GENERAL TERMS AND CONDITIONS - MOMENZO
October 14, 2019 version
ARTICLE 1 - PRESENTATION OF THE GTC
These general terms and conditions of sale (the "GTC") are a contract that legally binds each of the contracting parties identified below and/or under the specific terms and conditions of sale (the "SCS").
The GTC are provided to the Customer when the order is placed. The Customer acknowledges having had the opportunity to read the GTC before placing the order.
Any subscription to MOMENZO's offer implies the Customer's full, complete and unreserved acceptance of these GTC. The GTC prevail over any other document signed between MOMENZO and the Customer relating to the same subject matter, in particular the Customer's general terms and conditions of purchase, with the exception of the SCS.
The GTC and SCS may be subject to subsequent modifications, which will come into force at the time of renewal of the Customer's subscription, unless otherwise provided below.
ARTICLE 2 - DEFINITIONS
Within these GTC, the following terms and expressions preceded by a capital letter shall have the following meanings:
"Anomaly" refers to any error in the operation of the Application;
"Application" refers to the smartphone application "MOMENZO", described in Appendix 1, developed and published by MOMENZO, intended mainly for real estate agents and, in general, for real estate professionals, enabling them to easily create videos presenting real estate properties that they are responsible for selling or renting to others;
"GCU" means the contractual document entitled "General Conditions of Use" submitted to Users and setting out their rights and obligations with regard to the use of the Application;
"Customer" refers to the customer, natural or legal person, who subscribes to the GTC and whose details appear in the GTC;
"Content" refers both to content provided by the Customer for inclusion in the Videos, such as a logo, a graphic charter, information relating to properties for sale or rental, or even the Customer's contact information, as well as the Videos;
"GTC" refers to these general terms and conditions of sale and its appendices. The GTC supersede any previous contractual documents signed by the Parties with respect to the subject matter defined below;
"Contract" refers to the contractual unit consisting of the combination of the GTC and the SCS;
"SCS" refers to the specific conditions of sale, derogating from these GTC and providing some specificities applicable to the Services to be provided by MOMENZO pursuant to the GTC;
"License" means the right granted by MOMENZO to the Customer, under which the latter has the right to use the Application and all its features in accordance with the GTC, SCS and GCU;
"Services" refers to the services provided by MOMENZO associated with the use of the Application to the Customer, including, in particular, training and support services, as well as maintenance services for the Application;
"Users" refers to any natural person using the Application. Users must be employees of the Customer, with express authorization to use the Application in accordance with the terms of the Agreement and the T&C;
"Video" refers to video content created by the Customer and/or Users using the Application.
ARTICLE 3 - DESCRIPTION OF THE APPLICATION
The Application is a software for smartphones (Apple iPhone with iOS 10 or higher) that allows Users to create videos of real estates (apartments, houses...) for sale or rent, in a pre-defined scenario designed by MOMENZO. The Application is described in Appendix 1.
In practice, the Application will guide each User step by step, by suggesting that they shoot different scenes of predetermined duration in each room of the concerned property.
The Application will then automatically edit the scenes shot by the User. The Videos thus created will be recorded on the User's terminal and may be exported by the User to different social media platforms or even to the Customer's website or third-party websites using the smartphone's export function.
As of the date of acceptance of the GTC by the Customer, the Application is available on the Apple App Store and can be downloaded by any owner of a compatible device (Apple iPhone). However, only a customer who has entered into a contract (such as these GTC) with MOMENZO has access to all the features of the Application.
The Application may be customized to include certain elements in the Videos, such as a logo, a graphic charter and some information relating to both the property and the Customer (the "Contents").
ARTICLE 4 - MOMENZO ACCOUNT
When the GTC comes into force, MOMENZO and the Customer will agree on the number of Users authorized to use the Application. This number of Users will be mentioned in the SCS. The Customer will provide MOMENZO with a list of telephone numbers, each number corresponding to 1 (one) User.
When first connecting to the Application, Users must enter their telephone number to receive an SMS allowing them to connect to their personal account (the "MOMENZO Account") and thus use all the features of the Application.
The Application will be linked to each phone and phone number. An internet connection is required to use the Application. Otherwise, the Application will cease to operate after a period of 7 (seven) days. Customization items may also be deleted after the same 7 (seven) day period.
