Welcome to Momently, a website owned and operated by Momently Inc. ("Momently", "we" or "us"). These Terms of Service (referred to herein as these “Terms of Service” or this “Agreement”) are between Momently Inc. (“Momently”, “We”, “Us” or “Our”) and you (collectively, “Customer,” “You” or “Your”). By implementing or using the Service (as defined below) on Your website, service or application, or by using, or signing up for an account on Our Site, You agree that You are authorized to accept this Agreement on behalf of Yourself and that You are bound by this Agreement. If You are agreeing to this Agreement for use of the Service by an organization, then You are agreeing to this Agreement on behalf of that organization (and “Customer,” “You” and “Your” will refer to that organization). You must have the authority to bind that organization to this Agreement; otherwise You must not sign up for the Service. By using the Service, You are representing and warranting that You are over the age of 18, or the legal age of majority in Your jurisdiction of residence.

Your use of the Service and each website (each a “Site”) owned and operated by Momently are governed by these Terms of Use. The Service is comprised of certain Momently proprietary software (the “Software”) that allows You to obtain statistics based on website visitors to Your website, service, or application, (the Software and services provided thereby and from Our Sites shall be collectively known as the “Service(s)”). You must affirmatively agree to and indicate Your acceptance of these Terms of Service and the Privacy Notice (individually or collectively the “Agreement”) in order to use the Service. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICE.

Registration process, free trial and paying plans

If You decide to register for the Service, You must provide certain limited information about yourself as prompted to do so by the Service. By registering for the Service, Momently will provide You with access to the Service as a free trial user for 14 days from the date of Your registration (“Free Trial Period”). The term for the Free Trial Period will begin on the date of your registration on the Site for the Momently Service and will continue for fourteen (14) days, unless extended or sooner terminated in accordance with this Agreement. You agree to be responsible for your account password as well as the acts and/or omissions of any third party using the Service through Your account. You must notify Momently immediately of any unauthorized use of Your account or loss of account information. You agree to keep all account information complete, accurate and up to date (including without limitation any payment and contact information).

We reserve the right to refuse the Service to any user and terminate Your account for any reason within Momently’s sole discretion.

After the Free Trial Period, You will be prompted to enter Your payment details if You have not already done so. If You've already updated Your payment details, Your credit card or PayPal account will be automatically charged and Your account will be upgraded to an auto-renewing, paid subscription (a "Paid Plan"). Please note that upon the end of Your Free Trial Period, if You do not purchase a Paid Plan, You may lose access to all data stored on the Service.

By upgrading to (or separately purchasing) a Paid Plan, You are agreeing to pay in advance the amount due for each subscription period based on Your Plan. Subscription periods are either monthly or yearly unless otherwise agreed in writing by Momently. Each plan includes a specified number of user seats, sites and data history, as well as a number of "Views" You track in each month.

Please note that under each Plan, You are responsible for all fees due for the entire subscription period – even if You cancel Your subscription. You authorize us (or a billing agent acting on Our behalf) to charge You the applicable fees using Your selected payment method. We’ll automatically bill You in advance from the date You convert to a Paid Plan, and on each subscription renewal, until cancellation. For clarity, payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable.

The fees set forth in this Agreement are the net amount that We must receive exclusive of any taxes and, in addition to such fees, You shall be responsible for promptly paying (to us or the appropriate taxing authority) any and all taxes, duties and tariffs, including, without limitation, sales, excise, value added, use, withholding, import/export and similar charges related to this Agreement.

ONCE YOU HAVE PURCHASED A PAID PLAN, WE WILL AUTOMATICALLY CHARGE YOU IN ADVANCE FOR THE NEXT SUBSCRIPTION PERIOD.

Overage Fees. We reserve the right to charge any applicable overage fees if You exceed the maximum Views allowed by Your Plan. For the next month, You may be automatically charged for such higher usage, or we may require that you upgrade to a new plan (which may require you to enter into a signed agreement with Momently). You will be charged for Your increased usage starting with the next month.

The number of Views purchased in a given volume tier of a Paid Plan must be used during the month and any unused Views at the end of the month are forfeited. If You exceed the maximum Views allowed by Your Plan during the month, Momently will thereafter through the end of the month charge additional fees ("View Overage Fees") at 120% of the unit price applicable to Your selected volume tier and You shall be obligated to pay any View Overage Fees in the next month. You may upgrade and purchase a higher volume tier of a Paid Plan at any time, through the Application Services by paying the price of the higher volume tier.

