MOMENT TERMS AND CONDITIONS

Last updated: November 22nd, 2024

PLEASE READ THIS AGREEMENT CAREFULLY AND ENSURE THAT YOU UNDERSTAND ITS CONTENTS, AS IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS TO AND USE OF THE SERVICE. FURTHER, THESE TERMS IN SECTION 10 CONTAIN A WAIVER OF YOUR RIGHT TO LITIGATE CLAIMS IN FRONT OF A JURY, A WAIVER OF YOUR RIGHT TO LITIGATE CLAIMS YOU MAY HAVE AS PART OF A CLASS ACTION, AND A LIMITATION OF THE TIME PERIOD IN WHICH YOU CAN BRING CLAIMS AGAINST US. PLEASE CAREFULLY READ SUCH PROVISIONS AND THE REMAINDER OF THESE TERMS.

These Moment Terms and Conditions (the “Terms”) are entered into between you (“Customer” or “you”) and Clove & Twine (“we,” “us” or “Moment”). These Terms incorporate by reference any exhibits, documents or URLs mentioned herein (including without limitation the Privacy Policy and Website Terms of Use, as such terms are defined in Section 1) (collectively, the “Agreement”).

Please read these Terms carefully before you register for, access, or use the Service. By accessing and using the Service, or by clicking to accept or agree to these Terms when this option is made available to you, you accept to be bound by the terms of these Terms and the Agreement. If you do not want to agree to these Terms or any part of the Agreement, you must not register for, access, or otherwise use the Service.

When an individual registers for, accesses, or uses the Service on behalf of their employer or another entity, they represent and warrant that they (i) are authorized to bind their employer or the entity they represent to these Terms; and (ii) agree to these Terms on behalf of their employer or the entity they represent. If an individual lacks the legal authority to bind their employer or the applicable entity, they should not register for, access, or use the Service.

1. Definitions Except as otherwise provided elsewhere in this Agreement, the following capitalized terms shall have the following definitions:
   1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
   2. “Campaign Data” means analytical data, collected and provided on an anonymized basis, regarding a Customer’s Gift campaign where such data shall indicate which Gifts are sent the most, the amount of Gift Swapping occurring in the campaign, the number of Gift Alerts sent and outstanding, and such other Gift campaign data as Moment shall make available from time to time.
   3. “Campaign Page” means the page in Customer’s account where Customer can monitor and manage the issuance of Gift Alerts to Recipients.
   4. “Customer Data” means any data uploaded or transmitted to the Service by or on behalf of Customer, but expressly excluding Performance Data and Campaign Data.
   5. “Customer Materials” means the Customer Marks (as defined further below), copyrights, brand assets, or other intellectual property owned or licensed by Customer and provided by or on behalf of Customer through the Service.
   6. “Documentation” means any user manuals, handbooks, and online materials provided by Moment to Customer that describe the features, functionality, or operation of the Platform.
   7. “Fees” mean any fees paid or payable by Customer to Moment in connection with the Service, including but not limited to: Service Fees, Gift Fees, Shipping Fees and Taxes.
   8. “Gift” means a product that is sent using the Service to a Recipient by a Customer for the Recipient to claim.
   9. “Gift Alert” means an electronic communication via email from the Service to alert a Recipient that Customer has sent a Gift to the Recipient and instructs the Recipient on how to claim the Gift.
   10. “Gift Collection” means a grouping of Gifts sent by Customer using the Service which Recipients can claim one or more Gifts from.
   11. “Gift Fees” means the price for the particular Gift a Customer selects for a Recipient.
   12. “Gift Swapping” means that a Recipient of a Gift has the option to change the gift for any other Gift available on the Service that is of equal or lesser value to the original Gift received by Recipient.
   13. “Moment Materials” means the Service, Documentation, Performance Data, Campaign Data, Platform, Website, all software and all Moment proprietary information and technology used by Moment or provided to Customer in connection with the Service, including all derivatives, enhancements, and improvements to each of the foregoing, and any and all associated intellectual property rights therewith.
   14. “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the Service, which does not contain any personally identifiable information or Customer Data.
   15. “Platform” means the technology used by Moment to deliver the Service to Customer.
   16. “Privacy Policy” means the current version of the Moment privacy policy, available at www.cloveandtwine.com/policies/privacy-policy, as the same may be amended from time to time.
   17. “Recipient” means any person in relation to the Customer who is sent a Gift by the Customer to claim through the Service.
   18. “Service” means access to Moment’s proprietary, self-service web-based portal through which Customer may send Gift Alerts to Recipients for Recipients to claim Gifts.
   19. “Service Fee” means the percentage of the Fees payable for a Gift which may cover various administrative and support items regarding the Service such as Customer support, digital delivery of the Service, use of the Service, and logistics regarding the transactions completed pursuant to the Service.
   20. “Shipping Fees” means the shipping, handling, or other applicable Fees charged by a Vendor for the processing, shipment, delivery, or otherwise for the Gift.
   21. “Taxes” means all local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement.
   22. “Vendor” means a third party vendor who provides products available for purchase as Gifts via the Service.
   23. “Website” means the website made available at https://www.moment.cloveandtwine.com by which Customer shall access and use the Service.
   24. “Website Terms of Use” means the current version of the Website terms of use available at https://moment.cloveandtwine.com/page/website-terms-of-use, as the same may be amended from time to time.

