Terms and Conditions

Zomentum is a revenue platform built for partners such as software consultants, resellers, VARs, IT Channel partners, MSPs and SaaS companies building partner programs through any website(s) offered by Zomentum (collectively, the “Website”), and/or any other digital platform or application accessed by Zomentum users (the “Platform” and together with the Website, the “Zomentum Service”). The Zomentum Service is owned and operated by Pactora Inc., a Delaware corporation (“Zomentum”, “we” or “us”).

These terms and conditions/Terms of Service (the “Terms of Service”) establish an agreement between Zomentum and you (“You”/ “you”). Your use of the Zomentum Service is subject to the terms and conditions set forth in these Terms of Service.
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PLEASE READ THE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING ANY PART OF THE ZOMENTUM SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND TO ALL THE TERMS OF THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, EXIT THIS PAGE AND DO NOT ACCESS OR USE THE ZOMENTUM SERVICE. USE OF THE ZOMENTUM SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS OF SERVICE.
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If you are under the age of 18, you represent that you have the consent of a parent or legal guardian to use and access the Zomentum Service.

1. Updates to Terms of Service: We may, in our sole discretion, modify the Terms of Service via email or by posting notice on any part of the Zomentum Service. The “Last Updated” date at the top of the Terms of Service indicates when the latest modifications were made to the Terms of Service. By continuing to access and use the Zomentum Service, you agree to any such modifications. Therefore, you are responsible for reviewing and should become familiar with any such modifications. We recommend that you review the Terms of Service prior to each use of the Zomentum Service. In addition, when using particular services or features on the Zomentum Service, you will be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to the Privacy Policy as noted below. All such guidelines or policies are hereby incorporated by reference into these Terms of Service.

2. Modifications to the Zomentum Service: Features of the Zomentum Service may be modified/deleted and may be temporarily or permanently suspended at any time, with or without notice. Zomentum will not be liable to you or any third party for any modification, suspension, or discontinuance of the Zomentum Service.

3. Privacy Policy and Data Protection Agreement: Use of the Zomentum Service is subject to the reading and understanding of Privacy Notice published at https://zomentum.com/privacy-policy/, which is hereby incorporated into and made part of these Terms of Service. Please carefully review our Privacy Policy. By using or accessing the Zomentum Service, you agree that you have been informed about Zomentum’s data processing practices as presented in our Privacy Notice. When using the Zomentum Service you may enter Personal Data into the platform. By doing so you become a Data Controller and Zomentum becomes a Data Processor. In some jurisdictions, such as the European Union, there is a legal requirement to enter into written contractual obligations between the Controller and the Processor to guarantee adequate processing of the Personal Data. To that purpose Zomentum provides you a Data Processing Addendum at https://zomentum.com/dpa that is hereby incorporated into these Terms of Service and made part of them. 

4. Intellectual Property: You acknowledge that all materials on the Zomentum Service, including the Website design, Platform design, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof, and information provided (collectively, “Materials”), are the property of Zomentum and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners. Zomentum authorizes you to view, download and/or print the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Except as expressly authorized by the Terms of Service, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, scrape, copy, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Zomentum or the respective copyright owner.  In the absence of a written agreement, you may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described at the Zomentum Service are the sole property of Zomentum and/or its licensors and may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of Zomentum and/or its licensors. Zomentum reserves the right to enforce its intellectual property rights to the fullest extent of the law.

For the avoidance of doubt, your use of the Zomentum Service is solely and exclusively under the limited, non-exclusive, non-transferable license granted herein and you will not obtain any ownership interest therein through the Terms of Service or otherwise.  All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect of the Zomentum Service are either the property of Zomentum, its affiliates or licensors. Zomentum retains the right to rescind and terminate the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by Zomentum to you are fully reserved by Zomentum, its advertisers and licensors.

Some of the company and product names, logos, brands, and other trademarks featured or referred to within the Zomentum Service may not be owned by us, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, Pactora Inc., the Zomentum Service, our products and services, the Website and/or the Platform.

