(s) associated with the Service, and use such mobile applications so installed, solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on devices that you own or control, and (ii) access and use the Service for your personal, non-commercial use for lawful purposes.
    • License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Service or any part thereof; or (iii) interfere with or circumvent any feature of the Service or any part thereof, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
    • Open Source Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms will be deemed to prevent, restrict, or otherwise prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
  8. Other Products. Momseze may from time to time offer additional products and/or services for purchase from Momseze (“Products”), including products and services of third parties. All such purchases are subject to the following terms and conditions, and any additional terms and conditions of sale imposed at the time of purchase.

    • Prices. Prices for physical Products include packaging for domestic shipment, and are exclusive of any other amounts including without limitation fees for export, special packaging, transportation, and insurance, which shall be paid by you. Prices do not include any taxes, customs duties or tariffs (collectively “Taxes”). Sales taxes will be applied to all purchases as required by law. You are responsible for any other taxes, including all import duties, customs fees, tariffs and other charges associated with shipping.
    • Shipping and Handling. Momseze will ship any physical Product(s) you purchase at your expense to the address you specify at the time of purchase. Certain Products may be subject to additional shipping and handling fees as stated on the Service or otherwise disclosed to you.
    • Changes and Cancellations. In order to change or cancel an order, return Products to Momseze, or otherwise obtain a credit or refund for a purchase, you must obtain written approval from an authorized representative of Momseze by contacting help@momseze.com, which approval may be granted or withheld in Momseze’s sole discretion. In the event that you refuse to accept a shipment, and the Product is returned to Momseze unopened and in new condition, Momseze may charge a restocking fee of up to 25% of the total purchase price of the returned Product, plus all shipping charges incurred in the return shipment of the Product. The balance of the total purchase price for the Product will be issued to you only as a credit to be used against future purchases from Momseze. No refunds or credits will be issued for returned Products that are not unopened and new, except as may be provided for in Section 8.4 below.
    • Manufacturer Warranties. Return of defective Products must be made according to Momseze’s then-current return and RMA policies. All Products manufactured by third parties are offered solely under the warranties provided by such manufacturers, and although Momseze may pass such manufacturer warranties through to you to the extent permitted by Momseze’s contracts regarding its resale of such Products, Momseze makes no warranties to you on its own behalf regarding the Products, whether express, implied, or statutory, and Momseze reserves the right to direct any warranty claims you may have regarding the Products directly to the manufacturer(s) of such Products.
  9. Consent to Communications and Monitoring/Recording of Video and Voice Calls and Text Messages Made Through the Service. By providing us with your contact information and using Momseze, you agree to receive communications, including via e-mail and phone calls (including text messages and calls made using an autodialer or prerecorded voice message), and push notifications from or on behalf of Momseze or one of the consultants or users using the Service at the email address or telephone number you provided even if that number is on a National or State Do Not Call List. These calls and messages may be for informational purposes, such as to provide you with the information or consultation you requested. Standard text messaging and telephone minute charges applied by your cell phone carrier will apply.
    Momseze may, without further notice or warning and in our discretion, monitor and/or record video and voice consultations and text message-based consultations that occur on or through the Servicebetween you and consultants for our business purposes, such as quality assurance and training purposes and to protect our rights and the rights of others, and you hereby consent to such monitoring and recording. You may also record video conference sessions with a consultant and save them to your profile for future viewing. By using the option to record such videos, you consent to our recording of the videos for you.

    IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE MARKETING EMAIL ITSELF. IF YOU WISH TO OPT OUT OF SMS and MMS TEXTS, YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. You understand and agree that you may continue to receive communications while Momseze processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.

