Client Terms and Conditions
This Client Agreement (the “Agreement”) is a legal agreement between you, as a Client wishing to use the Momfluence platform, and meaning you as an individual if acting on your own behalf, or the company that you represent if you are acting on behalf of such company (“you”) and Momfluence Inc. (“Momfluence”) respecting Client’s use of Momfluence services as described herein and on Momfluence’s website. BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this Agreement, please contact us at [email protected]
- “Clients” shall mean customers (whether individuals, companies or groups) who access Influencer profiles and other content available on the Platform, and who purchase Services through Momfluence.
- “Client Content” means any information provided by Clients (including you) to Momfluence for publication on the Platform, including any Campaign Brief, in accordance with the terms and conditions of this Agreement.
- “Campaign Brief” shall mean any request posted by you on the Platform requesting Influencers for specific projects or purposes and setting forth parameters for the acceptance of Influencers, to which Influencers may reply to offer their Influencer services through the Platform.
- “Influencer” means a person utilizing the Momfluence platform for the purposes of offering services to Clients relating to such person’s ability to influence potential buyers of a product or service by promoting or recommending the items on social media.
- “Influencer Services” means the services provided by Influencers to you in relation to the Campaign Briefs, which may including providing brand influence through publication on Influencer accounts and otherwise taking action to influence potential buyers of a product or service by promoting or recommending the items on social media, in accordance with the specifications for such services agreed upon by you and the Influencer.
- “Intellectual Property” means any material conceived or produced in the furtherance of a Party’s interest and business or in which a Party otherwise has a proprietary interest, and shall include, without limitation, in relation to the Client, the Client Content, and in relation to Momfluence, the Platform, and all information obtained through Momfluence relating to Influencers and other Clients.
- “Intellectual Property Rights” means all copyrights, patents, trademarks, industrial designs, trade secrets and any other proprietary rights associated with Intellectual Property.
- “Party” means each of you and Momfluence, and “Parties” means you and Momfluence collectively.
- “Platform” means the Momfluence software platform and website through which Influencers post content, and Clients post Client Content and have access to Influencers.
- “Services” has the meaning set forth in Section 2.1.
2. THE SERVICES
- Momfluence enables: (a) Influencers to post and provide Content on the Platform for the purposes of offering Influencer services to Clients, (b) Clients to post Client Content through the Platform for the purposes of requesting Influencers to provide Influencer services for specific campaigns, brands, products or services, and (c) Clients to pay Influrncers for the Influencer Services through the Platform (collectively, the “Services”). The Services are provided subject to the terms and conditions of this Agreement.
- You must:
(a) provide up-to-date, complete and accurate registration information, including your business name, an individual business contact, your address, your phone number, and your valid email address, and your Access Information, as described in Section 2.3 below;
(b) provide up-to-date, complete and accurate information respecting Client Content to enable Influencers to make informed decisions relating to Campaign Briefs;
(c) provide up-to-date, complete and accurate account information for Momfluence’s preferred payment processor that is valid and legally registered to you, and ensure that you have sufficient funds to pay Influencers for Influencer Services undertaken pursuant to Campaign Briefs, so that Momfluence is able to accept payments from you; and
(d) be at all times in compliance with the terms and conditions of this Agreement and applicable law.Please note that the third party payment processor used by Momfluence may require you to input certain information that is considered to be personal information. Such information is NOT stored by Momfluence, and any processing and storage of such information will be done by the third party payment processor and subject to their privacy and security policies. You specifically agree that Momfluence may rely on the accuracy of the information provided by you to Momfluence, and that Momfluence will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Momfluence.
- Momfluence provides you with the ability to create a user ID and password (the “Access Information”). The Access Information is provided on the understanding that it is personal to you; you will not permit anyone other than you to obtain access to the Platform using the Access Information. Momfluence is not responsible or liable in any way for any use of the Platform (authorized or unauthorized) by anyone accessing the Platform using your Access Information, and you accept all responsibility for such use of the Platform and any consequences resulting from such use of the Services.