1. Service; Accuracy of Information; Restrictions; Suspension
   1. License to Access and Use Service. Subject to the terms and conditions of this Agreement, Moment hereby grants to Customer a revocable, non-sublicensable, non-transferable, non-exclusive right to access and use the Service solely for Customer’s internal business purposes and not for any other purpose.
   2. Accurate Information. You agree to provide current, complete and accurate purchase and account information in connection with your access to and use of the Service. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can provide the Service to you and contact you as needed.
   3. Service Notices. Customer agrees to receive electronic communications from Moment related to the Service, including transaction and administrative notices, as well as marketing communications related to the Service such as promotional communications, special offers, product or other promotions, and newsletters. This includes information regarding the Customer’s account, such as password changes and transaction details. Additionally, the Customer consents to receive all notices, statements, and other communications in English via email, postings on the Service (or other electronic methods), updates on the Customer’s Campaign Page, or through mail or express delivery service. Customer can opt out of marketing and other promotional communications as follows: email support@moment.cloveandtwine.com with your request to opt out or follow the opt-out link in promotional emails.
   4. Updates and Modification to Service and Fees. Fees for the Service are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, Fee change, suspension or discontinuance of the Service.
   5. Additional Features. Moment may periodically add new features to the Service. In addition to any specific terms related to those features, these Terms will also apply to any additional features that Customer accesses or uses in connection with the Service.
   6. General Responsibilities. Customer’s access to and use of the Service and the Moment Materials shall at all times be in compliance with these Terms, the Agreement, the Documentation (as applicable), and all applicable laws. Customer will be responsible for all uses of its accounts and its Access Credentials, except to the extent caused by Moment’s negligence.  Customer will promptly notify Moment of any unauthorized use or access to its account or its Access Credentials. Further, Customer shall only access and use the Service within the United States.
   7. Customer Responsible for Recipients. Customer shall always be responsible for the acts or omissions of its Recipients who access and use the Service, and shall be liable to Moment regarding the same. To the extent these Terms or the Agreement imposes an obligation or restriction on Customer, then it is agreed that such obligation or restriction shall also apply to Recipients who access and use the Service.
   8. Restrictions. In addition to those restrictions regarding the Website set forth in the Website Terms of Use, Customer shall not use the Moment Materials for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Moment Materials, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Moment Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Moment Materials, in whole or in part; (iv) remove any proprietary notices from the Moment Materials; or (v) use the Moment Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   9. Suspension. Notwithstanding anything to the contrary in these Terms, Moment may temporarily suspend Customer's access to any portion or all of the Service if: (i) Moment reasonably determines that (A) there is a threat or attack on any of the Moment Materials; (B) Customer's use of the Moment Materials disrupts or poses a security risk to the Moment Materials or to any other customer or Vendor of Moment; (C) Customer is using the Moment Materials for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Moment's provision of the Service to Customer is prohibited by applicable law; (ii) any vendor of Moment has suspended or terminated Moment's access to or use of any third-party services or products required to enable Customer to access the Service; or (iii) in accordance with Section 4(d) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Moment shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Moment shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Moment will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.

