Effective on: July 29, 2013
Moments Management Corp., a Delaware corporation (“Moments Management,” “we,” “us,” “our”) provides you with a platform to access and share stories and experiences from places around the world in various formats through its website located at hi.co (the “Site”) and related services (collectively, such services, the Site, applications, features, the information and content available on the Site and Services and any other services provided through the Site, the “Service(s)”), subject to these Terms of Use (as amended from time to time, the “Terms of Use”), Privacy Policy and any additional guidelines, terms or rules, which will be posted on the applicable Service or this Site. The Privacy Policy and all such additional guidelines and rules are hereby incorporated by reference into the Terms of Use.
THE TERMS OF USE SET FORTH THE LEGALLY BINDING TERMS FOR YOUR ACCESS OR USE OF THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF USE, INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY, AND REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT THESE TERMS OF USE. YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO THE TERMS OF USE, DO NOT ACCESS OR USE THE SERVICES.
The Terms of Use apply to you, whether you only access (browse) our Services without registration or if you are a registered user. If you are entering into these Terms of Use on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity to the Terms of Use, and the terms “you” or “your” shall refer to such entity.
1.1. Account Registration. In order to access certain features of the Site (e.g. certain Services) you are required to register with Moments Management. If you choose to register for the Services, you agree to provide and maintain true, accurate and complete information about yourself as prompted by the Service’s form. You may delete your account at any time, for any reason, by emailing feedback@hi.co. We may terminate your account in accordance with Section 10. If your ability to access or use the Services is discontinued by Moments Management for violation of these Terms of Use or other inappropriate conduct, you agree not to attempt to re-register with or access the Services with another username or otherwise.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to immediately notify Moments Management of any unauthorized use, or suspected unauthorized use, of your password or account or any other breach of security. Moments Management will not be liable for any loss or damage arising from your failure to comply with this Section.
2.1 Intellectual Property. The Services (including, without limitation, the Site and content) and their selection and arrangement are protected by copyright, trademark, patent, trade secret and other laws throughout the world. Except with respect to your User Content (as defined below), you agree that Moments Management and its licensors own all right, title and interest in the Services. Except as expressly provided in the Terms of Use, Moments Management and its licensors do not grant any express or implied rights to use the Services. All rights, title, and interest in the Services, in all formats, throughout the world, are and will continue to be the exclusive property of Moments Management and/or its licensors. All trademarks, logos and service marks displayed on the Services are our property or the property of third parties, and you may not use them without obtaining our prior written consent or the consent of such third party which may own such trademark, logo or service mark.
2.2 License for Non-Commercial Use. Subject to the terms and conditions of the Terms of Use, we grant you a limited, personal, non-exclusive, non-transferable fully revocable license to access and use the Services for non-commercial purposes.
This license is subject to the following restrictions: (i) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or access to or use of the Services or any portion thereof; (ii) you will not alter, disassemble, decompile, reverse compile, reverse engineer, make derivative works of or otherwise modify any part of the Services; (iv) you will not copy, reproduce, distribute, display, post, download, or transmit any part of the Services in any form except as expressly authorized in the Terms of Use and (v) you will use the Services only as permitted by the Terms of Use and any applicable laws, rules and regulations. The foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. You agree not to delete, change or modify in any way the copyright notices or trademarks contained on the Services.
2.3 Fees. We currently do not charge you for our Services. You acknowledge that Moments Management reserves the right to charge for any portion of the Services and to change its fees (if any) from time to time in its discretion. You agree to pay all fees when due in accordance with the terms set forth on the Site and applicable Service.
2.4. No Support and Maintenance. Moments Management is not obligated to provide you with any support or maintenance in connection with the Services.
2.5. Storage; Modifications. Moments Management may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data will be retained by the Services and the maximum storage space that will be allotted on Moments Management’s servers on your behalf. You agree that Moments Management has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Services. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. You agree that Moments Management shall not be liable to you or any third party for any such modification, suspension or discontinuance of our Services.
3.1. User Content. You are solely responsible for all video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, link, e-mail, submit, publish, display or make available (“upload”) or otherwise use via the Services (collectively, “your User Content”, and for each user, as applicable, “User Content”). Similarly, other users, and not Moments Management, are responsible for their User Content.
We do not claim ownership in your own User Content. However, you hereby grant us the right to use, store and share your User Content. You understand and agree that your User Content is made public, and may be accessed and viewed by other registered and unregistered users of the Services.
3.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to Moments Management an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3. Advertising. You agree that we may display advertisements adjacent to your User Content, and you agree that you are not entitled to any compensation.
3.4 Feedback. You have no obligation to provide us with ideas, suggestions or proposals (“Feedback”). However, if you submit Feedback to Moments Management, you hereby assign to Moments Management all rights in the Feedback and agree that Moments Management shall have the right to use such Feedback and related information in any manner it deems appropriate without compensation to you. You agree that you will not submit to Moments Management any information or ideas that you consider to be confidential or proprietary. Moments Management will treat any Feedback you provide to Moments Management as non-confidential and non-proprietary.
3.5 Other Users; Release. Each Services user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, that we make no guarantees regarding the accuracy, quality, suitability, or legality of any User Content, and that we assume no responsibility for any User Content. Your interactions with other Services users are solely between you and such user and you release and forever discharge us from any such claims relating to other users. You agree that Moments Management will not be responsible for any loss or damage incurred as the result of any such interactions. We are not obligated to become involved in any dispute between you and any Services user.