  10. Notifications and Automatic Alerts. Under some circumstances, Momseze may present you with notifications, prompts with links to handouts or additional information, or suggested actions based on Momseze’s analysis of your Communications Data and other information you have provided to Momseze. Those notifications, prompts, or suggested actions, or lack thereof, are not intended to replace the opinion of your physician or other healthcare professionals. It is your responsibility to meet regularly with your healthcare professionals to determine the proper course of action is based on yourtherapeuticand medical history.Momseze makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of any push notifications. You accept that any reliance on these notifications will be at your own risk, and Momseze disclaims all liability arising from your use of them or reliance upon them. You agree that Momseze may send push notifications to your email address or mobile device for Service-related or marketing purposes, if they are enabled, provided that we do so in accordance with the Momseze Privacy Policy. You may turn off push notifications through your application settings.
  11. User Content

    • User Content Generally. Certain features of Momseze may permit you, your lactation consultants, or other users to upload content to Momseze, including Communications Data and other messages, reviews, images, data, text, and other types of information (“User Content”) and to publish User Content on Momseze. You retain any copyrights, moral rights, and any other proprietary rights that you may hold in the User Content that you post to Momseze.
    • Limited License Grant to Momseze. By posting or publishing User Content, you grant Momseze a worldwide, non-exclusive, royalty-free, fully paid, unrestricted right and license (with the right to sublicense) to use, host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in accordance with our Privacy Policy, in any media formats and through any media channels now known or hereafter developed.
    • Limited License Grant to Other Users. By posting or sharing User Content with our consultants, specialists, or other users of Momseze, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of Momseze.
    • User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
      • you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Momseze and users of Momseze to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Momseze, Momseze, and these Terms; and
      • your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Momseze to violate any law or regulation, including laws related to the privacy of personal or health information. Without limiting the foregoing, if you post any “sponsored” User Content that reviews or endorses particular products and services, you agree to (x) comply with all applicable laws and regulations related to sponsored content and (y) clearly disclose to the audience for such User Content the fact that such User Content is “sponsored” and any and all remuneration exchanged for producing and/or posting such User Content.
    • User Content Disclaimer. We are under no obligation to monitor, edit, or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content or any failure to review or act upon User Content. Momseze may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using Momseze you will be exposed to User Content from a variety of sources and acknowledge that User Content may contain nudity and depictions of lactation, breast-feeding and other aspects of infant care, and maybe inaccurate, offensive, indecent, or otherwise objectionable to you. Furthermore, you acknowledge that certain User Content, such as product reviews, may be “sponsored” or otherwise incentivized by Momseze or third parties, and that Momseze is not responsible for any inadequate disclosure of potential conflicts of interest by the producers or publishers of such User Content. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Momseze with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
  12. Procedure for Unlawful User Content
    • General. If you believe that any User Content does not conform to these Terms, please notify us at help@momseze.com.
    • DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act (the “DMCA”) applicable to our operations (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on Momseze, you may contact our designated agent at the following address:

      Momseze, Inc.
      ATTN: Legal Department (Copyright Notification)
      3527 Mt. Diablo Blvd, #399
      Lafayette, CA 94549
      877-466-6435
      Email: help@momseze.com

      Please note that under applicable law, if you knowingly give false, misleading or inaccurate information that User Consent is infringing, you may be subject to civil or criminal penalty. Any notice under the Digital Millennium Copyright Act (the “DMCA”) alleging that materials hosted by or distributed through Momseze infringe intellectual property rights must include all of the information required by the DMCA for such notices.

    • Repeat Infringers. Momseze will promptly terminate without notice the accounts of users that are determined by Momseze to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from Momseze at least three times.
  13. Prohibited Conduct. BY USING MOMSEZE YOU AGREE NOT TO:

