Terms & Conditions

Momus Labs, LLC Terms of Service

 

These Terms of Service of Momus Labs, LLC, a New York limited liability company (“Momus™”, “we,” “our” or “us”) were most recently updated on August 22, 2017.

These Terms of Service govern all use of the Momus™ native mobile application available for mobile phones or the website located at Momus.com (collectively, the “App”) and the services, content, applications or other functionality offered by Momus™ (collectively with the App and the App Offerings (the “Service”). Each end-user visitor to the App (“User,” “you” or “your”) agrees to these Momus™ Terms of Service (“Terms of Service”), in their entirety, when she/he: (a) accesses or uses the App; (b) accesses, uploads, views and/or comments on any of the feed, posts, text, images, video and/or other information pertaining to memes and other subject matter shared, posted, displayed, linked to and/or discussed on the App (the “Content”); (c) accesses the comments sections associated with the Content and/or other interactive features made available on the App (“Interactive Services”); (d) accesses links to, posts to or otherwise interacts with other social media pages/accounts on Third-Party social media websites, such as Facebook®, Instagram® and Twitter® (collectively, “Social Media Pages”) and other third-party owned and/or operated websites and mobile applications, such as Reddit® (collectively with Social Media Pages, the “Third-Party Sites”); and/or (e) utilizes the various registration forms and/or contact information made available on the App as a means to register for the App or contact directly, or request to be contacted by, Momus™ (collectively, the “Contact and Registration Services,” and together with the App, Content, Interactive Services, Social Media Pages and Third-Party Sites, the “App Offerings”).

This Agreement may be amended at any time from time to time by us without specific notice to you. The latest Agreement will be posted on the App, and you should review this Agreement prior to using the App.

The following Terms of Service are inclusive of the Momus™ Privacy Policy (“Privacy Policy”) and any and all other applicable operating rules, policies and other supplemental terms and conditions, procedures or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”). By using and/or accessing the App Offerings, each User agrees to comply with and be bound by the Agreement in its entirety, whether or not such User is a registered member of the App. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE WITH THE TERMS OR CONDITIONS OF THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE APP OFFERINGS IN ANY MANNER OR FORM.

THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.

NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).

Reliance on any information made available to you by and through the App Offerings, including the Content, is solely at your own risk. Momus™ disclaims any and all liability for any loss or damage based on Content or other information directly or indirectly obtained through the App Offerings.

Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Instagram® is a registered trademark of Facebook, Inc. (“Instagram”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Reddit® is a registered trademark of Reddit, Inc. (“Reddit”).    Please be advised that Momus™ is not in any way affiliated with Facebook, Instagram, Twitter or Reddit, and the App Offerings are not endorsed, administered or sponsored by Facebook, Instagram, Twitter or Reddit.

  1. Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between Users and Momus™ with respect to Users’ use of the App Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. Momus™ may amend the Agreement from time to time in its sole discretion, without specific notice to Users; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification. The latest Agreement will be available through the App, and Users should review the Agreement prior to using any App Offerings. By a User’s continued use of the App Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).
  2. Requirements; Termination of Access to the App Offerings. The App Offerings are available only to individuals who can enter into legally binding contracts under applicable law. The App Offerings are not intended for use by individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their jurisdiction). If a User is under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in her/his jurisdiction) and/or if that User is unable to enter into legally binding contracts under applicable law, that User does not have permission to use and/or access the App Offerings. Momus™ may terminate a User’s access to the App Offerings at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where Momus™ believes that such User is: (a) in any way in breach of the Agreement; and/or (b) engaged in any improper conduct in connection with the App Offerings. Use of the Service is void where prohibited by law.

You shall be responsible, at all times, for ensuring that you have an Internet connection, computer/mobile device, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the App Offerings. Momus™ does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. Momus™ does not guarantee that the App Offerings can be accessed: (a) on all mobile devices; (b) through all wireless service plans; (c) in connection with all Internet browsers; or (d) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the App Offerings through your wireless device. You are fully responsible for all such charges and Momus™ has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.

