MomentFeed Inc. (“MomentFeed“) provides location-based monitoring and analysis services via a hosted software-as-a-service accessible from this website, (the “Services“). These Services are provided to customers and their authorized employees and agents, (“Users“), who have been assigned a user name and password, (“User Account“). A customer must designate at least one (1) User to act as an account administrator to request the set-up or removal of User Accounts and otherwise administer the customer’s use of the Service (“Administrator“). As part of the Services, Users may add locations (“Locations“) which consist of a street address relevant to the location-based content the customer is interested in monitoring & analyzing. “Location-Based Content” means check-ins, tweets, photos, comments, data, and other information generated by adding Locations to the Services.
Access to this website, the Services and the Location-Based Content are provided in accordance with the Software License Terms (“License”). This License may be amended from time to time by MomentFeed. Each amendment shall be effective forty-eight (48) hours after the posting of the amendment to this website. Customers who do not agree with the License, or any amendment to the License, shall immediately cease access to this website and the Services and discontinue any use of the Location-Based Content or any other content provided. Rights to access and use the Service commence upon execution of an Order Form which also forms part of the License.
SUPPORT SERVICES
The Services include telephone and email support to answer operational questions and to report irregularities concerning the Services. Email support is available 24 hours a day, 7 days a week. Live telephone support is available during MomentFeed’s normal business hours of 8:00 AM to 4:00 PM Pacific Standard Time/Pacific Daylight Time, Monday through Friday, excluding national holidays. MomentFeed always uses commercially reasonable efforts to respond to customer requests within twenty-four (24) hours of receipt of the first call received during business hours.
PROPRIETARY RIGHTS
MomentFeed and its licensors own all intellectual property and other proprietary rights to the Services, the text, graphics and content within this website, (save and except Location-Based Content), together with the software, documentation, and related technology used to provide the Services and operate the website, (collectively the “LEA Technology”). The customer has no ownership rights whatsoever to the LEA Technology and the License in no way constitute a sale to the customer of the LEA Technology.
MomentFeed does not claim any ownership to the Location-Based Content, and access to and use of the Location-Based Content is subject to the following restrictions/acknowledgments:
1. MomentFeed has no responsibility for the Location-Based Content as it is derived from third party resources as available through application programming interfaces (APIs);
2. Some of the Location-Based Content may be protected by or subject to third party intellectual property or other proprietary or privacy rights, and therefore, each Customer hereby agrees not to, and to ensure that none of its clients or Users rent, lease, loan, sell, distribute or create derivative works based on the Location-Based Content, unless the customer has obtained express rights to do so from the rightful rights-holder of such Location-Based Content; and,
3. Some Location-Based Content may be indecent, offensive or otherwise objectionable, and MomentFeed shall have the right, but not the obligation, to preview, flag, modify, filter, or remove any or all Location-Based Content from the LEA Technology, in its sole discretion, and in any event, customer’s use of the Location-Based Content is at customer’s sole risk and MomentFeed shall have no responsibility to customer, its Users, clients or any third party for any use of the Location-Based Content provided in conjunction with the LEA Technology.
The LEA Technology is the proprietary and confidential trade secret information of MomentFeed and customer agrees not to challenge the validity of, nor MomentFeed’s ownership of, the LEA Technology. In addition to whatever other rights and remedies MomentFeed may have at law or under this Agreement, MomentFeed shall have the right to seek immediate injunctive relief in any court of competent jurisdiction to enforce its intellectual property rights to the LEA Technology and in no circumstances will it be necessary for MomentFeed to post bond.
