INTRODUCTION
These Terms of Service (“Terms” or “Agreement”) are a contract between you (the Customer) and us (“1616 Media Ltd”, “us”, or “we”, the provider of Momentful). They describe the services and right to use provided when you register or use a Momentful consumer account with us, define aspects of our relationship, and set forth the terms and conditions that apply to your access to and use of the applications, websites, products, and services owned and operated by 1616 Media Ltd. Using our Momentful (the “Application”) offerings or registering for an account indicates agreement with, and acceptance of, these Terms.
This is a legal contract, so if you are entering into this agreement on behalf of a other entity, you represent that you have the authority to bind such entity to these Terms. (In this case, “you” and “your” would then refer to the entity.)
We will not knowingly accept this Agreement from anyone under the age of 16, or who lacks the capacity to understand these Terms.
When you accept this Agreement, you are also agreeing to our Privacy Policy and our Acceptable Use Policy (AUP) which form part of these Terms. These Terms, the Privacy Policy, and our AUP may be amended at any time, with or without notice or notification, so we recommend you periodically reviewing them, as continued use of the Application, Site and/or Services indicates acceptance of the latest version of each. We also suggest printing or saving a local copy for your records.
GENERAL TERMS
Account: An Account is created when an individual or other entity, or any representative of such, downloads the app and uses it, or registers within the app
Aggregated Data: Data that does not contain Personal Information and which has been manipulated or combined to provide generalized, anonymous information.
Agreement: These Terms of Service and any materials, contracts, conditions, or other documents referenced or linked to herein, without limitation.
Application: The Momentful app as published and available in various forms and territories.
Beta Test: May include, but is not limited to, alterations to the Services, modifications to how the Services are offered or provided, and changes to the software; usually designed to test for bugs, usability issues, or to evaluate user experience.
Closure: Closing an account.
Claims: An assertion of entitlement to monetary, proprietary, or other judicially-enforceable redress.
Commercial Electronic Messages: Emails containing newsletters, blogs, and other marketing materials including text messaging.
Partners: A company with which 1616 Media Ltd has established a professional relationship, via a partnership contract or other legally binding agreement.
Content: Includes but is not limited to text, editorial, graphics, photographs, audio, sound and images.
Customer: Any person or other entity that has downloaded or used the app or services or registered for a Momentful account.
Feedback: Comments received orally, in writing, or electronically, from current, past, or potential Customers. Feedback may include (but is not limited to) ideas, suggestions, concepts, processes, techniques.
Licensors: Any company, individual, or other entity from which 1616 Media Ltd has licensed the use of its content, images or other products and intellectual property.
Materials: Anything provided by or through 1616 Media Ltd, its affiliates, subsidiaries, employees, agents, licensors, or other commercial partners including, but not limited to, software, informational text, design of and “look and feel,” layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
Monitor/Monitoring: Oversight of services (including but not limited to how the Site, Services and Application are being used), examination of traffic to specific pages, and other investigatory processes as needed, whether conducted via software/electronically or by 1616 Media Ltd.
Personal Information: Information about an identifiable individual, as defined in The Data Protection Act 1998, UK.
Profile/Profile Information: All information from registration and customer contact, including, but not limited to, full name, email address, mobile number.
Sensitive Information: Payment information, credit or debit card numbers; personal financial information; racial or ethnic origin; religious affiliation; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security.
Services: The Momentful platform, services, application (and all features therein) and Moments.
Site: The company websites, and all subdomains and sub-directories therein.
Third Party: Any organization or person, other than you or 1616 Media Ltd. This includes, but is not limited to: app stores, CRM/CMS systems, email marketing software, billing and shopping cart/check-out platforms, PPC conversion tracking codes, analytics and other tracking software, non Momentful forms, file hosting/sharing platforms, and any organization or person with which you message on the platform.
User ID: your name, mobile number and email address as submitted during registration or as updated from time to time.
Your Recipients: The contacts of yours to whom you send a Moment. This agreement does not apply to, or bind, any Third Party who has not signed up for a Momentful Account.
YOUR PROFILE INFORMATION AND ACCOUNT
Your User ID mobile number is the principle way to log in and access your Account.
You can change your name (the name that recipients see when you send them a message) in settings. For advanced account services including to change your mobile number, merge two accounts, close an account, or request account information such as a credit or delivery query, please ensure you have added an email address to your profile, and contact us through the app settings or via our website.
