Terms and Conditions
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: November 14, 2022
Welcome to Moodi Day. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at [email protected].
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Your use of or participation in certain Services may be subject to additional policies, rules and/or conditions (“Additional Terms”) which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on the moodiday.com website, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected].
By providing us with your wireless phone number, you confirm that you want Moodi Day to send you information we think may be of interest to you, which may include Moodi Day using automated dialing technology to text you at the wireless number you provided.
What are the basics of using Moodi Day?
In order to use the Services you will be required to complete a registration survey. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not use another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
Consent to receive periodic messages
As part of the Services, you may receive communications through the Services, including messages that Moodi Day sends you (for example, via SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE COMMUNICATIONS FROM MOODI DAY, AND YOU REPRESENT AND WARRANT THAT EACH PERSON YOU REGISTER FOR THE SERVICES OR FOR WHOM YOU PROVIDE A WIRELESS PHONE NUMBER HAS CONSENTED TO RECEIVE COMMUNICATIONS FROM MOODI DAY. You agree to indemnify and hold Moodi Day harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
- (a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Moodi Day);
- (b) Violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Moodi Day;
- (c) Is dangerous, harmful, fraudulent, deceptive, misleading, false, inaccurate, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- (d) Exploits people in a sexual or violent manner;
- (e) Attempts, in any manner, to obtain the password, account, or other security information from any other
- (f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
- (g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
- (h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
- (i) Copies or stores any significant portion of the Content; or Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
Furthermore, if you are a candidate, you shall not (directly or indirectly):
- (a) Complete an assessment on behalf of another party; or
- (b) Post or submit any incomplete, false or inaccurate biographical information or information which is not your own.
Furthermore, if you are an employer, you shall not (directly or indirectly):
- (a) Provide opportunities, content or information in a manner that does not comply with applicable local, national and international laws, including but not limited to laws relating to labor and employment, equal employment opportunity and employment eligibility requirements, data privacy, data access and use, and intellectual property;
- (b) Promote opportunities that include any screening requirement or criterion in connection with a job posting where such requirement or criterion is not an actual and legal requirement of the posted job;
- (c) Promote any franchise, pyramid scheme, “club membership”, distributorship, multi-level marketing opportunity, or sales representative agency arrangement;
- (d) Promote any business opportunity that requires an upfront or periodic payment or requires recruitment of other members, sub-distributors or sub-agents;
- (e) Promote any business opportunity that pays commission only unless the posting clearly states that the available job pays commission only and clearly describes the product or service that the job seeker would be selling;
- (f) Advertise sexual services or seek employees for jobs of a sexual nature;
- (g) Request the use of human body parts or the donation of human parts, including, without limitation, reproductive services such as egg donation and surrogacy
- (h) Endorse a particular political party, political agenda, political position or issue;
- (i) Promote a particular religion;
- (j) Promote jobs located in countries subject to economic sanctions of the United States Government;
- (k) Except where allowed by applicable law, promote opportunities which require the applicant to provide information relating to his/her (i) racial or ethnic origin, (ii) political beliefs, (iii) philosophical or religious beliefs, (iv) membership of a trade union, (v) physical or mental health, (vi) sexual life, (vii) the commission of criminal offences or proceedings, or (viii) age.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services. Moodi Day also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public. Moodi Day may, but is not obligated to, make an independent investigation to ensure full compliance with these Terms. If we determine, in our sole discretion, that any representation or warranty made by you pursuant to these Terms is in any way false, incomplete, or inaccurate, we may, at any time, reject, remove, or suspend or delay your use or access to the Services, in whole or in part.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, assessments, reports, business descriptions, biographies, user demographics, and any other information, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Moodi Day’s) rights.
You understand that Moodi Day owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply — they do!
Do I have to grant any licenses to Moodi Day or to other users?
For all User Submissions, you hereby grant Moodi Day a license to translate, modify (for technical purposes, for example, making sure your content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only — your ownership in User Submissions is not affected.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant Moodi Day the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Moodi Day users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Moodi Day’s business for any purpose. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide.
Finally, you understand and agree that Moodi Day, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Moodi Day, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged
infringers. In accordance with the DMCA, we’ve adopted the policy below toward copyright infringement. To learn more about the DMCA, see link to http://www.copyright.gov/legislation/dmca.pdf.
1. Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Moodi Day Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
- (a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- (b) Identification of works or materials being infringed;
- (c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Moodi Day is capable of finding and verifying its existence;
- (d) Contact information about the notifier including address, telephone number and, if available, email address;
- (e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law;
- (f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
2. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- (a) remove or disable access to the infringing material;
- (b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material;
- (c) terminate such content provider’s access to the Services if he or she is a repeat offender.
3. Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
- (a) A physical or electronic signature of the content provider;
- (b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- (c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material;
- (d) Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Moodi Day is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Designated Agent, Moodi Day may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Moodi Day may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Moodi Day’s discretion.
Please contact Moodi Day’s Designated Agent at the following address: [email protected].
