Last modified: August 1, 2017
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.
Our current pricing and available subscription period(s) are available on our pricing page.
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.
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.
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.
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.
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.
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.
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.
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.
All content included on the Site, including, without limitation, text, articles, graphics, logos, use interfaces, button icons, images, photographs, audio clips, video clips, digital downloads, data compilations and software is the property of Momently, or its licensors, product suppliers or content suppliers (including users who supply Content) and is protected by applicable copyright laws. The design, selection, arrangement, coordination and compilation of all Content on the Site are the exclusive property of Momently and are protected by applicable copyright laws. All software used on the Site is the property of Momently or its software suppliers and is protected by applicable copyright laws.
“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.
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.
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.
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
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.
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.
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 are for organizational purposes only and shall in no way affect the interpretation of this Agreement.
ou 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.
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.
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.
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.
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.
Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Momently - email@example.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.
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.
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.
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