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TERMS AND CONDITIONS

EFFECTIVE DATE: MARCH 28, 2024

WELCOME TO MOTHERHOOD

READ THESE TERMS CAREFULLY BEFORE BROWSING ANY RETAIL WEBSITE. USING A RETAIL WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE OUR RETAIL WEBSITES IF YOU DO NOT ACCEPT THESE TERMS. NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.

These Terms of Use (“Terms”) are a legal contract between Maternity IP Holdings LP (“Motherhood Maternity,” “Us” or “Our” or “We”) and You (or “Your”) (collectively, “Everyone”) and govern Your use of (1) our websites upon which we post these Terms (each, a “Retail Website”); (2) of all the text, data, information, software, graphics, photographs and more (all of which We refer to as “Materials”) that We and Our affiliates may make available to You, as well as (3) any services We may provide through any of Our websites (each, a “Service”) ((1) – (3) are referred to, collectively, in these Terms as the “Retail Websites”). The Retail Websites and Services are intended for customers and users outside the European Economic Area (“EEA”).  DISPUTE RESOLUTION AND BINDING ARBITRATION CLAUSE; CLASS ACTION WAIVER

CHANGES.

We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue any of Our Retail Websites at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We will inform You of any material changes to these Terms, in accordance with applicable law, which may include by posting notice on our Retail Websites; if You have registered with Us, we may send You notice via email to the address that You provided during registration. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration. If You object to any such modifications, Your sole recourse shall be to cease using all of Our Retail Websites, Materials and Services. Continued use following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Retail Websites. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.

GENERAL USE. 

By using a Retail Website, any Materials or any Service, You represent that You are at least 18 years of age or, if You are under 18 years of age but are at least 13 years old (a “Minor”), that You are using the Retail Website, Materials and/or Service with the consent of Your parent or legal guardian and that You have received your parent’s or legal guardian’s permission to agree to these Terms. If You are a parent or legal guardian of a Minor, You hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless Maternity IP Holdings LP if the Minor breaches any of these Terms. If You are not at least 13 years old, You may not use any Retail Website at any time or in any manner or submit any information to Us, any Retail Website or any Service. We invite You to use Our Retail Websites, Services and Materials for individual, consumer purposes (“Permitted Purposes”) – enjoy! 

In these Terms we are granting You a limited, personal, non-exclusive and non-transferable license to use and to display the Materials; Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in the Retail Websites, the Services or any Materials and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any Retail Website, Service or Materials in any manner. If You make copies of any Materials while engaging in Permitted Purposes then We ask that You be sure to keep on the copies all of Our copyright and other proprietary notices as they appear on the Retail Website and/or the Materials. 

Unfortunately, if You breach any of these Terms the above license will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof). Any purchases made through our Retail Websites are subject to the applicable terms of purchase.

PASSWORD RESTRICTED AREAS OF THIS RETAIL WEBSITE.

If You want an account with Us, You must submit the following information through the account registration page on one of the Retail Websites: 

First and last name; 

Preferred username and password. 

You may also provide additional, optional information so that We can provide You a more customized experience when using the Retail Websites – but, We will leave that decision with You. We may in our discretion refuse or deny Your registration (or cancel Your account) for any reason. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password, You can request a password reset email through the Retail Websites. 

If You register for an account on one of our Retail Websites, You may use the same login details on our other Retail Websites. 

You are responsible for complying with these Terms when You access Our Retail Websites, whether directly or through any account that You may setup through or on a Retail Website. Because it is Your account, it is Your job to obtain and maintain all equipment and services needed for access to and use of the Retail Websites as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access the Retail Websites. Should You believe Your password or security for the Retail Websites has been breached in any way, You must immediately notify Us.

PAYMENTS. 

You agree to pay all applicable charges and fees (including taxes, shipping and handling) related to any purchase You make on or through any Retail Website, which are described in your cart, upon checkout. All payments are processed and collected by our third party service provider, Maternity OPCO Holdings LLC, as the Merchant of Record for such purchases. Returns are subject to our Return Policy, which is incorporated by reference into these Terms.

