Effective Date: April 7, 2017
This Agreement is between you (sometimes referred to as “you,” or “your”) and Apollo Technology, Inc. ("we", "us", "our", or "Momentum").
YOU ARE CONSENTING TO THE AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT AND SERVICES. IF YOU DO NOT AGREE, YOU MUST NOT USE AND/OR IN CERTAIN CIRCUMSTANCES MAY NOT BE ABLE TO CONTINUE TO ACCESS THE PRODUCTS OR SERVICES.
1) OUR AGREEMENT
2) YOUR USE OF THE MOMENTUM SYSTEM
2.1 Your User Account.
2.2 Your Use of the Mobile App
2.3 Your Use of the Momentum System and Equipment.
2.4 Your Responsibilities.
2.5 Limitations of Services Due to Third Parties.
a) Momentum Services rely on or interoperate with third party products and services. These third party products and services operate beyond the control of Momentum. The Momentum Services may be impacted by the reliability or availability of the third party services. You acknowledge and agree that (i) the use and availability of the Momentum Services is dependent on third party products and service providers, (ii) these third party products and services may not operate in a 100% reliable manner at all times and the operation of the Momentum Services may be impacted by the reliability of third party providers and (iii) Momentum is not responsible for damages or loss due to the operation and reliability of these third party products and services.
b) You acknowledge that Momentum uses third party service providers to enable some aspects of the service. For example, the premium subscription services, including video and image storage, are provided by authorized third parties on behalf of Momentum.
d) You acknowledge that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps. You acknowledge that these terms are between you and Momentum and not the app store from which you acquired the Mobile App. Each app store may have terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, such app store terms and conditions. In event of conflict between the app store terms and these terms, the more restrictive terms and conditions shall apply.
e) The Sites may contain links to other websites operated by third parties. These third parties are outside of the control of Momentum. As such, Momentum provides such links as a convenience and does not approve, review, warrant, endorse or make any representations with respect to such third party sites. Your use of these third party sites is solely at your risk.
f) Neither Momentum nor its third party service providers are responsible for any user’s personal injury, property loss or damage, death or any other harm or losses arising from their use of the Products and Services.
2.6 Your Feedback. Momentum welcomes your comments on the System and the Services (collectively, “Feedback”). If you give us Feedback, your Feedback will become the property of Momentum, and you hereby irrevocably assign to Momentum, all right, title, and interest in and to the Feedback and all worldwide copyrights, moral rights, and other intellectual property rights in the Feedback. Momentum may use your Feedback without restriction, and without owing you any payment. If you provide any Feedback, you promise that: (a) you are owner of the Feedback or otherwise have the right to grant Momentum ownership of the Feedback; (b) the Feedback does not violate the rights of any third party, and does not contain any personally identifiable information about third parties; and (c) all factual information contained in the Feedback is true and accurate.
3.1 Fees. Momentum offers video hosting and storage (“Premium Service”) for a monthly recurring charge (“Fee”). We begin charging the Fees on the day you subscribe to a Premium Service plan. To the extent a trial service period is offered, the Fee would begin the day following the end of any such trial period. Fees do not include any applicable taxes or duties, including, without limitation, state and local use, sales and property taxes, and duties, and you are responsible for all taxes and duties. If you fail to pay the Fees, we may suspend your access to the System or the Services, or we may terminate this Agreement, at our option.
3.2 No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED MONTHLY BILLING PERIODS. Sometimes, we may provide refunds or discounts to some or all of our customers ("Credits"). The amount and form of Credits, and the decision to provide them, are in our sole and absolute discretion. The provision of Credits one time does not entitle you to Credits in the future.
3.3 Authority to Bill You. YOU AUTHORIZE MOMENTUM TO CHARGE YOU FOR FEES IN ADVANCE AND ON A MONTHLY BASIS TO YOUR CURRENT, VALID, ACCEPTED METHOD OF PAYMENT (AS UPDATED FROM TIME TO TIME VIA YOUR ACCOUNT) (“Payment Method”). You promise that you are an authorized signatory of the credit or debit card or other Payment Method that you provide. Some services or ecommerce payments may be charged after we provide the service or product to you. The Fees will be billed on or before the date of your activation of the System and each month afterwards, until you notify us that you want to terminate the Services. If your activation date begins on a
day not contained in a given month, we may bill your Payment Method on another day we believe is appropriate. For example, if you activate the System on January 31st, your next payment date is likely to be February 28th, and your Payment Method would be billed on that date. Momentum reserves the right to change the timing of our billing, especially if your Payment Method is not successful. You may change your Payment Method information via your account.
3.4 Price Changes. Momentum reserves the right to change the pricing for the System, Services, or Equipment, at any time. Price changes will take effect following email notification to you, or posting on our Site or Mobile Application. In addition, you understand that the amount billed each month may change for reasons that may include promotional offers or changing or adding Services or new pieces of Equipment, and you authorize Momentum to charge your Payment Method for such varying amounts.