1. Terms of Gift Sales
   1. Gift Selection and Process. Through the Service, Customer may select a Gift or Gift Collection within a specified budget and based on other criteria to send Gifts to Recipients. Customer will provide Moment with the contact information of the Recipient for the Gift Alert, but will not be required to supply the Recipient’s shipping address. The Recipient will receive a notification from Moment indicating that a Gift has been sent by the Customer. Recipients will be able to claim a Gift or engage in Gift Swapping (as permitted by these Terms) within the time frame specified Customer or, if no such time period was defined, the time frame set by Moment. The selected Gift will be dispatched to the Recipient using the delivery information the Recipient provides directly to Moment via the Service.
   2. Moment Right to Limit or Cancel Orders. Note that in addition to any other restriction in these Terms or the Agreement, Moment reserves the right to limit or cancel the quantities of any Gifts and Gift Collections selected by Customer in Moment’s sole and absolute discretion. These restrictions may include orders placed by or under the same Customer account, the same credit card, and/or orders using the same billing and/or shipping address. In the event that Moment makes a change to Customer’s order, then Moment shall attempt to notify Customer using the email address, phone number, or billing address associated with Customer’s account prior to such cancellation.
   3. Vendor Terms.  Gifts are provided by Vendors over which Moment has no control; said another way, Moment does not manufacture any Gifts nor does it create or otherwise manufacture any Gift. We have made every effort to display as accurately as possible the colors and images of our products that appear in the Service; however, such images are merely for reference and we cannot guarantee that such pictures will be an accurate representation of the product itself. All Gifts are subject to (i) availability from the Vendor; and (ii) the terms of the applicable Vendor’s terms for such Gift, including product warranties and recalls. If a Gift selected by a Recipient becomes unavailable, Moment will notify the Customer or enable the Recipient to exchange for a different Gift within the applicable Gift Collection. Once a Gift has been claimed by a Recipient, the Gift and any associated Fees are non-refundable and non-exchangeable, except as expressly set forth in these Terms.
   4. Delivery Details. Delivery dates for Gifts are estimates. Moment does not control the timing or method of delivery for any Gift. Gifts will be shipped according to the terms set by the applicable Vendor for the Gift. The Recipient will receive shipping updates (as provided to Moment by the Vendor and/or shipping carriers) through the Recipient’s email provided to Moment by the Customer.  Absent any negligence by Moment, Moment will not be responsible nor liable for any acts and omissions of any Vendor, delivery carrier or logistics provider related to any Gift. This includes any shipping delays or problems with the quality or quantity of Gifts. Note that we may limit the delivery of Gifts to certain countries or geographies, such decisions to be made in our sole discretion.
   5. Gift Swapping. Recipients will be allowed to engage in Gift Swapping through the Service whereby a Recipient may be able to select a different Gift which has the same or lesser value than the Gift sent by Customer to Recipient pursuant to a Gift Alert. To the extent that Gift Swapping results in Fees being lower than the estimated Fees, then Moment shall adjust such Fees and shall charge Customer for the revised amount in accordance with these Terms.
   6. Campaign Data. In connection with a Customer’s Gift campaign, Moment grants Customer a limited, revocable right to access and view the Campaign Data on the Customer’s Campaign Page solely in connection with the Customer’s Gift campaign.