Upgrades. If You upgrade Your Paid Plan, You will immediately be charged the then-current rate for the new Paid Plan (and any auto-renewals thereof), as provided on Our Site.

We may revise Service rates at any time, or impose additional fees or charges. Provided that if You upgrade Your plan (or an upgrade occurs automatically as set forth in this section), You will be charged at the then-current rate. Unless otherwise expressly stated in writing, any discounts applied to a previous subscription period do not apply to a renewed subscription period, including to any automatic renewals.

Your Paid Plan will remain in effect until it’s cancelled or terminated under these Terms and Conditions.

If You don’t pay for Your Paid Plan on time, We reserve the right to suspend or terminate Your account. Unless otherwise stated, all fees are stated in, and shall be paid in, US dollars.

Downgrades. The Plan downgrade will take effect the first billing cycle of Your next subscription period. Please note that You will not receive any refunds for payments made on Your current billing cycle (or for your current subscription period). Downgrading Your Plan may cause the loss of content, features, or capacity. Momently disclaims liability for any such loss.

Credits. Any credits that may accrue to Your account will expire following expiration or termination of the applicable Contract, will have no currency or exchange value, and will not be transferable or refundable.

Auto Renewal. YOUR ACCOUNT IS SET TO AUTO RENEW, AND MOMENTLY SHALL AUTOMATICALLY CHARGE YOU AT THE END OF THE TERM FOR THE RENEWAL FOR ADDITIONAL PERIODS EQUAL TO THE CURRENT SERVICES AND EXPIRING TERM AT THE THEN CURRENT PRICE, UNLESS EITHER PARTY GIVES A NOTICE OF NON RENEWAL PRIOR TO EXPIRATION OF THE THEN CURRENT TERM.

Additional Fees. We may revise Service rates at any time, or impose additional fees or charges. Provided that if You upgrade or downgrade Your plan (or an upgrade occurs automatically as set forth in this section), You will be charged at the then-current rate. Unless otherwise expressly stated in writing, any discounts applied to a previous subscription period do not apply to a renewed subscription period, including to any automatic renewals.

Your Paid Plan will remain in effect until it’s cancelled or terminated under these Terms and Conditions. If You don’t pay for Your Paid Plan on time, We reserve the right to suspend or terminate Your account. Unless otherwise stated, all fees are stated in, and shall be paid in, US dollars.

Right to limit usage. We reserve the right to limit your usage of the Service at any time if we deem that it is excessive, abusive, designed to circumvent Service limitations, or otherwise to prevent harm to Momently or others. This could include, without limitation, limiting the number of API calls that you are permitted to make.

Limited License

You allow the Service to be placed on your website(s) and you hereby grant us a nonexclusive, irrevocable during the term of this Agreement, royalty-free, no-cost license to perform, or have performed, the activities relating to provision of the Service. You agree to configure the Software on your website(s) in accordance with Momently’s requirements, including by ensuring that URLs containing Personal Data (as defined in the Data Processing Addendum attached hereto as Appendix A) of end users are not captured by the Service. By loading the Momently JavaScript on your website, you will be placing certain cookies (described in the Momently Privacy Notice) on your user's web browsers when those users visit your website. You agree that you are responsible for such placement and for complying with any applicable laws associated therewith. Momently is not obligated to provide customer support for, and shall not be responsible or liable for, any malfunction or failure of the Service or any damages resulting from your failure to implement the Software on your website(s) in accordance with Momently's requirements. In order to improve our algorithms and the Service, for statistical and analytical reporting and for research purposes, Momently may aggregate and/or anonymize the data resulting from use of the Service, and provide anonymized data, which may be aggregated with data of other customers, to third parties. Momently will not use or disclose anonymized data in a manner that reveals your identity, the identity of your website, or your identifiable Traffic Data without your express prior consent. Momently shall exclusively own its customers' aggregated and/or anonymized Traffic Data.

You shall own all rights in and to all Traffic Data, subject to the rights and licenses granted herein. “Traffic Data” means all data and information created, received, processed or provided by Momently in performing the Service, or that results from performance of the Service for you. You hereby grant Momently all necessary rights to access and track Traffic Data concerning your website, solely in connection with providing the Service during the term of this Agreement.