3. Contact and Registration Services. Where a User attempts to utilize the Contact and Registration Services, that User may be required to submit, and Momus™ may collect, some or all of the following information about the User, including your name, birthday, sex, email address, telephone number, location, username, usernames for third-party services (such as Twitter, Facebook, Instagram, or Reddit), information pertaining to your use of the App, including a credit card number, and any other information collected via the Contact and Registration Services form (collectively, “Contact and Registration Data”). Each User agrees to provide true, accurate, current and complete Contact and Registration Data. In consideration of your use of the Service, you agree to (a) provide accurate, current and complete Contact and Registration Data about you as may be prompted by any contact or registration forms; (b) maintain the security of your password and identification; (c) maintain and promptly update the Contact and Registration Data and any other information you provide to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account. You may not, without such person’s authorization, create an account for anyone other than yourself, register or use a user name that is the name of another person or that is subject to any rights of another person, or impersonate another person. You are entirely responsible for maintaining the confidentiality of your username and password. Please note that no one at Momus™ will ever ask you to disclose your username or password for any reason, other than through the login process. You are entirely responsible for all activities that occur under your account. You agree to: (a) immediately notify us of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Momus™ will not be liable for any loss or damage arising from your failure to comply with this section. You may be required to change your password from time to time. Certain elements of the App Offerings are designed to help account holders share information with others. Certain information is shared by default. This information includes your name, username, picture, and your posts. All sharing of information is done at your own risk. Momus’s use of Contact and Registration Data shall be governed by the Privacy Policy. For a copy of the Privacy Policy, please click here.

 

    1. Content.

     

    (a)        The App contains Content which includes, but is not limited to, text, images, video and other information pertaining to meme creation and postings and other subject matters. All content of the App, including, without limitation, comments, designs, texts, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, animation, links and other copyrightable elements, and the selection and arrangements thereof (collectively the “App Content”) are the property of Momus™ and/or its partners and are protected, without limitation, by copyright, trademark and patent laws and common law. For purposes of these Terms of Service, the use of any App Content on any other mobile application, website or networked computer environment is prohibited. For the avoidance of doubt, the foregoing will not prohibit integration of App Content with third-party sites or services when such integration is provided as a feature of the App Offerings. You are hereby granted a limited, non-exclusive, non-transferable license to display the App Content for non-commercial purposes only on your own devices. Any other use of the App Content is expressly prohibited. You may not make any modifications to any App Content.

     

    (b)        All content provided by Users is the sole responsibility of the person who originated such content, including any content that Momus™ provides Users with the ability to upload or transmit through the App, such as through Reddit or other Third-Party Sites. We cannot guarantee the authenticity of any content or information provided by Users. All content accessed by you using the App Offerings is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. MOMUS™ DOES NOT PRE-SCREEN OR APPROVE USER PROFILES OR POSTINGS OR UPLOADS OR COMMENTS AND CANNOT GUARANTEE THAT A USER PROFILE OR POSTING OR UPLOAD OR COMMENT WAS ACTUALLY CREATED AND IS BEING OPERATED BY THE INDIVIDUAL OR ENTITY THAT IS THE SUBJECT OF A USER PROFILE OR POSTING OR UPLOAD OR COMMENT. MOMUS™ IS NOT RESPONSIBLE FOR THE CONTENT OF ANY USER PROFILE OR POSTING OR UPLOAD OR COMMENT, OR ANY TRANSACTIONS ENTERED INTO OR OTHER ACTIONS TAKEN ON OR IN CONNECTION WITH ANY SUCH POSTING, UPLOAD OR COMMENT, INCLUDING HOW THE OWNER OF THE USER PROFILE OR POSTING OR UPLOAD OR COMMENT COLLECTS, HANDLES, USES AND / OR SHARES ANY PERSONAL INFORMATION IT MAY COLLECT FROM USERS (PLEASE REVIEW THE PRIVACY POLICY IF YOU HAVE ANY QUESTIONS OR CONCERNS REGARDING THE USE OR SHARING OF YOUR PERSONAL INFORMATION). SOME POSTS, UPLOADS OR COMMENTS MAY NOT BE APPROPRIATE OR LEGAL FOR ALL USERS. FOR EXAMPLE, SOME POSTS, UPLOADS OR COMMENTS MAY OCCUR AT AGE-RESTRICTED VENUES OR FEATURE AGE-RESTRICTED ACTIVITIES. POSTING OF A PLAN DOES NOT CONSTITUTE AN INVITATION BY MOMUS™ OR THE POSTER TO ENGAGE IN ANY ACTIVITY THAT IS ILLEGAL OR OTHERWISE PROHIBITED BY LAW.

