Last updated: May 22, 2017
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CALUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND MOMENSITY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND MOMENSITY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
References to an “Authorized Sound Stage Partner” mean those venues who have agreed to the broadcast live streams on behalf of Content Creators.
References to the “App” mean any and all software services offered by us, including but not limited to the Momensity10 mobile software application, available for purchase via the iTunes and Google Play stores.
References to a “Consumer” means those persons who utilize the App as consumers of Live Streaming Events and/or sell Merchandise.
References to a “Content Creator” means those persons and/or entities who perform and publish Live Streaming Events and/or sell Merchandise through the App.
References to a “Live Streaming Event” means an event performed by a Content Creator and made available in real-time through the App.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to “Merchandise” mean any merchandise, such as products or digital sales, available for purchase through the App by Content Creators.
References to “ProDash” mean that dashboard available to Content Creators, available at M10prodash.com.
References to the “Services” mean, generally, those services made available to Content Creators via the App, an Authorized Sound Stage Partner and/or ProDash.
References to “us,” “we,” “our,” and/or “Momensity,” mean Momensity, LLC.
References to “you,” “Content Creator” and/or “User” mean the User of the App as a Content Creator.
References to a “Virtual Ticket” mean a ticket to and permission to attend and view a Live Streaming Event available for purchase via the App.
1.2. Agreement to be Bound.
SECTION II: GENERAL PROVISIONS
2.1. About Us; Momensity10 not Vendor; No Endorsement.
Momensity10 is an exclusive, invite-only global community that helps connect performers with audiences. Experience thousands of performers in dance, poetry, bands, dj, rap, and more as they audition and perform live, all in the App and/or otherwise through the Services. With the Momenisty10 App, Consumers can help Content Creators make their dreams come true; enjoy intimate, live performances just for Consumers of the App; chat with Content Creators and Consumers during and after Live Streaming Events; vote on performance auditions; follow your favorite Content Creators and to stay-up-to date with their growing careers; easily share auditions, scheduled events, and more with friends via email, messaging, and more.
At its core, Momensity10 acts as a marketplace to allow Content Creators, Promoters, and Users to connect.
You acknowledge and agree that we do not sell, offer to sell, invite to sell, make or solicit any offers. IN ALL INSTANCES, ALL SALES ARE ADVERTISED, SOLICITED, OFFERED, ACCEPTED, MADE AND DELIVERED BY PROMOTERS AND CONTENT CREATORS WITH WHOM A CONSUMER DIRECTLY CONTRACTS. AT NO TIME WILL A BUYER/SELLER RELATIONSHIP EXIST BETWEEN US. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law.
2.2. Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available on the Services is not accurate, complete or current. You acknowledge further that any reliance on the Services is at your own risk.
2.3. Errors in the Services.
We do not warrant that any errors in the Services will be corrected.
2.5. Modifications and Changes to the Services.
We may modify, add to, suspend, or delete any aspect of the Services offered by us, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.6. Access to the Services.
Though we try to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Services will be at all times available. We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the App and/or ProDash. In no event shall any liability be incurred by Momensity10 where your device was unable to access and/or support the App and/or ProDash, including instances of loss of Internet connectivity, data provider outages or issues, or version non-supportability. You are solely and uniquely responsible for installing the necessary software on in order to use the Services and perform Live Streaming Events.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Services for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel a User Account for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination.
USERS FURTHER AGREE AND ACKNOWLEDGE THAT THEY MAY BE REFUSED OR DENIED THE ABILITY TO PERFORM A LIVE STREAMING EVENT IN THE EVENT THEY DO NOT MEET THE LIVE STREAMING EVENT REQUIREMENTS, SUCH AS CONTENT AND/OR PRIOR RATINGS. IN NO EVENT SHALL MOMENSITY10 BE HELD LIABLE FOR SUCH DENIAL OF ENTRY.
