Momento360, Inc. Terms of Service

Last Revised: Dec. 22, 2021

Thank you for using Momento360. We are glad to have you as part of our community. These terms (these “Terms”) apply to your use of Momento360.com, any related websites, and all other online products and services (collectively, the “Service”) of Momento360, Inc. and its affiliated companies (“Momento360,” “we,” “us” or “our”).

Accepting these Terms

If you access or use the Service, or by clicking that you agree when prompted by Momento360, you are entering into a binding agreement with Momento360 and agree to be bound by these Terms. Please read all of the Terms before you use the Service. If a term or provision contained in these Terms does not make sense to you, please let us know. If you don’t agree to all of these Terms, you may not use the Service.

Changes to these Terms

We encourage you to review the Terms regularly to know about our practices. We may change these Terms from time to time. For example, we may change these Terms if we come out with a new feature. If we make changes, we will let you know by revising the date at the top of these Terms and, in some cases, provide you with additional notice (such as sending you an email notification). Any changes to these Terms will become effective no sooner than 15 days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service. If you use the Service after we have posted the changed Terms, then you have accepted the changes to these Terms.

Privacy Policy

For information about how we collect, use and share information about users of the Service, please see our Privacy Policy.

Description of the Service

Momento360 is an online platform that provides you with the ability to upload, annotate, share, and collaborate on 360° photographs and media with others. The Service includes features which, among other things, enable you to post 360° photographs and media, create annotations, post comments regarding this media, and notify others to alert them that you have posted new Content (as defined below). You can access content that others have granted you permission to view on our platform in connection with your use of the Service. “Content” includes any materials that you post to our Service, including comments, photographs, and videos. Further, the Service may also provide you with access to features and content that are provided by Momento360.

For more information about the Service, please see our FAQs.

Creating Accounts

When you create a member account, you agree to maintain the security of your password and accept all risk that someone may access your account without your permission. If you discover or suspect any Service security breaches, please let us know as soon as possible. You represent and warrant to us that all information that you provide in connection with your account is accurate, truthful, current and complete. Momento360 reserves the right to deny, deactivate, or terminate any account at our discretion.

The Service is not intended for users who are under the age of 13. In order to use the Service and create a member account, you must be 13 years of age or older. By creating a member account, you represent and warrant that you are 13 years of age or older.

Fees and Payment Terms

Momento360 provides several different plans. In exchange for your right to use the Service, you will pay to the fees associated with the plan you have selected (“Subscription Fees”). The Subscription Fees do not include taxes. The Subscription Fees are made up of a fixed annual or monthly payment that is due and payable in advance. Unless Momento360 states otherwise, all payments must be made (a) in U.S. Dollars, and (b) by check or a payment card via an authorized Momento360 payment processor. If payment is made via a payment card, you (i) authorize Momento360 (or its authorized payment processor) to make automatic recurring charges to your designated payment card number in the applicable amount of the Subscription Fees on an annual or monthly basis (as applicable) for the duration of the period outlined in the plan you selected (“Subscription Period”), (ii) represents and warrants that you are authorized to use and have fees charged to the payment card number you provide to Momento360, and (iii) understand that you may withdraw this consent by emailing Momento360 at billing@momento360.com. Cancellations will be effective immediately.

Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. You are responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Service, excluding only taxes based solely on Momento360’s net income. Notwithstanding any terms to the contrary in these Terms, (a) Momento360, at its sole discretion, may modify its pricing during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period, and (b) Momento360 is not be obligated to issue any refunds for Subscription Fees paid.

Right to Use the Service

On the condition that you fully comply with these Terms, Momento360 grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Service.

Except as expressly authorized by these Terms, you may not: (a) modify, disclose, alter, translate or create derivative works of the Service; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service; (c) disassemble, decompile or reverse engineer any of the software components of the Service; (d) copy, frame or mirror any part of the Service; (e) remove any proprietary notices or labels from the Service; (f) interfere with or disrupt the integrity or performance of the Service; or (g) attempt to gain unauthorized access to the Service or its related systems or networks.

Prohibited Use of the Service

You may not post or otherwise make available on or through the Service any of the following:

Private information of any other person (including names, email addresses, phone numbers, Social Security numbers and financial information);
Content that is libelous, defamatory, abusive, offensive or hateful;
Content that is obscene, pornographic, indecent or sexually explicit, or that depicts graphic, excessive or gratuitous violence;
Content that is illegal, harmful or offensive or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense;
Content that may infringe, misappropriate or violate any intellectual property rights, rights of privacy, rights of publicity or any other rights of others;
Viruses, corrupted data or other harmful, disruptive or destructive files or code; and/or
Content that, in Momento360’s judgment, is objectionable, may restrict or inhibit another from enjoying the Service or may expose Momento360 or users of the Service to harm or liability of any type.

Also, you may not do any of the following in connection with the Service or other users:

Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service;
Collect or post private information of any third party, such as addresses, phone numbers, email addresses, social security numbers and credit card numbers;
Intimidate, threaten, stalk, bully or otherwise harass other users;
Post spam through the Service;
Create an account or post any Content if you are not over 13 years of age;
Use automated means to submit or edit Content, unless expressly authorized by Momento360;
Use the Service for any illegal or unauthorized purpose or to engage in, encourage or promote any activity that is unlawful or that violates these Terms; and
Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Service, its users, or third parties.