     

    (c)        You are solely responsible for the profiles (including your name, image, likeness, and personal information), messages, notes, text, information, postings, links and other content that you upload, publish or display (hereinafter, “post”) through the Service, or transmit to or share with other users (collectively the “Member Content”). You may not post, transmit, or share Member Content on the Service that you did not create or that you do not have permission to post. You understand and agree that Momus™ may, but is not obligated to, review your Member Content and may delete or remove (without notice) any Member Content in its sole discretion, for any reason or no reason, including Member Content that in the sole judgment of Momus™ violates these Terms of Service. You are solely responsible at your sole cost and expense for creating backup copies and replacing any Member Content you post or store on the Service. When you post Member Content to the Service, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of such Member Content, which may include Momus™ re-posting Member Content from time to time. By posting Member Content to any part of the Service, you automatically grant, and you represent and warrant that you have the right to grant, to Momus™ an irrevocable, perpetual, non-exclusive, transferable, fully paid, sub-licensable worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Member Content for any purpose, commercial, advertising, or otherwise, to prepare derivative works of, or incorporate into other works, such Member Content. You may remove your Member Content from the Service at any time. When information or your account is deleted, it will be promptly removed from the active App, although your information may remain on backup media. You acknowledge that Momus™ may retain archived copies of your Member Content. Momus™ does not assert any ownership over your Member Content; rather, as between us and you, the Member Content remains subject to the rights granted to us in these Terms of Service.

     

    (d)        You acknowledge that Momus™ retains the right to re-assign your username to another user, and should Momus™ do so, Momus™ would assign you a new username and allow you to create a new username from those that are available at the time.

     

    1. Interactions. Users are solely responsible for their interactions with other Users and third parties. Because Momus™ is not involved in User interactions, except as set forth in these Terms of Service, in the event that you have a dispute with one or more User and/or other third-parties, you hereby release Momus™ from any and all claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such disputes.
    2. Interactive Services.

    (a)        Subject to the restrictions contained herein including, without limitation, those contained below, the Interactive Services may allow Users to post Member Content and comments, upload images and otherwise engage in other interactive communication, by and through the App Offerings. In connection with the Interactive Services, each User shall be solely responsible for the Member Content, comments, opinions, statements, offers, propositions, feedback, uploads and other content (collectively, “Feedback”) posted by and through the Interactive Services. Momus™ reserves the right to prohibit any conduct by Users, or to remove any materials or Feedback posted or uploaded by Users by and through the Interactive Services, that Momus™ deems, in its sole and absolute discretion, to be in violation of the Agreement and/or which Momus™ believes to be illegal, potentially harmful to others, otherwise objectionable or that same may expose Momus™ to harm, damage to reputation or liability. Notwithstanding the foregoing, Momus™ undertakes no responsibility to monitor or otherwise police the actions of Users, Feedback and/or other material posted or uploaded by Users and/or other third parties. Momus™ shall have no obligation and incur no liability to such Users in connection with any Feedback. Users may find certain Feedback to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when viewing Feedback. You agree to use the Interactive Services in a manner consistent with, and in full compliance with, any and all applicable laws and regulations.

     

    (b)        In connection with your use of the Interactive Services and the other App Offerings, you agree not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any Third-Party; (ii) display any audio files, text, photographs, videos or other images containing confidential information; (iii) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in your community, as defined under applicable law; (iv) impersonate any person or entity; (v) “stalk” or otherwise harass any person; (vi) engage in unauthorized advertising to, or commercial solicitation of, other Users; (vii) transmit any chain letters, spam or junk e-mail to other Users; (viii) express or imply that any statements that you make are endorsed by Momus, without Momus’s specific prior written consent; (ix) harvest or collect personal information of other Users whether or not for commercial purposes, without their express consent; (x) use any robot, spider, search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the App Offerings; (xi) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xii) remove any copyright, trademark or other proprietary rights notices contained on the App; (xiii) interfere with or disrupt the App and/or the servers or networks connected to same; (xiv) post, offer for download, e-mail or otherwise transmit any material that 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; (xv) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a Third-Party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to mobile networks; (xvi) “frame” or “mirror” any part of the App without Momus’ prior written authorization; (xvii) use metatags or code or other devices containing any reference to any App Offerings in order to direct any person to any other mobile application or website for any purpose; and/or (xviii) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the App Offerings or any software used in or in connection with App Offerings. Momus™ reserves the right to pursue any and all legal remedies against Users that engage in the aforementioned prohibited conduct.

     

    1. Third-Party Sites and Social Media Pages. The App Offerings may contain links to Third-Party Sites that are owned and operated by third parties, as well as articles, photographs, text, graphics, pictures, images, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third-Party Materials”). The Third-Party Sites are hosted and made available on Third-Party websites by Third-Party entities. You understand and agree that Momus™ shall not be liable to you, any other User or any Third-Party for any claim in connection with your use of, or inability to use, the Third-Party Sites. The Third-Party Materials are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Sites accessed through the App or any Third-Party Materials posted on, available through or installed from the App, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Sites or the Third-Party Materials. The inclusion of any link does not imply endorsement by Momus™ of the applicable Third-Party Site or any association with the Third-Party Site’s operators. Because Momus™ has no control over such Third-Party Sites and/or resources, each User agrees that Momus™ is not responsible or liable for the availability or the operation of such external Third-Party Sites, for any material located on or available from or through any such Third-Party Sites or for the protection of any User’s data privacy by third parties. Each User further agrees that Momus™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on, by or through any such Third-Party Site. If you decide to leave the App and access the Third-Party Sites or to use or install any Third-Party Materials, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site to which you navigate from the App or relating to any applications you use or install from the App.