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Moodi Day has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services, including third party employers. In addition, Moodi Day will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Moodi Day shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Moodi Day is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Moodi Day, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor.”
Will Moodi Day ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
The Services may be free or we may charge a fee for using the Services. If you are using a free version of the Services, we will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services. Note that if you elect to receive text messages through the Services, data and message rates may apply. Any and all such charges, fees or costs are your sole responsibility. You should consult with your wireless carrier to determine what rates, charges, fees or costs may apply to your use of the Services.
- (a) Paid Services. Certain of our Services may be subject to payments now or in the future (the “Paid Services”). Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms.
- (b) Billing. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for error by the Payment Processor. By choosing to use Paid Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
- (c) Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
- (d) Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, PLEASE CONTACT US AT [email protected].
- (e) Current Information Required.YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE BY CONTACTING YOUR ACCOUNT MANAGER AT [email protected]. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
- (f) Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
- (g) Auto-Renewal for Paid Services. Unless you opt out of auto-renewal, which can be done by contacting us at [email protected], any Paid Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign your Paid Services at any time, please contact us at [email protected]. If you terminate a Paid Service, you may use your subscription until the end of your then-current term and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If you do not want to continue to be charged on a recurring monthly basis, you must cancel the applicable Paid Service BY CONTACTING US AT [email protected] or terminate your Moodi Day account before the end of the recurring TERM. Paid Services cannot be terminated before the end of the period for which you have already paid, and except as expressly provided in these terms, Moodi Day will not refund any fees that you have already paid.
- (h) Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Paid Service. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service.
What if I want to stop using the Services?
Account termination may result in destruction of any Content associated with your account, including assessments, reports, questionnaires, and job listings, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Moodi Day.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
- (a) Moodi Day provides a platform for individuals to network for professional purposes and Moodi Day does not screen or censor User Submissions on the Services. Moodi Day does not take part in, nor is Moodi Day in any way responsible for, any interactions between users of the Services, except to the extent necessary to maintain our Services. Any interaction between you and any other individual or entity through our Services or arising out of your use of our Services, including any interactions between you and employers (in the case of job seekers), and you and job seekers (in the case of employers), is solely between you and that other individual or entity. Moodi Day is not responsible for User Submissions, the quality, safety or legality of the jobs or opportunities provided, the truth or accuracy of the listings or communications, the ability of employers to offer job opportunities to job seekers or the ability of job seekers to fill job openings and Moodi Day makes no representations about any jobs, opportunities or User Submissions on the Services. Moodi Day disclaims any responsibility for any interactions between job seekers and employers. For avoidance of doubt, Moodi Day disclaims any responsibility for any services acquired or made available through our Services, even if Moodi Day investigates or attempts to verify any information in connection therewith. You agree that you must evaluate and bear all risks associated with the use of our Services and Content.
- (b) Note that there are risks, including but not limited to the risk of physical harm, 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 Services. By its very nature other people’s information may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. We expect that you will use caution and common sense when using the Services.
- (c) We have no special relationship with or fiduciary duty to you. You acknowledge that Moodi Day has no duty to take any action regarding:
o i. which users gain access to the Services;
o ii. what Content you access via the Services; or
o iii. how you may interpret or use the Content.
- (d) You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
- (e) THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, 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. WE, AND OUR DIRECTORS, EMPLOYEES, CONSULTANTS, REPRESENTATIVES, AGENTS, SUPPLIERS, LICENSORS, PARTNERS AND CONTENT PROVIDERS (THE “MOODI DAY PARTIES”) DO NOT WARRANT THAT:
o (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION;
o (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED;
o (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR
o (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE MOODI DAY PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR
- (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR
- (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR
- (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. Indemnity. You agree to indemnify and hold the Moodi Day Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to
- (a) your use of the Services (including any actions taken by a third party using your account), and
- (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder). Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Moodi Day’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
- Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New Jersey, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Moodi Day and limits the manner in which you can seek relief from Moodi Day. Both you and Moodi Day acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Moodi Day’s officers, directors, employees and independent contractors (“Personnel”) are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Moodi Day will pay all arbitration fees for claims less than ten thousand ($10,000) dollars. Moodi Day will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court. Furthermore, either you or Moodi Day may assert claims, if they qualify, in small claims court in New York, New York or any United States county where you live or work.
(d) Waiver of Jury Trial. YOU AND MOODI DAY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Moodi Day are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Moodi Day over whether to vacate or enforce an arbitration award, YOU AND MOODI DAY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Moodi Day is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: Moodi Day, 8 Lombardy Street #40822, Newark, New Jersey 07102, postmarked within 30 days of first accepting these Terms. You must include (i) your name and residence address; (ii) the email address and/or telephone number associated with your account; and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Moodi Day to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party and both you and Moodi Day agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in the State of New Jersey.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Moodi Day.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that Moodi Day may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Moodi Day agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Moodi Day, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Moodi Day, and you do not have any authority of any kind to bind Moodi Day in any respect whatsoever.
You and Moodi Day agree there are no third party beneficiaries intended under these Terms.
Last Edited on 2022-14-11