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Momensity Master Subscription Agreement – Last updated 4 January 2021
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND MOMENSITY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND MOMENSITY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
SECTION II: GENERAL PROVISIONS
2.1 The Services:
This Agreement sets out the terms of the contract between the Customer and Momensity and the Services Momensity provides, including any Momensity Data that Customer accesses related to the Services.
During the Term, Momensity will: (a) provide the Services with reasonable skill and care; (b) not make a material adverse change to the functionality of the Services; (c) provide the Services in material accordance with any descriptions of the Services referred to on an Order; and (d) process any personal data within Customer Data (if any). Other than as set out in this Agreement, all other warranties, conditions, and representations, whether express or implied, are excluded, subject to Applicable Law.
2.3 Third Party Services:
An Order may contain obligations in respect of Services and obligations in respect of Third Party Services. Where an Order specifies Services and Third Party Services, the obligation: (i) to provide Services creates a contract between Momensity (as principal) and Customer in respect of such Services (and that contract is this Agreement); and (ii) to provide Third Party Services is a contract between the third party (as principal) and Customer (to provide Third Party Services to Customer on the terms that are in place between Customer and the third party). Momensity is only responsible for its own Services and not any Third Party Services.
3 Use of the Services
3.1 Responsibility: Customer:
(a) is responsible for its compliance with this Agreement and will procure that each User complies with the terms of this Agreement as if that User were Customer; (b) will comply with the Twitter Terms of Service, usually at https://twitter.com/tos, and the Youtube Terms of Service, usually at https://www.youtube.com/t/terms, and the Facebook Terms of Service, usually at https://www.facebook.com/terms.php, and the Instagram Terms of Service, usually at https://help.instagram.com/478745558852511, and the Pinterest Terms of Service, usually at https://policy.pinterest.com/en/terms-of-service, and the Snap Terms of Service, usually at https://www.snap.com/en-US/terms, and the TikTok Terms of Service usually at https://www.tiktok.com/legal/terms-of-use?lang=en, and the LinkedIn Terms of Service usually athttps://www.linkedin.com/legal/l/service-terms ; and (c) has the right, title, permissions, and interest in the Customer Data to make it available to Momensity for processing.
3.2 User protection:
Customer will not: (a) knowingly display, distribute, or otherwise make Momensity Data available to any person or entity that it reasonably believes may use Momensity Data in a manner that would have the potential to be inconsistent with that individual’s reasonable expectations of privacy; (b) conduct any research or analysis that isolates a small group of individuals or any single individual for unlawful or discriminatory purposes; (c) use Momensity Data to target, segment, or profile any individual based on health, negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by Applicable Law; or (d) without Momensity’s prior written consent, but subject to Applicable Law, display, distribute, or otherwise make Momensity Data available to any member of the US intelligence community or any other government or public-sector entity.
Customer will not: (a) sell, resell, license, sublicense, distribute, or otherwise make the Services (or the results of the Services, including Momensity Data) available to anybody other than its Users for their own internal use, unless stated otherwise on an Order; (b) subject to Applicable Law, attempt to reverse-compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form any part of the Services; (c) use the Services or any Momensity Data to violate Applicable Law, including Applicable Law about data protection, privacy, or information security; or (d) purposefully interfere with or disrupt the performance of the Services, including spamming, hacking, and violating Momensity’s API rate limits.
3.4 Password protection:
Each party is responsible for using reasonable efforts to ensure that any User IDs and passwords required for Users to use Services are kept safe and confidential. Subject to Applicable Law, each party will promptly notify the other party upon discovery if the security of a User ID or password may be or is compromised.
3.5 Removal of Momensity Data:
A licensor or Applicable Law may require Momensity to remove personal data within any Momensity Data. In such cases, Momensity will notify the Customer of the impacted Momensity Data that requires removal and Customer will promptly remove such data from its systems, whether during or after the Term.
Customers will pay the fees for the Services set out in an Order. The fees for the Services are exclusive of legally applicable taxes, levies, duties, or similar governmental assessments, including goods and services, value-added, withholding, and sales taxes. Customers will provide Momensity with the information it reasonably requires to send an invoice. All fees are invoiced annually in advance, unless stated otherwise on an Order.
4.2 Orders and Third Party Services:
Customer will pay: (a) Momensity the fees for the Services and any Third Party Services set out on an Order which Momensity sends to Customer (for Third Party Services, Momensity collects the fees for Third Party Services on the third party’s behalf); and (b) the fees for the Services set out on an Order that a third party sends to Customer, and in such case, the third party collects the amounts due to Momensity on Momensity’s behalf.
5 Confidential Information
“Confidential Information” is any information that a party discloses to the other party that is marked as confidential or that a reasonable person would understand to be confidential (including trade secrets). Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) the receiving party knew prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (c) a third party made available to the receiving party without breach of any obligation owed to the disclosing party; or (d) the receiving party independently developed.