ARTICLE 5 - USER LICENSE
By virtue of the GTC, the Customer has the right to use the Application for professional purposes, within the framework of his commercial activity. This right of use is personal, non-exclusive, non-transferable, valid worldwide, strictly limited to the purposes intended by MOMENZO and gives the Customer the right to designate one or more Users (the "License").
The use of the Application is governed by both the GTC and the GCU that each User must accept at the time of the first launch of the Application and after each update of the GCU.
The Customer undertakes to use the Application in accordance with the GTC, GCU, laws, regulations and good morals. The Application is intended for strictly professional and non-recreational use. The Customer shall refrain from and ensure that each User refrains from using the Application for personal purposes.
The License does not transfer any ownership rights to the Application to the Customer. MOMENZO remains at all times and in any event the exclusive owner of the intellectual property rights on the Application and its documentation.
The License does not grant any right of access to the source code of the Application, which also remains the exclusive property of MOMENZO.
ARTICLE 6 - MATERIAL CUSTODY
By virtue of the GTC, the Customer will be provided with an electronic stabilizer and a wide-angle lens, unless otherwise agreed in Article 9 ("Financial Conditions"), which may be used with the compatible terminal described in Article 3 above (the "Equipment"). The Material is left in custody with the Customer and remains the property of MOMENZO for the entire duration of the Contract. The Material may only be used with the Application.
The custody is voluntary insofar as it is carried out under the agreement of MOMENZO and the Customer. The Customer undertakes to provide, in the custody of the Material, at least the same care that it provides in the custody of the things that belong to it, it being understood that the custody is agreed here solely in the Customer's interest, in order to enable him to use the Application and to make Videos for professional purposes.
The Material must, throughout the duration of the GTC, remain in the Customer's possession and must not be given to any third party other than the Users. The Customer must take all reasonable and appropriate safety measures to prevent theft and/or loss of the Material.
The Material must be thoroughly inspected by the Customer at the time of delivery. Any defect relating to the Material not reported at the time of delivery shall be presumed to result from misuse of the Material by the Customer after the said delivery.
The risks attached to the Material weigh on the Customer alone from the time of delivery of the aforementioned Material. The Customer is thus solely responsible for damage caused to the Material during the term of the Contract, in particular if such damage is caused by Users, by people associated with the Customer (including independent service providers) or by third parties who have had access to the Material during the term of the Contract.
In the event of any damage to the Material, MOMENZO has the right to claim compensation for its damage, i.e. payment of the cost of the damaged Material.
At the end of the GTC, the Customer must return the Equipment to MOMENZO under the conditions, including time limits, and in accordance with the practical procedures to be determined by MOMENZO.
SECTION 7 - SERVICES PROVIDED BY MOMENZO
In addition to granting a right to use the Application, MOMENZO may, where applicable and as agreed by the Parties, provide the Customer with the following Services under the conditions set out below.
7.1 Customizing the Application
MOMENZO can be asked by the Customer to customize the Application to adapt the produced Videos to a graphic charter and/or include a logo, for example. The customization of the Application is strictly limited to the customizable elements only.
When the Customer provides a visual (for example a logo) to integrate into the Videos, MOMENZO is authorized to modify this visual (in particular in terms of definition) for integration purposes. If necessary, MOMENZO may create an animation, which may not be reused by the Customer outside the Application and/or Videos without the express prior consent of MOMENZO.
7.2 Customer Training
MOMENZO undertakes to provide the Customer with Support Services at the start of the Application, in order to enable the Customer to use the Application and its functionalities. To this end, MOMENZO will provide the Customer with training materials designed and published by MOMENZO. The Customer shall be responsible for training its User(s) on the basis of the training materials thus provided.
7.3 Technical Support
MOMENZO undertakes to provide the Customer and Users with a support service for the use of the Application, by writing to the e-mail address firstname.lastname@example.org or by telephone on + 33 (0) 1 82 83 82 82 11, which is available: Monday to Saturday from 10am to 7pm (GMT +1).
7.4 Maintenance of the Application
MOMENZO undertakes to provide the Customer, throughout the duration of the GTC, with services for the maintenance of the Application consisting, in general, of (i) making any technical modification of the Application as soon as possible in order to ensure its operation and (ii) developing the Application in accordance with any applicable legal and regulatory changes.