5. Mobile Participants: You understand and agree that various entities unaffiliated with us make up the “mobile ecosystem” that enables you to access, visit and/or use the Zomentum Service via your computer, mobile or other device, including without limitation equipment, hardware and software manufacturers and providers, telephone, mobile, wireless, and Internet network providers and carriers, and sellers or providers of content for use with the Zomentum Service. We do not represent, warrant or guarantee that all portions of the Zomentum Service, or the Zomentum Service as a whole, can be accessed via all mobile or other devices, or via all carriers and service plans or is available in all geographic locations.

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6. Third Party Sites:  Links provided via the Zomentum Service to third party websites and services are provided only as a convenience. If you use these links, you may leave the Zomentum Service. Zomentum does not control nor endorse any such third party websites. You agree that the Zomentum Parties, as defined below, will not be responsible or liable for any content, goods or services provided by such third party websites or for your use or inability to use such third party websites. You will use such links at your own risk. Your interactions with organizations and/or individuals found on or through the Zomentum Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You are advised that other websites on the Internet, including third party websites linked from the Zomentum Service, might contain material or information: that some people may find offensive or inappropriate; that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. Zomentum expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services that appear on any third party website.

7. Cloud Offerings: The Zomentum Service provides you and/or your end users with the ability to purchase or access a variety of cloud product and service offerings made available by Zomentum or various third party providers.  Such offerings are subject to specific terms of service and privacy policies, as applicable. You agree to inform your end users of such specific terms of service and privacy policies. Your end user’s use of such offerings will be subject to their applicable terms of service and privacy policies. Terms for the cloud offerings are set forth in the Zomentum Service. For Services available and ordered on a month-to-month or annual basis (including one, two or three year options), the subscription term begins on the first day of the calendar month following the order date and runs for the designated term (the “Initial Term”). Any fees for subscription cloud offerings provided for a partial month prior to the beginning of the Initial Term shall be prorated based on the number of days remaining in the calendar month. For services ordered on a month-to-month basis, the subscription term automatically renews for successive terms equal to the initial subscription term under the same conditions and financial commitments (“Renewal Term'') unless you cancel the  Zomentum Services prior to the beginning of the Renewal Term. For services ordered on an annual basis, unless a party gives written notice of non-renewal at least sixty (60) days prior to expiration of relevant subscription term, the subscription term automatically renews for successive terms equal to the initial subscription term under the same conditions (“Renewal Term''). Zomentum reserves the right to increase fees at the beginning of each subscription term. 

Fees for additional services such as onboarding, if applicable, will be charged upfront and will be non-refundable, whether or not You exercise these services.

Any fees for licenses added to an existing subscription during the Initial Term or a Renewal Term shall be prorated based on the time remaining in the existing subscription term, such that the term for the additional licenses co-terminates with the existing subscription term.

Fees for Zomentum Service are set forth. Fees initially charged upon ordering any Zomentum Service will be effective for the Initial Term and each Renewal Term, provided that Zomentum reserves the right to increase these fees or add new fees at any time upon 30 days’ notice to you. You agree to pay Zomentum current fees for Zomentum Service you order using one of the payment methods Zomentum supports. You authorize Zomentum to charge automatically renewing subscription fees for the Initial Term and each Renewal Term, unless you cancel the applicable Zomentum Service before the beginning of the applicable Renewal Term. When the Service is availed on a month-to-month basis, the amount is billed on your credit card or other payment methods which Zomentum supports in advance for the following 30 days and is non-refundable. When service is paid for annually, the amount is billed to your credit card in advance for the following year and is non-refundable. Payments due to Zomentum shall be made without set off or counterclaim, and without any deduction or withholding. You agree that you will not dispute scheduled transactions with your bank or credit card company, so long as the transactions correspond to the fees for the Zomentum Service you order. You further agree to notify Zomentum in writing of any changes in your account information at least 20 days prior to the next billing date.