Subject to the terms and conditions of this Agreement, Momently grants to you (and you agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) the Software and (ii) certain proprietary documentation in the form generally made available by Momently to you on the Site for use with the Software (the "Documentation") solely to receive the Momently Service. Your use of the Service shall be restricted pursuant to the terms and conditions of this Agreement. You agree that you are responsible, and Momently bears no liability, for the use of your account by any third party, or for your use of the Service through a third party's account, and the acts and/or omissions of such third party. Momently also grants you a nonexclusive, nontransferable, revocable, limited license to access and use the Momently API solely in connection with its use of the Service. Other than as expressly granted above, no other rights are granted, including without limitation any and all Momently patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectable) ("Intellectual Property Rights"). Nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software, other than the limited right to place the Momently JavaScripts on your website(s). All ownership rights, title, and Intellectual Property Rights in and to the Service shall remain in Momently and/or its licensors. You agree that Momently has the right to change, modify, add to or discontinue or retire any aspect or feature of the Momently Service at any time without any obligation to give you notice of any changes. From time to time, Momently may, but is under no obligation to, release upgrades, fixes or new versions of the Service, although these upgrades may not be consistent across all platforms and devices.

Momently collects, stores and handles Traffic Data (defined below) and other information in accordance with its privacy notice located at www.momently.com/privacy (as amended from time to time). To the extent that Momently collects and processes Personal Data (as defined in the Data Processing Addendum), it shall do so as a Data Processor (except in relation to Momently Customer Personal Data consisting of Customer employee contact details of which Momently is also a Data Controller) and shall only process such information, including Traffic Data, in order to provide the Service. Personal Data processed in connection with this Agreement includes internet protocol address information, which is required for maintenance of the Momently Service, and for which the data is processed upon receipt and is removed from our servers. Additionally, Momently code, by default, sets and reads a cookie on the customer's domain containing a randomly-generated user ID for purposes of determining unique visitor counts and visitors' loyalty to a site. If you have website visitors located in the European Union, in order for both you and Momently to achieve adequate legal disclosures under Data Protection Laws (as defined in the Data Processing Addendum) and associated regulatory guidance and industry best practice in relation to the underlying technology used in provision of the Service and the intended use by either party of information collected, stored and handled pursuant to this Agreement, you shall: (a) make appropriate disclosures on Momently's behalf using your privacy policy or via specific statements on the your website(s); and (b) obtain end users' consent to the use of Momently cookies, as applicable law and legal guidance may require. You shall maintain and make available on each of your website(s) a privacy policy that includes any and all disclosures and election procedures that may be required under applicable laws and regulatory guidance based on your own services and data handling practices and additionally the Services contemplated by these Terms of Use and provided by Momently from time to time including, without limitation, a privacy policy that fully and completely discloses to users of your website(s) the practices of you, Momently or other third parties with respect to the collection, use and disclosure of Personal Data and other information (including any data or other information that: (i) is collected on an anonymous basis, (ii) is not connected with a living individual; or (iii) is aggregated, or constitutes cookies, web beacons or similar devices and matters. You agree to include in your privacy policy and/or publish elsewhere on your website(s) at least the level of detail set out in Momently's privacy policy. You shall at all times comply with your published privacy policy and all laws and regulatory guidance to the extent applicable to you. Throughout the term of this Agreement, you and Momently shall co-operate in respect of any other best practice or legally necessary privacy or metrics and analytics related disclosures which may now or in the future be required on your website(s) in relation to the Services and your use or deployment of the Services.

Confidential Information

“Confidential Information” means: (a) the Service (Including the Software and Documentation); and (b) any Momently business or technical information that is disclosed to You in connection with this Agreement, including, but not limited to, any information relating to Momently’s plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel or research and development. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party. You will not use Confidential Information, except as necessary for Your performance of this Agreement.

The parties agree that any material breach of this Section (Confidentiality) will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of this Section in additional to any other relief to which Momently may be entitled.