     

    1. Representations and Warranties. Each User hereby represents and warrants to Momus™ as follows: (a) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; and (b) such User understands and agrees that such User has independently evaluated the desirability of utilizing the Service and that such User has not relied on any representation and/or warranty other than those set forth in the Agreement.

     

    1. Indemnification. Each User agrees to indemnify, defend and hold Momus, its shareholders, members, officers, directors, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and/or expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from and/or related to: (a) any dispute between that User and any other User and/or Third-Party; (b) User’s breach of the Agreement and/or any representation or warranty contained herein; and/or (c) User’s improper and/or unauthorized use of the App. The provisions of this Section 9 are for the benefit of Momus, its owners, parents, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.

     

    1. License Grant. Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Service. Momus™ may terminate this license at any time for any reason. Unless otherwise expressly authorized by Momus, Users may only use the Service for their own personal, non-commercial use. No part of the App Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other Third-Party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the Service except as expressly permitted by Momus. No User or other Third-Party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Service, or any portion thereof. No User or other Third-Party may create any “derivative works” by altering any aspect of the Service. No User or other Third-Party may use the Service in conjunction with any other third-party content. No User or other Third-Party may exploit any aspect of the Service for any commercial purposes not expressly permitted by Momus. Each User further agrees to indemnify and hold Momus™ harmless for that User’s failure to comply with this Section 10. Momus™ reserves any rights not explicitly granted in the Agreement.

     

    1. Proprietary Rights. The App Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks, patents and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any User or other Third-Party of any part of the Service strictly prohibited. No User or other Third-Party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through the Service. The posting of information or material by and through the Service does not constitute a waiver of any right in or to such information and/or materials.

     

    The trademarks, logos, images and service marks (“Trademarks”) displayed on the App are the property of Momus™ or other third parties. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. Users are not permitted to use these Trademarks without the prior written consent of Momus™ or such third parties which may own the Trademarks. Any request for permission to publicly use the trademarks of Momus™ must be made in writing and must be approved and acknowledged by Momus.

     

    1. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Service is a violation of criminal and civil law and Momus™ will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.

     

    1. Disclaimer of Warranties. THE APP OFFERINGS AND ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, MOMUS™ MAKES NO WARRANTY THAT THE APP OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL BE AVAILABLE 24 HOURS A DAY 7 DAYS A WEEK; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE APP OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MOMUS™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE APP OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM MOMUS™ OR OTHERWISE THROUGH OR FROM THE APP OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

     

    1. Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT MOMUS™ SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOMUS™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE APP OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS OR SERVICES PURCHASED OR OBTAINED FROM OR THROUGH THE APP OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND/OR OTHER THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY CONTACT AND REGISTRATION DATA; AND (E) ANY OTHER MATTER RELATING TO THE APP OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES MOMUS™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF MOMUS™ TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE APP OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY USER MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND MOMUS. ACCESS TO THE APP OFFERINGS WOULD NOT BE PROVIDED TO USERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS, SUCH AS THE STATE OF NEW JERSEY, MAY NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY SET FORTH ABOVE AND IN SUCH JURISDICTIONS THE LIABILITY OF MOMUS™ SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
    2. Intellectual Property/Copyright Policy.

    (a)        Momus™ and all of Momus’ graphics, logos, designs, page headers, button icons, scripts and service names are the trademarks, servicemarks or trade dress of Momus™ in the United States and/or other countries and may not be used, including as part of trademarks, servicemarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion in the marketplace and may not be copied, imitated or used, in whole or in part, without Momus’s prior written permission.

    (b)        Momus™ reserves the right to terminate any User’s access to the Service where such User infringes upon third-party copyrights or trademark rights.

    1. Submissions, Uploads, Copyrights and Copyright Agents. (DMCA Policy)

    (a) By using the App Offerings and/or uploading any material to, or through, the App (“Uploaded Content”), you represent and warrant as a material part of this Agreement that any and all intellectual property, content, or media you upload does not in any way infringe upon the intellectual property rights of any Third-Party, including such rights manifested in registered or unregistered copyrights, trademarks, patents, or trade secrets, whether at common law, by statute or under the terms of the Digital Millennium Copyright Act, as amended.

