Terms and Conditions
Last updated: June 1, 2019
By using the http://www.momokidsny.com website and the momokidsny mobile application(the “Site”) and any products or services purchased through the Site (each, a “Product” and collectively, the “Products”), you agree to the Terms and Conditions ("Terms", "Terms and Conditions") with respect to the Site. The term “MOMO KIDS” or “us” or “we” or “our” refersto MOMO KIDS NEW YORK, INC., a New York corporation, or any of its subsidiaries. The term“you” refers to the user or viewer of our Site.
1.1 You may purchase our Products through this Site by using our online store. If you use our Site to purchase a Product, payment must be received prior to our accepting an order, unless we otherwise agreed in advance. We may reject orders where the stated delivery address is outside the United States. We reserve the right to refuse any order you place with us. We expressly condition our acceptance of your order on your agreement to these Terms.
1.2 We may need to verify information you provide before we accept an order, and may cancel or limit an order any time after it has been placed. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, re-sellers or distributors. If payment has already been made and your order is cancelled or limited, we will refund you any payment made for the Product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase.
1.3 All orders are subject to sales tax which will be applied to your order total. If stated, we will add applicable shipping and handling fees to the amount billed.
1.4 The descriptions of, or references to, Products not owned by us do not imply endorsement of that Product, or constitute a warranty, by us.
2. Accuracy of Billing and Account Information
2.1 In ordering Products through our Site, you agree to provide only true, accurate, current, and complete information. You hereby certify that any e-mail account you provide is registered to you. You agree to promptly update your account and other information, including your e-mail address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
2.2 We reserve the right to bar your access to and use of our Site if we have reasonable grounds to believe you have provided untrue, inaccurate, not current, or incomplete information, or for any other reason we, in our sole discretion, deem appropriate. You agree that if you are ordering or purchasing Products on behalf of a company, you have sufficient authority to bind that company to these Terms. You agree that your placement of an electronic order on our Site is sufficient to satisfy any applicable statute of frauds, and no further writing is required.
3.1 All orders are processed and shipped on business days only, Monday through Friday, excluding major holidays. Orders placed on Saturday and Sunday will be processed on the following business day. Although we may provide delivery or shipment time frames or dates (usually 7-10 days), you understand that those are our good-faith estimates and may be subject to change. You further understand that Product availability may be limited, and particular Products may not be available for immediate delivery, in which case the Products will be delivered when they become available. We will not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery.
3.2 Shipping and handling charges will be free, and we do not provide any expedited shipping services. Shipping and handling charges, however, are subject to change.
Use of the Site and Products
4. Age Restrictions and the Children’s Online Privacy Protection Act.
4.1 This Site is intended for use by individuals over the age of 18 years. If you are under 18 years of age, an appropriate legal guardian must act on your behalf for you to use this Site.
5. Restrictions on Use
5.1 You agree and represent you will not use the Site to:
5.1.1 impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity, or create a false identity for purposes of misleading others;
5.1.2 upload, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, false, misleading, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
5.1.3 upload, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
5.1.4 upload, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, network, hardware or telecommunications equipment;
5.1.5 engage in sending “spam” or any other form of solicitation;
5.1.6 use automated scripts to collect information from or otherwise interact with the Site;
5.1.7 violate any applicable local, state, national or international law; or
5.1.8 provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or
5.1.9 purchase for resale, or resell any Products available in our online store, without our prior written approval.
5.2 You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Site pages or the content contained herein without our prior express written permission. You agree that you will not use any device, software or routine to bypass any code which may be included to prevent you from breaching the obligations in this paragraph or to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our or our host’s infrastructure.
5.3 You may not engage in the practices of “screen scraping,” “database scraping,” or any other practice or activity the purpose of which is to obtain lists of users, portions of a database, or other lists or information from this Site, in any manner or in any quantities not authorized by MOMO KIDS. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of MOMO KIDS or its affiliates without prior express written consent. You may not use metatags or any other “hidden text” utilizing our name or trademarks without the express written consent of us. Systematic retrieval of data from this site to create or compile directly or indirectly, in whole or in part, a collection, compilation, database or directory without the express written permission of MOMO KIDS is strictly prohibited.
6. Descriptions of Site, Products and Services
6.1 You are responsible for providing, at your own expense, all equipment necessary to use the Services, including a computer, modem, and Internet access (including payment of all fees associated with such access).
6.2 We reserve the sole right to either modify or discontinue the Site, including any of the Sites features, at any time with or without notice to you. We will not be liable to you or any third party should we exercise such right. Any new features that augment or enhance the then-current Services on this Site shall also be subject to these Terms and Conditions.