You agree to provide true, accurate, current, and complete information about yourself, or the entity you represent, and you agree not to misrepresent your Profile Information, and to keep it confidential. 1616 Media Ltd is not responsible for any Profile Information that may be lost, forgotten or irrecoverable.
For as long as you remain the registered Customer and in compliance with this Agreement, you have the right to access and use the Services. This right is non-transferable, and you agree not to share your User ID with any Third Party. You are solely responsible for all activities that occur within your Account. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying 1616 Media Ltd immediately. It is your responsibility to update or change any Account or Profile Information, as needed or desired.
Momentful charges are paid by you directly to Apple (via your iTunes account) or on Android to Google (via your Google Play account), and invoiced by them to yourself. 1616 Media Ltd will not have access to, or change your iTunes or Google Pay account information, under any circumstances, and will not be held responsible if an unauthorized party accesses data, settings or information related to those accounts.
Where a premium Individual Moment cannot be delivered (eg due to attempted delivery to an invalid number), your sent box will show the delivery status and we will issue a refund in the form of a credit. Where an entire Group Send fails, we will issue a refund in the form of a credit upon request. We do not issue full or part credits against subscription services, although we may provide service advice messages to help you improve the delivery rate where possible. Please ensure you enter a full and correct mobile number. Selecting the wrong number does not entitle you to a credit. Issued credits are visible in settings. We reserve the right to apply a time limit to credits, or to withdraw credits that have also had a monetary refund applied by the payment provider.
FEES AND RENEWALS
You agree to pay all charges and fees, including but not limited to: fees based on sending Moments, add-ons and upgrades. You agree that you may not be refunded or credited for partial sums deposited.
We reserve the right to modify our published billing and pricing rates at any time upon publication of the new rates. Pricing and billing may include taxes connected with your purchase. Your invoice will be provided by iTunes or Google Play.
In instances of billing dispute, where applicable, we reserve the right to suspend an Account until resolved.
TERM, RENEWAL, CANCELLATION AND TERMINATION
Your Account is deemed to be active if accessed once in any annual period. Accounts not accessed may be deemed inactive by the company, and you will be notified prior to suspension or deletion of your account. Aside from this provision, your account has no term or renewal required.
You may cancel your account by sending an email to support@1616.media from the email address registered with your Account. Should you contact Customer Support, 1616 Media Ltd reserves the right to verify your identity. No refunds or credits shall be issued after an account is terminated. You are responsible for all charges accrued on your Account.
Account deletion may permanently remove all message boxes, user history and settings, as well as your email address and other Personal or Sensitive Information. 1616 Media Ltd is not responsible for any Content lost as a result of Account deletion.
1616 Media Ltd reserves the right to terminate this Agreement at any time, for any reason, and at our sole discretion, without liability. A reason for such termination may be, but is not limited to, failure to comply with these Terms. 1616 Media Ltd reserves the right to modify, suspend, or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
The sections “Submission of Content”, “Intellectual Property Rights”, “Confidential Information”, “Third Party Sites and Content”, “Disclaimer, Exclusion, and Limitation of Liability”, “Waiver of Jury Trial and Class Action Rights”, “Limitation of Time”, and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
ACCEPTABLE USE POLICY AND CONDUCT
1616 Media Ltd as a publisher has a responsibility to remind users that their messages, Moment personalisation, feedback and comments should not use, encourage, promote, facilitate or contain any illegal, harmful or offensive content.
This includes: child pornography, or depiction of non-consensual sex acts, defamation and abuse; fraudulent or deceptive practices; infringing or misappropriating intellectual property, breaching copyright; violation of the security or integrity of any device or network including unauthorised access, interception or falsification of origin or identity.
You may not make connections to any users unless you have permission and rights to communicate with them and legitimate access to their contact number. These limitations constitute an Acceptable Use Policy. We may report any activity that we suspect violates any law or regulation to law enforcement, regulators or other appropriate Third Party, which may include disclosing customer information. Users can report a concern via our feedback tools.
Monthly subscription services are intended to support daily use of Moments. The monthly subscription has an associated fair use policy of 31 sends per month, and we reserve the right to notify you if you are approaching a fair use limit or have exceeded it.
INTELLECTUAL PROPERTY RIGHTS and OUR CONTENT and YOUR RIGHT TO USE
We value Customer, user, and potential Customer/User Feedback and take it very seriously, and we may, from time to time, solicit feedback. All feedback is 1616 Media Ltd’s exclusive property, and no provider of feedback has a claim to any form of compensation, monetary or otherwise, in exchange for providing it.
