Date of Last Revision: January 6, 2018
Momint LLC (collectively, “Momint,” “we,” “us,” “our”) provides an online booking, payment and matching marketplace that connects photographers and users requiring on-demand photography services (collectively, the “Services”) to you through its website located at www.momint.net (the “Site”) and through its mobile applications and related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MOMINT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
THE SITE INCLUDES AN ONLINE MARKETPLACE THROUGH WHICH PHOTOGRAPHERS (DEFINED BELOW) MAY OFFER PHOTOGRAPHY SERVICES (DEFINED BELOW) AND SUBJECTS (DEFINED BELOW) MAY BOOK SUCH PHOTOGRAPHY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT: (1) MOMINT IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN PHOTOGRAPHERS AND SUBJECTS, (2) MOMINT ONLY PROVIDES MATCHING AND PAYMENT PROCESSING SERVICES, (3) SUBJECTS CONTRACT FOR PHOTOGRAPHY SERVICES DIRECTLY WITH PHOTOGRAPHERS (4) MOMINT IS NOT A BROKER, AGENT (EXCEPT AS EXPRESSLY SET FORTH BELOW) OR INSURER, AND (5) MOMINT HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, SUBJECTS, OR ANY OTHER USERS OF THE SITE OR PHOTOGRAPHY SERVICES, AND MOMINT DISCLAIMS ALL LIABILITY IN THIS REGARD. DIFFERENT SECTIONS OF THE SITE AND TERMS OF SERVICE AFFECT PHOTOGRAPHERS AND SUBJECTS DIFFERENTLY, SO PLEASE BE SURE TO READ THESE TERMS CAREFULLY.
“User” “you” or “your” means a person, organization or entity using the Services, including Subjects and Photographers.
“Subject” means a person who completes Momint's account registration process to book a Photographer.
“Photographer” means a photographer who can provide the photography services sought and who is accepted by Momint on the Site.
“Photography Services” means photography-related services provided by Photographers.
As stated above, Momint's Services make available a marketplace with related technology for Subjects and Photographers to arrange for the matching of a Subject with a Photographer and booking of Photography Services. Momint itself does not provide any photography-related services. Momint's responsibilities are limited to: (i) facilitating the availability of the Site, and (ii) serving as the limited agent of each Photographer for the purpose of accepting payments from a Subject on behalf of the Photographer. There are risks that you assume when dealing with other Users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not Momint. Momint does not control the behavior of Users or the quality of the Photography Services. As a result, Momint does not guarantee or endorse the authenticity, quality, safety, or legality of the Photography Services.
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Momint of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Momint will not be liable for any loss or damage arising from your failure to comply with this Section.
Momint reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Momint will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You acknowledge that Company may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Company reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Momint and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Momint account information to ensure that your messages are not sent to the person that acquires your old number.
Momint endeavors to match a Subject with the most suitable Photographer(s) based on information provided by the Subject. A number of Photographers may be presented as options to a Subject as part of the matching process, in which case it is the Subject’s responsibility to make the final choice as to which Photographer provides Photography Services. A Subject will be able to book the Photography Services though the Site (“Booking”). However, even when a Photographer is matched with or chosen by a Subject for a Booking, Momint reserves the right to change which Photographer actually provides the Photography Services for a particular Booking, in its sole discretion. Momint will endeavor to notify the Subject of any such changes in advance.
As Photographer, you acknowledge and agree that a substantial portion of the compensation Momint receives for making the Site available to you is collected through the Momint Fee described in Payment Terms. Momint only receives this Fee when a Subject and a Photographer pay and receive payment through the Site. Therefore, for 12 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party. You may opt-out of this obligation with respect to each Subject-Photographer relationship only if Subject or prospective Subject or Photographer pays Momint for each such relationship by paying an “Opt-Out Fee” of $5,000 USD.
To pay the Opt-Out Fee, you must request instructions by sending an email message to [email protected]
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Terms offered by the Site.
By way of illustration and not in limitation of the foregoing, you must not:
• Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
• Accept proposals or solicit parties identified through the Site to contact, provide services, invoice, or receive payment outside the Site.
You agree to notify Momint immediately if another User improperly contacts you or suggests making or receiving payments outside of the Site.
As a Photographer, you must provide Momint with any information requested in order for Momint to match you to a Subject, such as information on your background, experience and skills, sample photos taken by you, contact details and your headshot. You must also provide Momint with up to date, complete and accurate information regarding the days and times you are available to complete Bookings and must ensure that this information remains accurate and current at all times. Once you are matched with a Subject you have the right to turn down the job, but Momint has sole discretion to determine if such refusal will harm your ability to be matched in the future. Momint may also request that you submit a portfolio of previous works. Momint has sole discretion as to which photographers are accepted into the marketplace and we reserve the right to reject any potential Photographer and remove any Photographer from the marketplace for any reason. Momint may, but is not required to, conduct background checks on Photographers.
