Subscriber Agreement

By using the software that is embedded on Momentum IoT devices and our software-as-a-service platform (collectively, “Product”), you agree to the terms of this Subscriber Agreement (“Agreement”) between you and Momentum IoT, Inc. (“Momentum IoT” or “we”).

 

This Agreement governs your access and use of the Product. This Agreement gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this Agreement may not apply to you.

 

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT AND TO ENTER INTO THIS Agreement. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT.

 

1. License.

 

Subject to and conditioned upon Your agreed upon payment and strict compliance with the terms of this Agreement, Momentum IoT hereby grants You a non-exclusive, non-transferable right to access and use the Product during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Your internal use.

 

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product or make the Product available to any third party, (b) copy or use the Product for any purpose other than as permitted in Section 1, (c) use any portion of the Product on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Momentum IoT and provide Momentum IoT an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product to any third party without prior written approval of Momentum IoT for each such release.

 

2. Terms.

 

Shipment and Delivery.

We will arrange for shipment and ship devices within 2 business days.

 

Devices should be delivered within one week.

 

Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.

 

Prices and Payment Terms.

 

You can purchase our products directly through our website or through our Hardware Trial option where you will receive a 30-day free trial of our hardware and software. At the end of your free 45-day trial, your credit card on file will be billed based on the number of devices shipped to you as part of your trial.

 

Fees:

 

For $15/month, you will receive one Momentum Eagle 1 device, an installation harness, quick setup guide, access to the Momentum application, and installation and service support. Each additional device is an additional $15/month.

 

Your subscription will renew automatically unless we terminate it or you terminate your subscription by providing written electronic notice through email at customersuccess@momentumiot.com AND by returning the hardware, you’re subscription can not be canceled until your hardware is returned to Momentum IoT.

 

You must request to cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card.

If you are purchasing multiple Momentum Eagle 1 devices, your first device will be shipped after your payment of you initial month of service.

 

We accept credit card payment for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices and all applicable taxes, if any.

 

Returns.

 

If you choose to discontinue our service after the initial 30 days, please return the device in the original box and packaging. Product should be returned in its original condition. We will provide a pre-paid shipping label. If the product is not returned within the initial 60 days, the software used for the product shall be turned off and we shall send an invoice for $200, the value of the device. You bear the risk of loss during shipment. Return shipping address is 100 W. Broadway, Suite 500, Long Beach CA, 90802.

 

Defective Devices.

 

If product is defective, we will replace the product with a fully functioning device at our cost. However, your agree to pay $200 replacement fee if a defective device is: (i) lost; (ii) stolen; (iii) defect is a result of failure to follow oral or written instructions as to the storage, installation, commissioning, use or maintenance of the product; or (iv) you alter the product without our prior written consent and instruction.

 

3. Automatic Software Updates.

 

Momentum IoT may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product and you agree to promptly install any Updates Momentum IoT provides. Your continued use of the Product is your agreement to this Agreement.

 

4. Ownership.

 

The Product and all corresponding data that is produced, collected, or results from the Product, and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Momentum IoT and its licensors. Momentum IoT and its licensors reserve all rights in and to the Product not expressly granted to you in this Agreement. The Product (and all copies thereof) is licensed to you, not sold, under this Agreement. There are no implied licenses in this Agreement. All suggestions or feedback provided by you to Momentum IoT with respect to the Product shall be Momentum IoT’ property. Momentum IoT may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Momentum IoT does not waive any rights to use similar or related ideas previously known to Momentum IoT, developed by its employees, or obtained from other sources.

 

5. Consent to Use of Information and Data Security

 

You acknowledge and agree that Momentum IoT and its affiliates, partners and agents may read, collect, transfer, process and store certain information collected from the Product, including but not limited to information about (i) the Product and (ii) the software applications, contents and peripheral devices that interact with the software (“Information”). Information includes, but is not limited to: (1) unique identifiers relating to your device(s) and their components; (2) performance of the Product; (3) configurations of your device(s), the Product and applications, contents and peripheral devices that interact with the Product; (4) use and frequency of use of the functions of the Product; and (5) location data. Momentum IoT and its affiliates, partners and agents may use and disclose Information subject to applicable laws in order to improve its products and services or to provide products or services to you. Such uses include, but are not limited to: (a) administering the functionalities of the Product; (b) to improve, service, update or upgrade the Product; (c) improving, developing and enhancing the current and future products and services of Momentum IoT and other parties; (d) to provide you with information about the products and services offered by Momentum IoT and other parties; and (e) complying with applicable laws or regulations. In addition, Momentum IoT retains the right to use Information to protect itself and third parties from illegal, criminal or harmful conduct.

 

Certain services available through the Product may rely upon location information. You acknowledge that for the purpose of providing such services, Momentum IoT or their partners may collect, archive, process and use such location data, and that such services are governed by the privacy policies of Momentum IoT or such third party. You further agree that Momentum IoT is the owner of all data and intellectual property relating thereto.

 

Information may be processed, stored or transferred to Momentum IoT, its affiliates or agents which are located in countries outside of your country of residence. Data protection and information privacy laws in certain countries may not offer the same level of protection as your country of residence and you may have fewer legal rights in relation to Information processed and stored in, or transferred to, such countries. Momentum IoT will make reasonable efforts to take appropriate technical and organizational steps to prevent unauthorized access to or disclosure of Information, but does not warrant it will eliminate all risk of misuse of such Information.

 

6. Prohibited Uses

 

You may not use our Product:

 

  • to transmit content/messages that are, or in any manner that is, illegal, unlawful, fraudulent, threatening, abusive, defamatory, obscene or unsolicited;
  • to track a person without his or her knowing consent;
  • to track any asset, vehicle, or object without the asset, vehicle, or object owner’s knowing consent;
  • in a way that could cause damage or adversely affect our customers, reputation, network, property or Product;
  • to infringe on the copyright of another, or upload or transmit any virus, worm, or malicious code; or
  • in any way prohibited by law.