Amounts not paid to Zomentum when due will accrue interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Upon the nonpayment of any amounts due or non-compliance with these Terms of Service, Zomentum reserves the right to:

(a) suspend your right to access the applicable Zomentum Service; and/or

(b) cease accepting new orders for Zomentum Service from you.

All fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including without limitation, sales, use and value-added taxes) (collectively, “Taxes”).

You are ultimately responsible for payment of all Taxes and any related interest and/or penalties resulting from any payment of fees hereunder, other than any Taxes based on Zomentum’s net income. You acknowledge and agree that Zomentum will not collect taxes unless otherwise required by law, and you agree to remit any and all Taxes due pursuant to applicable law.

We may, at Our sole discretion, offer You certain non-transferrable benefits (such as discounts on Subscription Fees or a free extension in Term) specific to a Subscription. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.

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8. Use of the Zomentum Service: You will be required to establish an account in order to use the Zomentum Service and/or take advantage of certain features.  If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Zomentum Service; and (b) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or Zomentum has reasonable grounds to suspect that such information is false, inaccurate or outdated, or that you are using the Zomentum Service not in compliance with these Terms of Service, Zomentum has the right to suspend or terminate your account.

You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your account. Your account is meant to be private and you shall not share accounts for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Zomentum Service, including charges resulting from unauthorized use of your account.

You agree to use the Zomentum Service only for lawful purposes and that you are responsible for your use of and communications and content you may post via the Zomentum Service. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or otherwise violates any applicable law. You agree not to use the Zomentum Service in any manner that interferes with its normal operation or with any other user’s use of the Zomentum Service.

You are prohibited from soliciting confidential personal information (such as credit card information or social security numbers) via the use of Zomentum platform.

You may not do any of the following while accessing or using the Zomentum Service: (i) access, tamper with, or use non-public areas of the Zomentum Service, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Zomentum Service by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Zomentum Service to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Zomentum Service, or otherwise creating an undue burden on the Zomentum Service.

You may not use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Zomentum Service. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of the Zomentum Service.

You further agree that you will not access the Zomentum Service by any means except through the interface provided by Zomentum for access to the Zomentum Service. Creating or maintaining any link from another application to any page at the Zomentum Service without the prior authorization of Zomentum is prohibited. Running or displaying the Zomentum Service, or any information or material displayed via the Zomentum Service in frames or through similar means on another website or application without the prior authorization of Zomentum is prohibited. Any permitted links to the Zomentum Service must comply with all applicable laws, rules and regulations.

Zomentum makes no representation that Materials contained, described or offered via the Zomentum Service are accurate, appropriate or available for use in jurisdictions outside the United States, or that these Terms of Service comply with the laws of any other country. Visitors who use the Zomentum Service and reside outside the United States do so on their own initiative and are responsible for compliance with all applicable law. You agree that you will not access the Zomentum Service from any territory where its contents are illegal, and that you, and not the Zomentum Parties, are responsible for compliance with applicable law.

9. Payment Gateway and Services: In the event that You wish to receive payments from your end customer through the use of payment processing and acquiring services offered on the Platform (“Payment Services”), the terms and conditions of Annexure 1 attached hereto shall apply to You in addition to the other terms and conditions set forth in these Terms of Service.

10. Upgrades and Downgrades: You may upgrade or downgrade between the Plans. You understand that downgrading may cause loss of features or capacity of the Services as available to You before downgrading Your Subscription. We will not be liable for such loss. When You upgrade or downgrade, the new Subscription Fees become immediately applicable. Upon upgrade, the new Subscription Fees for the month or period of upgrade would be charged on a pro-rated basis and shall be payable in accordance with Section 7. Subsequent months or periods will be charged in full according to the new Subscription Fees and any credits and refunds will be adjusted appropriately.

11. Communications to You:  The communications between you and us usually use electronic means, whether you access, visit or use the Zomentum Service, send us messages, or whether we post notices on the Zomentum Service or communicate with you via messaging. For contractual purposes, you (a) consent to receive communications from us in electronic form; and (b) agree that all notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Your consent to receive communications and do business electronically, and your agreement to do so applies to all of your interactions and transactions with us.