1. Fees, Billing, and Payment
   1. Applicable Fees. When Customer selects a Gift or Gift Collection to send to one or more Recipients, Customer shall set the Recipient’s budget and other requirements through the Service for the Fees (such as the Gift Fee, Service Fee, and Taxes). The amount of Fees are estimated based on the maximum Gift Fee or the budget set by Customer for the Gift Collection. Once a Gift is claimed by the Recipient, the actual amount shall be adjusted as follows: (i) the Recipient claims a Gift which is less than the allotted fee for the Gift (including pursuant to Gift Swapping); (ii) the application of the Service Fee and Shipping Fee, and (iii) applicable Taxes. The final adjusted Fees for a Gift will not exceed the Gift’s estimated Fees.
   2. Taxes. All Fees and other amounts payable by Customer in connection with their access and use of the Service are exclusive of Taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all Taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Moment's income.
   3. Billing.
      1. Payment Authorization. Customer authorizes Moment to charge its billing method for the Fees. If Customer is paying by credit card, Customer authorizes Moment to charge such credit card for Fees as they become due. Note that Moment will preauthorize the amount of estimated Fees to be paid by Customer in connection with Customer’s selection of the Gift or Gift Collection; provided, however, that no Fees will be incurred by Customer until Gifts are claimed by Recipients as set forth in these Terms. Customer authorizes Moment to utilize third party payment processors, and consents to the disclosure of Customer’s payment information solely as necessary to process the payment of Fees. Customer agrees to pay the Fees in accordance with these Terms.
      2. Refunds. Note that Moment will not refund any amount more than the Fees that were paid by Customer to Moment for the particular Gifts or Gift Collection provided to Recipients.  To the extent that a Recipient receives a damaged or otherwise defective Gift from a Vendor, then Moment shall use commercially reasonable efforts to obtain a replacement Gift from the Vendor. If Moment is unable to obtain a replacement Gift from the Vendor, then Moment shall notify Customer of such event and upon Customer’s written request shall refund Customer the amount of Fees for such defective Gift to Customer’s billing method used to order such Gift. In any event, Moment shall not refund any estimated or other Fees paid or payable by Customer if such refund request is made outside of thirty (30) days from the date the Gift was delivered to a Recipient. Except for the express refund provisions in this Section, Moment shall not offer any refunds in connection with the Service
      3. Disputes. To the extent that Customer disputes any Fees due in good faith, Customer shall notify Moment of such dispute, including reasonable detail about the disputed Fees in question and sufficient supporting documentation and information, within thirty (30) days that such Fee is incurred (a “Billing Dispute Notice”). After Moment’s receipt of such Billing Dispute Notice, then the parties shall endeavor in good faith to resolve such dispute.
   4. Late Payments. Any Fees which are not paid in full within 30 days will accrue interest at the rate of 18% per annum. In the event we undertake any legal action to collect any unpaid amounts, we are entitled to all costs associated with such action, including but not limited to reasonable attorney's fees. Further, if Customer fails to make payment of undisputed Fees within 30 days of their due date, then Moment reserves the right to suspend Customer’s access to any portion or all of the Service until such amount (including accrued interest) is paid in full.

1. Intellectual Property Ownership; Feedback
   1. Ownership of Moment Materials. Customer acknowledges that, as between Customer and Moment, Moment owns all right, title, and interest, including all intellectual property rights, in and to the Moment Materials.
   2. Ownership of Customer Materials; Limited License to Use. Moment acknowledges that, as between Customer and Moment, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Materials.
   3. Ownership of Customer Data. Customer retains all right, title and interest in and to the Customer Data, including any enhancements, improvements or derivatives thereto.  Customer hereby grants to Moment a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Customer Data to provide the Service to Customer.  Customer represents and warrants that it has all necessary rights to grant Moment the foregoing licenses.
   4. Ownership of Performance Data and Campaign Data. Moment retains all right, title and interest in and to the Performance Data, and may collect and use Performance Data for any lawful purpose. Further, Moment retains all right, title, and interest in and to the Campaign Data, and may collect and use Campaign Data for any lawful purpose.
   5. Trademarks. Except as may be expressly provided in this Agreement, Customer shall not, without Moment’s prior written consent, use the names, logos, or trademarks of Moment (the “Moment Marks”) or any of its affiliates and all right, title and interest in and to the Moment Marks shall remain the property of Moment.  Customer hereby grants to Moment a limited, non-exclusive license to use, reproduce and display the Customer Marks solely as necessary to perform its obligations hereunder. Further, Customer hereby expressly agrees to allow Moment to use the Customer Marks to expressly identify Customer as a customer of Moment; provided, however, that Customer expressly reserves the right to revoke the permission for such marketing use upon written notice to Moment (email being acceptable). Except as expressly set forth in this Agreement, Moment agrees not to use the Customer Marks for any purpose without Customer’s prior written consent. All right, title, and interest in and to the Moment Marks shall remain the sole and exclusive property of Moment, and all right, title, and interest in and to the Customer Marks shall remain the sole property of Customer.
   6. Reservation of Rights. Moment and Customer each reserve all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or Moment or any third party any intellectual property rights or other right, title, or interest in or to the Moment Materials or Customer Materials.
   7. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Moment by mail, email, telephone, or otherwise, suggesting or recommending changes to the Moment Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Moment is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.  Customer hereby assigns to Moment on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Moment is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Moment is not required to use any Feedback.

1. Data Security and Processing
   1. Data Security. Moment shall maintain, and shall require that its third party vendors maintain, adequate administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. All Customer Data shall be processed in accordance with all applicable data privacy laws.
   2. Processing. Any processing of personally identifiable information in connection with the Service shall be in accordance with Moment’s Privacy Policy, as may be amended from time to time in accordance with the Privacy Policy.
   3. Restricted Data. Customer acknowledges that the Service is not designed (or intended) to process or manage any (1) protected health information under HIPAA, or other similarly sensitive personal information or (2) special categories of personal data as defined in Article 9 of the European Union’s General Data Protection Regulation (collectively “Sensitive Data”).  Customer shall not permit or cause the disclosure of any Sensitive Data to the Service.  Customer assumes all risk arising from the disclosure or use of any Sensitive Data on or with the Service, including the risk of any inadvertent disclosure or unauthorized access thereto.