The following are examples of the kind of content and/or use that is illegal or prohibited by Moments Management. Moments Management reserves the right to investigate and take appropriate legal action against anyone who, in Moments Management’s sole discretion, violates this provision or any other provision of the Terms of Use, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
The Services are controlled, operated, and administered by Moments Management from its offices in the United States of America. Moments Management makes no representation that the Services are appropriate or available for use outside of the United States. Moments Management reserves the right to block access to the Services by certain international users. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your access and use of the Services, including as those concern online conduct and acceptable content.
You agree to release, indemnify and hold Moments Management (and its directors, officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of these Terms of Use; (d) your connection to the Services, (e) your violation of the rights of another or (f) your violation of any applicable laws or regulations. Moments Management reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Moments Management. Moments Management will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
The Services might contain links to third party websites, services, social networking services, and advertisements for third parties (collectively, “Third Party Websites”). Such Third Party Websites are not under the control of Moments Management. Moments Management is not responsible for any Third Party Website. Moments Management provides these links only as a convenience and does not review, approve, endorse or make any representations with respect to Third Party Websites. If you decide to access any of the third party websites linked to the Services, you do this entirely at your own risk and you release and forever discharge us from any claims relating directly or indirectly to Third Party Websites. Third party websites are subject to their own terms and policies, including privacy practices.
It may be possible to log into the Services using your valid account at a social networking service. By directly integrating your social networking service account into our Services, we make your online experiences richer, and more personalized. You understand that by granting us access to your social networking service account as part of the functionality of the Services, Moments Management will have access to your content, including personally identifiable information, at such social networking service account, and Moments Management may access, make available, use and store such content so it is available via your Services account. You may disable the connection by accessing Facebook’s third party application settings or emailing us at help@hi.co. However, as noted above, your relationship with the social networking service provider, the manner in which the social networking services use, disclose and store your information is governed solely by the policies of the social networking services, and we will have no liability or responsibility for the privacy practices or other actions of any social networking service that may be enabled within the Services.
9.1. DISCALIMERS. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE (INCLUDING OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL OR SAFE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT LIABLE FOR THE (I) CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF THIRD PARTY WEBSITES AND (II) YOUR COMMUNICATIONS WITH OTHER USERS OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9.2. LIMITATION ON LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE (INCLUDING OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO (I) THESE TERMS OF USE, (II) THE USE OR THE INABILITY TO USE THE SERVICES; (III) PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (VI) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; OR (VII) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL OUR (INCLUDING OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MOMENTS MANAGEMENT IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9.3. WAIVER AND RELEASE. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
The Terms of Use are effective from the date that you first access or use the Services and shall remain effective until terminated in accordance with its terms. We reserve the right to terminate your access to our Services at any time, for any reason or no reason, without prior notice, and to take any other actions that Moments Management, in its sole discretion, believes to be in the interest of our company and of our users. Upon termination of these Terms of Use by either party, your right to use the Services shall immediately cease. Upon termination of these Terms of Use, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to the all disclaimers, releases, limitations of liability and all of Moments Management rights of ownership.
Moments Management respects the intellectual property rights of others and expects users of its Services to do the same. Moments Management will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”) and its response to such notices may include removing or disabling access to the allegedly infringing materials, terminating the accounts of repeat infringers of intellectual property rights, including copyrights, and/or making good-faith attempts to contact the user who posted the material(s) at issue so that such user may, where appropriate, make a counter-notification. If you believe that your work has been used or copied in a way that constitutes copyright infringement through the use of our Services, please provide, in accordance with the DMCA, written notification of claimed copyright infringement to Moments Management’s Copyright Agent (contact information below), which must contain all of the following elements:
Before you file such a notification, please note that, pursuant to Section 512(f) of the DMCA, any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorneys’ fees.
Moments Management’s Copyright Agent for notice of claims of copyright infringement can be reached as follows:
Moments Management Copyright Agent
164 Townsend Street, Suite 3, San Francisco, CA 94107
Email: feedback@hi.co
Telephone: +1 (415) 890-3752
Any dispute relating in any way to the Terms of Use or the Services shall be submitted to confidential arbitration in San Francisco, California, except that in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction. Arbitration under these Terms of Use shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to the Terms of Use whether through class action proceedings or otherwise.
These Terms of Use shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Moments Management in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Services not subject to arbitration, as set forth above.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO ACCESS OR USE OF THE SERVICES OR THESE TERMS OF USE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
Any software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the software is at your sole risk.
These Terms of Use are subject to occasional revision, and if we make any substantial changes, we will notify you by sending you an e-mail to the last e-mail address you provided to us (if you have an account with us) and/or by prominently posting notice of the changes on our Site. Any material changes to these Terms of Use will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Services. If you have an account with us, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
The failure of Moments Management to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Use will be effective only if in writing and signed by Moments Management. If any provision of these Terms of Use is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms of Use to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Moments Management without restriction. Any assignment attempted to be made in violation of these Terms of Use shall be void. The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Use, and will not be deemed to limit or affect any of the provisions hereof. These Terms of Use constitute the entire and exclusive understanding and agreement between Moments Management and you regarding the Services, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between Moments Management and you regarding the Services.
If you would like to contact Moments Management regarding these Terms of Use, the Privacy Policy or Services, please contact:
Moments Management Corp.
164 Townsend St., Suite 3
San Francisco, CA 94107
Phone: +1 (415) 890-3752
E-mail: feedback@hi.co