.svg)
.svg)
1.1 Account means any accounts or instances created by or on Partner’s behalf for access and use of the Services.
1.2 Ad/Marketing/Promotion Spend means the amount the Partner spends on the marketing or promotion of their business, including discount coupons’ amount or advertisement expenses per month.
1.3 API means the application programming interfaces developed, enabled by or licensed to Momos that permits certain functionalities provided by the Services.
1.4 Partner Data means all electronic data, text, messages, or other materials (provided by Partner, or provided or obtained for or on Partner’s behalf, on the basis of which the Service(s) will be provided and/or the Partner Data will be submitted to the Services by the Partner through Partner’s Account for Partner’s use of the Services.
1.5 ConfidentialInformation means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
1.6 Data Privacy Law. All international, federal, state and local laws, rules and regulations applicable to a party’s performance under the Agreement and in effect during the term of this Agreement, including all applicable data privacy, data security, and other similar laws, rules and regulations.
1.7 Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Momos to Partner or Partner’s Users through the Services or otherwise.
1.8 Order Form means any service order form specifying the Services provided, particular features and functionalities in the Services that the Partner wishes to avail, and the Term for provision of the Services agreed to by the Parties in the form set forth in Schedule 1.
1.9 Personal Data means any information that relates to, identifies, describes, is capable of being associated with or could reasonably be linked, directly or indirectly with a particular consumer or household, or is otherwise the type of data that is regulated by applicable Data Privacy Laws.
1.10 Privacy Policy means Momos’ privacy policy available at https://www.momos.com/us-privacy-policy
1.11 Process means any operation or set of operations which is performed on Partner Data or on sets of Partner Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.12 Services means the cloud-based proprietary software-as-as-service platform that Momos makes available to Partner pursuant to this Agreement designed to help businesses manage and grow their business through content management, reputation management, digital marketing management, and data and analytics tools, including any Updates (as defined below) thereto.
1.13 Subscription Charges means all charges associated with Partner’s Account and use of the Services.
1.14 Subscription Term the period during which Partner has agreed to subscribe to the Services as specified in the relevant Order Form.
1.15 Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services.
1.16 User means a user designated by Partner to use or access the Services.
Subject to Partner’s compliance with this Agreement and solely during the Subscription Term, Momos will provide Partner with the limited, non-transferable, non-exclusive, revocable access to and use of the Services for its internal business purposes in accordance with the subscription plan set forth in an Order Form.
3.1 Partner Account: Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.
3.2 Acceptable Use: Partner agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than Users in furtherance of its internal business purposes as expressly permitted by this Agreement; (b) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (c) use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; or (d) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);
3.3 Partner agrees that the Services shall be provided only upon prompt access to the Partner Data being granted by the Partner to Momos.
3.4 Partner represents and warrants to Momos that the Partner owns or has the necessary rights to provide the Partner Data to Momos and that doing so does not violate any applicable law, including any Data Privacy Law, or any proprietary or privacy rights. Momos shall have no liability for any claims with respect to the Services arising in connection with the unavailability, inaccuracy or insufficiency of Partner Data.
3.5 Partner is solely responsible for providing its own network and infrastructure necessary to access the Services.
4.1 Any enhancements, new features or updates (“Updates”) to the Services are also subject to this Agreement and Momos reserves the right to deploy Updates at any time.
4.2 The Services may temporarily be unavailable due to scheduled downtime for Updates and maintenance in which case Momos shall use commercially reasonable endeavours to notify the Partner in advance.
4.3 Notwithstanding anything to the contrary contained elsewhere, Momos shall not be liable for unavailability of the Services caused by circumstances beyond Momos' reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Momos' reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
5.1 Except for the rights granted to the Partner under clause 3, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with Momos.
5.2 From time to time, Partner and its Users may provide suggestions, enhancement requestions, recommendations or other feedback with respect to the Services (“Feedback”). Partner hereby grants to Momos and Momos shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to execute, perform, modify, reproduce, create derivative works, distribute, and otherwise use for any purpose without further attribution or compensation to Partner. Momos has no obligation to maintain Feedback as confidential and Feedback is not and will not be considered or treated as Partner Confidential Information.
5.3 Partner owns the rights to the Partner Data that the Partner provides to Momos. Momos does not claim ownership over such Partner Data, however, by posting or transferring Partner Data to Momos, the Partner grants a royalty-free, non-exclusive license and permission to use the Partner Data solely to provide, maintain and improve the Services.
5.4 Momos reserves its rights to re-use any and all techniques and know-how gathered by Momos while providing the Services to the Partner.