1. Confidentiality
   1. Definition of Confidential Information. From time to time, either party (as the “Disclosing Party”) may disclose, furnish, or otherwise make available to the other party (as the “Receiving Party”) Confidential Information. The term “Confidential Information” means non-public information, including information related to business affairs, marketing and business plans, sales, costs and other unpublished financial information, technology, products, services, know-how, trade secrets, technical processes, proprietary software (object code and source code), third-party confidential information and other sensitive or proprietary information, whether disclosed, furnished or otherwise made available orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.” For the avoidance of doubt, the term “Confidential Information” shall include the Moment Materials in the case of Moment, and Customer Data in the case of Customer. However, Confidential Information shall not include information that: (i) at the time of disclosure is, or subsequently becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 7 by the Receiving Party or any of its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns (collectively “Representatives”); (ii) at the time of disclosure is, or subsequently becomes, available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party hereunder; or (iv) was or is independently developed by or on behalf of the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party's Confidential Information.
   2. Confidentiality. The Receiving Party shall, and shall require its Representatives to: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than (A) to exercise the Receiving Party’s rights or perform the Receiving Party’s obligations under this Agreement or (B) as and to the extent required by applicable law; and (iii) not disclose any such Confidential Information to any Person or entity, except (A) to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise the Receiving Party’s rights or perform the Receiving Party’s obligations under the Agreement.  The Receiving Party shall be responsible for any breach of this Section 7 caused by any of its Representatives. The foregoing restrictions on do not apply to information that is required to be disclosed by law or order of a court, administrative agency, or other governmental body provided to the Receiving Party, provided that the Receiving Party provides, where not prohibited by applicable law, the Disclosing Party with prompt written notice of such order or requirement and reasonably assists the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate relief.
   3. Return of Confidential Information. On the expiration or termination of the Agreement, the Receiving Party shall promptly return, and shall require its Representatives to return, to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed; provided that it shall not be a violation of this clause (c) if copies of any such Confidential Information are retained (i) in accordance with a party’s (or its Representative’s) record retention policies or pursuant to the automated electronic back-up procedures of a party (or its Representative), where such electronic copies cannot reasonably be deleted, (ii) pursuant to any judicial, regulatory or administrative retention requirement, or (iii) in connection with any pending, threatened or contemplated litigation or claim for payment or indemnification under this Agreement (provided further that, in each case of clause (i), (ii) or (iii), such Confidential Information is not generally accessible by the employees or other Representatives of such party and is promptly destroyed if the exception permitting retention ceases to apply). For the avoidance of doubt, the confidentiality and non-use provisions of Section 7(b) shall survive the expiration or termination of this Agreement.
   4. Injunctive Relief. It is understood and agreed that monetary damages would not be an adequate remedy for any breach of this Section7 by the Receiving Party or any of its Representatives or any of their respective Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such breach.  Such remedies shall not be deemed to be the exclusive remedies for a breach by the Receiving Party or its Representatives or any of their respective Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The Receiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this Agreement is or would be compensable by an award of monetary damages, and the Receiving Party agrees to waive any requirements for the securing or posting of any bond in connection with such remedy.

1. Warranties
   1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) it has full corporate power and authority to enter into and perform this Agreement, and the person entering into this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; (b) this Agreement does not conflict with, violate or otherwise result in the breach of any agreement, whether written or oral, to which such party is a party, no notice is required by or on behalf of such party to any third party, and no waiver or consent is required to be obtained by such party from any third party, in order for such party to enter into and agree to be bound by the terms hereof; (c) it has and will have all applicable licenses and permits for satisfying all legal and regulatory requirements to perform its obligations under this Agreement, and such party will comply with all applicable laws related to such party's performance of its obligations under this Agreement.
   2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(A), THE MOMENT MATERIALS ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND MOMENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MOMENT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(A), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE MOMENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. IN ADDITION, ANY GIFT THAT IS PURCHASED OR OTHERWISE PROVIDED THROUGH THE SERVICE IS SOLD ON AN “AS IS” BASIS, AND MOMENT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE GIFTS.