    • use or access Momseze (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
    • conduct activities that may be harmful to others or that could damage Momseze’s reputation;
    • violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or violating any third party privacy right;
    • post, upload, or distribute marketing or advertising links or content, or any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
    • use scrapers, robots, or other data gathering devices not provided by Momseze on or through Momseze;
    • interfere with security-related features of Momseze, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of Momseze, including the app(s), except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
    • interfere with the operation of Momseze or any user’s enjoyment of Momseze, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of Momseze; (c) attempting to collect personal information,Communications Data, or other information about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide Momseze, or violating any regulation, policy, or procedure of any such network, equipment, or server;
    • perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or accreditation, accessing any other Momseze or patient account without permission, or falsifying your account registration information;
    • modify, translate, or create derivative works, adaptations or compilations of, or based on, Momseze or part thereof, or use, copy or reproduce Momseze or any part thereof other than as expressly permitted in these Terms;
    • assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 13) or any right or ability to view, access, or use any Material; or
    • attempt to do any of the acts described in this Section 13, or assist or permit any person in engaging in any of the acts described in this Section 13.
  14. Third-Party Services and Linked Websites. Momseze may provide tools through Momseze that enable you to export information, including Communications Data or other User Content, to third party services, including through features that allow you to link your account on Momseze with an account on the third party service. By using one of these tools, you represent, warrant, and agree that such transfers are permitted under applicable law, and that you are authorized to, and that we may on your behalf, transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of exported information. Momseze may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
  15. Termination of Use; Discontinuation and Modification of Momseze. You may terminate your account at any time by contacting customer service at help@momseze.com. If you violate any provision of these Terms, your permission from us to use Momseze will terminate automatically. In addition, Momseze may in its sole discretion terminate your user account on Momseze or suspend or terminate your access to Momseze at any time if you violate any provision of these Terms, if we no longer provide any part of Momseze, or for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue Momseze at any time (including by limiting or discontinuing certain features of Momseze), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to Momseze or any suspension or termination of your access to or use of Momseze. Upon the termination of your account or this agreement for any reason, Momseze may at its option delete any data associated with your account.
  16. Privacy Policy; Additional Terms

    • Privacy Policy. Please read the Momseze
      Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The MomsezePrivacy Policy is incorporated by this reference into, and made a part of, these Terms. You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of your personal information (including sharing data with third party providers) as described in the Momseze Privacy
    • Additional Terms. Your use of Momseze is subject to all additional terms, policies, rules, or guidelines applicable to Momseze or certain features of Momseze that we may post on or link to from Momseze (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, our HIPAA notice and informed consent forms, if applicable, or rules that are applicable to a particular feature or content on Momseze, subject to Section 17. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
  17. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will notify you of the modified Terms by email to the address you provided in your user profile and/or in a notification in Momseze or on our website. Material modifications will be effective upon your acceptance of such modified Terms or upon your continued use of Momseze after we send or post our notification of the changes, whichever is earlier. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
  18. Ownership; Proprietary Rights. Momseze is owned and operated by Momseze. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of Momseze (“Materials”) provided by Momseze are protected by intellectual property and other laws. All Materials included in Momseze are the property of Momseze or our third-party licensors. Except as expressly authorized by Momseze, you may not make use of the Materials. Momseze reserves all rights to the Materials not granted expressly in these Terms.
  19. Subcontractors. You hereby consent to Momseze’s engagement of third parties (including Momseze’s affiliates) to perform, provide, or support the performance or provision of, all or any portion of Momseze or the Momseze website.
  20. Feedback.After you have received services through Momseze, you may have the opportunity to rate your experience and leave additional feedback. If you choose to provide input or suggestions regarding problems with your experience with the Services or proposed modifications or improvements to Momseze (“Feedback”), then you hereby grant Momseze an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve Momseze and create other products and services.
  21. Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of Momseze, and you will defend and indemnify Momseze and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Momseze Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, Momseze; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
  22. Disclaimers; No Warranties
    MOMSEZE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH MOMSEZE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE MOMSEZE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO MOMSEZE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH MOMSEZE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE COMMUNICATIONS DATA OR OTHER INFORMATION AVAILABLE THROUGHOR TRANSMITTED BY THE SERVICE OR ANY CONSULTANT PROVIDING SERVICES THROUGH THE MOMSEZE SERVICEIS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT MOMSEZE IS NOT RESPONSIBLE FOR ANY THERAPEUTIC OR OTHER HEALTHCARE DECISIONS MADE BY YOUR CONSULTANTS, SPECIALISTS, OR ANY OTHER HEALTHCARE PROFESSIONALS BASED UPON DATA OR INFORMATION COLLECTED, TRANSMITTED OR DISPLAYED BY OR THROUGH MOMSEZE, WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE MOMSEZE ENTITIES DO NOT WARRANT THAT MOMSEZE OR ANY PORTION OF MOMSEZE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH MOMSEZE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOMSEZE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH MOMSEZE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MOMSEZE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU OR YOUR CHILD FROM YOUR USE OF OR ACCESS TO MOMSEZE, YOUR DEALING WITH CONSULTANTS, SPECIALISTS, OR ANY OTHER MOMSEZE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH MOMSEZE. YOU UNDERSTAND AND AGREE THAT YOU USE MOMSEZE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH MOMSEZE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH MOMSEZE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF MOMSEZE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
    THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