12. Content:  All Content is the sole responsibility of the person who originated such content. You acknowledge that all content transmitted or accessed by you using the Zomentum Service, is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all Content that you transmit in connection with the Zomentum Service, and you warrant that you possess all rights necessary to provide such Content. We reserve the right to remove any objectionable Content in our sole discretion. You understand that by providing Content publicly in connection with the Zomentum Service, you hereby grant us a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sub licensable and transferable right to fully exploit such Content (including all related intellectual property rights) in connection with our business.For purposes of these Terms of Service, the term “Content” includes, without limitation, any information, text, reviews, videos, audio clips, comments, information, data, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible through the Zomentum Service.

13. Termination: Zomentum may at any time upon notice to you suspend or terminate your account or these Terms of Service in whole or in part if you breach these Terms or if you file for bankruptcy, become insolvent, make an assignment for the benefit of creditors, or if a petition is admitted for bankruptcy or insolvency against you, which is not set aside in 30 days. 

You may discontinue access to and participation in the Zomentum Service at any time (not applicable to Payment Services offered by Zomentum). 

For termination of services ordered on an annual basis, You may access the platform till end of Your subscription term.  Upon discontinuance of use/termination for any reason, Zomentum may delete all data/information related to the user from the Zomentum Service. Upon your written request Zomentum will temporarily suspend your service for up to 12 months and therefore suspend the data/information deletion.

You agree to pay all the outstanding fees and charges due from You upon termination of the Zomentum Services. In case of chargeback, Zomentum may retain information regarding your credit card or bank mandate to set off any or all outstanding fees and charges.

Please refer to Appendix for additional information on Termination of Payment Services.

Surviving Provisions: 17 (Warranties, Disclaimers and Limitations of Liability), 18 (Indemnification) and your other indemnification obligations under Annexure 1, 19 (Applicable Law and Jurisdiction):  and other provisions of these Terms which by their nature are intended to survive termination or expiration shall survive any termination or expiration of these Terms.

14. Disputes between Zomentum Service Users and Cloud Offerings: If a cloud offering/Payment Service Provider or user of the Zomentum Service is unable to fulfill any of its commitments to other parties, the offering//Payment Service Provider and/or user shall work with each other to reach a mutually satisfactory resolution. Please note that it is such offering/Payment Service Provider’s or user’s responsibility (and not Pactora Inc. or the Zomentum Service) to issue refunds or to provide any of the applicable cloud services, unless specifically provided by Zomentum. We are under no obligation to become involved in disputes between offerings and users, or users and any third party. In the event of any dispute, such as a cloud offering’s alleged failure to comply with the terms or alleged failure in fulfillment of a cloud offering’s services, users should contact the applicable cloud offering directly regarding such dispute and/or refund.

15. Features and Cloud Offerings on the Service are Not Necessarily Endorsed by Us. We do not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements posted, uploaded, transmitted, sent or otherwise made available on or through the Zomentum Service or endorse any particular cloud offering, including without limitation in public discussion or review areas, or elsewhere, if applicable. Any Content posted, uploaded, transmitted, sent or otherwise made available on or through the Zomentum Service, including advice and opinions, are the views and responsibility of those who post the content and do not necessarily represent our views or the views of our licensors, vendors, and/or service providers. You agree that we and our licensors, vendors, and/or service providers are not responsible, and shall have no liability to you, with respect to any content posted, uploaded, transmitted, sent or otherwise made available on the Zomentum Service.