6.3 You acknowledge and agree that all of our Products available through the Site shall be subject to our Return Policy.
6.4 Although this Site may be accessible worldwide, we make no representation that materials on this Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any Products and/or information made in connection with this Site is void where prohibited.
7. Information You Provide, Account Registration
7.1 You may register for an account on the Site (the “Account”) or log inby connecting with a third party provider. By registering, you agree that all information provided in the Account is true and accurate and that you will maintain and update the information as required in order to keep the Account current, complete and accurate. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are responsible for maintaining the confidentiality of your username and password. We encourage you to use“strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your Account.
7.3 You agree that we may at any time, and at our sole discretion, terminate or suspend your Account without prior notice to you for any reason. Without limiting the foregoing, we reserve the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of any Account or anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS US FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY US DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US OR LAW ENFORCEMENT AUTHORITIES.
8. User Submissions of Image, Video, Audio Files
8.1 The Site may include the “MOMO KIDS Social Page”, located at a thirdparty provider (such as Facebook, Twitter, Pinterest, and Instagram), which pulls content from our users who share any communications or content of any type (such as photos, videos, or audio) using our brand hashtags, including, without limitation, #momokids, or #momokidsny or tagging the @momokidsny account (collectively, the “User Content”). You acknowledgeand agree that the User Content may be used in our showroom space, retail locations, e-mails or any other locations MOMO KIDS owns or operates.
8.2 You agree not to upload or transmit any User Content that infringes or violates any rights of any party. You represent that any such User Content has been taken or recorded by you or that you have all rights to transmit and license and which do not violate trademark, copyright, privacy or any other rights of any other person.
8.3 You agree that any Personally Identifiable Information (such as name, phone number, or e-mail address) contained in User Content that you submit belongs only to you or your dependents or members of your immediate family and not to anyone else. Uploading User Content like images or video of other people without their permission is strictly prohibited. By uploading and e- mailing any User Content on the Site, you warrant that you have permission from all persons appearing in your User Content for you to make this contribution and grant rights described herein.
hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the User Content or your failure to comply with the terms described in this Agreement.
MOMO KIDS’ Rights and Responsibilities
9. Links to Other Sites
9.1 The Site may contain links to third party websites, including social media sites. Unless otherwise stated, any links that are provided are not intended to state or imply that MOMO KIDS sponsors, is affiliated or associated with, or is legally authorized to use any trade name, registered trademark, logo, legal or official seal, or copyrighted symbol that may be reflected in the links.
9.2 MOMO KIDS makes no warranties, explicit or implied, regarding the performance of the links, the performance of the outside sites or the contents of the outside sites. If you decide to access linked third party websites, include social media sites, you do so at your own risk. Our liability and responsibility in relation to any information on any third party site or any product purchased through such third party site is expressly limited by the Terms of this Agreement.
10. MOMO KIDS Intellectual Property Rights
10.1 The Site is protected by copyright, trademark, trade dress and other
intellectual property rights.
10.2 MOMO KIDS grants you a personal, revocable, non-transferable, and non-exclusive right and license to use the object code of the Site on a single computer or mobile device; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the software for the Site except and only to the extent that such activity is permitted by applicable law notwithstanding this limitation.
10.3 The logos, trademarks and other service marks or service names included on the Site (the “Marks”) are owned or licensed by MOMO KIDS. You agree not to copy, display or otherwise use any of the Marks without the prior written permission of MOMO KIDS. Notwithstanding the foregoing, the Marks may not be used in any manner likely to cause confusion, disparage or dilute these marks and/or in connection with any product or service that is not authorized or sponsored by MOMO KIDS.
10.4 The entire Site, and all object code and source code, text, graphics, multimedia content, including but not limited to images, illustrations, html and other mark-up languages, and all scripts within the site associated therewith, are Copyright© 2019 MOMO KIDS NEW YORK INC. All Rights Reserved worldwide. The copyrighted and proprietary property of MOMO KIDS or its affiliates may not be duplicated or used without our express prior written consent.
11. Materials and User Content
11.2 Third-Party Material. MOMO KIDS will not be liable for any content posted by third parties, or at the direction of users; you must evaluate the accuracy and usefulness of such content. MOMO KIDS does not pre-screen content, but MOMO KIDS and its designees will have the right (but not the obligation) to refuse or remove any content that is available via the Site, including the right to remove any content that violates the Terms or is deemed by MOMO KIDS to be objectionable.