2.8. Prohibited Uses of the Services.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Services: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Services; (c) to violate any international or governmental regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to impersonate any person or entity; (l) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (m) “frame” or “mirror” any part of the App, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other Services for any purpose; (n) modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the App or any software used on or for the App; (o) rent, lease, lend, sell, redistribute, license or sublicense the App or access to any portion of the App; or (p) to interfere with or circumvent the security features of the App. We reserve the right to terminate your use of the Services for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
SECTION III: ACCOUNTS; USE OF THE Services
3.2. Multiple Accounts, Transfer Prohibited.
You agree you shall not have more than one (1) Account and shall not sell, trade or transfer that Account to any other person or entity.
3.3. Account Guidelines.
The Services may contain the ability to communicate with Consumers on one or more platforms or areas of the App, Live Streaming Events, comments sections, discussion forums, landing pages, social media outlets, sales channels, feedback and review areas, produce live or local content, and/or other interactive features, (hereinafter "Interactive Areas,”) in which Users and third parties may communicate. By participating in Interactive Areas or registering for an Account, and in addition to those restrictions set forth in these Terms, you agree and acknowledge that you:
Shall not upload, distribute or otherwise publish to the App and/or ProDash any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
Shall not threaten or verbally abuse other Users, Content Creators, or Promoters, or use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or "spam”; and
Shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the App and/or ProDash; and
Shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services except for the sale of goods in the scope envisioned by the express purpose of the Services; and
Shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; and
Shall not post unauthorized commercial communications (such as spam); and
Shall not upload, post or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; and
Shall not upload, post or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; and
Shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent your affiliation with any person or entity; and
Shall not interfere with any other User's right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a third party; and
Shall not engage in unlawful multi-level marketing, such as a pyramid scheme; and
Shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; and
Shall not interfere with or disrupt the Services, a Live Streaming Event, Promotion, or the Interactive Areas or the servers or networks connected to the same, or disobey any requirements, procedures, policies or regulations of networks connected to the Services and/or the Interactive Areas; and
Shall be honest and truthful when describing and performing a Live Streaming Event; and
Shall not publish or cause to be distributed chain letters of any kind; and
Shall not provide any information that is purposely inaccurate, commits fraud, or falsifies information; and
Shall not access data not intended for you, such as logging into a server or an Account which you are not authorized to access or circumventing the App to perform any Live Streaming Event for which you have not sold Virtual Tickets; and
Shall not scan or monitor the App, ProDash or any Interactive Area for data-gathering purposes in an effort to track sales, usage, aggregate offering information, pricing information, or similar data; and
Shall not scan or test the security or configuration of the App, ProDash or any Interactive Area by breaching security or authentication measures; and
Shall not use frames, framing techniques, or framing technology to enclose any content included on the App and/or ProDash without our express written permission; and
Shall not encode any App and/or ProDash content or Submissions as defined below in any meta tags or any other “hidden text” techniques or technologies without our express written permission; and
Shall not utilize the Services or any Interactive Area to advertise or solicit, for any commercial, political, or religious purpose or to compete, directly or indirectly, with Momensity10; and
Shall not utilize the Services or any Interactive Area to solicit consumers, Content Creators, Promoters, or other third-parties to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with Momensity10, including, without limitation, aggregating current or previously offered Promotions or Live Streaming Events; and
Shall not collect any content from the Services or any Interactive Area in any manner that diverts traffic from the Services without our express written permission; and
Shall not take any action that places excessive demand on our services or imposes, or may impose, an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion); and
Shall not violate the restrictions in any robot exclusion headers on the Services or bypassing or circumventing other measures employed to prevent or limit access to the Services; and
Shall not aggregate any current or previously-offered Virtual Tickets, Merchandise, or Promotions or content or other information from the Services (whether using links or other technical means or physical records associated purchases made through the Services) with material from other sites or on a secondary site without our express written permission; and
Shall not deep-link to any portion of the App, ProDash, or an Interactive Area without our express written permission; and
Shall not hyperlink to any Interactive Area from any other website without our initial and ongoing consent; and
Shall not act illegally or maliciously against the business interests or reputation of Momensity10, Content Creators, or Promoters.