- Client acknowledges that the relationship between Momfluence and the Influencers is that of independent contractors; nothing in this Agreement shall imply that the Influencers are Momfluence’s employees or agents. Momfluence expressly disclaims any representation that it has any supervision, control or direction over the Influencers, or that it can guarantee anything on behalf of the Influencers. Momfluence’s sole responsibility under this Agreement is to provide Client with the information posted by Influencers, enable Client to contact the Influencers, make reasonable efforts to facilitate communications between Client and the Influencers in the event of any dispute, and remit the appropriate payments from Client to the Influencers, minus Momfluence’s fee for such Services. ALL PLANNING UNDERTAKEN BY CLIENT PURSUANT TO THE INFLUENCER SERVICES OR CONTENT AVAILABLE THROUGH THE SERVICES IS AT CLIENT’S OWN RISK, AND ALL GUARANTEES AND REPRESENTATIONS MADE BY INFLUENCERS ARE THEIR RESPONSIBILITY, NOT ENDORSED BY MOMFLUENCE. All content is provided on an “AS IS” basis, and although Momfluence will make reasonable attempts to respond to content complaints in a timely manner, Momfluence makes no warranties or guarantees whatsoever that content that is offensive to any one particular user will be removed.
- Momfluence reserves the right to change, suspend or discontinue the Services at any time, including the availability of any feature or content, Influencer or Client access to the Services, or any promotion offered by Momfluence. Momfluence may also impose limits on the Services and/or terminate or restrict Client’s access to parts or all of the Services without notice or liability.
- Use of the Services may contain references to third parties, links to third party websites, photographs, videos or documents (including material posted by Influencers), and/or may incorporate information obtained from third parties. All such references, links and information are provided “AS IS”. Third party websites, photographs, documents, information, opinions, advice or statements (including those made by Influencers and other Clients of the Services) are not under the control of Momfluence, and Momfluence is not responsible or in any way liable for their contents, including without limitation their accuracy, reliability, copyright compliance, legality, decency, or any other aspect of their content. Other than to the limited extent required under applicable consumer protection law, under no circumstance will Momfluence be liable for any loss or damage caused by Client’s reliance on information obtained through the Services (including from Influencers) or a third party linked site (including any opinions, statements or advice), or Client’s reliance on any product or service obtained from any Influencer or any third party linked site. It is Client’s responsibility to evaluate the accuracy, completeness or usefulness of any opinion, advice or other content available through the Services, or obtained from a third party linked
- Momfluence is only providing the Platform through which Influencers and Clients communicate, and is specifically not responsible for: (a) any delays or cancellations, (b) unsuccessful Campaign Briefs or Influencer campaigns, (c) issues between Influencers and Clients, (d) issues with your social media accounts, mobile device, the Internet, or your ISP, or (f) any agreements made between Influencers and Clients, including in relation to Campaign Briefs.
3. THE SERVICES
- Subject to the terms and conditions of this Agreement, you hereby grant to Momfluence, during the term of this Agreement, the following rights on a personal, non-exclusive, royalty free, and fully paid up basis: (a) to use, copy, reproduce, transmit, broadcast, publish, display, maintain, modify, and enhance, the Client Content or any part thereof for the purposes of incorporating the Client Content into the Platform and for the purposes of promoting, marketing, distributing and providing access to the Client Content to Influencers;
(b) to promote, market, distribute, export, import, and sublicense the Client Content to Influencers to the extent necessary for the fulfilment of Campaign Briefs.
- All Client Content will be delivered to Momfluence in accordance with Momfluence’s standard submission policies (which may include format and content requirements), as may be amended from time to time by Momfluence.