Your use of the Service is at your own risk. Momento360 is not responsible or liable for the conduct of, or your interactions with, any other users (whether online or offline) or for any related damage or harm. As a provider of interactive services, Momento360 is not liable for Content. Although we have no obligation to screen, edit or monitor Content, we reserve the right, and have the discretion, to screen, edit or remove any Content at any time, for any reason and without notice. You represent and warrant that (a) you own and control all of the rights to all Content that you post or that you otherwise have the right to post your Content to the Service; (b) the Content you post is accurate and not misleading; and (c) our use and posting of the Content you supply does not violate these Terms and will not violate any rights of or cause injury to any person or entity.

Customer Materials and Responsibility

For purposes of this agreement, “Customer Materials” means any imagery, data, information or other material provided, uploaded, or submitted by you to the Service in the course of using the Service. You retain all right, title and interest in and to the Customer Materials, including all intellectual property rights therein. You, not Momento360, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Materials.

Momento360 shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Materials.

You are responsible for the use of the Service by any person to whom you have given access to the Service, even if you did not authorize such use.

Reporting and Removal

Momento360 users may report Content to Momento360 that he/she thinks violates these Terms, and Momento360 may remove that Content, suspend or terminate the account of the user who posted the Content and/or take additional action to enforce these Terms against such user.

Also, in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Momento360 has adopted a policy of terminating, in appropriate circumstances and at our discretion, account holders who are deemed to be repeat infringers. We also may, at our discretion, limit access to the Service and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

If you think that anything on the Service infringes upon any copyright that you own or control, you may file a notification with Momento360’s Designated Agent as set forth below:

Designated Agent:

Address of Designated Agent:
201 Spear st., #1100, San Francisco, CA 94105
Telephone Number of Designated Agent:
415-870-6360

Fax Number of Designated Agent:
415-870-6360

Email Address of Designated Agent:
dmca@momento360.com

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent that any material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, that Momento360 or the alleged infringer incurs because we relied on the misrepresentation when removing or disabling access to the material or activity.

Momento360’s Rights

As between you and Momento360, all information, materials and content of the Service, including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by Momento360 or is used with permission.

You own all of your Content. However, when you post, link or otherwise make available Content to the Service, you grant us a nonexclusive, royalty-free, fully-paid and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content throughout the world in order to provide the Service. Momento360 reserves all rights not expressly set forth in these Terms.

Feedback

Any suggestions, comments or other feedback you give us about the Service will be our confidential information. We are free to use, disclose, reproduce, license, distribute and exploit this feedback as we see fit, without compensation to you or any obligation or restriction because of any intellectual property rights or otherwise.

Third Party Materials

We may make third party content or services available on or through the Service as a convenience to our users (for example, links to third party websites) (“Third Party Materials”). Our users may also include Third Party Materials in the Content that they post to the Service. We do not control or endorse any Third Party Materials nor are we responsible for reviewing the accuracy of any Third Party Materials. Your business dealings or correspondence with third parties, and any terms, conditions, warranties or representations applicable to any Third Party Materials, are solely between you and the applicable third party. When you leave our Service, you should be aware that these Terms and all other Momento360 policies do not govern your use of other websites and services.

Disclaimers

THE SERVICE AND ANY CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE (INCLUDING THIRD PARTY MATERIALS) ARE PROVIDED TO YOU ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE (INCLUDING THIRD PARTY MATERIALS) WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT WILL MOMENTO360 BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, OR ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES (INCLUDING THIRD PARTY MATERIALS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, BY STATUTE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES OR ARE AWARE OF THE POSSIBILITY OF THESE DAMAGES; AND (B) THE AGGREGATE LIABILITY OF MOMENTO360, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING AS A RESULT OF MOMENTO360’S ALLEGED NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE GREATER OF (I) $100.00 U.S. DOLLARS OR (II) ANY COMPENSATION YOU PAY TO MOMENTO360 FOR ACCESS TO OR USE OF THE SERVICES.

Indemnification

You will defend, indemnify, and hold us harmless from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any conduct with respect to the Service or violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Momento360 account.

Changes to the Service

Momento360 reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Service and/or any features, information, materials or content on the Service with or without providing notice to you. Momento360 will not be liable to you or any third party for any changes or discontinuance of the Service or any part of the Service.

Consent to Electronic Communications

By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at tos@Momento360.com.

Suspension and Termination

Momento360 may suspend or terminate your rights to access or use the Service for any reason or for no reason at all and with or without notice at Momento360’s discretion. All of the terms of these Terms (excluding our license grants to you) will survive any termination or suspension. You may cancel your account by using other tools that we may make available via your member account or by contacting us at tos@Momento360.com.

Governing Law; Arbitration

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH MOMENTO360 AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MOMENTO360.

In the event of any controversy or claim arising out of or relating in any way to these Terms or the Service, you and Momento360 agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other, demand mediation under the mediation rules of the American Arbitration Association in San Francisco, California. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and Momento360 are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Except as otherwise required under applicable law, you and Momento360 intend and agree: (1) not to assert class action or representative action procedures and agree that they will not apply in any arbitration involving the other; (2) not to assert class action or representative action claims against the other in arbitration or otherwise; and (3) will only submit individual claims in arbitration and will not seek to represent the interests of any other person or entity.

If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in San Francisco, California. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.

Notice for California Users

If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

General

Enforcement of these Terms is solely at Momento360’s discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. Except as otherwise expressly stated elsewhere in these Terms, there will be no third party beneficiaries to these Terms. These Terms are binding upon and inure to the benefit of the parties and their permitted successors and assigns. Notwithstanding the foregoing, you may not assign your rights under these Terms without Momento360’s prior written consent. Momento360 will be permitted to assign its rights under these Terms in its sole discretion. As used in these Terms, “including” means “including (without limitation).” The section headings in these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms.