MOMNI TERMS AND CONDITIONS

These terms and conditions (the “Terms”) are a binding agreement between you and  Momni, Inc., a Delaware S-corporation (hereafter referred to as “Momni”, “we”, “us”, or “our”) and apply to your use of the Momni mobile application (the “App”), Momni.com (the “Site”), and all related websites, software, and services (together, and collectively with the App and the Site, the “Service”). By using the Service, you agree to be bound by the Terms. If you do not agree to the Terms, please do not use the Service. These Terms are subject to change at any time; we therefore encourage you to periodically review the Terms to ensure that you are aware of any changes. By continuing to use the Service after the Terms are updated, you agree to be bound by the most current version of the Terms.

 

1. Eligibility

 

Registration as a Condition to Use.

Only registered members of Momni (each, a “User”) may use the Service. By using the Service, you warrant that you are a User. As a User, you shall not allow third parties to access the Service using your account. You are personally responsible for any use of the Service through your account, whether by you or a third party.

 

Eligibility.

You must be at least 18 years old to use the Service and assume the obligations set forth in these Terms.

 

Other Agreements.

By using the Service, you accept, acknowledge, and agree to be bound by all other policies, terms, and agreements that Momni has implemented or may implement in the future, including, without limitation, those found at Momni.com.

 

2. Use of Service

 

Nature of Service.

Momni provides an online platform that connects Users who provide childcare services (hereafter referred to as “Hosts”) with Users who seek to obtain childcare services (hereafter referred to as “Guests”).

 

License.

Momni hereby grants you a worldwide, non-exclusive, revocable license to use the App for your personal use in accordance with these Terms; provided, however, that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the App.

 

Personal Account.

As a User, you will be required to create a Momni account. Your Momni account is for your exclusive personal use. You may not authorize others to use your account, nor may you assign or transfer your account to any other person or entity.

 

User Content.

The Service allows you to upload, submit, disclose, distribute or otherwise post multimedia content, including text, data, photographs, graphics, or other information (collectively referred to as “User Content”). You own all rights, title and interests in and to all User Content you provide. User Content is not confidential and is the property of the originating User. By posting User Content through the Service, you agree to the following:

 

(a) You are solely responsible for and assume all liability for all User Content you contribute to the Service. You warrant that your User Content does not contain misleading, false, or inappropriate information, and acknowledge that Momni is not responsible for and disclaims all liability for User Content contributed by its Users.

 

(b) You represent and warrant that you own or otherwise control all rights necessary to post User Content and that Momni’s disclosure and use of such User Content will not infringe or violate the rights of any third party.

 

(c) You grant Momni a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reproduce, distribute, display, publish, and otherwise fully exploit (hereinafter “use”) your User Content in connection with the Service and any current or future business of Momni and its successors and assigns. You also grant each User a non-exclusive license to access your User Content through the Service and to use such User Content as permitted by the Service in accordance with these Terms.

 

2.5. SMS/Text Alerts

As a condition of registering to use the Service, you must provide your mobile phone number to Momni. By doing so, you agree to the following:

 

(a) You represent to Momni that you are the owner or authorized user of the mobile phone associated with the number that you have provided or that you have been granted permission by the authorized user of such mobile phone number to enroll such mobile phone in the Service.

 

(b) You expressly authorize Momni to send text messages to your mobile phone through your wireless phone carrier unless and until such permission is revoked in accordance with subsection (e) below;

 

(c) You consent to receive text messages from Momni despite the fact that your number may otherwise be on federal or state do-not-call lists and you agree, to the maximum extent permitted by law, that such text messages shall not be in violation of such do-not-call list(s).

 

(d) You understand that you are solely responsible for any message and data rates that may apply.

 

(e) The consent granted pursuant to this Section 2.5 will remain effective until revoked by cancellation of the Service by you or by Momni. You may change the mobile phone number associated with your Momni account at any time, and by doing so, you agree to the foregoing terms with respect to such new mobile phone number.

 

External Resources.

The Service may provide links or permit you and other Users to access resources on the Internet such as third-party websites (“Third Party Resources”). Third Party Resources are not under Momni’s control, and Momni is not responsible for the content, functions, accuracy, legality, appropriateness or any other aspect of Third Party Resources, or for any damage or loss caused or alleged to be caused by your use of or reliance on any information, goods or services available through Third Party Resources. When you access a Third Party Resource, you do so at your own risk. Momni’s provision of access to a Third Party Resource does not imply Momni’s endorsement of or affiliation with such Third Party Resource. Momni reserves the right to disable or remove access to Third Party Resources for any reason or for no reason at all.

 

iOS Terms.