3.4. Rights in Submissions.
Should you submit, display, publish or otherwise post any content to an Interactive Area, including but not limited to any Live Streaming Event performances, reviews, comments, social media postings, video or photograph uploads, or any other content (herein “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to host, store, adapt, edit, publish, use, modify, publicly perform, publicly display, reproduce, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, and sublicense such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, operating, developing, providing, promoting, improving, researching and marketing the App, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any third party.
To the extent it’s necessary, when you, yourself, appear in, create, upload, post, or send Submissions, you also grant Momensity10 and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use your name, likeness, and voice. This means, among other things, that you will not be entitled to any compensation from Momensity10 or our partners and affiliates if your name, likeness, or voice is conveyed through the App, an Interactive Area or in conjunction with the marketing efforts of a Promoter.
While we’re not required to do so, we may access, review, screen, and delete your Submissions at any time and for any reason, including if we think your content violates these Terms. You alone, though, remain responsible for the Submissions you create, upload, post, send, or store through the Services.
You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. Further, in the event you produce any live or local content or otherwise submit any information to an Interactive Area or the Services that features the name or likeness of any third party in a non-public setting or discloses any private or confidential information about such party you must obtain the written consent of such third party. In the event of a minor child, you shall not submit any information regarding, or photograph or video of, said minor child to an Interactive Area in any circumstances without written consent of his or her parent or guardian. You will produce such written consent within twenty-four (24) hours following the demand of Momensity10.
3.5. Right to Monitor.
We shall have the right to monitor your Account in our sole and exclusive discretion.
3.5. Verification of Users.
All Users may be required to verify their identities to our satisfaction. This may include but is not limited to providing proof of identity (such as via a passport or other photo-bearing piece of identification) and residence (such as via a current utility bill.) Notwithstanding the forging, Momensity10 does not bear any responsibility and cannot be held liable for the verification or non-verification of a User’s identity nor does Momensity10 promise to verify the identity of any Content Creator or Promoter.
3.6. Description of Live Streaming Event Content.
We ask all Content Creators to be truthful in disclosing the content of any Live Streaming Event. In the event a Live Streaming Event description is not truthful an abuse report may be submitted to us, notifying us of a breach of the conditions of sale; inappropriate content; a misleading description of a Live Streaming Event, Merchandise, or Promotion; or unavailability of a Live Streaming Event due to technical problems. If, according to Momensity10, in its sole and exclusive discretion, a valid abuse report is made, a Consumer may be reimbursed in which event such amounts shall be deducted and offset against amounts due and owing to the Content Creator.
3.7. Data Charges.
You are responsible for any mobile charges that you may incur for using the Services, including text-messaging and data charges. If you’re unsure what those charges may be, you should ask your service provider before using the Services.
If you change or deactivate the mobile phone number that you used to create a Momensity10 account, you must update your account information through settings within seventy-two (72) hours.
SECTION IV: TERMS OF SALE
Descriptions of the Live Streaming Events, Merchandise, and Promotions advertised on the App shall be provided by the Content Creator, Promoter, or other referenced third parties. Momensity10 does not investigate or vet descriptions. Momensity10 is not responsible for any claims associated with the description of Live Streaming Events, Merchandise, and Promotions. Pricing relating to certain Live Streaming Events, Merchandise, and Promotions and other available programs via the Services may change at any time in Momensity10’s sole discretion without notice.
A Content Creator, Promoter or other referenced third party may provide a Live Streaming Event, Merchandise, or Promotions, that require Content Creator, Promoter or other referenced third party to have an up-to-date regulatory authorization, license, or certification. Momensity10 does not verify, validate, or collect evidence of any regulatory authorization, license or certification from any Content Creator, Promoter or other referenced third party. Content Creator should make whatever investigation it deems necessary or appropriate before offering any Live Streaming Events, Merchandise, or Promotions, to determine whether: (i) Content Creator, Promoter or other referenced third party is qualified to provide the advertised good or perform the advertised service; or (ii) the Live Streaming Event, Merchandise, or Promotion is of the care and quality required. Content Creator, Promoter or other referenced third party is solely responsible for the care and quality of the goods and services being provided or the care and quality of the Live Streaming Event, Merchandise, or Promotion.