The maintenance services of the Application are twofold:
- Corrective maintenance
MOMENZO undertakes to carry out all the technical corrections needed to the Application in order to repair any malfunctions and in particular to ensure the proper functioning of the Application.
Whenever possible, the Customer will report any anomaly of any nature whatsoever to MOMENZO. Corrective maintenance services will be provided by MOMENZO, which will then do its best to correct the Anomaly and put the new corrected version of the Application on the Apple App Store.
The Customer acknowledges that the time required to make the new version of the Application available will depend largely on the validation of the new version by Apple's teams.
MOMENZO will not be held liable in the event that this validation is delayed for reasons that are foreign to it, in particular in the event of a slowdown in the activity of Apple's teams.
- Evolutive maintenance
MOMENZO shall provide the Customer with evolutive maintenance services to update the Application, in particular in the event of changes in the state of the art and the technique, without any commitment to a regular schedule.
MOMENZO does not guarantee that the Application will be continuously updated and reserves the right to stop the development of the Application at any time, without any right to compensation for the Customer and/or Users.
ARTICLE 8 - DURATION AND CONTRACT TERMINATION
8.1 Duration of the Contract
The Contract shall enter into force upon acceptance of the GTC by the Customer and shall remain in force for an indefinite period.
8.2 Contract Termination
Either Party may terminate the Agreement at any time with a 30 (thirty) days' written notice sent by registered mail with acknowledgement of receipt to the other Party.
Each Party may immediately and automatically terminate the Contract in the event of a breach by the other Party of its contractual obligations, which shall not be remedied after a period of 15 (fifteen) days following the sending of a letter of formal notice to that effect.
8.3 The Effects of the Contract Termination
The end of the GTC will also mean the end of the SCS.
At the end of the Agreement, the Customer will no longer have access to the full functionality of the Application and will no longer be required to use the Equipment from the expiry date.
The Customer's MOMENZO Account(s) will thus be automatically deactivated at the expiry date. The Customer must immediately return the Equipment that has been borrowed to him, without being able to claim any reimbursement.
In the event of an early termination of the Contract, the Customer shall remain liable for MOMENZO's compensation agreed upon in Article 9 below ("Financial Conditions") for the period remaining under the initial agreement of the Parties.
ARTICLE 9 - FINANCIAL CONDITIONS
In exchange for the right to access the Application, to use the Equipment and to benefit from all the services described in the Agreement, the Customer undertakes to pay MOMENZO a monthly subscription fee, which may be viewed on a price list available on the website https://store.momenzo.com
Notwithstanding the foregoing, the Parties agree that royalties equal to 12 (twelve) months of the Contract may be paid in advance upon signature of the Contract with a discount equivalent to 2 months' subscription. The choice of this payment method does not entitle you to any refund over the remaining subscription period. At the end of the 12 months, this payment method will be renewed unless the Customer requests it in advance.
MOMENZO's invoices are payable within 30 (thirty) days from their date of issue via credit card.
If payment is not made on time, the sums due shall bear an interest of 3% (three percent) per month of delay, without prejudice to MOMENZO's right to withhold the Agency's access to the Application, or even to terminate the Contract under the conditions provided for in Article 8.2 ("Termination of the Contract") and to claim damages for the loss suffered. No discount is granted in the event of early payment.
MOMENZO may decide to review the subscription price at any time during the term of the Agreement. The new rate will apply as of the renewal of the Contract. In the event that the Customer wishes to refuse the new rate, it must then terminate the Contract under the conditions set out in Article 8.1 ("Term of the Contract").
The Customer, acting as a professional for the needs of his professional activity, has no right of withdrawal.
ARTICLE 10 - LIABILITY
10.1 Customer's liability
The Customer is solely responsible for purchasing a terminal compatible with the Application (Apple iPhone with at least iOS 10). The Equipment provided to the Customer by MOMENZO only covers the accessories described in the Contract and does not include the terminal, which the Customer acknowledges and accepts.
The Customer is solely responsible for the use of the Application and the Equipment. The Customer must ensure that Users are able to use the Application and the Equipment.
