Terms of Service8MOMS, LLC
ACCEPTANCE OF TERMS AND CONDITIONS
1. General.The Site provides an interactive online service operated by 8moms, LLC. on the World Wide Web of the Internet (the “Web”), consisting of information services, content and transaction capabilities facilitated through 8moms, affiliates of 8moms or merchants (“Merchants”) offering Coupons for sale (“Coupons”) which may be exchanged for goods/services at Merchants and other third parties.
This Agreement sets forth the terms and conditions that apply to the use of this Site by the End User. By using this Site (other than to read this Agreement for the first time), End User agrees to comply with all of the terms and conditions hereof. The right to use this Site is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User’s password(s), if any. End User acknowledges that, although the Internet is often a secure environment, sometimes there are interruptions in service or events that are beyond the control of 8moms, and 8moms shall not be responsible for any data lost while transmitting information on the Internet. While it is 8moms’s objective is to make the Site accessible 24 hours per day, 7 days per week, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of 8moms, access to the Site may be interrupted, suspended or terminated from time to time.
8moms shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability and equipment needed for access or use. Further, 8moms may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
You represent that you are of legal age to form a binding contract. You must be at least 18 years old to be eligible to use the Site. However, if you are at least 13 years old but not yet 18, you may use the Site in conjunction with your parent or guardian who agrees to this Agreement. No one under age 13 may use the Site.
2. Modified Terms.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this Site and all charges related thereto. 8moms shall not be liable for any damages to the End User’s equipment resulting from the use of this Site.
4. End User Conduct.
The foregoing provisions of this Section 4 apply equally to and are for the benefit of 8moms, its subsidiaries, affiliates, Merchants and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
Everything located on or in this Site, including the Microsites, is the exclusive property of 8moms, LLC or used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THIS SITE OR ANY OF THE MICROSITES WITHOUT THE EXPRESS WRITTEN PERMISSION OF 8MOMS, LLC IS STRICTLY PROHIBITED. Any violation of this policy may result in a copyright, trademark or other intellectual property right infringement that may subject End User to civil and/or criminal penalties.
5. Copyright and Trademarks.
This Site and any Microsites contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. 8moms owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. End User may download, print, and/or save copyrighted material for End User’s personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of 8moms or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that he/she/it does not acquire any ownership rights by downloading copyrighted material. Trademarks that are located within or on the Site or a Microsite otherwise owned or operated in conjunction with 8moms shall not be deemed to be in the public domain but rather the exclusive property of 8moms, unless such site is under license from the Trademark owner thereof, in which case such license is for the exclusive benefit and use of 8moms unless otherwise stated.
End User shall not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. 8moms does not have any express burden or responsibility to provide End User with indications, markings or anything else that may aid End User in determining whether the material in question is copyrighted or trademarked. End User shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of this Site or any Microsite, End User warrants that the owner of such material has expressly granted 8moms the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other end user to access, view, store or reproduce the material for that End User’s personal use. End User hereby grants 8moms the right to edit, copy, publish and distribute any material made available on this Site or any Microsite by End User.
The foregoing provisions of Section 5 apply equally to and are for the benefit of 8moms, its subsidiaries, affiliates, Merchants and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
8moms reserves the right to terminate its agreement with any End User who repeatedly infringes third-party copyright rights upon prompt notification to 8moms by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Site or any Microsite in a way that constitutes copyright infringement, you shall provide 8moms with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location on the Site or any Microsite of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for 8moms’s Copyright Agent for notice of claims of copyright infringement is as follows:
6. Copyright Policy.
163 E. 84th Street
New York, NY 10028
END USER EXPRESSLY AGREES THAT USE OF THIS SITE AND THE MICROSITES IS AT END USER’S SOLE RISK. NEITHER 8MOMS, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE OR ANY MICROSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE, OR ANY MICROSITE, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR COUPONS PROVIDED THROUGH THIS SITE OR THE MICROSITES.
7. Disclaimer of Warranty.
THIS SITE AND THE MICROSITES ARE MADE ACCESSIBLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. 8MOMS HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL 8MOMS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN NO EVENT WILL 8MOMS’S LIABILITY IN CONNECTION WITH AN 8MOMS EXCEED THE AMOUNTS PAID FOR SUCH 8MOMS, AND TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY END USER DURING THE SIX MONTHS PRECEDING THE BRINGING OF ANY CLAIM.
8. Limitation of Liability.
8moms shall have the right, but not the obligation, to monitor the content of the Site and any Microsites at all times, including any chat rooms and forums that may hereinafter be included as part of the Site, to determine compliance with this Agreement and any operating rules established by 8moms, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, 8moms shall have the right, but not the obligation, to remove any material that 8moms, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
By posting communications on or through this Site or any Microsite, End User shall be deemed to have granted to 8moms a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the communication alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees.