5.2 Keep in confidence:
The receiving party will keep the Confidential Information of the disclosing party confidential for the Term and for two years after the end of the Term, provided that if the Confidential Information contains a party’s trade secrets, then those trade secrets will remain confidential until they are no longer trade secrets. The receiving party will only use the disclosing party’s Confidential Information for performing its obligations under this Agreement or using the Services. Nothing in this section 5 prevents the receiving party from disclosing the disclosing party’s Confidential Information: (a) to its corporate affiliates, legal advisers, accountants, potential investors, or other professional advisers where required (collectively, “Permitted Recipients”), provided that the disclosing party remains responsible for its obligations and for the Permitted Recipients’ use and disclosure of the Confidential Information; or (b) if required to disclose it under Applicable Law, provided that the receiving party will inform the disclosing party of the disclosure requirement, if legally permitted, as soon as reasonably practicable.
5 Intellectual property
5.1 Intellectual property rights:
Momensity or its licensors owns all intellectual property rights in the Services and the Momensity Data, including any queries that Momensity generates or writes as part of the Services. Other than as set out elsewhere in this Agreement, Customer is not granted any rights to Momensity’s intellectual property rights.
Customer owns any Report; provided that the rights to any Momensity Data in a Report are granted to Customer under a worldwide, non-exclusive, non-transferable, royalty-free licence to use the Momensity Data and the Report in accordance with this Agreement.
5.3 Momensity Data Licence:
Momensity grants to Customer a worldwide, non-exclusive, non-transferable, royalty-free, licence to download, copy, or otherwise remove Momensity Data from Momensity’s systems, in accordance with this Agreement.
5.4 Customer Data Licence:
Customer grants to Momensity a non-exclusive, royalty-free licence to process Customer Data for the purposes of providing the Services.
5.5 User feedback:
Momensity may, and Customer grants Momensity the right to, irrevocably reproduce, distribute, sell, incorporate into the Services, or otherwise exploit any suggestion, enhancement request, recommendation, correction, or other feedback (“Feedback”) that Customer or its Users provide related to the use of the Services. Customer will obtain for Momensity the rights in any Feedback that its Users provide in connection with the use of the Services.
This Agreement begins when it is signed by the parties or agreed to via an Order, and it continues until all Orders have expired or been terminated in accordance with the terms of this Agreement.
6.2 Mutual termination:
A party may terminate this Agreement at any time on written notice to the other party if: (a) the other party is in material breach and, if remediable, the breach is not remedied within 30 days of being notified in writing of the breach; or (b) the other party begins insolvency proceedings, becomes the subject of a petition in liquidation, or any other proceeding relating to insolvency, liquidation, bankruptcy, or assignment for the benefit of creditors (including similar proceedings under Applicable Law); or (c) the other party makes an arrangement with its creditors related to concerns about insolvency (including similar proceedings under Applicable Law). If this Agreement is governed by New South Wales law, Momensity’s right to terminate in (b) and (c) above is limited by the Corporations Act 2001.
7 Accrued rights and survival:
A party’s accrued rights and liabilities are not impacted by termination of this Agreement. Sections 1, 3.1, 3.3, 3.5, 5, 6, 7, 8, 9, and 10 survive termination of this Agreement.
SECTION III: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
9.***Please read sections 8.1-8.3 as they exclude/limit each party’s liability***
9.1 What the parties are liable for:
Nothing in this Agreement excludes or limits a party’s liability for any Losses that cannot be excluded or limited under Applicable Law (including fraud or willful misconduct). If this Agreement is governed by German law, then the Losses that cannot be excluded or limited under Applicable Law are fraud, wilful misconduct, gross negligence, or damages resulting from death or physical injury, or damages to a person’s health).
9.2 Losses a party is liable for:
Subject to sections 8.1 and 8.3, a party is only liable for Losses that the other party suffers as a direct and reasonably foreseeable result of a party’s breach of its obligations under this Agreement. Other than as set out in section 8.1 and the previous sentence, neither party is liable to the other party for any other Losses of any kind. If this Agreement is governed by New South Wales law and the Competition and Consumer Act 2010 applies, then, if Momensity is entitled to do so, Momensity’s liability will be limited to at its option to: (a) the supply of the Services again; or (b) the payment of the cost of having the Services supplied again.
9.3 Liability cap:
Subject to sections 8.1, 8.2, and 10.10, each party’s total liability, however arising, is capped at: (a) the amounts set out in the table below for Claims in a Contract Year; and (b) 110% of the fees for the Services incurred in the first Contract Year, for Claims outside of a Contract Year.