- You warrant that:
a). The Client Content is true, accurate, current and complete, and all Campaign Briefs contain sufficient information to permit Influencers to make a fully informed decision whether to offer Influencer Services respecting such Campaign Briefs;
b). You have the absolute right to provide the licenses in and to the Client Content contemplated in this Agreement;
c). You will perform your obligations in relation to Campaign Briefs in a competent and professional manner and in accordance with industry “best practices”;
d). You shall take reasonable precautions to protect the reputation of the Influencers and to comply with all parameters for Campaign Briefs;
e). You will be solely responsible for all activities you undertake with respect to any Client Content;
f). You will not use the Servicers for any commercial purposes other than as expressly contemplated herein, or for the benefit of any third party;
g). You will not in any way use the Client Content or Services to transmit harassing, abusive, libelous, illegal or deceptive messages or information, or to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent, obscene or pornographic activities, any deceptive impersonation, any activities involving the exploitation of children, or any activities that violate any third party’s privacy rights or applicable law;
h). The performance of this Agreement shall not breach any other agreement entered into by you;
i). The Client Content does not contain any confidential or proprietary materials of any former client or employer of you, or of any other third party, for which you do not have permission to use as contemplated by this Agreement;
j). The Client Content will not infringe any proprietary or intellectual property rights of any third party;
k). You have obtained all consents and permissions necessary from any third party in relation to any photographs, videos, or other likenesses or personal content that may be present in the Client Content, permitting you to use such materials in the Services; and
l). You shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over the Client Content and/or Services or any part thereof, including without limitation any privacy laws and any laws and regulations designed to protect minors.
- In engaging in any promotion and marketing activities, or in otherwise referencing Momfluence in any communication, Client shall:
a). not engage in deceptive, misleading, illegal or unethical practices that might reasonably be detrimental to Momfluence or Influencers; and
b). not make any representations, warranties or guarantees about Momfluence or its Services, unless expressly authorized in writing by Momfluence.
- You acknowledge that Momfluence may independently obtain content and services from third parties, including from other Clients, that are similar to your Client Content (“Third Party Content”). You agree that use of the Third Party Content by Momfluence, Influencers or other Clients will not constitute infringement of your intellectual property or a breach of this Agreement, and that Momfluence shall have no liability whatsoever for any damages resulting from the similarity of Third Party Content to your Client Content. Momfluence’s sole responsibility with respect to any conflict between Third Party Content and your Client Content shall be to comply with any legal orders obtained by you or the applicable Client or other third party pertaining thereto.
- In the event that Momfluence receives any queries, comments or complaints respecting you or your Client Content, Momfluence shall be entitled to direct all such queries, comments or complaints to you for direct response or may contact you to obtain such required information at your expense.
4. FEES FOR SERVICES
- You agree to pay all applicable fees in connection with the Services and any Influencer Services booked by Client in relation to Campaign Briefs within thirty (30) days of the completion of such Influencer Services. Such payment shall be made through Momfluence, and the fees shall be in accordance with the information posted in the Campaign Brief unless otherwise notified to Momfluence by you and/or the Influencer in advance of the provision of Influencer Services, and confirmed with all applicable parties. Following such payment by you, Momfluence shall pay such amounts to the applicable Influencer, less the applicable commission fee that will be retained by Momfluence. Such commission fee percentage is as set forth in Momfluence’s payment policies. You acknowledge that the applicable Influencer providing services to Client is a third party beneficiary to this Agreement, and in the event that you do not pay Momfluence in accordance with this Agreement, in addition to any other rights and remedies available to Momfluence, Momfluence may permit such Influencer to recover such fees directly from you pursuant to this Agreement.
- Momfluence reserves the right to change its payment policies and to institute new charges at any time upon notice to you and other Clients, which notice may be provided electronically through e-mail or by means of updates on Momfluence’s website. Client’s use of the Services following such changes constitutes Client’s acceptance of any new or increased charges.