The Customer is solely responsible for the Content that it decides to integrate into the Application and/or asks MOMENZO to integrate into the Application in order to produce the Videos. The Customer is solely responsible for the Videos he makes. In particular, the Customer is solely responsible for (i) the sequences that he and/or the Users decide to film through the Application and (ii) the elements that he submits to MOMENZO for integration into the Videos (for example, a logo or a graphic charter). The Customer must ensure that it has all the necessary authorizations to integrate the Content into the Application and/or Videos, as well as to be authorized to film the real estate concerned.
The Customer is solely responsible for the distribution of the Videos on the mediums and media he chooses. The Customer must ensure that it is authorized to publicly exploit and disseminate the image of the real estate concerned.
The Customer undertakes to release MOMENZO from any claim, of any nature whatsoever, relating to the use of the Application and/or the Material by Users and/or non-users, including any damage suffered during the use of the Application and/or the Material, as well as any claim relating to the Videos and/or the Contents.
MOMENZO reserves the right to monitor compliance with the terms and conditions of use of the Application and the Material. Any breach of the Contract may result in legal action.
10.2 MOMENZO's liability
Within the scope of the Contract, MOMENZO acts exclusively as a software supplier solution that operates automatically, without human intervention and without any intervention of any kind whatsoever on the Videos or the Content. The Customer is solely responsible for the Videos and Content, in particular with regard to third parties.
MOMENZO is not liable, both to the Customer and to third parties, for any errors committed by its managers or employees within the scope of the Contract. MOMENZO is not responsible for any problems affecting telecommunication networks.
MOMENZO assumes no responsibility for any damage that may be caused to Users as a result of the use of the Application and/or the Equipment, except in the event of a defect, the proof of which would be provided by the Customer.
IN NO EVENT SHALL MOMENZO'S TOTAL LIABILITY UNDER THE CONTRACT OR IN RESPECT OF THE CONTRACT EXCEED THE AMOUNT PAID BY THE CUSTOMER UNDER THE CONTRACT DURING THE 12 (TWELVE) MONTHS PRECEDING THE OCCURRENCE OF A DAMAGE.
IN NO EVENT SHALL MOMENZO BE LIABLE TO THE CUSTOMER, A USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFIT, INABILITY TO USE THE APPLICATION AND/OR EQUIPMENT, LOSS OF REVENUE, LOSS OF MARGIN, INTERRUPTION OF SERVICE OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM OR IN CONNECTION WITH THE CONTRACT, EVEN IF MOMENZO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO REQUESTS CAN EXTEND THIS LIMITATION.
ARTICLE 11 - WARRANTY LIMITATION
The Application, the Material and the associated Services are provided and accepted as is. MOMENZO does not guarantee the proper functioning of the Application or the Material, nor does it give any other express or implicit guarantee on the part of MOMENZO than that provided for in this article, subject to the possibilities offered by law.
MOMENZO does not guarantee that the operation of the Application will be continuous. MOMENZO shall not be required to allow access to the Application in the event of force majeure, understood as any event beyond MOMENZO's control, which could not reasonably have been foreseen at the time the Contract was concluded and whose effects cannot be avoided by appropriate measures, such as strikes, bad weather, wars, terrorist attacks, embargoes, power or Internet network failures, satellite failures, or even obligation breaches by Internet service providers, without limitation.
MOMENZO informs the Customer that access to the Application will be restricted, limited or suspended it appears that either (i) the Customer and/or Users are using the Application for any activity that is not in conformity with the Contract, (ii) MOMENZO receives notice to this effect from a competent authority, administrative, arbitration or judicial, in accordance with appropriate applicable laws, or by a third party.
MOMENZO does not guarantee that the Application will benefit from continuous updates and reserves the right to stop the development of the Application at any time, without any right to compensation for the Customer and/or Users.
In the event of a malfunction of the Equipment that is demonstrated not to result from misuse by a User, MOMENZO undertakes to have the Equipment repaired or replaced, at its own convenience and without any right to compensation for the Customer or the Users. In the event of damage caused to the Equipment by the Customer and/or a User and/or a third party, MOMENZO shall not be under any obligation to replace said Equipment.