ELECTRONIC COMMUNICATIONS.

By using any Retail Website and/or the Services and Materials provided on or through the Retail Website, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Retail Website and/or Services and Materials provided on or through the Retail Website.

We may also ask You to consent to receive text message communications from us. You may opt-out entirely of receiving any text messages from us—promotional, transactional, or otherwise—by replying STOP to any text message You receive from us. Message and data rates may apply. By opting in to receive text messages, and depending upon your carrier, You may be providing us with your name, phone number, carrier information, time stamped information, and information about your mobile device, all of which will be used in accordance with our privacy policy. 

Message and data rates may apply. By providing your mobile number and clicking the "Submit" button, You consent to receive recurring text messages and site abandonment reminder messages (including shopping cart or purchase reminders). You also confirm that you have authority to consent to receive text messages at the number you provide. Reply STOP to any message to cancel. Text HELP to any message for help. You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of purchase. By signing up, You are confirming you are over the age of 13, and that You agree to our Privacy Policy and Terms of Use, and that You have the obligation to update your account if you change or deactivate the number we use. You understand that we will send mobile text message using automated technology.

For more information, contact us at textsupport@wunderkind.co

These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing.

PRIVACY POLICY.

We respect the information that You provide to Us, and want to be sure You fully understand exactly how We use that information. So, please review Our Privacy Policy  (“Privacy Policy”) that explains everything. 

LINKS TO THIRD-PARTY SITES.

We think links are convenient, and We sometimes provide links on Our Retail Websites or through Our Services to third-party websites. If You use these links, You will leave the Retail Website or Service. We are not obligated to review any third-party websites that You link to from our Retail Websites or any of Our Services, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from a Retail Website or Service, You do so entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of a Retail Website or Service may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow You to configure your privacy settings in that third-party website account to permit Your activities on Our Retail Website or Service to be shared with Your contacts in your third-party site account.

DISPLAY OF MERCHANDISE.

We make reasonable effort to display merchandise on the Retail Websites as accurately as possible. Unfortunately, various factors, including the display and color capabilities of Your computer monitor, may significantly affect what you actually see on your screen. We are not responsible for the display of any color, texture or detail of its merchandise on Your computer screen and cannot guarantee the accuracy thereof.

SUBMISSIONS.

Certain areas of Our Retail Websites (e.g., blogs, or customer ratings and review areas) may permit You to submit feedback, information, data, text, software, messages, or other materials (each, a “User Submission”). You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, We do not guarantee that You will be able to edit or delete any User Submission You have submitted.

By submitting any User Submission, You are promising Us that: 

You own all rights in Your User Submissions (including, without limitation, all rights to the reproduction and display of Your User Submissions) or, alternatively, You have acquired all necessary rights in Your User Submissions to enable You to grant to Us the rights in Your User Submissions as described in these Terms;

You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submissions;

Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party; 

You voluntarily agree to waive all “moral rights” that You may have in Your User Submission; 

Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading; 

Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);

Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy; 

You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;

Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);

Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files; 

Your User Submission does not contain any information that You consider confidential, proprietary, or personal; and 

Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation. 

By submitting a User Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to: 

Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed; 

Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); 

Display advertisements in connection with Your User Submissions and to use Your User Submissions for advertising and promotional purposes. 

We may, but are not obligated to, pre-screen User Submissions or monitor any area of the Retail Websites or Services through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through Our Retail Websites and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your User Submission to any third party absent any obligation of confidence on the part of the recipient and otherwise to the extent permitted by applicable law.

UNAUTHORIZED ACTIVITIES. 

To be clear, We authorize Your use of the Retail Website, Materials and Services only for Permitted Purposes. Any other use of the Retail Websites, Materials and Services is prohibited and, therefore, constitutes unauthorized use of the Retail Websites, Materials and Services. This is because as between You and Us, all rights in the Retail Websites, Materials and Services remain Our property.