 

7. Term and Termination.

 

This Agreement and the license granted hereunder are effective on the date you first use the Product or Product and shall continue for as long as you use the Product or Product, unless this Agreement is terminated under this section. Momentum IoT may terminate this Agreement at any time if you fail to comply with any term(s) hereof. You may terminate this Agreement effective immediately upon written notice to Momentum IoT. Upon termination of this Agreement, the license granted hereunder will terminate and you must stop all use of the Product, but the terms of Sections 2 through 15 (inclusive) will remain in effect, after any such termination.

 

8. Warranty Disclaimer.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOMENTUM IOT PROVIDES THE PRODUCT “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MOMENTUM IOT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT. MOMENTUM IOT MAKES NO WARRANTY THAT THE PRODUCT WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

 

YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND MOMENTUM IOT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS RESULTING FROM YOUR USE OF THE PRODUCT OR PRODUCT.

 

9. Limitation of Liability

 

Nothing in this Agreement and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) MOMENTUM IOT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT, EVEN IF MOMENTUM IOT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) MOMENTUM IOT’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO MOMENTUM IOT OR MOMENTUM IOT’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. MOMENTUM IOT DISCLAIMS ALL LIABILITY OF ANY KIND OF MOMENTUM IOT’ LICENSORS AND SUPPLIERS.

 

10. Dispute Resolution.

 

The parties agree that any dispute, conflict or controversy arising from or in connection with the Agreement shall be settled by arbitration to be entrusted to and administered by JAMS upon request of any of the parties in accordance with the JAMS Comprehensive Arbitration Rules & Procedures in effect at the time of the arbitration request (the “Rules”). The arbitration shall be conducted by an arbitration panel comprised of one (1) arbitrator appointed in accordance with the Rules. The arbitration shall take place in Los Angeles, California. The arbitrator’s decision and award will be final and binding, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereon. Notwithstanding anything contained herein to the contrary, either party hereto may seek equitable relief, including preliminary or permanent injunctive relief in any court of competent jurisdiction.

 

11. For U.S. Government End Users.

 

The Product is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Product is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

 

13. Assignment.

 

Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment shall be void and without effect.

 

14. Confidentiality.

 

Definition of Confidential Information.

 

As used herein, “Confidential Information” means a party’s non-public or proprietary information, knowledge and data that relates to the actual or anticipated business, services, products and/or finances of the Disclosing Party (defined below), including, without limitation, methods, designs, ideas, techniques and processes, business strategies, customer lists, price lists, scientific and technical specifications and documentation and trade secrets, disclosed by, or obtained from, the Disclosing Party, either directly or indirectly, in writing, orally or visually, including, any information a reasonable person would understand to be confidential under the circumstances. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure, (ii) was or is lawfully received by the Receiving Party (defined below) from a third party who is not subject to an obligation of confidentiality with respect to such information, or (iii) was or is already known by or in the possession of the Receiving Party as shown by the Receiving Party’s written records. Without limiting the foregoing, the Confidential Information of Momentum IoT includes the terms of this Agreement, the Product and any documentation related thereto.

 

Obligations.

 

The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) hereby acknowledges and agrees that all such Confidential Information shall be the sole and exclusive property of the Disclosing Party. During Term and thereafter, the Receiving Party shall: (i) not use the Confidential Information of the Disclosing Party except as permitted under the Agreement and (ii) not disclose or otherwise make available such Confidential Information to any third party, except as authorized herein and other than to such Receiving Party’s employees or independent contractors who (A) have a need to know such Confidential Information and (B) are subject to obligations of confidentiality with respect to such information as restrictive as those set forth herein (“Representatives”). The Receiving Party shall be responsible for any breach of the terms hereof by any of its Representatives.

 

Mandatory Disclosure.

 

In the event that the Receiving Party or any of its Representatives is requested or required by legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall give prompt written notice to the Disclosing Party and the Disclosing Party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Receiving Party shall disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose.

Injunctive Relief.

 

The Receiving Party acknowledges that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information will constitute a material breach of the Agreement and cause substantial harm to the Disclosing Party for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, the Disclosing Party shall have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.

Return of Confidential Information.

 

Within thirty (30) days following the expiration or termination of the Agreement and/or upon written request of the Disclosing Party, the Receiving Party will return or destroy all Confidential Information of the Disclosing Party and related materials in the Receiving Party’s possession and discontinue all further use of such Confidential Information; provided that the Receiving Party shall not be required to purge any Confidential Information of the Disclosing Party from its electronic storage or communication systems; provided that, in such case, any Confidential Information retained continues to be held confidential and not used pursuant to, and in accordance with, the terms of the Agreement.

 

15. Miscellaneous.

 

Governing Law; Venue.

 

You agree that this Agreement, and any claim, dispute, action, cause of action, issue, or request for relief relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in Los Angeles County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute.

 

Notice.

 

Any notice to you may be provided by email to the address that you registered with Momentum IoT.

 

Severability.

 

If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

 

Waiver.

 

All waivers by Momentum IoT will be effective only if in writing. Any waiver or failure by Momentum IoT to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

Acceptance

 

The Product is deemed irrevocably accepted upon your use of the Product or Product. Momentum IoT will have no responsibility to provide maintenance or support services with respect to the Product. The parties are independent contractors.

 

Headings

 

The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.

 

Third-Party Beneficiaries.

 

The Agreement does not confer any third-party beneficiary rights upon any person or entity except as expressly set forth herein.