5. CONFIDENTIAL INFORMATION AND PRIVACY
- You acknowledge that, during the course of this Agreement, you may be exposed to confidential information of Momfluence, Influencers and other Clients, including the identity of Influencers first obtained through Momfluence, Influencer Content and other Client Content (the “Confidential Information”). You agree that at all times during the term of this Agreement and at all times following termination of this Agreement, whether voluntary or involuntary:
a) you shall maintain all Confidential Information in strict confidence, shall take all necessaryprecautions against unauthorized disclosure of such Confidential Information, and shall not directly or indirectly, disclose, allow access to, transmit or transfer such Confidential Information to a third party without the knowledge and express written consent of Momfluence and the applicable owners of such information;
b) you shall not use or reproduce the Confidential Information except as reasonably required in the performance of your obligations under this Agreement, and you expressly acknowledge and agree that any contact information or other personal information provided to or accessible by you in the course of using or accessing the Platform (including with respect to any specific Campaign Brief or Influencer profiles) is to be considered the personal information of the user to whom it belongs, is to be kept confidential by you, and is to be used by you only for the purposes specified by such user; and
c) you agree to advise Momfluence immediately in writing of any misappropriation, disclosure, conversion or misuse by any person of any Confidential Information.
- You agree that upon the earlier of a request by Momfluence or the termination of this Agreement by either Party for any reason, you shall immediately: (i) stop using all Confidential Information then in your possession; (ii) permanently delete all such Confidential Information residing in any computer memory or data storage apparatus; and (iii) destroy or return all such Confidential Information in tangible form and all copies thereof.
- You specifically acknowledge and agree that damages may not be an adequate remedy to compensate for any breach of the confidentiality obligations contained herein, and accordingly agrees that in addition to any and all other remedies available, Momfluence and/or Influencers or Clients shall be entitled to obtain relief by way of a temporary or permanent injunction to enforce these obligations.
- Notwithstanding the terms of Section 5.4, by submitting personal information as part of the Client Content, including without limitation your name and e-mail address and any other information that could be considered personal information, you consent to the collection, processing, transmission and disclosure of such information by Momfluence for the purposes of Momfluence’s provision of the Services, and acknowledge that such information may be accessible by other users of the Platform.
- In consideration of the covenants set forth herein, you will not solicit services of any kind from any Influencer, or book any Influencer Services other than through the Services, if the availability of such Influencer and Influencer Services first became known to Client through the Services. The onus of proving that you knew of the Influencer and Influencer Services prior to your use of the Services shall be upon you. If you breach this provision and directly or indirectly solicit or book any services from an Influencer during the term of this Agreement or for twelve (12) months thereafter, you shall be obligated to pay Momfluence a commission respecting such services provided by Influencer to you in an amount equal to the commission that would have been paid to Momfluence if such Influencer’s services had been booked by you through the Services.
7. INTELLECTUAL PROPERTY RIGHTS
- You acknowledge that the Platform is owned by Momfluence, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. You do not acquire any intellectual property or other proprietary rights under this Agreement relating to the Platform, the Services, or any part thereof. Your only rights to the Platform, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Nothing herein grants you any right to use any of Momfluence’s trade names, trade marks, service marks, logos, domain names, and/or other distinctive brand features. Any rights not expressly granted under this Agreement are reserved.
- Except as expressly set forth in this Agreement, nothing herein shall be deemed to transfer ownership, right, title or interest in or to any Intellectual Property or any Intellectual Property Rights from one Party to the other. Except as expressly set forth herein, neither Party shall use the other Party’s trademarks or any other Intellectual Property in any way without express prior written permission, except that Momfluence has the right to use any Client Content (including any copyrighted or trademarked material) submitted by you, consistent with the services provided by Momfluence. Any rights not expressly granted under this Agreement are reserved.
- For greater certainty, all intellectual property rights in third party content accessible through the Services and Platform, including, without limitation, any Influencer Content, are the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such content. You understand that you are not, by this Agreement, granted any commercial, sale, resale, reproduction, distribution or promotional use rights for or to any such third party content. Additionally, the unauthorized reproduction or distribution of such third party content is prohibited by applicable law.