Unauthorized use of the Retail Websites, Materials and/or Services may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use Our Retail Websites, Materials or Services in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

For any public or commercial purpose which includes use of a Retail Website or Service on another site or through a networked computer environment; 

In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any Materials; 

In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law; 

To stalk, harass, or harm another individual; 

To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity; 

To interfere with or disrupt any Retail Website, Service or servers or networks connected to any Retail Website or Service; 

To use any data mining, robots, or similar data gathering or extraction methods in connection with a Retail Website or Service; or 

Attempt to gain unauthorized access to any portion of a Retail Website or any other accounts, computer systems, or networks connected to a Retail Website, whether through hacking, password mining, or any other means.

You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim. IF YOU ARE A NEW JERSEY RESIDENT, THIS INDEMNITY IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY.

PROPRIETARY RIGHTS.

“Motherhood Maternity,” “Motherhood,” “Motherhood Maternity Outlet,” and “Secret Fit Belly,” are a few of the trademarks that belongs to Us. Other trademarks, names and logos appearing on Our Retail Websites are the property of their respective owners. Unless otherwise specified in these Terms, all Materials, including the arrangement of them on Our Retail Websites are Our sole property, Copyright © 2024. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. 

INTELLECTUAL PROPERTY INFRINGEMENT. 

We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to Our Retail Websites and Services (or any portion thereof) to any user who uses the Retail Websites, Materials or Services in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses a Retail Website, Services or Materials in violation of someone’s intellectual property rights. Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of a Retail Website or Service, please provide written notice to Our Agent for notice of claims of infringement: 

Maternity IP Holdings LP  
330 West 34th Street 
15th Floor 
New York, NY 10001

To be sure the matter is handled immediately, Your written notice must:

  • Contain Your physical or electronic signature; 
  • Identify the copyrighted work or other intellectual property alleged to have been infringed; 
  • Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
  • Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
  • Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
  • Contain a statement that the information in the written notice is accurate; and 
  • Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
  • Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.

 

SUBMITTING A DMCA COUNTER-NOTIFICATION 

We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:

Your physical or electronic signature; 

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 access to it was disabled; 

 A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and

Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

TERMINATION

We may terminate, change, suspend or discontinue any aspect of the Services or the Services’ services at any time. We may restrict, suspend or terminate Your access to the Services and/or its services if we believe You are in breach of Our Terms of Use or applicable law, or for any other reason without notice or liability. Without limitation, We may, in Our sole discretion and without liability, terminate the Services use privileges of users who are repeat infringers of intellectual property rights.

We also reserve the right, in Our sole discretion, to terminate the account or access of any user of a Retail Website or Service who is the subject of repeated DMCA or other infringement notifications.

DISCLAIMER OF WARRANTIES. 

OUR RETAIL WEBSITES, MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR RETAIL WEBSITES AND SERVICES IS WITH YOU.WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO OUR RETAIL WEBSITES MATERIALS AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 

THIS MEANS THAT WE DO NOT PROMISE YOU THAT OUR RETAIL WEBSITES, MATERIALS OR SERVICES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that Our Retail Websites, Materials or Services will meet Your requirements or that Our Retail Websites, Materials or Services will be uninterrupted, timely, secure, or error free or that defects in Our Retail Websites, Materials or Services will be corrected. We make no warranty as to the results that may be obtained from the use of Our Retail Website or Services or as to the accuracy or reliability of any information (including Materials) obtained through the Retail Websites or Services. No advice or information, whether oral or written, obtained by You through the Retail Website or Services or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities. 

LIMITATION OF LIABILITY. 

WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE RETAIL WEBSITES OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL US, OR ANY OF OUR AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, "MOTHERHOOD ENTITIES”) BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SERVICES.

IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE MOTHERHOOD ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OF USE OR YOUR USE OF THE SERVICES EXCEED, IN THE AGGREGATE, THE GREATER OF (A) TWENTY-FIVE US DOLLARS ($25), OR (B) THE AMOUNT, IF ANY, PAID BY YOU TO MOTHERMOOD MATERNITY FOR YOUR USE OF THE SERVICES OR PURCHASE OF PRODUCTS VIA THE SERVICES.

IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY. 

LOCAL LAWS; EXPORT CONTROL. 

We control and operate the Retail Websites and Services from Our headquarters in the United States of America and the entirety of the Retail Website. Materials and/or Services may not be appropriate or available for use in other locations. If You use the Retail Websites, Materials or Services outside the United States of America, You are solely responsible for following applicable local laws. The Retail Websites and Services are intended for customers and users outside the European Economic Area (“EEA”).

FEEDBACK. 

Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.

DISPUTE RESOLUTION AND BINDING ARBITRATION CLAUSE; CLASS ACTION WAIVER. 

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE SUBMITTED TO ARBITRATION) AND LIMITING YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.

As detailed herein, the Terms of Use mandate that all disputes between You and Us be resolved first through an informal dispute resolution process. In the event informal resolution fails, the Terms of Use further mandate that all disputes (except those identified below in “Exceptions to Arbitration”) be formally resolved through binding arbitration. Binding arbitration means that an arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve such disputes. Consequently, You should read the entirety of this section carefully as it may significantly affect Your legal rights.

Informal Dispute Resolution.

For any and all disputes between You and Us, the parties shall use their best efforts to settle informally the dispute, claim, question, or disagreement and to engage in good faith negotiations. Failure to engage in this process could result in the award of fees against You in arbitration.

To initiate informal dispute resolution, the initiating party must first send a written description of the dispute to the other party. For any dispute against Us that You initiate, You agree to send to Us (a) a written description of the dispute and (b) the email address(es) associated with your account via e-mail here. The written description must be on an individual basis and provide, at minimum, the following information: your name; a description of the nature or basis of the claim or dispute; and the specific relief sought. For any dispute that We initiate, we will send our written description of the dispute to the email address associated with Your use of the Services.

If the parties’ dispute is not resolved within sixty (60) days after receipt of the written description of the dispute by a party, You and Motherhood Maternity agree to resolve any remaining dispute through the additional dispute resolution provisions set forth below.

A good faith engagement in informal dispute resolution shall be and is a prerequisite and condition precedent to either party initiating a lawsuit or arbitration. The parties agree that any applicable statute of limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.

Binding Arbitration

After the parties have engaged in a good-faith effort to resolve their dispute(s) in accordance with the Informal Dispute Resolution process, and only if those efforts fail, then either party may initiate arbitration as set forth in this Section.

If You determine to initiate arbitration, a copy of the arbitration demand must be sent via e-mail here. If Motherhood Maternity is initiating arbitration, it will serve a copy of the demand to the email address associated with Your use of the Motherhood Maternity Services.

Mutual Arbitration Agreement
Except as set forth in “Exceptions to Arbitration” below, You and Motherhood Maternity agree that all claims, disputes, or disagreements that may arise out of or relating to the interpretation, applicability, enforceability, formation, or performance of these Terms of Use— including but not limited to any claim that all or any part of these terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or timing of any administrative or arbitrator fees—shall be resolved exclusively through binding arbitration in accordance with this Section, “Binding Arbitration” (collectively, the “Arbitration Agreement”). The arbitrator shall be empowered under this Arbitration Agreement to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the arbitration provider’s rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with this Section, “Binding Arbitration.”

This Arbitration Agreement is intended to be interpreted broadly, and it applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice opt-out provisions set forth in the Sections “30-Day Right to Opt Out” and “Changes to this Section.”

This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects and evidences a transaction involving interstate commerce. You and Motherhood Maternity expressly agree that the FAA shall exclusively govern the interpretation and enforcement of this Arbitration Agreement. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which You reside shall apply.

Except as set forth in “Class Arbitration and Collective Relief Waiver” below, if any provision of this Arbitration Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions thereof remain in full force and effect.