We may, in our sole discretion, use, share, or incorporate feedback in whatever form or derivative we may decide into the products or services, without limitation. We retain all rights to such feedback on a worldwide basis in perpetuity.
All 1616 Media Ltd material, as defined in the General Terms, is owned by us or our artists, licensors or service providers, and is protected by copyright, trademark, trade secret, and other intellectual property laws. For as long as you adhere to this Agreement and maintain a valid Account, 1616 Media Ltd grants you a non-transferable, non-sublicensable, non-exclusive, revocable, limited purpose right to access and use our Materials as a consumer for personal, consumer-to-consumer communications.
ADDITION OF YOUR PERSONALISED CONTENT
You are able to edit and personalise Moments.
You agree that you are solely responsible for all Content you add, provide, or share, including any legal or other consequences for submitting, providing, or sharing it, including that you have obtained any necessary licenses, rights, consents and permissions, and as such you agree that none of the aforementioned Content will in any way violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person, business, organization, or entity.
You agree that 1616 Media Ltd is not responsible for any violations of Third Party intellectual property rights in any Content that you add, upload, or otherwise add to Momentful or a Moment. You further agree to pay all royalties, fees, and any other monies owed relating to the use of such Content.
You grant 1616 Media Ltd a non-exclusive license to view and use the Content you upload in order to provide the Services to you, including, but not limited to, troubleshooting. This use may include, without limitation, the right to host, cache, store, or otherwise format your Content. 1616 Media Ltd may request access to your Content to use for marketing purposes. You are under no obligation to grant this request, and we will not use your Content in any marketing materials without your prior permission.
MONITORING
You agree that we may monitor the Application, Site and Services, and may, where reasonable or necessary, disclose information to satisfy our legal obligations, protect 1616 Media Ltd or its Customers, or operate or improve the Product or Services.
1616 Media Ltd uses tracking cookies to track visit activity and this forms part of our terms and conditions of use. We reserve the right to monitor the security and preserve the integrity of our Site, resources, data, Materials, customer content, and intellectual property (yours, ours, and Third Parties’).
By using the Services, you agree that we may, with or without prior notice or notification, for any reason, and at our sole discretion, immediately suspend your access to the Services and/or terminate this Agreement.
Reasons may include, but are not limited to, security threats, intellectual property violations, attempts (whether or not successful) to access unauthorized data or other Material or Content, or the presence of Content or pages that in any way violate these Terms (including the Privacy Policy and AUP) or place 1616 Media Ltd, our Customers, business, affiliates, partners, or licensors at risk, as determined solely by us.
Suspension of use and access is not a breach of this Agreement by 1616 Media Ltd, and your Account/Content/history may be reinstated when the threat or risk has been remedied, at our sole discretion.
1616 Media Ltd disclaims all liability for suspending the Site or Services, removing or requesting the removal of Content or pages, or terminating this Agreement, and you have no claim to any form of compensation or damages arising from such action.
AGGREGATE DATA
You agree that 1616 Media Ltd may gather and publish anonymous Aggregate Data, based on your browsing, sending and receiving use of the Services. This data will not incorporate any Personal Information.
BETA TEST
From time to time and at our sole discretion, we may initiate Beta Tests called Tests, Trials or Advance Products. We may implement, run, suspend, or terminate a Beta Test at any time without notice or liability, and do not guarantee that a tested product, service, modification, upgrade, or other adjustment to the Site, Services, or means of providing the Services, will become part of the Services. We may deliver (and subsequently cease delivering) a Beta Test to all or any subset of 1616 Media Ltd Account holders at our discretion without prior permission at any time.
If we decide to incorporate a tested product or service into the 1616 Media Ltd platform, we may adjust our prices accordingly. 1616 Media Ltd accepts no liability for any consequences resulting from, or related to, your participation in a Beta Test. You agree to comply with any additional terms, restrictions, or limitations connected to any Beta Test. You may not sign up for multiple Accounts in order to receive additional benefits.
COLLECTION OF PERSONAL INFORMATION
Where the Services collect, store, or use Sensitive or Personal Information about identifiable individuals, we agree only to do so in accordance with applicable law, taking measures to protect the privacy legal rights of individuals whose information we collect, to disclose and clearly explain why this Information is collected and how will be used. Please refer to our full Privacy Policy which forms part of this Agreement.
THIRD PARTIES
Certain features of the Services, especially sending a Moment, may require a message notification by 1616 Media Ltd to the recipient. We do not access that information, and we notify the recipient on your behalf as a result of you entering their contact number and selecting to send. You hereby agree to indemnify us and hold us harmless for any failure to have or obtain all necessary consents regarding the receipt of electronic communications, email, or commercial electronic messages to a recipient.