EACH PHOTOGRAPHER IS SOLELY RESPONSIBLE FOR OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS REQUIRED TO OFFER OR PROVIDE ANY PHOTOGRAPHY SERVICES OR OTHER PHOTOGRAPHER-PROVIDED SERVICES AND MOMINT ASSUMES NO RESPONSIBILITY FOR A PHOTOGRAPHER'S FAILURE TO OBTAIN SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS.
You understand and agree that Momint is neither an insurer nor a contracting agent or employer for you as a Photographer. If a Subject purchases any of your Photography Services, any agreement you enter into with such Subject is between you and the Subject and Momint is not a party thereto. Notwithstanding the foregoing, Momint serves as your limited authorized agent for the purpose of accepting payments from Subjects on your behalf and Momint is responsible for transmitting your portion such payments to you. You acknowledge and agree that, as a Photographer, you are responsible for your own acts and omissions. Each Photographer understands the fact that Momint does not offer any medical coverage for bodily harm or injury that may result from providing the Photography Services. Momint will not reimburse for any medical bills, transportation or loss of wages as a result of the injury or for any accommodations.
Each Subject agrees to pay all applicable fees for Photography Services and fees for any digital downloads or prints purchased either through a package or after the completion of the Photography Services (“Purchased Prints”) as set forth on the Site (collectively, “Photographer Fees”). All Photographer Fees are payable in the currency specified on the Site at the time of Booking. If a Subject requests amended Photography Services, including but not limited to changes to the time, location or type of Photography Services provided (“Variation”), a change fee may be charged. All change fees are payable before any Variations will be accepted and performed.
You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
Except as otherwise expressly set forth herein or as expressly approved by Momint in writing in its sole discretion, all payments made are final and non-refundable and the Subject shall not have the right to cancel its purchase for any reason. If you make a payment by credit card or other payment instrument, you represent and warrant to Company that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Company the amount that is specified on the Site for Photographer Fees and in accordance with the terms of such fees and purchases and this Terms of Service.
Momint will facilitate bi-monthly payment to a Photographer’s nominated bank account the total Photographer Fees accrued for the Photography Services provided to a Subject by such Photographer during the preceding payment period, less the fee payable to Momint for referring the Subject(s) to such Photographer as set forth in terms provided to Photographers at the time of their onboarding ("Momint Fee”). Momint has sole discretion to act on behalf of the Subject, and to not pay Photographer Fees, if the Subject reports that the Photography Services were not provided or adequately completed. This may include but is not limited to circumstances where a Photographer did not arrive for a Booking or photos were of insufficient quality for use. Momint will independently review such cases, seeking input from the Subject and/or the Photographer in its sole discretion, and may decide at its sole discretion to issue a refund to the Subject.
Each Photographer appoints Momint as the Photographer’s limited payment collection agent solely for the purpose of accepting the Photographer Fees from the Subject. Each User agrees that payment of Photographer Fees in respect of a Photographer by a Subject to Momint, as that Photographer’s limited payment collection agent, shall be considered the same as a payment made directly by that Subject to the relevant Photographer and the Photographer will provide the relevant Photographer Services to the Subject, as outlined on the Site, as if the Photographer had received payment directly. Momint, as limited payment collection agent for the Photographer, agrees to facilitate the payment of any Photographer Fees for Photography Services provided, on a bimonthly basis unless otherwise agreed between Momint and the Photographer. In the event that Momint does not remit such amounts, the Photographer will have recourse only against Momint.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Momint. Momint reserves the right to investigate and take appropriate legal action against anyone who, in Momint's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Momint, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Momint or its users to any harm or liability of any type;
b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
c) violate any applicable local, state, national or international law, or any regulations having the force of law;
d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) solicit personal information from anyone under the age of 18;
f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
This Section provides additional terms for our Users located in Australia. Consumer legislation in Australia including the Australian Consumer Law (“ACL”) in the Competition and Consumer Act 2010 (Cth) provides consumers with guarantees that cannot be excluded, restricted or modified. Similar consumer protection laws and regulations in other countries may provide consumers with similar guarantees.
If the User is a consumer as defined in the ACL, the following notice applies to the User from Momint: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.”
Momint offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
• Momint and you acknowledge that these Terms of Service are concluded between Momint and you only, and not with Apple, and that as between Momint and Apple, Momint, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Momint's sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Momint and you acknowledge that Momint, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Momint and Apple, Momint, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Momint at [email protected]
Momint and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Momint, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Momint from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Momint, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Momint.