- Each Party warrants that:
a) It has the full power to enter into this Agreement and to perform its obligations hereunder;
b) It will observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of
any country having jurisdiction over this Agreement or any part thereof (including the Content); and
c) It will not enter into any third-party agreements or grant any rights or licenses that conflict with those contemplated by this Agreement.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND SUBJECT TO APPLICABLE LAW, NEITHER PARTY MAKES ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR TITLE). Some jurisdictions do not allow limitation or exclusions of certain types of damages and/or of implied conditions or warranties. The limitations, exclusions, and disclaimers set forth in this Agreement shall not apply only if and to the extent that the laws of a competent jurisdiction requires liabilities beyond and despite these limitations, exclusions, and disclaimers.
- UNDER NO CIRCUMSTANCES WILL MOMFLUENCE BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE PLATFORM OR SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE PLATFORM AND SERVICES IS SOLELY AT YOUR OWN RISK. Momfluence has no special relationship with or fiduciary duty to you, and you acknowledge that Momfluence has no control over, and no duty to take any action regarding any acts or omissions taken by you or any other user of the Platform and Services, including without limitation: (a) which Influencers or Clients use the Platform and Services, (b) what content you or other users post on, or send through, the Platform and Services, (c) how you or any other user may interpret or use any content posted on or sent through the Platform and Services, or (d) what actions you or any third party may take as a result of use of the Platform and Services by you or any other user. Momfluence makes no representations or warranties whatsoever concerning any data available through the Platform and Services, and Momfluence will not be responsible or liable for in any way for any such data, including its accuracy, quality or reliability (whether in individual or aggregate form), or the timeliness or currency of any data obtained through the Platform and Services. You are solely responsible for evaluating whether the data obtainable through the Platform and Services suits your needs.
9. Limitation of Liability
- The only type of damages that can be recovered against Momfluence arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any. In no event shall the aggregate liability of Momfluence exceed the amount paid by you for the portion of the Services that gave rise to the claim. MOMFLUENCE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Services or Platform is to cease use of the Services and Platform.
- EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MOMFLUENCE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF MOMFLUENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS SHALL APPLY TO CLIENT TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH JURISDICTIONS.
- You agree to defend and indemnify Momfluence, its officers, employees, directors, Influencers, Clients, investors, shareholders and permitted assigns (the “Indemnified Parties”) against any damages, injuries, claims, demands, actions, liabilities, costs and expenses (including reasonable lawyers fees and disbursements), judgments awarded by a court of competent jurisdiction, and any settlements agreed to by you, related to: (a) a claim that use of or distribution of your Client Content in accordance with this Agreement, or performance of activities in relation to a Campaign Brief, either infringes or misappropriates any patents, copyrights, trade marks, trade names, trade secrets or other intellectual property or proprietary rights, (b) injury to persons (including injury resulting in death) or damage to property arising out of or in connection with the Client Content or performance of activities in relation to a Campaign Brief, (c) your breach of any warranty or representation under this Agreement, or (d) your negligence or misconduct. You shall not be obligated to indemnify the Indemnified Parties to the limited extent that a claim is proximately caused by the negligence, wilful misconduct, breach of contract, or violation of applicable laws of such Indemnified Parties. For greater certainty, you shall be solely responsible for any claims relating to the Client Content, and Momfluence shall not have any liability whatsoever for any claims or damages arising from the Client Content.
- Either Party shall be entitled to terminate this Agreement for convenience upon thirty (30) days prior written notice to the other Party.
- This Agreement may be terminated immediately upon notice for cause if:
a) either Party commits a material breach of this Agreement, or consistently fails to properly perform and observe its obligations under this Agreement, and fails to rectify the situation within thirty (30) calendar days of the non-breaching party delivering notice of the breach or consistent failure to perform; or
b) either Party becomes insolvent, or a receiver or receiver-manager is appointed for any part of the property of such party, or such party makes an assignment, proposal or arrangement for the benefit of its creditors or such party files an assignment in bankruptcy, or any proceedings under any bankruptcy or insolvency laws are commenced against such Party.