Restrictions

You agree not to, or to allow others to: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Service, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction or where in accordance with the API terms of service); (ii) copy the Software (except as required to place the Momently JavaScripts on your website); (iii) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Service; (iv) use the Site or Service in violation of any applicable regulation or law; (v) ship, divert, trans-ship, transfer, export or re-export the Service or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the applicable government agency, (vi) use or attempt to use the Service for competitive analysis or benchmarking of the Service, or to develop a competitive service or directly compete with the Service; (vii) to store or transfer any tortious, illegal or infringing materials, (viii) use or attempt to use the Service, or provide us with any data, in violation of any third-party rights of any kind, including without limitation any privacy, intellectual property, confidentiality or contractual rights, (ix) to transfer any viruses, worms, trojans or other items of a similarly destructive nature.

When using this Site and/or the Services, You agree to:

• Use the Service for lawful purposes only and in compliance with any policies posted to the Site or conveyed by electronic notice;
• Not use the Service in a way that prevents or inhibits another user from enjoying the Service;

• Not obtain the communications protocol for accessing the Service;

• Not remove, obscure or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations ("Branding"), or any electronic notices;

• Not interfere with, attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Service servers;
• Not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or any of the systems or networks comprising or connected to the Site; these include but are not limited to including, by means of submitting a virus to our Site, or attempts at overloading, “flooding”, “spamming”, “mail bombing” or “crashing” the Site;
• Not to challenge or assist others to challenge Our rights in the Branding, or Our Intellectual Property Rights or registration or applications thereof. You agree to promptly notify Momently of any violation of this Section, or otherwise of this Agreement.

Warranty Disclaimer

TO THE FULLEST EXTENT ALLOWED BY LAW, THE SERVICE AND SITE ARE PROVIDED BY MOMENTLY AND ITS LICENSORS “AS IS” AND “AS AVAILABLE” AND MOMENTLY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, WORKS, OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES MOMENTLY GUARANTEE ANY RESULTS, INCREASED TRAFFIC OR USER ENGAGEMENT FOR YOU. MOMENTLY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, ARE ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION 5 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY MOMENTLY FROM ITS FACILITIES IN CANADA. MOMENTLY MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING BUT NOT LIMITED LAWS RELATED TO THE COLLECTION OF DATA FROM YOUR WEBSITE’S END USERS.

Limitation of Liability

IN NO EVENT WILL MOMENTLY AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE (i) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE SERVICE, ADVERTISEMENTS, UNAUTHORIZED ACCESS TO OUR SERVERS, SERVER UNAVAILABILITY, AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT MOMENTLY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR DESTRUCTIVE PROPERTIES OF THE SERVICE. IN NO EVENT SHALL MOMENTLY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL SUM OF MONIES PAID FROM YOU TO US AS CONSIDERATION FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

Indemnification

YOU HEREBY AGREE, AT YOUR EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS MOMENTLY, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL DEMANDS, LIABILITIES, LOSSES, CLAIMS AND EXPENSES, INCLUDING ATTORNEY'S FEES, ARISING OUT OF (i) YOUR USE OF THE SERVICE, (ii) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT YOU SUBMITTED IN CONNECTION WITH THE SERVICE, (iii) ANY FRAUD OR MANIPULATION, OR OTHER BREACH OF THIS AGREEMENT, BY YOU, OR (iv) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST US ARISING OUT OF YOUR USE OF THE SERVICE OR THE SITE. MOMENTLY RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.

Term and Termination

These Terms of Service will remain in effect for Your Free Trial, and, upon conversion to a Paid Plan subscription, until Your paid subscription to the Services terminates, or until the Terms of Service are otherwise terminated as set forth herein. For Customers in a Free Trial, We may terminate this Agreement at any time, in whole or in part, for any reason, with or without notice. During the Free Trial, You may terminate this Agreement at any time by (i) providing us with written notice, and (ii) discontinuing Your use of the Services and removing all Momently java scripts and other scripts from Your website, application or service, and destroying all other parts of the Service, Software and Momently Confidential Information in Your possession.

For Customers under a Paid Plan, You may terminate this Agreement effective as of the end of the then-current subscription period by providing us with at least thirty (30) days’ written notice prior to the expiration of Your then-current subscription term. Once You are under a Paid Plan, We may terminate this Agreement at any time, in whole or in part, for any reason upon providing You with fourteen (14) days’ written notice. Upon any termination or expiration of this Agreement, all licenses, and any other rights and services provided by Us to You in this Agreement, shall cease immediately, and You shall immediately (i) pay all outstanding balances, and (ii) cease all use of the Services and remove all Momently java scripts and other scripts from Your website, application or service, and destroy all other parts of the Service, Software and Momently Confidential Information in Your possession. The following sections will survive any expiration or termination of this Agreement: 1 (with respect to any fees due and their collection), 2 (with respect to ownership), 3 through 8, and 10.