11. License Grant.
End User agrees to defend, indemnify and hold harmless 8moms, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services purchased by End User in connection with the Site or any Microsites.
End User is solely responsible for interactions with Merchants and other users of the Site or Microsites. To the extent permitted under applicable laws, End User hereby releases 8moms from any and all claims or liability related to any product or service of a Merchant, any action or in-action by Merchant, including Merchant’s failure to comply with applicable law and/or failure to abide by the terms of a Coupon, and any conduct or speech, whether online or offline, of any other user.
In connection with the foregoing release, End User hereby waives California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does 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 settlement with the debtor.”
8moms may terminate this Agreement at any time. Without limiting the foregoing, 8moms shall have the right to immediately terminate or suspend any passwords or accounts of End User in the event of any conduct by End User or which 8moms, in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 2, 4, 5, 6, 7, 10, 11, and 12 will survive termination of this Agreement.”
8moms is a trademark of 8moms, LLC All rights in respect of this trademark are hereby expressly reserved. Unless otherwise indicated, all other trademarks appearing on 8moms are the property of their respective owners.
8moms, similar to an Internet Service Provider, is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, 8moms has no more editorial control over such content than does a public library, bookstore or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, or any other end users are those of the respective author(s) or distributor(s) and not of 8moms.
15. Third-Party Content.
In many instances, the content available through this Site represents the opinions and judgments of the respective information provider, end user, or other user not under contract with 8moms. 8moms neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on 8moms by anyone other than authorized 8moms employee spokespersons while acting in official capacities. Under no circumstances will 8moms be liable for any loss or damage caused by an end user’s reliance on information obtained through 8moms. It is the responsibility of End User to evaluate the accuracy, completeness, or usefulness of any information, opinion, advice, etc., or other content available through 8moms.
8moms contains links to third-party websites maintained by other content providers. These links are provided solely as a convenience to you and not as an endorsement by 8moms of the contents on such third-party sites, and 8moms hereby expressly disclaims any representations regarding the content or accuracy of materials on such third-party websites. If End User decides to access linked third-party websites, End User does so at its own risk. Unless you have executed a written agreement with 8moms expressly permitting you to do so, you may not provide a hyperlink to the Site or any Microsite from any other website. 8moms reserves the right to revoke its consent to any link at any time in its sole discretion.
Referral program credit is only earned when referred members purchase at the full 8moms marketed deal price without the use of credits or discounts.
16. Referral Program.
This Agreement, including the Terms of Sale set forth below (which are incorporated into this Agreement), and any operating rules for 8moms established by 8moms, constitute the entire agreement of the parties with respect to the subject matter hereof. No waiver by either party of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. The failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.
By using this Site, End User agrees that: (1) any claim, dispute, or controversy End User may have against 8moms arising out of, relating to, or connected in any way with this Agreement, this Site, or any Microsite, or the purchase or sale of any Coupon(s), shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for End User), or at such other location as may be mutually agreed upon by End User and 8moms; (3) the arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the End User’s and/or 8moms’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that the End User is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, 8moms will pay as much of the End User’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither End User nor 8moms shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, End Users may visit the AAA website at http://www.adr.org.
8moms is located at 163 E. 84th Street, New York, NY 10028. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Current providers of such protections can be found at: http://www.en.wikipedia.org.
II.TERMS OF SALE
The Coupon you purchase through 8moms is redeemable for goods or services by the Merchant. The Merchant, not 8moms, is the seller of the Coupon and the goods and services and is solely responsible for redeeming any Coupon you purchase. 8moms sells a Coupon that can be redeemed in connection with your purchase of the goods or services from Merchant.
For this section, “Restaurant” shall be defined as a Merchant who offers food and beverage for sale in its regular business operations, and is making such food and beverages available to purchasers of Coupons.
1. Terms and Conditions for Restaurant-Specific Coupons.
Redemption frequency is determined by Restaurants, and shall be contained in the Coupon offer on the Site.
Use of Restaurant-Specific Coupons for alcoholic beverages is at the sole discretion of the Restaurant and is subject to compliance with applicable law
Coupons cannot be combined with any other restaurant Coupons, third party certificates, coupons, or promotions, unless otherwise specified by Restaurant.
Restaurant-Specific Coupons cannot be used for taxes, tips or prior balances, unless permitted by the Restaurant.
Valid for dine in only unless otherwise stated.
The issuing of restaurant credit is at the sole discretion of the Restaurant unless otherwise required by applicable law.
Neither 8moms nor the Restaurant is responsible for lost or stolen Coupons or restaurant Coupon reference numbers.
Reproduction, sale or trade of a Restaurant-Specific Coupon is prohibited unless done so in compliance with applicable law.