Momensity10 does not guarantee that it offers best-available rates or prices and does not guarantee against pricing errors. Momensity10 reserves the right, in its sole discretion, to not process or to cancel any orders placed, including, without limitation, if the price was incorrectly posted on the App. If this occurs, Momensity10 will attempt to notify you by email. In addition, Momensity10 reserves the right, in its sole discretion, to correct any error in the stated retail price of the Live Streaming Event, Merchandise, or Promotion.
Except as stated herein or in an applicable sales page, all sales are final and non-refundable.
4.2. Merchandise Purchases.
Each Content Creator sets his, her, or its own terms of sale for the purchase of Merchandise through the Content Creator’s Web shop. The sale price for such Merchandise is set out at all times during the transaction, including at the point of sale. All terms and conditions regarding shipping, delivery, and returns will vary by Content Creator and will be stated in the Content Creator’s web shop. Content Creator is solely responsible for all Merchandise purchased through the Services and shall be solely and uniquely liable for all refunds due and owing to Consumers.
4.3. Purchase of Virtual Tickets.
Unless stated otherwise, Live Streaming Events may only be accessed and viewed upon the purchase of a Virtual Ticket. The purchase price for such Virtual Tickets is as set out in the App in an amount selected by Content Creator and at all times. Once a Content Creator agrees to sell Virtual Tickets and perform a Live Streaming Event such event may not be cancelled, and Content Creator shall be solely and uniquely liable for all refunds due and owing to Consumers in such an event.
Content Creator shall be entitled to share in the net ticket sales revenue generated from a Live Streaming Event in the amount of Sixty-Five Percent (65%) of such net ticket sales. Content Creator shall not be entitled to any further compensation except as may be expressly agreed to by us. For the avoidance of doubt, net ticket sales shall mean the money received by Momensity10 from Consumers of Virtual Ticket sales for a Live Streaming Event less expenses, gains, losses, taxes, payment processor fees, and other obligations. In the event purchases of Virtual Tickets are made in a currency other than U.S. Dollars, said funds shall be calculated prior to disbursement using the daily exchange rate published by the European Central Bank and shall further include a Two-and-a-Half Percent (2.5%) exchange rate market to cover fees paid to Momensity10’s financial providers. Content Creator shall be solely and exclusively responsible for any and all incurred expenses it incurs related to this Agreement. Momensity will not remunerate credits earned by Content Creator over content that is under investigation because of an abuse report or over content that is not in accordance with the conditions mentioned in this Agreement. In case of termination of this Agreement by Content Creator, Momensity10 is not obliged to reimburse commission that may be earned after the last day of the Agreement. In no event shall commission be due and owing to Content Creator for advertising sales, sponsorship sales, or other earnings related to a Live Streaming Event except for the Live Streaming Event’s net ticket sales revenue set forth in this section.
In the event of a cancellation due to a refund or chargeback resulting from or related to Content Creator’s sole or gross negligence, cancellation or non-performance of an a Live Streaming Event, misleading Live Streaming Event description, illegality of a Live Streaming Event, and/or streaming issues related to audio and video quality, Content Creator understands that Content Creator, and not Momensity10, shall be responsible for the entire amounts refunded, and Momensity10 shall have the right to offset the same from any future commissions due and owing to Content Creator. To cover chargebacks, claims, and refunds, Momensity10 shall retain keep a deposit equivalent of not more than Five Percent (5%) of Content Creator’s average monthly commission, and not less Five U.S. Dollars ($5) or the foreign currency equivalent. In the event this amount is insufficient to cover any chargebacks, claims, or refunds, Content Creator agrees that Momensity10 may offset such amounts from future commission payments, or, in the alternative, demand payment thereof by Content Creator, payable thirty (30) calendar days after demand therefore.