5.5 All rights not expressly provided to Partner herein are reserved.
6.1 Partner acknowledges and agrees that Partner’s use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that Momos shall not be liable for Partner’s enablement, access or use of such Third-Party Services, including for processing of Partner Data by such third-party. The Partner should contact that Third-Party Service provider for any issues arising in connection with use of such Third-Party Service.
7.1 Subscription Charges: Unless otherwise identified in an Order Form, the Subscription Charges are due in full and payable in advance, in accordance with clause 8.2, when Partner subscribes to the Services. The Subscription Charges are specified in the Order Form.
7.2 Payment: Partner hereby authorizes Momos or Momos' authorized agents, as applicable, to bill Partner upon Partner’s subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Partner’s payment is due within thirty (30) days of Momos' invoice date.
7.3 Refunds: Unless otherwise specified in this Agreement, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by Partner.
7.4 Late Payments/Non-payment of Subscription Charges: Momos will notify Partner if Momos does not receive payment towards the Subscription Charges within the due date for Partner’s Account. Momos must receive payments within a maximum of ten (10) days from the date of Momos' notice. If Momos does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, Momos may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Partner’s access to and use of the Services until Momos receives Partner’s payment towards the Subscription Charges as specified herein and/or; (iii) terminate Partner’s Account.
7.5 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
8.1 Term. The Subscription Term shall be as set forth in the Order Form. Unless otherwise set forth on the Order Form, the Subscription Term will automatically renew for successive one (1) year terms at an increase of 7% to the Subscription Charges unless either party delivers written notice of termination to the other party at least thirty (30) days prior to the end of the then-current Subscription Term or unless otherwise terminated as permitted herein. Order Forms are not cancellable by Customer.
8.2 Termination by Partner: Unless otherwise mentioned in an Order Form, the Partner may terminate their Account and subscription to the Services at any time with thirty (30) days prior written notice, but will remain liable for all Subscription Charges for the Subscription Term.
8.3 Termination and Suspension by Momos: In addition to suspension for late payment or non-payment of Subscription Charges, Momos may suspend Partner’s access to and use of the Partner’s Account or the Services if the Partner is in violation of the terms of this Agreement. Momos will notify the Partner of its activities that violate this Agreement and provide the Partner with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If the Partner does not cure or cease such activities within the said Cure Period or if Momos believes that Partner’s breach of this Agreement cannot be cured, the Partner’s Account shall be terminated immediately.
8.4 Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate this Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
8.5 Effect of Terminating Partner’s Account: Following the termination of Partner’s Account either by Partner or Momos, the Partner may export Partner Data from within the Services within six (6) months of effective termination of the Partner’s Account (“Data Retention Period”), beyond which period Momos may delete all Partner Data. The Partner may reactivate their terminated Account within such Data Retention Period, unless the termination is by Momos.
9.1 If the Partner chooses or is provided with a user identification code, login, password or any other information as part of Momos' security procedures, Partner must treat such information as confidential and shall not disclose such information to any third-party other than a User. Momos has the right to disable any user identification code or password, whether chosen by Partner or allocated by Momos, at any time, if in Momos' reasonable opinion, Partner has failed to comply with any of the provisions of this Agreement. Partner is solely responsible for all acts and omissions taken under Partner’s Account or Partner’s login information. Momos will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Partner’s Account as a result of Partner’s non-compliance of its obligations under this clause 9.1.
9.2 Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under this Agreement, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-clause shall supersede any non-disclosure agreement by and between the Parties entered prior to this Agreement that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information.
10.1 Momos does not, and Partner understands and acknowledges that Momos does not, disclose any Personal Data from Partner’s customers for the purposes of providing the Services under this Agreement
10.2 The Partner understands and acknowledges that, in connection with the use of the Services, Momos may Process any Partner Data in accordance with this Agreement and Momos' Privacy Policy.
10.3 Momos may Process Partner Data to provide, maintain and improve the Services, prevent and address any technical problems, or at the Partner’s request in connection with support requests.
10.4 The Partner acknowledges and agrees that Momos may access or disclose information about the Partner, their Account and their Users in order to comply with the law and respond to lawful requests or legal process, or prevent any infringement of Momos' partners’ or Momos' proprietary rights. Further, at Momos' sole discretion, any suspected fraudulent, abusive, or illegal activity by the Partner may be referred to law enforcement authorities.
10.5 Momos shall use appropriate technical and organizational measures to protect the Partner Data and the User’s Personal Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the data. Momos shall ensure that any person authorized by Momos to Process the Partner Data shall protect it in accordance with Momos' confidentiality obligations under this Agreement.
10.6 Momos shall, without undue delay, notify the Partner and/or User of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Partner Data processed by Momos.