10.1 Momensity’s indemnity:
Momensity will indemnify Customer’s Indemnitees against Losses arising out of a third party Claim against Customer that Customer’s use of the Services infringes the intellectual property rights of a third party. The indemnity does not apply if the Claim is based on Customer’s use of the Services in violation of its obligations under this Agreement. Where there is an indemnified Claim, Momensity: (i) may secure the right for Customer to continue using the Services or (ii) replace or modify the Services so that they become non-infringing. If (i) and (ii) are not reasonably available, Momensity may terminate the infringing Services on 30 days’ written notice to Customer and provide a pro rata refund of any prepaid fees for the terminated Services that were not provided.
10.2 Customer’s indemnity:
Customer will indemnify Momensity’s Indemnitees against Losses arising out of a third-party Claim against Momensity that Customer breached section 3.1(c) or that the Customer Data infringes the intellectual property rights of a third party.
10.3 Indemnity process:
The indemnified party will give the indemnifying party prompt written notice of any Claim and sole control to defend or settle the Claim. The indemnified party will use its commercially reasonable efforts to mitigate its Losses.
SECTION IV: GOVERNING LAW; ARBITRATION
12.1. Governing Law.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND MOMENSITY. TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
You and Momensity agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the App that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Momensity are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, as of the date of these Terms, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
If you choose to arbitrate with Momensity, you will not have to pay any fees to do so. That is because Momensity will reimburse you for your filing fee, and the AAA’s Consumer Arbitration Rules provide that any hearing fees and arbitrator compensation are our responsibility. To the extent another arbitral forum is selected, Momensity will pay that forum’s fees as well.
The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Momensity. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Momensity.
YOU AND MOMENSITY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Momensity are instead electing 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 Momensity10 over whether to vacate or enforce an arbitration award, YOU AND MOMENSITY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
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 we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 12.1.
Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
You may opt out of this arbitration agreement. If you do so, neither you nor Momensity can force the other to arbitrate. To opt out, you must notify Momensity in writing no later than thirty (30) calendar days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Momensity username and the email address you used to set up your Momensity account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: Momensity, LLC, ATTN: Arbitration Opt-Out, P.O. Box 21 Stafford, Virginia 22554, or email the opt-out notice to [email protected]
Notwithstanding the foregoing, either you or Momensity may bring an individual action in small claims court.
This arbitration agreement will survive the termination of your relationship with Momensity.
SECTION V: GENERAL
13.1. Customer Service.
Should you have any questions, comments or concerns regarding the App customer service may be contacted at any time via [email protected] We strive to return all customer service inquiries within forty-eight (48) business hours.
13.2. Affiliate Disclosure.
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the App. Because of this relationship we may earn a commission on products purchased by a User from a third-party affiliate.
13.3. Differing and Conflicting Terms.
We reserve the right, but assume no obligation, to agree to different or conflicting terms and conditions with respect to any User. Any such terms and conditions will not be enforceable unless specifically agreed to by us.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
13.6. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
13.8. Rights of Third Parties.
These Terms do not create or confer any rights in favour of any person, other than the parties to this Agreement, even if that person has relied on the term or has indicated to any party its assent to the term.
13.9. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Each party will deliver notices for legal service or material breach by a courier service or recorded delivery: for Momensity, to its registered office address Momensity, LLC, ATTN: Legal Notice, P.O. Box 21 Stafford, Virginia 22554; for Customer, to its address as set out in an Order. Any notices for any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, Customer will send the notice to [email protected] with Customer’s account manager in cc, and Momensity will send the notice to Customer to via an email address listed in any Order. Notice sent by recorded delivery is received three business days after posting; email notice is deemed received 24 hours after it is sent.
From time to time, and at our sole discretion, Momensity may make changes to these Terms. Momensity will endeavor to give Users thirty (30) calendar days’ notice of such changes via a push notification, posting of the changes to the Terms to the App, and/or an email, but will not be liable for any failure to do so. Should you choose to continue your use of the App following any change to these Terms, your continued use will constitute acceptance of and agreement with such changes.
13.13 Rules of Interpretation.
The words “include” and “including” are deemed to have the words “without limitation” following them; and references to “will” are to be construed as having the same meaning as “shall”.\
Neither party will publicly disclose the relationship between the parties or the Services provided under this Agreement without the other party’s prior written consent.
13.15 Order of priority.
If there is a conflict of this Agreement: sections 8 and 10.10 of these terms and conditions prevail over an Order, an Order prevails over other sections of these terms and conditions, which in turn prevail over the Service Level Agreement. The English version of these terms and conditions prevails over any non-English version.
13.16 Entire agreement:
This Agreement is the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations about its subject matter. Each party agrees that in entering into this Agreement, neither party relies on, and will have no remedy in respect of, any proposal, understanding, agreement, or representation other than as set out in this Agreement.
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