USAGE LIMITATIONS
Access to the website and use of the Services and the Location-Based Content requires each customer and their respective Users to agree to the following restrictions:
1. The Service may only be used by a customer and its Users in accordance with the License for the sole purpose of monitoring & analyzing Location-Based Content for customer’s own internal business purpose, or where customer is an agency that is using the Services for the customer’s clients, then in such circumstances, for the internal business purposes of those clients, and in any event, not for redistribution in any way;
2. Except for the purpose of monitoring & analyzing Location-Based Content customer will not, nor will customer permit any of its Users, clients, nor any third party, to do or attempt to do, any of the following: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the LEA Technology or the Location-Based Content in any way; (ii) modify or make derivative works based upon the LEA Technology or the Location-Based Content; (iii) “frame” or “mirror” the LEA Technology or any Location-Based Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the LEA Technology in order to: (1) build a competitive product or service; (2) build a product using similar ideas, features, functions or graphics of the LEA Technology; or, (3) copy any ideas, features, functions or graphics of the LEA Technology, except for graphics which are exportable as part of receiving the reporting feature of the Location-Based Content;
3. User Accounts cannot be shared or used by more than one individual User;
4. For customers using the Services in relation to its clients, no Location can be used to service more than one client of that customer; and,
5. Customer shall not, and shall ensure that each User shall not, in using and accessing the LEA Technology: (i) send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws; (ii) attempt to cause this website to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights; (iii) interfere with or disrupt the integrity or performance of the Location-Based Content or the LEA Technology; or (iv) attempt to gain unauthorized access to this website or any part of the LEA Technology.
CUSTOMER RESPONSIBILITIES
Customer hereby acknowledges and accepts that customer is responsible for:
1. All use of the LEA Technology, including the Location-Based Content, by Users and customer’s clients, (in the case where customer is an agency), to whom Location-Based Content is provided in accordance with any applicable laws;
2. Notifying MomentFeed immediately and use reasonable efforts to stop: (i) any unauthorized use of any password or account or any other known or suspected breach of security concerning access to or use of the LEA Technology; (ii) any copying or distribution of Location-Based Content that is known or suspected by customer or a User; and (iii) any impersonation of an Administrator or User or provision of false information to gain access to or use of the LEA Technology; and,
3. Customer shall, and shall ensure that its Users shall, abide by all applicable laws in the use of and access to the LEA Technology and the Location-Based Content.
FEES AND PAYMENT
Customer shall pay MomentFeed fees for the Service Plan ordered by Customer as set forth in the Order Form (“Fees”). All fees shall be billed monthly in advance for the next month’s Service, and invoices will reflect such advance billing plus any unpaid amounts from prior periods (including Service utilization by Customer in excess of the Service Plan). All amounts will be either billed or charged to the credit card specified on the order form, and shall be due and payable within 30 days of the date of invoice in any event. Past due amounts are subject to interest on any outstanding balance equal to the lesser of (a) 1.5% per month, and (b) the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Service other than taxes based on MomentFeed’s net income. All Fees paid are non-refundable and are not subject to set-off.
If Locations Monitored exceed the level indicated in Service Plan selected by Customer in the Order Form, additional fees (“Overage Fees”) may apply. Any such Overage Fees shall be computed as follows: the number of Locations Monitored by which usage exceeded the maximum multiplied by the monthly monitoring cost per Location for the chosen Service Plan. Notwithstanding the foregoing, (a) MomentFeed and Customer will work in good faith to determine whether the amount of excess Locations should be billed based on Overage Fees or if the Customer should be migrated into the next Service Plan tier, and (b) to the extent that Locations Monitored exceed the minimum Locations of any higher Service Plan tier, then Customer shall be automatically charged based on the higher Service Plan tier.
Except as otherwise specified in the Order Form, MomentFeed reserves the right to change its price list and to institute new charges at any time, upon thirty (30) days prior notice to Customer. Use of the Service by Customer following such notification constitutes Customer’s acceptance of any new or increased prices or charges.
MomentFeed will notify Customer if MomentFeed determines that Customer’s Service utilization has exceeded or is anticipated to exceed the Service Plan purchased by Customer. MomentFeed will use commercially reasonable efforts to prevent excess Service utilization.