At all times Content Creator may view the compensation due and owing via the App and/or ProDash. In addition to the forgoing, Momensity10 shall send a monthly electronic statement of earnings to Content Creator on the first (1st) calendar day of the month for commissions earned in the prior month. Any statement of earnings not denied within fifteen (15) calendar days shall be deemed approved. Momensity10 shall make payment of all commissions due and owing as reflected on the statement of earnings to Content Creator’s preferred payment method by the thirtieth (30th) calendar day of the month in which the statement was provided. For the avoidance of doubt, Momensity10 shall not be liable for any accrued interest on commissions. Momensity10 will make payment electronically by PayPal or bank transfer, in Euros, British Pounds, or U.S. Dollars, depending on the currency selected by Content Creator. Any associated bank charge for such paid commissions shall be passed to Content Creator and offset from commissions earned. In the event Content Creator’s earned commissions are less than One Hundred U.S. Dollars ($100) or the foreign currency equivalent, no payment shall be made until Content Creator’s commission earnings exceed that amount. In the event Content Creator wishes to request an immediate transfer of earned commission, or close a Content Creator Account and withdraw any remaining commissions earned, Momensity10 will proceed with the payout minus an administrative fee of Fifteen U.S. Dollars ($15) after which time this Agreement shall immediately terminate.
4.7. No Promise of Profit.
Content Creator agrees and acknowledges that, due to the nature of the Services, success and improvement in ticket sales, profit or business growth is not guaranteed. Rather, success is dependent on the quality of Live Streaming Events, and Content Creator’s own time and effort expended in relation to the marketing of a Live Streaming Event, brand recognition, and other factors. In no event shall the acceptance of Content Creator or a Live Streaming Event by Momensity10 be construed by Content Creator as a promise of profit, sales, revenues, or increased wealth or assets. To the extent any income, sales or growth figures are mentioned, provided as a case study, or otherwise presented to Content Creator, such information is anecdotal and provided for exemplar purposes only. In short, past performance and testimonials are not to be construed as an indication, promise, or projection of possible future success. Content Creator is solely and uniquely responsible for performing its own due diligence on the Services and any and all Live Streaming Events.
SECTION V: INTELLECTUAL PROPERTY
5.1. Intellectual Property Rights Not Waived.
This is an Agreement for access to and use of the Services; therefore, we grant you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable license to access and use the Services. This license is for the sole purpose of letting you use and enjoy the Services in conformity with these Terms. Any software that we provide you may automatically download and install upgrades, updates, or other new features. You may be able to adjust these automatic downloads through your device’s settings.
The Services are protected by U.S. and, where applicable, international intellectual property laws. The Services belong to us and are the property of us or our licensors (if any). We retain all ownership rights in the Services.
Furthermore, all material displayed or transmitted via the Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us or our licensors and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially-exploit the Materials carried via the Services, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials. You may not copy, modify, distribute, sell, or lease any part of the Services, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit these restrictions or you have our written permission to do so
You may make a single print copy of any Materials provided by us via the Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed via the Services without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to [email protected]
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any third party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to Momensity10 or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many Parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
Momensity10 honors the requirements set forth in the Digital Millennium Copyright Act. We therefore take reasonable steps to expeditiously remove from our App any infringing Material of which we become aware. We make it easy for you to report suspected copyright infringement. If you believe that anything on the App infringes a copyright that you own or control, please file a notice with our designated agent at “Momensity LLC, Attn: Copyright Agent, P.O. Box 21, Stafford, Virginia 22554” or via email at [email protected]
If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means the notice must: (i) contain the physical or electronic signature of a person authorized to act on behalf of the copyright owner; (ii) identify the copyrighted work claimed to have been infringed; (iii) identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to let us locate the material; (iv) provide your contact information, including your address, telephone number, and an email address; (v) provide a personal statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) provide a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
SECTION VI: THIRD-PARTY TOOLS
7.1. Use of Third-Party Tools.
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input, including but not limited to the use of venues, Promoters, Authorized Sound Stages and other opportunities.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Services is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
SECTION VII: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
7.1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(A) YOU AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK. NEITHER US NOR OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, AND LICENSORS WARRANT THAT THE USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES; THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED; THAT THE USE OF THE SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE; OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS.
(B) ANY INFORMATION PROVIDED VIA THE SERVICES, DOWNLOADABLE GOODS, MERCHANDISE, PROMOTIONS, PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS AND CONDITIONS.