     

    (b) By uploading, publishing, modifying or displaying Uploaded Content to any part of the App Offerings or our App, you automatically grant, and you represent and warrant that you have the right and all necessary licenses to grant, to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), transmit, and distribute the Uploaded Content for any purpose on or in connection with the App Offerings or our App or the promotion thereof, to prepare derivative works of, or incorporate into other works, the Uploaded Content, and to grant and authorize sublicenses of the foregoing. You also grant each user of the App Offerings and our App a non-exclusive license to access the Uploaded Content through the App Offerings or the App, and to use, reproduce, distribute, display and perform the Uploaded Content as permitted through the functionality of the App Offerings and/or the App and under these terms of service.

     

    (c) You also agree not to upload pornographic, obscene or content containing any form of child exploitation.

     

    (d) ADDITIONALLY, YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE INDEMNIFICATION PROVISIONS IN SECTION 9 SHALL APPLY TO ANY UPLOADS OF MATERIAL YOU PLACE ON THE APP SERVICES OR OUR APP.

     

    (e) WE RESERVE THE RIGHT TO IMMEDIATELY REMOVE ANY MATERIAL THAT IS OR MAY BE INFRINGING OF ANY THIRD-PARTY RIGHTS AT ANYTIME, WITHOUT REFUND OR PRIOR NOTICE TO YOU. YOU AGREE THAT WE MAY TERMINATE YOUR ACCESS AT ANYTIME FOR ANY REASON WITHOUT NOTICE.

     

    (f) If you believe the App Services or our App contain content that infringes upon your rights, please notify us immediately. We respect the intellectual property of others, and we ask that our users do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, and you wish for the content to be removed, please provide our Copyright Agent with the following information:

     

    (i)  An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;

    (ii)  An identification of the copyrighted work that you claim has been infringed;

    (iii)  A description of where the material that you claim is infringing is located on the App;

    (iv)  Your address, telephone number, and if available, e-mail address;

    (v)  A statement by you 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) A statement, made under the penalties of perjury, that the information in the notification is accurate, that the complaining party is the owner of the exclusive right that is allegedly being infringed or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Our Copyright Agent for Notice of claims of copyright infringement on the App can be reached as follows:

    By mail:
    Momus Labs, LLC

    555 Eighth Avenue, Suite 1802

    New York, NY 10018

     

    or
    e-mail:
    by emailing copyright@Momus.com

     

    (g) Counter Filing. Pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act, we may reinstate content if we receive a counter notification by the provider of the affected content. If you are the content provider, and you feel you must submit a counter notification regarding content that has been removed from our App, you must submit — in writing — a counter notification that must include the following:

     

    (i) Your physical or electronic signature;

    (ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

    (iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

    (iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, in the District of Colombia, and that you will accept service of process from the person who provided notification under the preceding Section 16(f) or an agent of such person.
    (v)  Send the notice:

     

    By mail:
    Momus Labs, LLC

    Counter Notification

    555 Eighth Avenue, Suite 1802

    New York, NY 10018

     

    Or
    e-mail:
    by emailing copyright@Momus.com

     

    Please note that you will be liable for any damages (which include costs and attorney fees) if you materially represent that your content and or activity is not infringing the copyrights of others. If you are not sure if your content and or activity infringes on the copyrights of others, we advise you to consult with an attorney.

    You may find a sample counter claim form here: EFF.org

     

    1. Editing, Deleting and Modification. Momus™ reserves the right in its sole discretion to edit and/or delete any documents, information, other App Content, Member Content or any other Content appearing on the App.

 

  1. Use of User Information. All material submitted by Users through or in association with the App Offerings including, without limitation, the Contact Data, shall be subject to the Privacy Policy. For a copy of the Privacy Policy, please Click Here.

 

  1. 19. Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the App Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here [Momus Initial Dispute Notice]. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is available Here [Momus Demand for Arbitration]. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous. 

    To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Momus™ and/or its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that Momus™ incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the App.

     

    1. Miscellaneous. To the extent that anything in or associated with the Service is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Momus’ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Momus™ may assign its rights and obligations under the Agreement, in whole or in part, to any party at any time without notice to you. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

     

    1. Contact Us. If you have any questions about the Agreement, App Offerings or the practices of Momus, you may email us as at: Momus@Momus.com; or send us mail to: 555 Eighth Avenue, Suite 1802, New York, NY 10018.

     

    1. California Consumer Rights and Notices. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.