3.5 Insufficient Payment. If the Fees for any applicable monthly billing period are not successfully settled, due to expiration, insufficient funds, or otherwise, and you fail to change your Payment Method information, you are still responsible for any uncollected Fees, charges, and other amounts, and you authorize Momentum to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges, for which you are solely responsible.
4) ECOMMERCE PURCHASES
4.1 Equipment Orders. Momentum may allow you to buy Equipment via the Site or Mobile App, and each request to purchase Equipment is an “Order”. WHEN YOU PLACE YOUR ORDER, YOU AUTHORIZE MOMENTUM TO BILL THE PURCHASE PRICE AND ANY APPLICABLE FEES OR TAXES IN THE “SHOPPING CART” TO YOUR PAYMENT METHOD. Prices and availability of Equipment are subject to change without notice. Momentum reserves the right to revoke any offer to sell Equipment on the Site or the Mobile App, and to correct any errors, even after you have submitted your Order, and even if your Order has been confirmed and your Payment Method charged. If your Payment Method has been charged, Momentum will issue you the appropriate credit within a reasonable time after your Order has been revoked. Momentum may, at its sole option, use third party retailers to manage the sale of equipment.
4.2 Shipment. To the extent that any future replacement or additional Equipment is purchased by you to access the System, such Equipment will be shipped within a reasonable time after processing of your Order. Shipment time will vary depending on the shipping method and service you select. Momentum does not guarantee delivery at any certain time and is not responsible for shipping delays.
4.3 Warranty and Return Policy.
(a) If Equipment (as referenced in 4.2 above) is damaged when you receive it, Momentum, at its sole option, may provide replacement Equipment or refund the purchase price, as described in our Return Policy posted on the Site. You may also be eligible for refund or replacement, if the Equipment does not meet our Warranty Policy posted on the Site. If the Equipment you are returning was purchased as part of a bundle, any refund will be for the full price of the Equipment as if purchased individually, less the discount savings you received when purchasing the bundle. Note: A bundle is a collection of Equipment priced at a discount rather than at the individual Equipment price if sold separately.
(b) Once your request is received and approved, Momentum will provide you a return authorization number and instructions for completing your return. Any Equipment returned without an authorization number will not be processed for replacement or refund. To be eligible for a replacement or refund, you will be responsible for shipping the returned Equipment to us at the address in our Return Policy on the Site.
4.3 Payment Processors. Momentum may use the services of third party payment processors to process payments of credit cards and other accepted Payment Methods. Your purchase is subject to any additional terms and conditions imposed by these third party payment processors.
4.4 Third Party Website Purchases. If you place an Order and you are directed to a third party website to make your purchase, the purchase terms in this section do not apply, and your purchase will be governed by the terms of the third party website. YOU AGREE THAT MOMENTUM HAS NO RESPONSIBILITY, AND SHALL HAVE NO LIABILITY, FOR ANY CLAIM RELATED TO YOUR PURCHASES ON THIRD PARTY WEBSITES.
5) TERM; TERMINATION
5.1 Term. This Agreement is effective when you use and access the System or Services, or any part thereof, and shall continue on a month-to-month basis until terminated.
5.2 Termination. This Agreement and your license to use and access the System and Services will terminate immediately if either of us gives the other thirty (30) days’ notice. In addition, this Agreement and your license to use and access the System and Services will terminate immediately and without action from Momentum in the event: (a) you breach the terms of this Agreement; (b) we cease providing access to the System generally; (c) your actual or suspected abuse or misuse of the System, Services, Equipment, or related products and services, as determined by Momentum in its sole discretion; (d) use of the System or Services in violation of the law or any third party right; or (e) as otherwise provided in this Agreement.
5.3 Consequences of Termination. Upon termination of this Agreement, you must stop using the System and Services and, if you do, you will owe no more Fees. YOU WILL NOT HAVE ACCESS TO THE SITE, THE MOBILE APPS, OR ANY CONTENT, ACCOUNT INFORMATION, OR OTHER INFORMATION AFTER TERMINATION, AND WE HAVE THE RIGHT TO RETAIN OR DELETE ALL YOUR INFORMATION AT ANY TIME AS LONG AS WE FOLLOW THE LAW. YOU MUST DOWNLOAD ALL OF YOUR CONTENT FROM THE SYSTEM TO YOUR OWN ALTERNATIVE DATA STORAGE SYSTEM PRIOR TO TERMINATING YOUR SERVICE AS NO ACCESS TO SUCH CONTENT WILL BE AVAILABLE UPON TERMINATION.
6) NO GUARANTEES
6.1 NO WARRANTY. THE SYSTEM AND SERVICES ARE PROVIDED “AS IS,” EXCEPT FOR ANY WRITTEN WARRANTIES PROVIDED WITH EQUIPMENT. YOU ACKNOWLEDGE AND UNDERSTAND THAT NEITHER THE SYSTEM NOR SERVICES ARE A HOME SECURITY SYSTEM, NOR DOES MOMENTUM INTEND THE SYSTEM OR SERVICES TO BE A REPLACEMENT FOR A HOME SECURITY SYSTEM. MOMENTUM WILL NOT MONITOR SIGNALS RECEIVED VIA THE SYSTEM OR SERVICES (INCLUDING EQUIPMENT) AT ANY TIME. MOMENTUM DOES NOT MONITOR THE SYSTEM OR SERVICES (INCLUDING EQUIPMENT) FOR SIGNALS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES OR PROVIDE NOTIFICATION OR OTHER VERIFICATION SERVICES COMMONLY PROVIDED WITH SECURITY ALARM SYSTEMS IN CASES OF EMERGENCY. THE SYSTEM AND SERVICES MAY NOT BE USED FOR ANY "LIFE SAFETY PURPOSE OR EXPECTATION".