(C) IN NO EVENT SHALL WE OR OUR AFFILIATES NOR ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PARENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT CREATORS AND LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PROFESSIONAL LIABILITY DAMAGES, MALPRACTICE LOSSES AND DAMAGES, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE APP.
(F) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY UTILIZING THE APP YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE APP.
(G) MOMENSITY10 SHALL NOT BE LIABLE FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR APP OR RELATED SOCIAL MEDIA OR WEB SITES. YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH SHALL MOMENSITY10 BE RESPONSIBLE
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees and agents.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates, directors, officers, members, employees, contractors, parents, subsidiaries, agents, third-party Content Creators, licensors, and any purchasing person or entity in the event that we are sold, in whole or in part, and/or restructured.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS, AS WELL AS OUR AFFILIATES AND ANY RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, PAENTS, SUBSIDIARIES, AGENTS, THIRD-PARTY CONTENT CREATORS AND LICENSORS FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE APP; (B) YOUR NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) YOUR USE OF THIRD-PARTY SERVICES, PRODUCTS, LINKS, ADVERTISEMENTS, AND/OR TOOLS; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (E) THE UNAUTHORIZED USE OF THE APP BY ANY OTHER PERSON USING YOUR INFORMATION.
SECTION IV: GOVERNING LAW; ARBITRATION
9.1. Governing Law.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU AND MOMENSITY10. TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
You and Momensity10 agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the App that cannot be resolved in small claims court will be resolved by binding arbitration on an individual basis, except that you and Momensity10 are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA Consumer Arbitration Rules, as of the date of these Terms, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
If you choose to arbitrate with Momensity10, you will not have to pay any fees to do so. That is because Momensity10 will reimburse you for your filing fee, and the AAA’s Consumer Arbitration Rules provide that any hearing fees and arbitrator compensation are our responsibility. To the extent another arbitral forum is selected, Momensity10 will pay that forum’s fees as well.
The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Momensity10. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Momensity10.
YOU AND MOMENSITY10 WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Momensity10 are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Momensity10 over whether to vacate or enforce an arbitration award, YOU AND MOMENSITY10 WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in Section 9.1.
Any rights and limitations set forth in this arbitration agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
You may opt out of this arbitration agreement. If you do so, neither you nor Momensity10 can force the other to arbitrate. To opt out, you must notify Momensity10 in writing no later than thirty (30) calendar days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Momensity10 username and the email address you used to set up your Momensity10 account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: Momensity, LLC, ATTN: Arbitration Opt-Out, P.O. Box 21 Stafford, Virginia 22554, or email the opt-out notice to [email protected]
Notwithstanding the foregoing, either you or Momensity10 may bring an individual action in small claims court.
This arbitration agreement will survive the termination of your relationship with Momensity10.
SECTION X: MISCELLANEOUS
10.1. Customer Service.
Should you have any questions, comments or concerns regarding the App customer service may be contacted at any time via [email protected] We strive to return all customer service inquires within forty-eight (48) business hours.
10.2. Affiliate Disclosure.
We may have an affiliate relationship with third-parties and affiliates to whose products and/or services we link and promote through the App. Because of this relationship we may earn a commission on products purchased by a User from a third-party affiliate.
10.3. Differing and Conflicting Terms.
We reserve the right, but assume no obligation, to agree to different or conflicting terms and conditions with respect to any User. Any such terms and conditions will not be enforceable unless specifically agreed to by us.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
10.6. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
10.8. Rights of Third Parties.
These Terms do not give any right to any third party unless explicitly stated herein.
10.9. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Momensity, LLC, ATTN: Legal Notice, P.O. Box 21 Stafford, Virginia 22554, and, in the case of any User, to the email address you provide to us. Notice shall be deemed given twenty-four (24) hours after such email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon registration for use of a Service. In such case, notice shall be deemed given three days after the date of mailing.
From time to time, and at our sole discretion, Momensity may make changes to these Terms. Momensity will endeavor to give Users thirty (30) calendar days’ notice of such changes via a push notification, posting of the changes to the Terms to the App, and/or an email, but will not be liable for any failure to do so. Should you choose to continue your use of the App following any change to these Terms, your continued use will constitute acceptance of and agreement with such changes.