- Termination of this Agreement shall not affect your payment obligation for any fees arising prior to the date of termination, nor shall it affect any obligations undertaken by you in relation to Influencers prior to the date of termination, including full payment for Influencer Services commenced prior to termination and completed after termination. All fees paid by you are non-refundable.
- Notwithstanding the foregoing, Momfluence may limit your activity, warn Influencers and other affected third parties of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your account, remove your Client Content from the Platform, and/or refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) Momfluence is unable to verify or authenticate any information you provide; or (c) Momfluence believes that your actions may cause financial loss or legal liability for Influencers, other third parties, or Momfluence.
- Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
- Momfluence reserves the right to investigate suspected violations of this Agreement. Client herebyauthorizes Momfluence to cooperate with: (a) law enforcement authorities in the investigation of suspected criminal violations and (b) authorized persons carrying out civil legal processes in order to enforce the terms and conditions of this Agreement.
- The above-described actions are not Momfluence’s exclusive remedies and Momfluence may take anyother legal, equitable or technical action it deems appropriate in the circumstances. Momfluence will not be liable for any damage caused by the termination of this Agreement.
12. DISPUTE RESOLUTION
- The Parties agree to work in good faith to resolve any dispute that may arise under this Agreement. Notwithstanding the foregoing, and notwithstanding any termination of this Agreement, each Party shall have the right to pursue any right or remedy available to it in law or in equity.
13. INDEPENDENT CONTRACTORS
- You shall perform your obligations hereunder and provide Client Content as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the Parties. Except to the extent Momfluence specifically authorizes you in writing to do so, you shall neither act nor purport to be acting as the legal agent of Momfluence, nor enter into any agreement on behalf of Momfluence, or otherwise bind or purport to bind Momfluence in any manner whatsoever.
- Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, or describe the scope or extent of such section or in any way affect this Agreement.
- Force majeure: Neither Party shall be deemed to be in default of this Agreement for failure to fulfill its obligations due to causes beyond its reasonable control, provided that the affected Party makes commercially reasonable efforts to mitigate and reduce the effects of such force majeure, and to fulfill its obligations as soon as reasonably practicable.
- Notices: Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, email, or courier addressed to you at the address with which you registered to use the Services, or Momfluence at its address appearing on its website, or to such other address as one Party advises the other Party in writing. Any such notices, reports, or other communications shall be deemed to have been received by the party to whom they were addressed: (a) upon delivery by hand, (b) ten (10) business days after being sent by registered mail, (c) upon delivery by e-mail, as evidenced by a read receipt, or (d) upon delivery by courier, as evidenced by the courier receipt.
- Time/No Waiver: Time is of the essence of this Agreement. No waiver by either Party of a breach or omission by the other party under this Agreement shall be binding on the waiving Party unless it is expressly made in writing and signed by the waiving Party. Any waiver by a Party of a particular breach or omission by the other Party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
- Assignment, Subcontracting and Succession: Except as expressly permitted herein, neither Party shall assign or subcontract or purport to assign or subcontract any of its rights or obligations under this Agreement without first obtaining the other Party’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon the parties hereto and their respective lawful successors and permitted assigns.
- Governing Law: This Agreement shall be governed by and construed under the laws of the Province of Ontario. Each Party hereto irrevocably waives any objection on the grounds of forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the Province of Ontario. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. In construing, interpreting and enforcing this Agreement, choice of law principles shall not apply.
- Electronic Agreement. You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by Momfluence to show your acceptance of this Agreement and/or your agreement to use the Momfluence services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
- Invalidity of Provisions. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
- English Language. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
- Capacity to Enter Into Agreement. If you are residing in a jurisdiction which restricts the use of Internetbased applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement. Furthermore, if you are residing in a jurisdiction which prohibits your use of the Services, you may not enter into this Agreement. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction that your use of the Services is allowed. You further represent and warrant that (i) you are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.
Contacting Momfluence. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to Momfluence or its business, please contact Momfluence at: [email protected]