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
Any information entered to this website by a customer, including addresses associated with Locations and other information, such as suggestions, feedback, enhancement requests, or other information, (collectively the “Customer Feedback“) is the property of that customer. Each customer hereby grants to MomentFeed, and its other customers, users, affiliates, successors and assigns, an irrevocable royalty-free right to use the Customer Feedback within this website and as part of the Service, and such grant of license includes the right to: copy, distribute, modify, transmit, translate, publicly display and/or perform, edit, and create derivative works using the Customer Feedback. MomentFeed has the discretion to remove any Customer Feedback from this website at any time. Each customer who posts Customer Feedback is deemed to be representing that the customer owns, or has sufficient rights to, the Customer Feedback to grant the license provided for herein.
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 the Customer Feedback and 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
Fees charged for User Accounts and Locations (“Fees”), as well as payment terms, are prescribed in the Order Form signed by each of the customer and MomentFeed.
Fees are non-refundable, non-cancelable, and shall not be subject to any set-off claims of customer. Discontinuance of a Location or removal of a User Account part way through any Invoice Period (as specified in the Order Form) will not result in a reduction of Fees payable.
WARRANTY AND DISCLAIMER
Access to and use of the LEA Technology, Location-Based Content, and any Customer Feedback, 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, the Location-Based Content or any Customer Feedback 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, LOCATION-BASED CONTENT AND CUSTOMER FEEDBACK ARE PROVIDED “AS IS”. MOMENTFEED HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND AND NATURE CONCERNING THE LEA TECHNOLOGY, LOCATION-BASED CONTENT OR ANY CUSTOMER FEEDBACK, 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.
IN NO EVENT WILL MOMENTFEED BE LIABLE, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, HOWEVER ARISING, FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES BY CUSTOMER OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND UNDER OR RELATING TO THIS AGREEMENT, OR THE USE OF OR INABILITY TO USE THE LEA TECHNOLOGY OR LOCATION-BASED CONTENT, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR INTERRUPTION OF BUSINESS, WHETHER OR NOT MOMENTFEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE AGGREGATE AMOUNT OF DAMAGES MOMENTFEED MAY BE LIABLE FOR UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY THE CUSTOMER DURING THE TWELVE MONTH PERIOD PRIOR TO THE CLAIM ARISING. NO CLAIM MAY BE ASSERTED WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
TERM AND TERMINATION
MomentFeed may terminate the Service upon ninety (90) 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
To the extent permitted by law, this License shall be governed by and construed in accordance with the laws of the State of California, USA, and by using the Service, the customer consents to the exclusive jurisdiction of the Court of Los Angeles, California, as the sole venue for resolution of all disputes arising as a consequence of the customer’s use of the Service.
All notices shall be delivered to the addresses set forth in the Order Form.
The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this License nor the transactions contemplated hereby. If any provision of this License is held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same effect as the original provision, and the remainder of this License shall remain in full force and effect.
Nothing contained herein shall be deemed or construed as creating a joint venture or partnership between MomentFeed and the customer.
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