We also may permanently or temporarily terminate, suspend, limit or “throttle” your usage, or otherwise refuse to permit Your use of the Service without notice or liability, if in Our sole determination, You violate these Terms of Service or Momently’s privacy policy, or in cases of emergency or to prevent violations of law or harm to Momently or others. Termination of these Terms of Service, any license, or Your access to the Site or Service, shall not limit Us from pursuing other remedies available to Us against You, including, but not limited to, injunctive relief.

Modification to this agreement

You agree that Momently may modify the terms of this Agreement from time to time, and that Your right to access the Service is conditioned on an ongoing basis with Your compliance with the then-current version of this Agreement. We will notify You when We make material revisions or modifications to the Agreement by (x) posting a notice or new version of this Agreement on the Momently Site, or (y) providing direct notice in a communication to Your customer account (if You have one), or otherwise in some manner through the Service that We deem reasonably likely to reach You (which may be by posting to this Site or on Our blog). The modifications will be effective upon posting (unless otherwise indicated at the time of posting). By continuing to use the Services or Site following the posting of this Agreement, You consent to the revised or modified terms of this Agreement.

General

Open source or other third party software. The Service may contain or be distributed with open source software or other third party software which may be covered by a different license. Notwithstanding anything to the contrary, the obligations of Momently set forth in this Agreement do not extend to any open source software or such other third party software which may be made available by Momently, or otherwise obtained or used by You. You agree that all open source software or such other third party software shall be and shall remain subject to the terms and conditions under which it is provided, and You shall be responsible for compliance with such terms. To the fullest extent possible Momently disclaims all warranties and liability regarding such open source and third party software in accordance with the terms of this Agreement.

Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.

Assignment. You may not assign or otherwise transfer your rights or delegate your obligations under this Agreement, in whole or in part, and any attempted assignment by you shall be null and void.

Third Party Service Providers. Momently may provide the Service directly or indirectly using contractors or other third party vendors or service providers. Momently will not be responsible or liable for any failure in the Service or any damages resulting from or attributable to failures of networks, telecommunications or equipment or other failures of third party suppliers or vendors.

Publicity. You hereby consent to inclusion of your name and trademarks or service marks in customer lists that may be published as part of Momently's marketing and promotional efforts.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Province of British Columbia, Canada and the federal laws of Canada applicable therein, excluding its choice of law provisions, and the parties agree to submit to the personal and exclusive jurisdiction of such courts.

Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties.

No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Momently - legal@momently.com, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or this Agreement by e-mail without requiring a handwritten signature for such notice to be effective.

Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

The Agreement. This Agreement, our Privacy Policy located at www.momently.com/privacy and the terms, policies or other provisions located on the Site (which are all incorporated herein by reference), constitute a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement. This Agreement may be revised from time to time at our sole discretion by posting the revised Agreement on the Website or otherwise providing the revised Agreement to you. The revised Agreement shall become effective upon your use of the Service after its publication or provision. Your acceptance of any revised Agreement is your continued use of the Service.

Any claim related to these Terms of Service, the Site(s) or the Service must be brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to You and Your successors.

Momently and Customer are not legal partners or agents, but are independent contractors.

There are no third-party beneficiaries to this Agreement.

The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

All waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No waiver of any breach shall constitute a waiver of any other breach.

Notice to US Government End Users. For U.S. Government procurements, Software is a commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Software - Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government must be in accordance with license rights and restrictions described in these terms.

Appendix A

Data Processing Addendum

Definitions and interpretation

In this Appendix, unless the context otherwise requires:

"Customer Personal Data" means all Personal Data processed by Momently on your behalf under or in connection with the agreement to which this appendix is attached (the “Agreement”).

"Data Protection Laws" means any laws and regulations relating to privacy or the use or processing of data relating to natural persons, including: (a) EU Directives 95/46/EC and 2002/58/EC (as amended by 2009/136/EC) and any legislation implementing or made pursuant to such directives, including (in the UK) the Data Protection Act 1998 (the "DPA") and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) from 25 May 2020 , EU Regulation 2016/679 ("GDPR"); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR; and (d) any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.