WAIVER OF RIGHTS INCLUDING JURY TRIAL
THE PARTIES UNDERSTAND THAT ARBITRATION MEANS THAT AN ARBITRATOR AND NOT A JUDGE OR JURY WILL DECIDE THE CLAIM, AND THAT RIGHTS TO DISCOVERY AND APPEALS MAY BE LIMITED IN ARBITRATION. THE PARTIES FURTHER UNDERSTAND THAT THE COSTS OF ARBITRATION COULD EXCEED THE COST OF LITIGATION IN SOME INSTANCES.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT BY AGREEING TO THESE TERMS AND ARBITRATION AGREEMENT, YOU AND MOTHERHOOD MATERNITY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

CLASS ARBITRATION AND COLLECTIVE RELIEF WAIVER.
YOU AND MOTHERHOOD MATERNITY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT AS OTHERWISE SET OUT IN THIS SECTION, “BINDING ARBITRATION,” AND THE SECTION “NO CLASS OR CONSOLIDATED ARBITRATION ABSENT WRITTEN CONSENT” BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR OTHER CONSOLIDATED ACTION, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM; NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF MOTHERHOOD MATERNITY PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.

If there is a final judicial determination that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.

If there is a final judicial determination that either the Class Arbitration and Collective Relief Waiver in this Section, or that the provisions in this Section, “Binding Arbitration,” are not enforceable as to a particular claim or request for relief, then the parties agree that that particular claim or request for relief may proceed in court as provided herein, but shall be severed and stayed pending arbitration of the remaining claims. This provision does not prevent You or Motherhood Maternity from participating in a class-wide settlement of claims.

Arbitration Location.
If You are a resident of the United States, arbitration will take place in the county where You reside. For residents in Canada (and anywhere else outside the United States), arbitration shall be initiated in the County of New York, State of New York, United States of America, unless You and Motherhood Maternity otherwise agree or unless the designated arbitrator determines that such venue would be unreasonably burdensome to any party, in which case the arbitrator shall have the discretion to select another venue.

For any arbitration conducted in the County of New York, State of New York, United States of America, You and Motherhood Maternity agree to submit to the personal jurisdiction of any federal or state court in New York, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and in connection with any such proceeding, further agree to accept service of process by U.S. or certified mail and hereby waive any and all jurisdictional and venue defenses otherwise available

The Arbitration Rules.

The Provider.

The arbitration will be administered by National Arbitration and Mediation (“NAM”) and resolved before a single arbitrator. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.

Except as modified by this “Dispute Resolution” provision, NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at http://www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.

You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate, provided that such modification does not increase the costs to You, and You further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section, “Dispute Resolution and Binding Arbitration Clause; Class Action Waiver,” while such challenge remains pending before NAM the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.

Arbitration Demand Must Contain Sufficient Information.

Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based, and must include proof that the claimant is party to this Arbitration Agreement and to these Terms of Use. The arbitrator and/or NAM may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11), including for any claim filed on behalf of a claimant who is not a party to this Arbitration Agreement or to these Terms of Use.

Arbitration Conducted on Papers in Some Circumstances.

If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents that You and Motherhood Maternity submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.

Dispositive Motions.

Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.

Batching.

To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (or another arbitration provider selected in accordance with the Section, “The Provider,” if NAM is unavailable) against Motherhood Maternity within reasonably close temporal proximity (“Mass Filing”), the parties agree (A) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (B) to designate one arbitrator for each batch; (C) to accept applicable fees, including any related fee reduction determined by NAM (or another arbitration provider selected in accordance with the Section, “The Provider,” if NAM is unavailable) in its discretion; (D) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (E) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Motherhood Maternity and the claimants, shall only be due after Your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (F) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including Your demand) is adjudicated or otherwise resolved. If Your demand for arbitration is included in the Mass Filing, any statute of limitation applicable to your claims will remain tolled until your demand for arbitration is decided, withdrawn, or settled.

Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and shall be subject to any rights to strike an arbitrator provided under applicable state law if the rights granted by law exceed those provided for in the NAM rules, and the arbitrator will determine the location where the proceedings will be conducted.