12. Notice for Copyright Infringement
12.1 If you or any user of this Site believes any copyright, trademark or other property rights have been infringed by a posting on this Site, you or the user should send notification to our contact immediately. To be effective, the notification must include:
i) Identify in sufficient detail the copyrighted work that you believe has been infringed upon or other information sufficient to specify the copyrighted work being infringed;
ii) Identify the material that you claim is infringing the copyrighted work listed in item i) above;
iii) Provide information reasonably sufficient to permit us to contact you (e- mail address is preferred);
iv) Provide information, if possible, sufficient to permit us to notify the owner/administrator of the allegedly infringing webpage or other content (e- mail address is preferred);
v) Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law";
vi) Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed";
vii) Sign the paper;
viii) Send the written communication to the following address:
Designated Agent for Claimed Infringement: MOMO KIDS Copyright Department
12.2 You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Site without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
Release, Indemnification and Disclaimers
13.1 By using the Site and any Products, you agree to release, discharge and hold harmless MOMO KIDS and its subsidiaries, affiliates, partners, retailers, distributors and each of their officers, directors, employees and agents from any and all losses, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to the Site or any Products, or any act or omission by any person, including without limitation, any dispute between you and any other person or regarding any content posted on the Site.
13.2 If you are a California resident, you waive California Civil Code §1542,which says: “A general release does not extend to claims which the creditordoes not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlementwith the debtor.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others.
14. Indemnification. You agree to indemnify and hold MOMO KIDS and its affiliates, subsidiaries, partners, distributors and each of their employees, officers, directors and agents harmless from any claim or demand, including reasonableattorneys’ fees, made by any third party due to or arising out of or relating to theSite and/or your use of any Products, including without limitation, any content posted to or transmitted through the Site, or publicly distributed on the web, your use of the Site, your use of any Products, your connection to the Site, your violation of these Terms and Conditions or your violation of any rights of another.
15. Disclaimer of Warranties
YOUR USE OF THE SITE AND ANY PRODUCTS IS AT YOUR SOLE RISK. THE SITEIS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MOMO KIDS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MOMO KIDS MAKES NO WARRANTY THAT (I) THE QUALITY OF ANY PRODUCTS PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR ACCESSIBLE AT TIMES OR LOCATIONS OF YOUR CHOOSING, (III) THE RESULTS OR INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE, RELIABLE, TIMELY, OR COMPLETE, (IV) THE SITE WILL BE EFFECTIVE, WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS OR ERRORS, WILL BE RELIABLE OR ACCURATE, OR WILL MEET YOUR REQUIREMENTS, AND (V) ANY ERRORS WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MOMO KIDS MAKES NO WARRANTIES ABOUT THE SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SITE OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR YOUR CHILDREN.
16. Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOMO KIDS AND ANY AFFILIATES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOMO KIDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SITE OR ANY PRODUCTS; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (III) ANY OTHER MATTER RELATING TO THE SITE OR PRODUCTS. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED FIVE HUNDRED DOLLARS ($500).
FURTHER, WE SHALL NOT BE LABILE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR PRODUCTS OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE OR PRODUCTS, AS APPLICABLE.
17.Modification. MOMO KIDS may at any time modify, add to, or remove portions of the Terms of this Agreement, without prior notice. It is your responsibility to check this Agreement periodically for changes. MOMO KIDS may, but is not obligated to, provide notice of any updates, revisions, supplements,modifications or amendments to this Agreement on the Site’s homepage. By continuing to use the Site or Products after the posting of such changes, you agree to be bound by this Agreement, as modified. Your use of the Site or Products is subject to the most current version of this Agreement.
19.Severability. If any provision of this Agreement is deemed unlawful, void, voidable or unenforceable for any reason, then that provision shall be deemed severable from this Agreement and shall not affect the validity or enforceability of any remaining provisions.
20.Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
21.Governing Law. The Site can be accessed from all 50 states, as well as from other countries around the world. By accessing this Site, both you and MOMO KIDS agree that the statutes and laws of the State of New York, without regard to conflicts of laws principles thereof that would produce a different result, will apply to all matters relating to use of this Site (whether grounded in tort, contract, law or equity). In the case of a dispute, you and MOMO KIDS agree any litigation arising between the parties hereto shall be brought only in the state or federal courts having subject matter jurisdiction in New York County in New York. You hereby irrevocably and unconditionally waive any defense of an objection to venue with respect to any such action or proceeding, and any right of jurisdiction on account of the place of residence or domicile of any party thereto.
22.Termination. You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the Site with or without notice and for any reason, including, without limitation, breach of these Terms and Conditions. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
Upon termination or suspension, regardless of the reasons therefore, your right to use this Site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or this Site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
In the event of termination, all representations, warranties, indemnifications, and promises made by you shall survive.
23. Contact Information. If you have a comment, question or request, or if you need to contact us for any other reason, you may contact us at email@example.com.
[End of Terms and Conditions]