1. Indemnification
   1. Moment Indemnification.
      1. Moment shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Service, or any use of the Service in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Moment in writing of such Third-Party Claim, cooperates with Moment, and allows Moment sole authority to control the defense and settlement of such Third-Party Claim.
      2. If a Third Party-Claim is made or appears possible, Customer agrees to permit Moment, at Moment's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Moment determines that neither alternative is reasonably available, Moment may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
      3. Notwithstanding the foregoing, Moment’s indemnification obligation under Section 9(a) will not extend to a claim based on any alleged infringement arising from any: (A) additions, changes or modifications to the Service without the prior written authorization of Moment; or (B) use of the Service other than as permitted by this Agreement.
   2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Moment from and against any and all Losses incurred by Moment resulting from any Third Party Claim arising out of or relating to: (i) a Third Party Claim that the Customer Data, or any use thereof, infringes the US intellectual property rights of a third party; (ii) Customer’s material breach of this Agreement or failure to comply with applicable law; or (iii) Customer’s gross negligence or willful misconduct.
   3. Indemnification Procedure. With respect to Third Party Claims (and related Losses) for which Customer is responsible, the indemnification and defense obligations of Customer under Section 9(b) shall apply to any such claims which, if sustained, would be indemnifiable by Customer under Section 9(b).  When seeking indemnity and defense for any applicable third party claim hereunder, Moment shall: (a) give prompt notice of the claim to Moment and promptly furnish Customer with a copy of each communication, notice or other action relating to the assertion or commencement of such claim, provided that no failure of this clause (a) shall relieve Customer of its indemnification obligations, except to the extent such failure materially prejudices Customer’s ability to defend or settle such claim; (b) provide reasonable cooperation to Customer and, at Customer's request and expense, assist in the defense or settlement of such claim; and (c) grant sole control of the defense or settlement of such claim to Customer, provided that Customer shall not, without the prior written consent of Customer, compromise or settle any such claim unless such compromise or settlement (i) is solely for monetary damages (for which Customer shall be responsible), (ii) does not impose injunctive or other equitable relief against Moment, (iii) includes an unconditional release of Moment from all liability on claims that are the subject matter of such claim, and (iv) does not include a statement or admission, by or on behalf of Moment, of fault, guilt, culpability or failure to act.  In any event, Moment will have the option of employing separate counsel and participating in the defense at its own expense.
   4. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND MOMENT'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

1. Limitations of Liability; Jury Trial and Class Action Waiver; Time Limit on Claims
   1. No Consequential or Indirect Damages.
      1. Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(A)(II) BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO, OR IN CONNECTION, WITH ANY BREACH OF THIS AGREEMENT OR OTHERWISE, OR ANY ACT OR OMISSION RELATING TO A PARTY’S EXERCISE OF ITS RIGHTS OR PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, REGARDLESS OF (I) WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
      2. Exception to Disclaimer. THE LIMITATIONS SET FORTH IN SECTION 10(A)(I) ABOVE SHALL NOT LIMIT ANY PARTY’S PAYMENT OF FEES DUE UNDER THIS AGREEMENT AND SHALL NOT APPLY TO DAMAGES OR LIABILITY FROM: (I) CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9(B); (II) THE GROSSLY NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT (INCLUDING ANY WILLFUL AND INTENTIONAL BREACH OF THIS AGREEMENT), OR FRAUD OF A PARTY OR ITS REPRESENTATIVES IN EXERCISING SUCH PARTY’S RIGHTS OR PERFORMING SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT; OR (III) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT.
   2. Dollar Cap on Damages.
      1. Dollar Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10(B)(II) BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR AN AMOUNT IN EXCESS OF THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
      2. Exception to Dollar Cap. THE LIMITATIONS SET FORTH IN SECTION 10(B)(I) ABOVE SHALL NOT LIMIT ANY PARTY’S PAYMENT OF FEES DUE UNDER THIS AGREEMENT AND SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM ANY: (I) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9; OR (II) THE GROSSLY NEGLIGENT ACTS OR OMISSIONS, WILLFUL MISCONDUCT (INCLUDING ANY WILLFUL AND INTENTIONAL BREACH OF THIS AGREEMENT), OR FRAUD OF A PARTY OR ITS REPRESENTATIVES IN EXERCISING SUCH PARTY’S RIGHTS OR PERFOMRING SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT.
   3. Jury Trial and Class Action Waiver. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS DECIDED TO ENTER INTO THE AGREEMENT IN CONSIDERATION OF, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. FURTHER, THE PARTIES AGREE THAT ANY DISPUTES OR CLAIMS RELATED TO THE THIS AGREEMENT OR THE SERVICE MUST BE BROUGHT INDIVIDUALLY, RATHER THAN AS PART OF A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING, UNLESS SUCH A RESTRICTION IS PROHIBITED BY APPLICABLE LAW.
   4. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