The following additional terms and conditions apply with respect to use of the App on an Apple iOS-powered mobile device (“iOS App”):

 

(a) You acknowledge that these Terms are concluded between you and Momni only, and not with Apple. Momni, and not Apple, is solely responsible for the iOS App and the services and content available thereon.

 

(b) You agree that your use of the iOS App is subject to the Usage Rules set forth in Apple’s then-current App Store Terms of Service.

 

(c) The parties agree that Apple shall have no obligation to provide maintenance and support services with respect to the iOS App.

 

(d) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App.

 

(e) You agree that Momni, and not Apple, is responsible for addressing any claims by you or any third party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

 

(f) You agree that Momni, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.

 

(g) You 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.

 

(h) The parties agree that Apple and Apple’s subsidiaries are third party beneficiaries to the terms of use applicable to the iOS App. 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 thereof.

 

3. Code of Conduct.

You promise not to use the Service for any purpose that is prohibited by law, by these Terms, or by any other terms of use that Momni has or will put in effect. You alone are responsible for all of your activity in connection with the Service.

 

Posting Policy.

You shall not upload, post, submit or otherwise distribute or facilitate distribution of any improper or unlawful Content or communications on or through the Service, including but not limited to Content that:

 

(a) violates local, state, national, or international laws or regulations;

(b) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any third party;

(c) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane;

(d) constitutes unauthorized or unsolicited advertising, junk email or bulk email (i.e., “spamming”);

(e) involves sales or commercial activities not expressly authorized by Momni; (f) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Momni or any third party;

(g) violates the privacy of other Users or that of any third party; or

(h) impersonates any person or entity, including, but not limited to, Momni or any employee or representative thereof.

 

Use of Infrastructure.

You shall not (i) take any action that imposes or may impose an unreasonable or disproportionately large load on the infrastructure of Momni or its third party providers (as determined by Momni in its sole discretion); (ii) interfere or attempt to interfere with the proper working of the Service or any related activities ; (iii) bypass any measures Momni may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (iv) use manual or automated software, devices, or other processes to “crawl” or scrape data from the Service.

 

4. Warranties, Disclaimers, and Liability

The following disclaimers are made on behalf of Momni, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.

 

General Disclaimers.

YOU USE THE SERVICE SOLELY AT YOUR OWN RISK. Momni has no fiduciary duty to you. Momni does not vouch for or guarantee the accuracy of any User Content or the identity of any Users; what Content you access via the Service; what effects Content may have on you; how you may interpret or use Content; or what actions you may take as a result of having been exposed to Content. You alone are responsible for your use of the Service and the consequences thereof.

 

MOMNI PROVIDES THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE APP) “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, MOMNI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WHETHER ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, MOMNI AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE APP WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS CAN OR WILL BE CORRECTED; (C) ANY INFORMATION OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.

 

Notice of Risk.

You acknowledge that there are risks, including but not limited to the risk of physical harm, that arise out of dealing with strangers, underage persons, or people acting under false pretenses. You assume all risks associated with dealing with other Users with whom you come in contact through the Service. You acknowledge that we are not liable for any harm resulting from (i) User Content, (ii) User conduct (including illegal activity), (iii) your provision or receipt of childcare services made available through the Service, or (iv) any other action related to your use of the Service. We do not accept responsibility or liability for any content, communication or other use or access of the Service by persons under the age of 18 in violation of this Agreement.

 

Provision of Services.

Momni does not provide childcare services, and Momni is not a childcare provider. It is up to each Host to decide whether or not to offer childcare services to a guest contacted through the Service, and it is up to each Guest to decide whether or not to accept childcare services from any Host contacted through the Service. Momni cannot ensure that a Host or Guest will complete an arranged childcare service. Momni has no control over the quality or safety of childcare services offered or obtained through the Services.

 

Identity of Users.

You acknowledge and agree that Momni cannot control who gains access to the Service or what User Content gets posted to the Service, and that that Momni does not verify the identity of Users and cannot guarantee that each User is who he or she claims to be. Please use common sense when using the Service, including looking at the photos of any Host or Guest you arrange childcare services with to make sure it is the same individual you see in person. We encourage you to communicate directly with each potential Host or Guest prior to engaging in an arranged childcare service.

 

Third Party Conduct; Insurance.

Momni is not responsible for the conduct, whether online or offline, of any User of the Service. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, injuries to persons or damage to personal property arising out of or associated with the Service, including childcare services provided or obtained through the Service. By using the Service, you agree to accept such risks and agree that Momni is not responsible for the acts or omissions of Users or other persons participating in the Service.

 

Personal Information.

It is possible for others to obtain information about you that you provide, publish or post to or through the Service (including any profile information you provide), send to other Users, or share through the Service, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to others through the Service. Please carefully select the type of information that you post on the through the Service or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users).

 

Third Party Information.

Opinions, advice, statements, offers, reviews or other information or content concerning Momni or Users or made available through the Service, but not directly by Momni, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Service or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Service and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.

 

Indemnification.

You agree to indemnify, defend and hold harmless Momni, its subsidiary and parent companies, and each of their officers, directors, employees, agents and related third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any third-party claim related to 

 

(a) your use of or inability to use the Service; 

 

(b) your User Content; 

 

(c) your violation of these Terms or your violation of any rights of a third party; 

 

(d) your violation of any applicable laws, rules or regulations; or 

 

(e) the unauthorized or unlawful use of the Service by any person using your account. Momni reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Momni in asserting any available defenses.

 

Limitation of Liability.

If, notwithstanding the other provisions of these Terms, Momni should have any liability to you or any third party for any loss, harm or damage, you and Momni agree that such liability shall under no circumstances exceed $50.00. You and Momni agree that the foregoing limitation of liability is an agreed allocation of risk between you and Momni. You acknowledge that absent your agreement to this limitation of liability, Momni would not provide the Service to you.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MOMNI BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.

 

5. Host Representations, Warranties and Agreements.

By providing childcare services as a Host through the Service, you represent, warrant, and agree as follows:

 

(a) You are physically and mentally fit to provide childcare services and have any licenses, permits, and approvals necessary to provide childcare in all jurisdictions in which you provide such services.

 

(b) You will not engage in reckless or negligent behavior while providing childcare services, provide childcare services while under the influence of alcohol or drugs, or take any other action that harms or threatens to harm the safety of the Momni community or third parties.

 

(c) You will not make any misrepresentation regarding Momni, the Service or your relationship to either.

 

(d) You will not, while providing childcare services, engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.

 

(e) You will not attempt to defraud Momni, Guests, Users, or other third parties in connection with your provision of childcare services through the Service.

 

(f) You agree that Momni may (but is not obligated to) obtain information about you, including your criminal record, and you agree to provide any further necessary authorizations to facilitate Momni’s access to such records during the term of the Agreement.

 

(g) You will pay all applicable federal, state and local taxes based on your provision of childcare services and any payments received by you.

 

6. Background Checks

As a service to its Users, Momni provides optional background checks for Hosts who desire them. Hosts who choose to undergo a background check must pay the cost of such background check, which is currently $9.95. Hosts who undergo such background checks will be permitted to state on their public Momni profile that they have undergone a background check.

 

Background checks are provided by a third party, not by Momni, and Momni does not guarantee or vouch for the results of such background checks, nor does any such background check alter any disclaimer contained in Section 4 of these Terms.

 

7. Miscellaneous Provisions

 

Term and Termination.

These Terms will become effective upon your acceptance thereof, as indicated by your use of the Service, and will remain in effect in perpetuity unless terminated hereunder. You or Momni may terminate your account at any time, for any reason or no reason, without explanation, by sending written notice to the other party or by cancelling your user account. You agree that if Momni terminates your access to the Service, you will immediately (1) stop using the Service, and (2) remove the App from any device in your possession.

 

Notice.

Momni may give any notice required or permitted to be given in writing hereunder via email. Such notice will be effective immediately.

 

Entire Agreement; Amendment.

These Terms and any documents incorporated herein constitute the entire agreement between you and Momni with respect to the subject matter hereof. Momni reserves the right to amend the provisions of these Terms at any time, provided that Momni will notify you of any such amendment by email or by notice posted on the Site.

 

Governing Law; Venue.

These Terms will be governed and construed under the laws of the State of Utah, without regard to its conflict of laws provisions or the United Nations Convention on the International Sale of Goods. 

The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Salt Lake County, Utah. All disputes and/or legal proceedings related to these Terms will be maintained in courts located in Salt Lake County, Utah.

 

Waiver/Severability.

The waiver or failure of Momni to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of these Terms is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms shall remain enforceable.

 

Assignment.

Momni may assign these Terms, in whole or in part, in its sole discretion. You may not assign your rights under these Terms without Momni’s prior written permission. Any attempt to assign your rights under these Terms without Momni’s permission shall be void.

 

Force Majeure.

Momni shall not be liable for any failure or unavailability of the Service or failure by Momni to provide the Service as a result of strikes, lockouts, calamities, acts of God, unavailability of suppliers, the loss or destruction of data, the deletion or corruption of storage media, power failures, natural phenomena, riots, acts of vandalism, acts or omissions of civil or military authority, war, terrorism or any other event beyond Momni’s control.

 

Headings.

The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.