"Data Controller" and "Data Processor" have the meanings set out in the DPA until 25 May 2020, and thereafter the meaning given to the term "controller" and "processor" (respectively) in Article 4 of GDPR.

"DP Regulator" means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws.

"Data Subject Request" means a request from a Data Subject to exercise its rights under the Data Protection Laws in respect of that Data Subject's Personal Data.

"Permitted Region" means the United Kingdom and the European Economic Area.

"Security Breach" means any actual loss, unauthorised or unlawful processing, destruction, damage, or alteration, or unauthorised disclosure of, or access to the Customer Personal Data.

"Sub-Processor" means a subcontractor (including any affiliates of Momently) appointed by Momently to process Customer Personal Data.

In this Schedule, the terms "Data Subject", "Personal Data", "process", "processing", "transfer" (in the context of transfers of Personal Data) and "technical and organisational measures" shall have the meanings and otherwise be interpreted in accordance with the DPA until 25 May 2020, and thereafter the GDPR.

Compliance with Data Protection Laws

Momently shall comply with its obligations under the Data Protection Laws as they apply to it as a Data Processor of the Customer Personal Data.

You shall comply with its obligations under the Data Protection Laws as they apply to you as a Data Controller of the Customer Personal Data in order for Momently to process the Personal Data as otherwise contemplated by this Agreement and in particular shall: (a) ensure that any instructions that it issues to Momently shall comply with the Data Protection Laws;(b) have sole responsibility for the accuracy, quality and legality of the Customer Personal Data; (c) have established the legal basis for processing under Data Protection Laws; and (d) provided all notices and obtaining all consents as may be required under Data Protection Laws.

Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws, and shall make such information available to any DP Regulator on request.

Processing and security

In performing its obligations under this Agreement, Momently shall only process the types of Personal Data, and only in respect of the categories of Data Subjects, and only for the nature and purposes of processing and duration, as is set out below:

Subject matter of processing

Momently processes information about visitors to your website in connection with the Service it provides to you and also processes your employee/user information in connection with their use of the Service.

Nature and purpose of processing

Momently is processing data in order to help you understand what is happening on your website at any given moment.

Categories of Personal Data

Randomly-generated user IDs stored in first party cookies on your domain. Your employees' user contact information.

Categories of data subjects

Visitors to your website. Employees/users of the Service.

Duration

For the duration of the Agreement and for 90 days after termination of performance of the Services under the Agreement.

In processing the Customer Personal Data as a Data Processor, Momently shall:

• process Customer Personal Data only in accordance with your written instructions from time to time provided such instructions are lawful (including those set out in this Agreement) unless it is otherwise required by applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, Momently shall notify you of the relevant legal requirement before processing the Customer Personal Data);
• notify you as soon as reasonably practicable if it receives a Data Subject Request in respect of Customer Personal Data;
• provide you with its full co-operation and assistance in relation to any Data Subject Request in respect of Customer Personal Data;
• not disclose any Customer Personal Data to any Data Subject which has requested the same (except in relation to Momently Customer Personal Data of which Momently is also a Data Controller) or to a third party following such a request (including any subcontractor or affiliate) other than at your written request or as expressly provided for in this Agreement;
• protect the Customer Personal Data by ensuring that it has in place appropriate technical and organisational measures, including measures to protect the Customer Personal Data against the risks of a Security Breach; and taking into account:
• the state of the art;
• the nature, scope, context and purposes of the processing; and
• the risk and severity of potential harm,
• take commercially reasonable steps to ensure that only persons authorized by Momently process Customer Personal Data and that such persons are
• subject to binding obligations to maintain the confidentiality of the Customer Personal Data; and
• trained on both (1) the requirements of the Data Protection Laws, and (2) their obligations in respect of Customer Personal Data under this Agreement.

Momently shall, without undue delay after discovering any Security Breach or any failure or defect in security which leads, or might reasonably be expected to lead, to a Security Breach (together a "Security Issue") notify you of the same.

Where a Security Issue arises, Momently shall:

• as soon as reasonably practicable, provide you with full details of the Security Issue, the actual or expected consequences of it, and the measures taken or proposed to be taken to address or mitigate it;
• co-operate with you, and provide you with all reasonable assistance in relation to the Security Issue; and
• unless required by applicable law not make any notifications to a DP Regulator or any Data Subjects about the Security Issue without your prior written consent (not to be unreasonably withheld or delayed).