MOMENZO DOES NOT GIVE ANY WARRANTY (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE CONTRACT, INCLUDING ANY WARRANTY OF LEGAL OR COMMERCIAL ORIGIN RELATING TO: (A) ANY WARRANTY OF MERCHANTABILITY; (B) ANY WARRANTY OF CONFORMITY WITH ANY OBJECT (WHETHER KNOWN OR HAD REASON TO KNOW, WAS INFORMED OR WAS AWARE OF SUCH OBJECT); OR (C) ANY WARRANTY RELATING TO THE INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES.
MOMENZO DOES NOT GUARANTEE THAT THE USE OF THE APPLICATION WILL FACILITATE TRANSACTIONS RELATED TO THE GOODS PRESENTED IN THE VIDEOS OR INCREASE THE CUSTOMER'S SALES OR REVENUES.
ARTICLE 12 - INTELLECTUAL PROPERTY
All intellectual property rights relating to the Application and Services, in whole or in part, belong to MOMENZO. MOMENZO hereby declares that the components of the Services are original. In the event of a claim by a third party, MOMENZO may, at its sole discretion, either substitute the part of the Service that is the subject of the claim or delete the relevant functionality, without any right to compensation for the Customer.
The use of a Service does not grant any intellectual property right to the Customer over any element of the Service, whether it be the software and technical tools provided to the Customer by MOMENZO (including the Application) or the protected elements (texts, images, videos, trademarks, designs and models, databases, etc.) which remain the property of their respective owners.
Consequently, the Customer may not - and shall not - reproduce, represent, distribute, market, modify, concede all or part of the Application and/or any of the elements of the Services, in any manner whatsoever, without the express, written and prior consent of MOMENZO. Any other use may result in legal action.
Any use of the Application and/or a Service that does not comply with these GTC will automatically result in the immediate termination of the License and will imply a definitive prohibition to use the Application and/or the Service for any purpose whatsoever.
The Application is not edited by Apple Inc. The trademarks mentioned belong to their respective owners.
ARTICLE 13 - PROTECTION OF PERSONAL DATA
The use of the Application implies that the Customer provides personal data relating to Users only for the purpose of identifying Users in connection with the use of the Application (the "Personal Data").
MOMENZO is committed to ensuring the safety and integrity of Personal Data and, in this context, to taking commercially reasonable technical and organisational measures to prevent any disclosure of Personal Data as well as any access by any non-authorized third parties.
All Users have the right to access, rectify, modify and delete their Personal Data at any time if they are inaccurate, incomplete, ambiguous or outdated. Any User also has the right to object, for legitimate reasons, to the processing of Personal Data concerning him/her. However, such opposition will make it impossible to use the Application.
Each User may exercise these rights by sending a postal letter accompanied by proof of identity to MOMENZO's registered office.
ARTICLE 14 - ELECTRONIC PROOF
The acceptance of the General Terms and Conditions is carried out exclusively by electronic means using a secure solution. MOMENZO stores certain browsing and technical elements relating to the terminal used by the Customer at the time of acceptance of the General Terms and Conditions, in particular for identification, security and proof purposes. These elements will be used as proof in the event of litigation.
In addition, the Customer is informed that MOMENZO keeps certain technical elements relating to the use of the Application, in accordance with its legal obligations. The Customer acknowledges that the electronic evidence thus collected will be authentic and may, if necessary, be transmitted to the authorities at their request.
ARTICLE 15 - APPLICABLE LAW AND COMPETENT JURISDICTION
The Contract is governed by English law.
Any dispute relating to the Contract shall be subject to the exclusive jurisdiction of the SHEFFIELD COURTS (ENGLAND).
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DESCRIPTION OF THE APPLICATION
The objective of the Momenzo application is to help real estate companies to create videos of properties that are for sale in an autonomous and professional way. Agencies can be independent in presenting their properties and producing their videos. The key word is simplicity: beginners will find complete support in the production of promotional videos. These media may be distributed on an official website as well as on social networks.
First, the user has access to a custom template (editing skeleton). He starts a shooting where he will be guided in the recording of shots. Once the shots are captured, the editing is done automatically. An immediate export is then suggested. Alternatively, the user can reedit his project (directly or later). The final result is personalized according to the company's graphic charter and can be exported to any type of electronic media.