You acknowledge and agree that 1616 Media Ltd is not responsible or liable for any Third Party content linked to from the Site or Services. This includes but is not limited to quality, usefulness, and intellectual property rights. You agree that 1616 Media Ltd is not responsible or liable for any alleged or real damages or losses incurred through the use of Third Party content, goods, or services. Your use of Third Party content is solely at your own risk.
MARKETING MATERIALS
Should you receive unwanted newsletters, blogs, articles, or other marketing initiatives and non-Account or delivery related materials from 1616 Media Ltd, you may opt-out at any time by clicking “Unsubscribe” at the bottom of these communications, or by contacting support@1616.media. Doing so may have a material impact on our ability to provide services to you or Your Customers, and we are not responsible for any such effects.
DISCLAIMER, EXCLUSION, AND LIMITATION OF LIABILITY
1616 MEDIA LTD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. ALL CONTENT, MESSAGES HERE, AND SENDING ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
1616 MEDIA LTD DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES, AND SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME 1616 MEDIA LTD MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT PRIOR NOTICE OR NOTIFICATION.
YOUR ACCESS TO AND USE OF THE SITE AND SERVICES MAY BE INTERRUPTED OR SUSPENDED FROM TIME TO TIME FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, DEVICE, EQUIPMENT AND OPERATING SYSTEM MALFUNCTIONS, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICES, OR OTHER ACTIONS THAT UNBOUNCE, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ENTITLED TO DAMAGES OR ANY OTHER FORM OF COMPENSATION OR RELIEF WHEN OUTAGES, DELAYS, DOWNTIME, MALFUNCTIONS, SECURITY OR SYSTEM BREACHES, OR OTHER INTERRUPTIONS OF SERVICE OCCUR.
1616 MEDIA LTD IS NOT RESPONSIBLE FOR A RECEIPIENT NOT OPENING A MESSAGE, OR PROTECTING YOUR MESSAGES, AND WE CANNOT PREVENT A RECIPIENT FROM SHARING YOUR MESSAGE.
NO ADVICE OR INFORMATION, WHETHER COMMUNICATED ORALLY OR IN WRITING, FROM 1616 MEDIA LTD EMPLOYEES, OR VIA THE SITE OR SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU AGREE THAT NEITHER 1616 MEDIA LTD NOR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, LICENSORS, EMPLOYEES OR AGENTS, WILL BE HELD LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF, FOR ANY TANGIBLE OR INTANGIBLE DAMAGES OR LOSSES ARISING FROM OR RELATING TO: THIS AGREEMENT, YOUR USE OF OR INABILITY TO USE THE SITE OR SERVICES, OR YOUR USE OF THIRD PARTY MATERIALS, CONTENT, OR SERVICES.
1616 MEDIA LTD WILL NOT BE HELD RESPONSIBLE FOR ANY DAMAGES, LIABILITIES, LOSSES, OR OTHER CONSEQUENCES THAT YOU MAY INCUR IN THE EVENT THAT THE SITE AND/OR SERVICES ARE MODIFIED, SUSPENDED OR DISCONTINUED.
WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS
IN ANY DISPUTE ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES, A SUBSCRIPTION AND/OR THIS AGREEMENT, YOU HEREBY EXPRESSLY GIVE UP: (I) YOUR RIGHT TO A TRIAL BY JURY; AND (II) YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING, WITHOUT LIMITATION, CLASS ACTION LAWSUITS.
MISCELLANEOUS
In any dispute between you and 1616 Media Ltd relating to this Agreement, the Site, or the Services, you agree that the dispute shall be governed exclusively by the laws of England and Wales, without regard to its conflict of law provisions. Except for any claim involving the ownership of intellectual property, all disputes arising out of or in connection with this Agreement will be referred to and resolved by arbitration.
If any portion of this Agreement is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, such decision will not invalidate the Agreement as a whole. Only that portion that is unlawful, void, or unenforceable will be stricken from this Agreement.
This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation, or discussion, oral or written, and may not be changed except in writing, and signed by us.
CONTACTING 1616 MEDIA LTD
You may contact 1616 Media Ltd by raising a service ticket through the app, by email at support@1616.media or by post to our registered address at 1616 Media Ltd, c/o Heritage House, Murton Way, Osbaldwick, York, YO19 5UW