Any attempted redemption not consistent with these terms & conditions will render the Restaurant-Specific Coupon void.
Void to the extent prohibited by law.
If you redeem the Coupon for less than its face value, you may only be entitled to a credit or cash from the Restaurant, equal to the difference between the face value and the amount you redeemed, if required by applicable law. You may only be entitled to a continuing redemption value as noted above if the amount that you paid for the Coupon exceeds the amount you redeemed. For example, if you paid $25 for a Coupon which entitles you to purchase $50 of product by February 1, 2011 and you make a purchase for $40 on January 30, 2011, you may only be entitled to a credit or cash equal to the difference between the $50 face value and the amount you redeemed from the Merchant (i.e., $10) if required by applicable law. You will not have any redemption value either because the amount you redeemed is more than what you paid for the Coupon.
All purchases of Coupons for Restaurants may have statutory limitations on the amount of the Coupon value that can be redeemed for alcoholic beverages. 8moms’ sole role in the transaction is as a marketing agent for the Merchant Coupon, and the applicability and compliance with any relevant statute or code is solely determined and consummated by the Merchant, and 8moms has no role in such determination or action on the part of the Merchant.
2. Terms and Conditions for Non-Restaurant Merchant Coupons
Merchant Coupon may be applied only to merchandise sold by Merchant, and may not be applied to shipping or handling charges.
Limit one (1) Coupon per redemption. Only one Coupon can be used per order unless otherwise specified by Merchant.
The issuing of credit is at the sole discretion of the Merchant unless otherwise required by law.
Neither 8moms nor the Merchant is responsible for lost or stolen Coupons or Coupon’s reference number.
Coupon cannot be combined with any other Coupons, third party certificates, coupons, or promotions, unless otherwise specified by Merchant.
Reproduction, sale or trade of this Coupon is prohibited unless done so in compliance with applicable law.
Any attempted redemption not consistent with these terms and conditions will render the Coupon null and void.
Void to the extent prohibited by law.
If you redeem the Coupon for less than its face value, you may only be entitled to a credit or cash equal to the difference between the face value and the amount you redeemed from the Merchant if required by law. You may only be entitled to a continuing redemption value as noted above if the amount that you paid for the Coupon exceeds the amount you redeemed. For example, if you paid $25 for a Coupon which entitles you to purchase $50 of product by February 1, 2011 and you make a purchase for $40 on January 30, 2011, you may only be entitled to a credit or cash equal to the difference between the $50 face value and the amount you redeemed from the Merchant (i.e., $10) if required by applicable law. You will not have any redemption value either because the amount you redeemed is more than what you paid for the Coupon.
3. Additional Terms and Conditions for All 8moms Coupons.All Coupons shall be subject to the terms and conditions of 8moms and the participating Restaurant or Merchant. The Merchant or Restaurant are the sellers of the goods or services which you are purchasing.
The holder and issuer of a Restaurant-Specific Coupon is the Restaurant. The holder and issuer of a Merchant Coupon is the Merchant. As a holder and issuer of the Coupon, the Restaurant or Merchant shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Restaurant or the Merchant, as well as for any unclaimed property liability arising from unredeemed Coupons or portions thereof. You waive, and release 8moms and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of Merchant or Restaurant in connection with a Coupon or the services/goods provided in connection therewith and/or as it relates to compliance with applicable unclaimed property and other laws relating to the redemption of the Coupons or any portion thereof. Restaurant-Specific Coupons and Merchant Coupons are redeemable in their entirety and on a one time basis only and may not be redeemed incrementally.
According to applicable law, the Merchant may be responsible for allowing you to redeem your Coupon for the cash value based on the money you actually paid for your Coupon (i.e. if you paid $25 for a Coupon which gives you $50 of value to the Merchant, the cash value that you paid is $25, not $50), for a period of time that extends beyond the expiration date on the Coupon. While the expiration date on the Coupon dictates the last date that you can use your Coupon at Merchant for the promotional offer stated on the 8moms, applicable law may provide that the Merchant is responsible for honoring the cash value that you paid for your Coupon for a period of time beyond the expiration date stated on the Coupon. In other words, you should be allowed to redeem the cash value (or purchase price) of your Coupon up until the greater of: (1) the Coupon’s expiration date; or (2) the minimum length of time allowed by applicable law for a Coupon to expire. In the even that you have an expired Coupon and would like to redeem it for the price you paid to acquire it, please contact the Merchant. Once again, the Merchant should allow such redemption if applicable law requires it, and we have instructed the Merchant to do so. If you have gone to the Merchant and the Merchant has refused to redeem the cash value of your expired Coupon, and if applicable law entitles you to such redemption, then please contact 8moms [and explain your situation in writing] and 8moms may refund the purchase price of the Coupon in either U.S. Dollars or credit for purchases of future Coupons from 8moms.