6.2 Warranty Exclusions. We do not promise that the System or Services will be uninterrupted or will be error-free, or that any defects will be corrected. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. We have no responsibility for the timeliness, deletion, misdelivery or failure to store any communication, information, or content.
6.3 You Must Comply with Laws and Regulations. MOMENTUM DOES NOT WARRANT OR REPRESENT THAT USE OF THE SYSTEM OR SERVICES WILL RESULT IN COMPLIANCE WITH ANY LAWS OR REGULATIONS, AND YOU UNDERSTANDS THAT YOU ARE SOLELY RESPONSIBLE FOR COMPLYING WITH ALL LAWS AND REGULATIONS IN YOUR INSTALLATION AND USE OF THE SYSTEM AND SERVICES.
7) MOMENTUM IS NOT LIABLE TO YOU
7.1 Limitation on Damages. MOMENTUM AND ITS THID PARTY SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR DAMAGES TO YOU OR YOUR FAMILY FOR ANY REASON. IN PARTICULAR, WITH RESPECT TO THIS AGREEMENT OR YOUR USE OF THE SYSTEM OR SERVICES WE, OUR SUPPLIERS, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY:
(a) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EXPENSES, LOSS OF WAGES, REVENUE OR BUSINESS;
(b) YOUR LOSS OF DATA OR PROFITS; OR
(c) USE OR MISUSE OF CONTENT OR PERSONALLY IDENTIFIABLE INFORMATION IN THE SERVICES.
THIS IS TRUE WHETHER IT IS A RESULT OF A CONTRACT, NEGLIGENCE, OR STRICT LIABILITY CLAIM BY YOU OR ANY THIRD PARTY, AND WHETHER OR NOT SMARTHOME KNEW OF THE POSSIBILITY OF SUCH DAMAGES.
(SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU).
7.2 Your Sole Remedy. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SYSTEM OR SERVICE– OR ANYTHING ELSE - WILL BE TO STOP USING THE SYSTEM AND SERVICES. IN NO CASE WILL MOMENTUM BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RELATING IN ANY WAY TO THIS AGREEMENT GREATER THAN $1,000.00.
You will indemnify or reimburse Momentum, our suppliers, and any of our parent or subsidiary companies or organizations, our successors, assigns or licensees, together with any of their officers, directors and employees, against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party relating to your use of the System or Services, your violation of this Agreement, any law or regulation, or any policy posted on the Site or the Mobile App, or your negligence or misconduct associated with using the System or Services.
9) GENERAL TERMS
9.1 Resolving Disputes. YOU UNDERSTAND AND AGREE THAT THIS AGREEMENT IS GOVERNED SOLELY UNDER THE LAWS OF THE STATE OF MISSOURI, WITHOUT REGARD TO ANY CONFLICTS OF LAWS PROVISIONS. YOU AGREE THAT ALL DISPUTES RELATED TO THIS AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN A COURT OF COMPETENT JURISDICTION IN JACKSON COUNTY, MISSOURI, AND YOU HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF SUCH COURT AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH YOU MAY NOW OR HEREAFTER HAVE THAT A COURT IN JACKSON COUNTY, MISSOURI IS AN INCONVENIENT OR IMPROPER FORUM. The prevailing party in the arbitration shall be entitled to recover all costs associated with the arbitration from the other party. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is found unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision.
9.2 Export. Momentum makes no representation that the System or Services or other material or information included in the System or Services is appropriate to or available in locations outside of the United States. You may not use the System or Services, or export Content, Documentation, or Equipment in violation of United States export laws, regulations or restrictions. If you access the System or Services from outside of the United States, you are responsible for compliance with all applicable laws.
10) COMMUNICATING WITH MOMENTUM
10.1 Our Communications. You can contact us using the Site or the Mobile App or by sending us an e-mail. Unless you tell us otherwise or the law requires otherwise, you agree to receive all communications from us by e-mail or by our posting notices to your account. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing.
10.2 Legal Notices. You may choose to get legal notices in paper form through the mail if you tell us you do not want legal notices sent by us electronically. If you choose to get legal notices in paper form, legal notices will be sent to you in paper form by postal mail or as otherwise permitted or required by law. All other communications not required by law to be in paper form will be sent electronically.
11. CONTACT US
If you have any questions about the Products, System or Services, you may e-mail us for Customer Support after clicking the "Help" link.
By using or otherwise accessing the System or Services, you are consenting to all the terms of this Agreement.