  23. Limitation of Liability
    IN NO EVENT WILL THE MOMSEZE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, MOMSEZE OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH MOMSEZE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY MOMSEZE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
    EXCEPT AS PROVIDED IN SECTION 27.4(III), THE AGGREGATE LIABILITY OF THE MOMSEZE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF MOMSEZE, PRODUCTS SOLD THROUGH MOMSEZE, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 23 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  24. Force Majeure. To the fullest extent permitted under applicable law, Momseze will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet disruption or downtime; (5) unauthorized access to Momseze’s information technology systems by third parties; or (6) other causes beyond the reasonable control of Momseze.
  25. Governing Law.
    These Terms are governed by the laws of the State of California without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Momseze agree to submit to the exclusive jurisdiction of the state courts and federal courts located within Contra Costa County, California for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof. We operate Momseze from our offices in the United States, and we make no representation that Materials included in Momseze are appropriate or available for use in other locations.
  26. General.
    These Terms, together withthe Momseze Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Momseze regarding your use of Momseze. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, Sections 2, 5, and 8through 27, along with the MomsezePrivacy Policy and any other accompanying agreements, will survive.
  27. Dispute Resolution and Arbitration
    • Generally. In the interest of resolving disputes between you and Momseze in the most expedient and cost effective manner, you and Momseze agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MOMSEZE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
    • Exceptions. Despite the provisions of Section 27.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    • Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and Momseze will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Momseze.
    • Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Momseze’s address for Notice is: Momseze, Inc., Attention: Legal Department, 3527 Mt. Diablo Blvd, #399, Lafayette CA 94549. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Momseze may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Momseze must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Momseze will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any, subject to the limitations of liability contained herein; (ii) the last written settlement amount offered by Momseze in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
    • Fees. If you commence arbitration in accordance with these Terms, Momseze will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Contra Costa County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Momseze for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
    • No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND MOMSEZE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Momseze agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    • Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
    • Modifications to this Arbitration Provision. If Momseze makes any future change to this arbitration provision, other than a change to Momseze’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Momseze’s address for Notice, in which case your account with Momseze will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
    • Enforceability. If Section 27.6 is found to be unenforceable or if the entirety of this Section 27 is found to be unenforceable, then the entirety of this Section 27(except this Section 27.9) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 25 will govern any action arising out of or related to these Terms.
  28. Consent to Electronic Communications. By using Momseze, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. By providing your mobile number to us, you consent to receiving text messages at that number for account verification, notifications, and other purposes related to the Service. In addition to any fees Momseze may charge for use of text or multimedia messaging with the Service, your carrier may charge standard messaging, data, and other fees, and you are responsible for those charges. We may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. We are not responsible for the timeliness or final delivery of text messages, as that is outside our control and is the responsibility of the cellular telephone operator or other networks. Notwithstanding the foregoing, we will use your mobile number in accordance with our Privacy Policy.
  29. Contact Information. Momseze is offered by Momseze,Inc. You may contact us by emailing us at help@momseze.com, or writing to us at 3527 Mt. Diablo Blvd, #399, Lafayette CA 94549..
  30. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
  31. Notice Regarding Apple. This Section 31 only applies to the extent you are using our mobile application(s) on an iOS device. You acknowledge that these Terms are between you and Momsezeonly, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.