1.Applicability of these Terms and Conditions
These are the terms and conditions (“Terms and Conditions”) applicable to subscriptions purchased to use applications provided by iMomentous, Inc. (each an “iMomentous App”). These Terms and Conditions are equally applicable and enforceable as if fully stated in the written subscription purchase document. You should not use the iMomentous App if you disagree with any term or conditions set forth in these Terms and Conditions.
2.iMomentous App Defined
iMomentous will provide you with a link for its website that allows you to download and become a user of the iMomentous App (you will then become a “User”).
3.Advertising and Marketing
iMomentous may, in its sole discretion, place advertisements in the iMomentous Apps and you shall not be entitled to any compensation or revenue sharing from any such advertising.
4.General Updates and Upgrades
iMomentous will from time-to-time implement General Updates into the iMomentous Apps at no additional cost when and to the extent iMomentous makes any such “General Updates” generally available to all of its other customers. iMomentous shall make all “Upgrades” available on a fee basis. “General Update” means a commercial release of an iMomentous App or the iMomentous technology thereunder that corrects any defects, errors, or bugs or incorporates minor enhancements to the functionality. “Upgrade” means a commercial release of the iMomentous App or underlying iMomentous technology that incorporates significant additional or improved features, functionality or capability.
5.Intellectual Property Rights
a. You acknowledge that you has received a subscription license to use an iMomentous App, and that except for your data, as between you and iMomentous, IMomentous owns all right, title and interest in and to the IMomentous App, including all underlying technology, source codes, object codes, operating instructions, interfaces, and documentation developed for or relating to the IMomentous App, together with all modifications, revisions, changes, copies, partial copies, translations, compilations, partial copies with modifications and derivative works thereto including resulting from the provision of “Professional Services” by IMomentous (collectively, the “IMomentous Property”). For purposes of additional clarity, any Professional Services are not provided by IMomentous on a “work-for-hire” or similar basis. All “Intellectual Property Rights” and all other property rights of any nature in the IMomentous Property are, and will remain in IMomentous with IMomentous having the right to obtain and to hold in its name, patents, copyright registrations or trademark or service mark registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. The term “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights, recognized in any country or jurisdiction in the world. The term “Professional Services” means those services provided by iMomentous relating to the iMomentous App inclusive of application configuration and development, set up, training, consulting, implementation, deployment, provisioning and like services.
b. If you participate or collaborate with IMomentous in the design, development or implementation of any suggestions, ideas, enhancement requests, feedback or recommendations for the IMomentous Apps, IMomentous shall have a royalty-free, fully paid-up, worldwide, perpetual, unrestricted, sub-licensable license to use and incorporate into the IMomentous Apps (or any future product or service that IMomentous may develop) any such suggestions, ideas, enhancement requests, feedback or recommendations.
6.IMomentous Express Warranties
IMomentous represents and warrants that the IMomentous Apps will operate in substantial compliance with the written documentation related thereto (“Documentation”). IMomentous further warrants that all Professional Services performed by IMomentous will be performed in a professional manner and in accordance with the Terms and Conditions. You must notify IMomentous in writing, within thirty (30) days following the date (i) on which you first determine that the IMomentous App fails to operate in substantial conformance with the Documentation or (ii) of which IMomentous has failed to perform any such Professional Services in a professional manner and in accordance with the Terms and Conditions. IMomentous’s sole obligation and your sole remedy with respect to any failure of the IMomentous App to substantially conform to the Documentation, or of any failure of IMomentous to perform services hereunder in a professional manner and in accordance with the Terms and Conditions, is for IMomentous to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure Is not remedied in a reasonable time, for you to cease using the applicable iMomentous App.
7.Disclaimer of Warranties
THE IMOMENTOUS APPS AND THE IMOMENTOUS TECHNOLOGY EMPLOYED THEREIN ARE PROVIDED TO YOU ON AN “AS IS,” “WITH ALL FAULTS” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THESE TERMS AND CONDITIONS, IMOMENTOUS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE IMOMENTOUS APPS OR THE IMOMENTOUS TECHNOLOGY OR ANY OTHER MATTER COVERED BY THESE TERMS AND CONDITIONS. ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ACCURACY, FREEDOM FROM INTERFERENCE WITH ENJOYMENT, OR FITNESS OF RESULTING WORK PRODUCT, ARE HEREBY DISCLAIMED.
8.Limitation of Liability
IMOMENTOUS SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS OR LICENSES GRANTED HEREUNDER, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS IMPOSED HEREUNDER, EVEN IF IMOMENTOUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY REFLECTS DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS AND IS INTENDED TO BE INDEPENDENT OF ANY EXCLUSIVE REMEDIES. IN NO EVENT SHALL IMOMENTOUS’S LIABILITY TO YOU EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY YOU DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY SUCH LIABILITY.
Use of an iMomentous App is expressly made subject to any laws, regulations, orders, or other restrictions (collectively, “Laws”) on the export from the United States of America. You shall not provide access to use an iMomentous App without compliance with such Laws.
These Terms and Conditions and your use of each iMomentous App shall be governed by, and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to any conflict of law principles. The state courts located in Montgomery County, Pennsylvania and federal courts located in Philadelphia, Pennsylvania shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms and Conditions and your use of an iMomentous App. Each party hereby consents to the exclusive jurisdiction of such courts and waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms and Conditions and your use of an iMomentous A.
Neither party shall be responsible for any failure to perform its obligations hereunder to the extent such failure is due to a Force Majeure Event, provided that such party gives prompt written notice thereof to the other party. The time for performance shall be extended for a period equal to the duration of the Force Majeure Event.
If any provision of these Terms and Conditions is held by a tribunal of competent jurisdiction to be illegal, invalid, or otherwise unenforceable in any jurisdiction, then to the fullest extent permitted by law (i) the same shall not effect the other provisions of these Terms and Conditions, (ii) such provision shall be deemed modified to the extent necessary in the tribunal’s opinion to render such provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent the intent of the parties as set forth herein, and (iii) such finding of invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, the disclaimers of warranties and the limitations of liability in Sections 7 and 8 are considered by the parties to be integral to these Terms and Conditions and shall not be modified or severed from these Terms and Conditions.
Except as otherwise expressly provided herein, any notice, request, consent, demand or other communication required or permitted to be given by these Terms and Conditions must be in writing and must be personally served, commercial courier service or prepaid registered or certified mail to the address of the other party as set forth on the most recent subscription order form, and with respect to IMomentous, to its main office as then listed at its website.
a. These Terms and Conditions contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, and all other prior or contemporaneous communications between the parties.
b. Except as expressly set forth herein, these Terms and Conditions may not be amended, modified, or supplemented except under the execution and delivery of a written agreement executed by the parties hereto that makes express reference as being an amendment of these Terms and Conditions.
c. No term or provision of these Terms and Conditions shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.
d. These Terms and Conditions may not be assigned by either party without the prior written consent of the other party and any such purported assignment shall be null and void; provided, however, that either party may assign these Terms and Conditions to an affiliate or in connection with a consolidation, merger, or sale of substantially all of its assets to which these Terms and Conditions relates, without the consent of the other party.
e. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
f. Each party is an independent contractor. Nothing herein shall be construed as creating any agency, partnership, or other form of joint enterprise between IMomentous and you.
g. Neither party shall disclose any of the terms, conditions, or provisions of these Terms and Conditions (including any pricing or other information contained in any Order Form or Exhibit hereto) without the prior written consent of the other party.
h. The section and paragraph headings contained in these Terms and Conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms and Conditions.