You agree to cooperate in good faith with Motherhood Maternity and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. For example, if the number of cases filed makes batches of 100 cases too small for the prompt resolution of all filed claims, You and we agree that NAM may increase or decrease the batch size, or transfer a case between batches in the reasoned discretion of the NAM procedural arbitrator. Any and all disagreements between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a NAM procedural arbitrator.

This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind.

No Class or Consolidated Arbitration Absent Written Consent.

Unless Motherhood Maternity otherwise consents in writing, which it may do on a case-by-case basis, Motherhood Maternity does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in the Section, “Class Arbitration and Collective Relief Waiver,” and this Section, “No Class or Consolidated Arbitration Absent Written Consent.”

Arbitration Award.

The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the Section “Class Arbitration and Collective Relief Waiver,” above, and also must be consistent with the terms of the “Limitation of Liability” section of these Terms of Use as to the types and the amounts of damages or other relief for which a party may be held liable. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration.

Exceptions to Arbitration.

Notwithstanding the parties’ agreement to resolve all disputes through binding arbitration as set forth in the Section, “Binding Arbitration:”

IP Disputes.

Either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, shall be exclusively brought in the state and federal courts located in New York, New York.

Small Claims Court and Statutes of Limitation.

Either party may elect to have disputes or claims resolved in a small claims court regardless of what forum the filing party initially chose, provided the disputes or claims are within the scope of that court’s jurisdiction.

Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be in fact be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed (and any applicable statute of limitations tolled) pending the outcome of such action.

Jurisdiction/Service of Process.

For any dispute not subject to arbitration under this Section, “Dispute Resolution and Binding Arbitration Clause; Class Action Waiver,” You and Motherhood Maternity agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New York, New York. You further agree to accept service of process by U.S. or certified mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

30-Day Right to Opt Out.

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice, signed by you, of your decision to opt-out via e-mail here. The notice must be sent within 30 days of March 28, 2024 or your first use of the Services, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of the Section, “Binding Arbitration.” If you opt-out of the arbitration provisions, Motherhood Maternity also will not be bound by them.

If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If Motherhood Maternity changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Services 30 days after such change will be deemed acceptance of those changes. If you do not agree to such change, you may opt out of the Arbitration Agreement by providing notice as described in this Section, “30-Day Right to Opt Out.” 

Motherhood Maternity will continue to honor any valid opt outs if you opted out of arbitration in a prior version of the Terms pursuant to the requirements set forth in that version. If you do not timely opt out of this Arbitration Agreement, such action shall constitute mutual acceptance of the terms of these “Dispute Resolution” provisions by you and Motherhood Maternity. 

Changes to this Section.

Motherhood Maternity will provide 30 days’ notice of the date of any material changes to this Section, “Dispute Resolution and Binding Arbitration Clause; Class Action Waiver.” Changes will become effective on the 30th day and apply to all claims not yet filed. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Motherhood Maternity does not have actual notice are subject to the revised clause.

SEVERABILITY.

If any clause within these Terms is found to be illegal, void, or unenforceable by an arbitrator or court of competent jurisdiction, that clause will be severed from these Terms, whose remainder will be given full force and effect.

GENERAL.

We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.

However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to the Retail Websites and Services without prior notice to You. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms, the Retail Websites, the Materials and/or the Services will be heard in the courts located in New York, New York. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Retail Website. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

CALIFORNIA CONSUMER NOTICE.

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Retail Website and Service are provided by Maternity IP Holdings LP, 330 West 34th Street, 15th Floor, New York, NY 10001. If You have a question or complaint regarding the Retail Website or Service, please contact Customer Service via e-mail here. You may also contact Us by writing Maternity IP Holdings LP, Attn: General Counsel, 330 West 34th Street, 15th Floor, New York, NY 10001.  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700. 

CONTACT US

If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at:

 

Maternity IP Holdings LP 
330 West 34th Street, 15th Floor

New York, NY 10001