10.7 Momos may perform analytics on Partner Data to improve, enhance, support and operate the Services and compile statistical reports and record insights into usage patterns. Partner acknowledges that Momos uses Partner Data for the aforementioned purpose in compliance with applicable laws
10.8 Momos shall reasonably assist the Partner, at the Partner’s expense and upon Partner’s reasonable written request, in meeting the Partner’s obligations under applicable Data Privacy Laws.
11.1 THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
11.2 PARTNER ACKNOWLEDGES THAT MOMOS DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND MOMOS’ CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE, LOST CONTENT, LOSS OF DATA, IMPACT ON BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EXCEPT PAYMENT OBLIGATIONS OF THE PARTNER EVEN IF EITHER PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOMOS’ AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICES, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID FOR THE SERVICES; OR (B) THE CHARGES PAID BY PARTNER, FOR THE SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
13.1 Indemnification by Momos: Subject to Partner’s compliance with this Agreement, Momos will indemnify, defend, and hold Partner harmless, from and against any claim brought against Partner by a third-party alleging that the Services Partner subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). and pay damages finally awarded against Partner in connection therewith.. Momos will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by Partner; (ii) modification of the Services by anyone other than Momos; (iii) the combination, operation or use of the Services with other hardware or software where the Services would not by themselves be infringing; (iv) use of the Services for other than their intended purpose; or (v) breach of this Agreement. If use of the Services by Partner has become, or in Momos' opinion is likely to become, the subject of any IP Claim, Momos may at its own option and expense (a) procure for Partner the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Momos, terminate Partner’s subscription to the Services and repay Partner, on a pro-rated basis, any Subscription Charges Partner has previously paid Momos for the corresponding unused portion for the remainder of the Subscription Term. This clause states Momos' sole, exclusive and entire liability to Partner and constitutes Partner’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services by Partner.
13.2 Indemnification by Partner: Partner will indemnify, defend, and hold Momos harmless against any claim brought by a third-party against Momos, and its respective employees, officers, directors and agents arising from or related to (a) Partner’s acts or omissions in connection with clause3 of this Agreement; (b) Partner or any User's infringement or misappropriation of Momo’s or a third party's intellectual property rights; (c) Partner Data, including any claim that Partner Data violates applicable law or a third-party's privacy or proprietary rights; (d) business operations and decisions made by Partner utilizing the Services; and (e) violations of law by Partner or its Users, including Data Privacy Laws.
13.3 Procedure. The indemnified party: (a) will promptly notify the indemnifying party of the threat or notice of such a claim, (b) has or will have the sole and exclusive control and authority to select legal representatives, and to defend and/or settle any such claim; and (c) will fully cooperate with the indemnifying party in connection therewith as reasonably requested by the indemnifying party. The indemnifying party will have no obligation or liability with respect to any such claim arising out of the negligence or misconduct of the other party.
14.1 Assignment: Partner may not directly or indirectly, assign all or any part of this Agreement or its respective rights under this Agreement or delegate performance of its respective duties under this Agreement without the prior consent of Momos, which consent shall not be unreasonably withheld.
14.2 Entire Agreement and Revisions: This Agreement, together with any schedules or annexes, constitute the entire agreement, and supersede any and all prior agreements, written or oral, between Partner and Momos with regard to the subject matter hereof. This Agreement shall prevail over the terms or conditions in any purchase order or other order documentation Partner or any entity that Partner represents provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. In case of a conflict between this Agreement and an Order Form, the Order Form shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail. Upon mutual consent, this Agreement may be amended in writing, in which case the latest version of this Agreement will supersede prior versions.
14.3 Severability; No Waiver: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified or interpreted so as to best accomplish the original intent of that provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain unaffected and in effect. Momos' non-exercise of any right under or provision of this Agreement does not constitute a waiver of that right or provision of this Agreement.
14.4 Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
14.5 Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of this Agreement with respect to use of the Services by the Partner. Termination shall not limit or waive either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
14.6 Notices and Consent to Electronic Communications: All notices to be provided by Momos to Partner under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by Partner on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Partner’s Account. Momos’ address for notice to 1121 E Fern Dr N, Phoenix, AZ 8501. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
14.7 Publicity Rights: Partner hereby grants Momos the right to identify Partner as a user of Momos' Services on Momos’ websites and/or marketing collateral and to include Partner’s use of the Services in case studies.
14.8 Rights of Third Parties: There are no intended third party beneficiaries under this Agreement.
14.9 Governing Law and Dispute Resolution: This Agreement, and any disputes arising hereunder, shall be governed by the laws of the State of Arizona, without regard to its conflict of laws principles. Customer agrees to exclusive jurisdiction and venue in the state and federal courts having jurisdiction in Phoenix, Arizona, and irrevocably consents to personal jurisdiction in such courts. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) to this Agreement and the Order Forms. the .
.svg)
.svg)
.svg)
.svg)
.webp)