The Momint name and logos are trademarks and service marks of Momint (collectively the "Momint Trademarks”). Other Momint product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Momint. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Momint Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Momint Trademarks will inure to our exclusive benefit.
Photographers assign Photograph IP (defined below) in the Photograph Content (defined below) created for a particular Booking and Subject, to Momint. Once the Booking transaction is complete, Momint transfers the Photograph IP in Purchased Prints to the Subject to facilitate a seamless transaction between a Photographer and a Subject. Photographer acknowledges and agrees that the photographs, digital negatives, camera RAW files, other original data files pertaining to the photos and images produced as a result of the Photography Services for a Subject as a result of a Booking (“Photograph Content”) contain content or features that are protected by copyright, trademark, trade secret or other proprietary rights and laws (“Photograph IP”). Photographer hereby assigns (and agrees to assign) all Photograph Content and the Photograph IP and all related intellectual property and proprietary rights to Momint. Photographer shall further assist Momint, at Momint's expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Upon full receipt of all applicable Photographer Fees, Momint agrees to assign, transfer and convey to the Subject the Photograph Content and associated Photograph IP contained in Purchased Prints. For clarity, Photograph Content and associated Photograph IP that is not purchased by Subject remains the property of Momint.
For Australian Subjects, you acknowledge that subsections 35(5) and 213(5) of the Copyright Act 1968 (Cth) are excluded and you do not have copyright in any images or photos created for a Booking.
Subjects hereby grant Momint a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to use, copy, display and distribute the Photograph Content and associated Photograph IP for marketing and advertising purposes. Momint will inform Subjects if it intends to use photos in this way, to provide an opportunity for any reasonable objections to be taken into account. Photographers may request that Momint provide a limited intellectual property license for the purpose of using photos in the Photographer’s portfolio of work or for other purposes by seeking prior written consent from both Momint and the relevant Subject.
Under no circumstances will Momint be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Momint does not pre-screen content, but that Momint and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Momint and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Momint, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Momint and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
Subjects may rate a Photographer and their Photography Services (“Photographer Rating”), and Photographers may rate a Subject (“Subject Rating”),in each case using the multidimensional rating system provided on the Site (collectively, “Rating”). Subjects may also provide written feedback to Momint regarding Photographers and their Photography Services purchased by such Subject (“Review”). You may only leave a Rating or submit a Review once the Photography Services have been provided for the relevant Booking. Momint can remove a Rating at any time, in its sole discretion. A Subject must provide true, fair and accurate information in their Review.
You acknowledge and agree that any Rating, Review, questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Momint are non-confidential and Momint will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Momint's rights to such Submissions includes, but is not limited to, creating an aggregate rating from the Ratings it receives and showing Users such aggregated ratings.
You acknowledge and agree that Momint may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Momint, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Momint respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Momint of your infringement claim in accordance with the procedure set forth below.
Momint will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Momint's Copyright Agent at [email protected] (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at: 3111 Cherokee Drive, Fayetteville, AR, 72701, United States.
To be effective, the notification must be in writing and contain the following information:
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Momint will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
In accordance with the DMCA and other applicable law, Momint has adopted a policy of terminating, in appropriate circumstances and at Momint's sole discretion, users who are deemed to be repeat infringers. Momint may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Momint has no control over such sites and resources and Momint is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Momint will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Momint is not liable for any loss or claim that you may have against any such third party.
In addition, Momint is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Momint is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Momint enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Momint may use video or photography which have been produced by members in own needs, including advertising and promotion.
You agree to release, indemnify and hold Momint and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MOMINT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
MOMINT MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOMINT WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOMINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL MOMINT'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MOMINT IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Momint, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Momint are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND MOMINT AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MOMINT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
To the extent a court or the arbitrator determines that this class action waiver is invalid, for any reason, it shall not be severable from this Terms and the class or collective claims will be considered excluded claims that must be litigated in a civil court of competent jurisdiction Notwithstanding any other clause contained in this arbitration provision, any claim that all or part of the class action waiver is invalid, unenforceable void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The class action waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
Momint is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected] If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Momint should be sent to: 3111 Cherokee Drive, Fayetteville, AR 72701, United States (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Momint and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Momint may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Momint or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Momint is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Momint and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Momint agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Momint will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Momint will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Momint will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Notwithstanding any provision in this Terms of Service to the contrary, Momint agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Momint written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Momint, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Momint believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Momint may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Momint may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Momint will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Momint will have no liability or responsibility with respect thereto. Momint reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Momint and govern your use of the Service, superseding any prior agreements between you and Momint with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Momint agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Fayetteville, Arkansas. The failure of Momint to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Momint, but Momint may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Please contact us at [email protected] to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.