WARRANTY AND DISCLAIMER
Access to and use of the LEA Technology and Location-Based Content, is provided to customer on an “AS IS” basis, with no warranty or indemnity obligations whatsoever, express or implied, except that, during such period that customer is paying the Fees, MomentFeed will provide the Support Services in a timely manner by qualified persons in accordance with the degree of care observed in the industry generally. This Limited Warranty shall be void if MomentFeed determines that the LEA Technology or the Location-Based Content have been used other than in accordance with express terms of this Agreement.
MOMENTFEED’S EXPRESS LIMITED WARRANTY SET FORTH HEREIN SHALL EXTEND ONLY TO CUSTOMER AND NOT TO ANY CLIENT, END-USER, OR OTHER THIRD PARTY. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE LEA TECHNOLOGY AND LOCATION-BASED CONTENT ARE PROVIDED “AS IS”. MOMENTFEED HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND AND NATURE CONCERNING THE LEA TECHNOLOGY OR LOCATION-BASED CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. SPECIFICALLY, MOMENTFEED DOES NOT WARRANT THAT THE LEA TECHNOLOGY WILL BE ERROR FREE, COMPLETELY SECURE, OR OPERATE WITHOUT INTERRUPTION AND CUSTOMER AKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONECTIVITY THAT COULD RESULT IN DISRUPTION OF THE LEA SERVICE OR THE LOSS OF PRIVACY OR DATA.
TERM AND TERMINATION
MomentFeed may terminate the Service upon thirty (30) days prior written notice to the customer, except that: (i) where a material breach is alleged, Service may be terminated immediately if the customer fails to remedy a material breach within ten (10) days notice of same; and, (ii) if the customer ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, or suffers or permits the appointment of a receiver for its business or assets, Service may be terminated effective upon delivery of notice.
MomentFeed shall not be responsible to the customer for any costs or damages resulting from the proper termination of this Agreement. Upon any termination of this Agreement:
1. All rights and licenses granted to customer shall terminate, and customer shall immediately cease to access the LEA Technology;
2. All amounts owed to MomentFeed by customer before termination become immediately due and payable within five (5) days of the effective date of termination; and,
3. MomentFeed shall not have any obligation to reimburse pre-paid fees, if any.
GENERAL PROVISIONS
INDEMNIFICATION; LIMITATIONS OF LIABILITY
Both parties (as applicable, the “Indemnitor”) shall defend, indemnify, and hold harmless the other party (as applicable, the “Indemnitee”), the Indemnitee’s affiliates and the Indemnitee’s and affiliates’ respective employees, contractors, officers, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) the Indemnitor’s and, in the case of Customer as Indemnitor, the Indemnitor’s end users’ (“End Users”) use or misuse of, or access to, the Service, including misuse of any content or data provided therefrom; (ii) the Indemnitor’s breach of this Agreement; or (iii) infringement of any intellectual property or other right of any other person or entity caused by (or alleged to be caused by) intellectual property of the Indemnitor. The Indemnitor reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Indemnitor, in which event the Indemnitee shall assist and cooperate with the Indemnitor in asserting any available defenses.
IN NO EVENT SHALL EITHER MOMENTFEED OR CUSTOMER, OR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE APPLICATION OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR CUSTOMER’S OR END USERS’ RELIANCE ON THE APPLICATION OR THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT), OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO MOMENTFEED HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY IN CERTAIN CASES.
DISPUTE RESOLUTION
Any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the JAMS Streamlined Arbitration Rules & Procedures, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of California or the California State Courts located in the County of Los Angeles. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section.
NOTICES
All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the billing contacts for each party set forth on the Order Form.
MISCELLANEOUS
This Agreement and any agreements referred to herein represents the entire agreement between Customer and MomentFeed with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and MomentFeed with respect thereto. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties that expressly references this Agreement and indicates an express amendment thereto. MomentFeed shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond MomentFeed’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not assignable, transferable or sublicensable by Customer except with MomentFeed’s prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. MomentFeed may freely assign, transfer or delegate any of its rights and obligations hereunder. The parties hereto have an independent contractor relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of MomentFeed to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit MomentFeed’s rights with respect to such breach or any subsequent breaches.