Return or destruction of Personal Data

Subject to paragraph 4.2, Momently shall (at your option) (except in relation to Customer Personal Data of which Momently is also a Data Controller and except as required by law or in order to defend any actual or possible legal claims), as you so direct, take reasonable steps to return or irretrievably delete all Customer Personal Data in its control or possession when it no longer requires such Customer Personal Data to exercise or perform its rights or obligations under this Agreement, and in any event on expiry or termination of this Agreement.

To the extent that Momently is required by applicable law to retain all or part of the Customer Personal Data (the "Retained Data"), Momently shall:

• cease all processing of the Retained Data other than as required by the applicable law;
• keep confidential all such Retained Data in accordance with Section 4 (Confidentiality); and
• continue to comply with the provisions of this Appendix in respect of such Retained Data.

Audit

Momently shall permit you or your representatives to access any relevant premises, personnel or records of Momently on reasonable notice to audit and otherwise verify compliance with this Appendix, subject to the following requirements:

• you may perform such audits no more than once per year or more frequently if required by Data Protection Laws;
• you shall use a third party to perform the audit on your behalf, and such third party shall be professionally qualified and shall have executed a confidentiality agreement acceptable to Momently before the audit;
• audits must be conducted during regular business hours, subject to Momently’s policies, and may not unreasonably interfere with Momently’s business activities and must be limited to Momently’s systems that contain Customer Personal Data;
• you must provide Momently with any audit reports generated in connection with any audit at no charge unless prohibited by applicable law. You may use the audit reports only for the purposes of meeting its audit requirements under Data Protection Laws and/or confirming compliance with the requirements of this Appendix as they apply to Momently’s processing of Customer Personal Data;
• the audit reports shall be confidential;
• to request an audit, you must first submit a detailed audit plan to Momently at least 6 (six) weeks in advance of the proposed audit date. The audit must describe the proposed scope, duration and start date of the audit. Momently will review the audit plan and inform you of any concerns or questions (for example, any request for information that could compromise Momently’s confidentiality obligations or its security, privacy, employment or other relevant policies). Momently will work cooperatively with you to agree a final audit plan;
• nothing in this paragraph 5 shall require Momently to breach any duties of confidentiality owed to any of its clients, employees or Third Party Providers; and
• all audits are at your sole cost and expense.

Co-operation and assistance

Momently shall promptly co-operate with you, and provide such information and assistance as you may reasonably require, to enable you to:

• comply with your obligations under the Data Protection Laws (including Articles 32-36 of GDPR in respect of Customer Personal Data; and
• deal with and respond to all investigations and requests for information relating to the Customer Personal Data from any DP Regulator.

If Momently receives any complaint, notice or communication from a DP Regulator or other third party (excluding a Data Subject Request) which relates directly or indirectly to Customer Personal Data or to either party's compliance with the Data Protection Laws, it shall notify you as soon as reasonably practicable.

Sub-Processors

You generally agree that Momently may engage Third Party Providers including any advisers, contractors, or auditors to Process Personal Data ("Sub-Processors").

If Momently engages a new Sub-Processor ("New Sub-Processor"), Momently shall inform you of the engagement by sending an email notification to you and you may object to the engagement of such New Sub-Processor by notifying Momently within 5 Business Days of Momently's email, provided that such objection must be on reasonable, substantial grounds, directly related to such New Sub-Processor's ability to comply with substantially similar obligations to those set out in this Appendix. If you do not so object, the engagement of the New Sub-Processor shall be deemed accepted by you.

Momently shall ensure that its contract with each New Sub-Processor shall impose obligations on the New Sub-Processor that are materially equivalent to the obligations to which Momently is subject to under in this Data Processing Addendum.

Any sub-contracting or transfer of Personal Data pursuant to this paragraph 7 shall not relieve Momently of any of its liabilities, responsibilities and obligations to you under this Agreement and Momently shall remain liable for the acts and omissions of its Sub-Processor.

Transfer of Personal Data

Unless the transfer is based on an "adequacy decision", is otherwise "subject to appropriate safeguards" or if a "derogation for specific situations" applies, each within the meanings given to them in Articles 45, 46 and 49 of the GDPR respectively, Momently shall not transfer, access or process such Personal Data outside the Permitted Region.