1. Term, Termination, Effects of Termination, and Survival
   1. Term. The term of this Agreement shall commence on the date that you create an account and access and use the Service, and shall continue until terminated as set forth herein.
   2. Termination. You may terminate this Agreement at any time by deleting your account and ceasing to access or use the Service and Moment Materials in any way, or providing at least thirty (30) days' notice of your intent to terminate to Moment. Further, we may terminate this Agreement, effective upon written notice to you, if you: (i) fail to pay any Fees when due and such failure continues for more than ten (10) days after our delivery of written notice thereof; or (ii) you breach any of your obligations under Section 2(h) or Section 7. In addition, a party may terminate this Agreement, effective upon written notice to other party (the “Defaulting Party”) if the Defaulting Party:
      1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
      2. Becomes insolvent or admits its inability to pay its debts generally as they become due;
      3. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within sixty (60) days after filing;
      4. is dissolved or liquidated or takes any corporate action for such purpose;
      5. makes a general assignment for the benefit of creditors; or
      6. has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. Effects of Termination. Upon the expiration or earlier termination of this Agreement for any reason:
      1. any and all amounts owed to Moment under this Agreement as of the date of such expiration or termination will be immediately due and payable and Customer will promptly pay any and all such amounts;
      2. all licenses and authorizations granted under this Agreement by one party to the other party will immediately terminate;
      3. Customer will immediately cease accessing or using the Service, and each party will return to the other all property (including any Confidential Information) of the other party in its possession or control (subject, in the case of Confidential Information, to the terms and conditions of Section 7)
   4. Survival. Upon the expiration or termination of this Agreement, the rights and obligations of the parties set forth in Sections 11(c) and 11(d) and in Sections 5, 7, 9, 10, and 12, and any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement (or that is necessary for the proper application or interpretation of any of the foregoing), will survive any such termination or expiration of this Agreement.  All other rights and obligations under this Agreement shall immediately cease upon the expiration or earlier termination of this Agreement; provided that any claims for breach of a given provision of this Agreement, any indemnification obligations therefor or otherwise arising hereunder, and any payment obligations, in each case to the extent accruing prior to the expiration of the applicable survival period for such provision hereunder, shall survive the expiration or earlier termination of this Agreement for the duration of the applicable statute of limitations under applicable law.

1. Miscellaneous
   1. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Moment, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
   2. Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the federal or state courts within the State of Colorado sitting in Denver County, and any appellate court thereof.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.  Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
   3. Choice of Law. This Agreement, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the Laws of the State of Colorado, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Colorado.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
   4. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The parties have not relied on any statement, representation, warranty, or agreement of the other party or any other person on such party's behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
   5. Force Majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under Agreement for up to two months to the extent such delay or non-performance arises from any Force Majeure Event.  For purposes of this Agreement, “Force Majeure Event” means any event or circumstance beyond the reasonable control of the party claiming the benefit of such event or circumstance, which may include an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disobedience, act of a governmental authority, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), natural disaster (including asteroid strikes or volcanic activity), violent storm (including hurricanes, tornados or blizzards), atmospheric disturbance (including geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of a party’s own Representatives), satellite malfunction, prolonged internet outage, communications line failure or power failure, but excluding in all events conditions or events to the extent that such condition or event should have been capable of avoidance in the exercise of industry standard business continuity or disaster recovery measures.
   6. Amendments. We may revise and update these Terms and the Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service thereafter. However, any changes to the dispute resolution provisions set out in Choice of Law and Choice of Forum will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website. Your continued use of the Service following the posting of revised Terms and Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
   7. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Customer, Section 2(g), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
   8. Relationship of the Parties. The relationship of the parties is that of independent contractors and no joint venture, partnership, agency, or employment relationship is created between the parties by virtue of these Terms.
   9. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Service or any Customer Data outside the United States.
   10. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   11. Waiver. No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.  No waiver by either party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.  No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.