16. Representations:  You expressly represent, warrant, and/or acknowledge that:

a. Zomentum does not warrant or guarantee the suitability or availability of any Material or Content, including without limitation any cloud offering, found through the Zomentum Service.

b. Zomentum does not screen the authenticity or quality of any Material or Content or any provider of Material or Content, including without limitation cloud offering, products or services found through the Zomentum Service.

c. Zomentum makes no representations or promises regarding any Material or Content, and that many of the Material or Content provided via the Zomentum Service may be owned or licensed by third parties.

d. Zomentum is not a party to any transaction between you and any other individual, entity, reseller, cloud offering, legal or governmental entity, or municipality. Any dispute shall be resolved between yourself and such applicable party.

e. Any information, including any data, Materials, or Content on the Zomentum Service, including on any Facebook, Instagram or Twitter page, are for informational purposes only.

f. You assume all risks when using the Zomentum Service, including all of the risks associated with any online or offline interactions with other users, cloud offerings, products and services, and from additional fees or charges from your mobile carrier.

g. You are providing and/or using cloud offerings in accordance with applicable law, including without limitation the collection of personal data, and are not relying on Zomentum for any such advice or counsel regarding applicable law, and acknowledge Zomentum is not responsible for any such breaches of data caused by third parties, including cloud offerings.

17. Warranties, Disclaimers and Limitations of Liability:  YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE ZOMENTUM SERVICE IS AT YOUR SOLE RISK. THE ZOMENTUM SERVICE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, ZOMENTUM, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “ZOMENTUM PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ZOMENTUM PARTIES MAKE NO WARRANTY THAT: (I) THE ZOMENTUM SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE ZOMENTUM SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE ZOMENTUM SERVICE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE ZOMENTUM SERVICE, SUCH AS ANY CLOUD OFFERINGS, WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE ZOMENTUM SERVICE WILL BE CORRECTED.

THE ZOMENTUM PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE ZOMENTUM SERVICE, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE ZOMENTUM SERVICE; (V) FOR ANY DISPUTES BETWEEN USERS OF THE ZOMENTUM SERVICE OR BETWEEN A USER OF THE ZOMENTUM SERVICE AND A THIRD PARTY SUCH AS A CLOUD OFFERING OR PAYMENT SERVICE PROVIDER; OR (VI) FOR ANY OTHER MATTER RELATING TO THE ZOMENTUM SERVICE INCLUDING THE PAYMENT SERVICES OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES THE ZOMENTUM PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZOMENTUM AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE ZOMENTUM SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.

NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE ZOMENTUM PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO ZOMENTUM VIA THE ZOMENTUM SERVICE FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY ZOMENTUM (WHICH DO NOT INCLUDE ANY SUBSCRIPTION FEES FOR CLOUD OFFERINGS PROVIDED BY THIRD PARTIES) TO YOU IN THE SIX MONTHS PRIOR TO SUCH CAUSE OR CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.

If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”

18. Indemnification:  You agree to indemnify, defend and hold harmless the Zomentum Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the Zomentum Service, any activity related to your account by you or any other person permitted by you, any Content that you submit to, post on or transmit through the Zomentum Service, your breach of these Terms of Service, your infringement or violation of any rights of another, or termination of your access to the Zomentum Service. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

19. Applicable Law and Jurisdiction: Your use of the Zomentum Service is governed by and will be enforced under the laws of the State of Delaware without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within Delaware. You agree that printed copies of any and all agreements and/or notices in electronic form are admissible in any legal or regulatory proceedings. Any controversy, claim, suit, injury or damage arising from or in any way related to the Zomentum Service or these Terms of Service shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect and before a single arbitrator chosen by Zomentum. Any such controversy, claim, suit, injury or damage shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any controversy, claim, suit, injury or damage of any other party. Zomentum may seek any interim or preliminary relief from a court of competent jurisdiction in any jurisdiction necessary to protect its rights pending the completion of arbitration. Each party shall assume its own costs of arbitration. IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE TERMS OF SERVICE INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF THE ZOMENTUM SERVICE, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.

20. Procedure for Notifying the Company of Copyright Infringement:  Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact our Copyright Agent at the address listed below and provide us with the following information:

a. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.

b. Identification of the copyrighted work claimed to have been infringed.

c. Information describing where the allegedly infringing material is located on the Zomentum Service.

d. Your address, telephone number, and email address.

e. A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.

f. A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.

The foregoing information may be emailed to support@zomentum.com or mailed to our Copyright Agent at the following address:

Copyright Agent – Pactora Inc.

support@zomentum.com

Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the user responsible for posting said material. The posting of infringing copyrighted material may result in the termination of user privileges of such user.

21. U.S. Export Controls: The Zomentum Service may be subject to United States export controls. No part of the Zomentum Service may be exported or re-exported into any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Zomentum Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

22. Miscellaneous:  These Terms of Service constitute the entire agreement between Zomentum and each user of the Zomentum Service with respect to the subject matter of these Terms of Service.

If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.

The failure of the Zomentum Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service.  You may not assign your obligations or rights hereunder to another entity or individual. You will not participate in a class action or class-wide arbitration for any claims. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. We may transfer, assign or delegate these Terms of Service and its rights and obligations without your consent.

We shall have no liability to you hereunder if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of us or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind us in any respect whatsoever.

No action arising out of these Terms of Service or your use of the Zomentum Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).

You hereby consent to Zomentum’s use of Your name and logo on the Zomentum website and publicly available printed materials, identifying You as a user of Zomentum and describing Your use of the Zomentum’s Services.  You agree that Zomentum may issue a press release identifying You as user of Zomentum

23. Customer Service:  If you have any comments or questions regarding these Terms of Service, or wish to report any violation of these Terms of Service, you may contact us at support@zomentum.com.

Annexure 1

Additional terms applicable to the Payment Services

In order to receive the Payment Services, You are required to have an agreement with the payment processing and acquiring services provider (“Payment Service Provider”) integrated with the Zomentum Service. Prior to entering into such agreement, You shall comply with Zomentum’s onboarding, screening, know your customer (“KYC”) and other processes (“Zomentum Onboarding Process”) as may be notified to You from time to time. You shall fully cooperate with Zomentum and provide all information required by Zomentum for the Zomentum Onboarding Process. If You do not comply with the Zomentum Onboarding Process in accordance with Zomentum’s instructions or if the information provided by You is otherwise inaccurate or incomplete, Zomentum may, in its sole discretion, reject your application for the Payment Services. In the event You successfully complete the Zomentum Onboarding Process, You shall be subject to the Payment Service Provider’s KYC process as detailed in https://docs.adyen.com/marketplaces-and-platforms/classic/verification-process and shall provide all the information required by the Payment Service Provider. In addition, You shall fully cooperate with Zomentum and the Payment Service Provider in connection with the Zomentum Onboarding Process and KYC process and shall provide all information required by Zomentum and the Payment Service Provider for the screening of your KYC documents. After the Payment Service Provider’s KYC process is successfully completed, You shall confirm your order for the Payment Services and acceptance of the Payment Service Provider’s terms and conditions by accessing the link which shall be provided to You by Zomentum for such purpose. Before recording your final acceptance/confirmation of the Payment Service Provider’s terms, You must ensure that:

(i)   You check and verify the terms that You are agreeing to;

(ii)  You check the overview of KYC and other registration information provided by You during the registration process, which will be made available to You by Zomentum.

Your acceptance of the Payment Service Provider’s terms and conditions shall be available to Zomentum and will be made available to You upon request. You may contact support@zomentum.com to obtain a copy of the accepted terms.

By recording your final acceptance/confirmation of the Payment Service Provider’s terms (including the AfP Terms and Conditions and Adyen Prohibited and Restricted Products and Service), You agree and acknowledge that: (i) You are entering into a direct contractual relationship with the Payment Service Provider; and (ii) You are bound to the terms of service for the Payment Service Provider, and shall be solely responsible to ensure compliance with such terms.

In addition, You shall comply with the following conditions in order to receive the Payment Services: 

a. Access: To gain access to the Payment Services, You are obliged to comply with the Payment Service Provider’s onboarding process, including the KYC process and anti-money laundering and anti-terrorist financing (AML) verifications, by providing required information to the Payment Service Provider. You must ensure that all information provided with respect to the onboarding process is accurate and complete. The Payment Service Provider require additional KYC information to be provided and may directly contact You for such purpose. The Payment Service Provider may, in its discretion, approve or reject your onboarding if the information provided by You is inaccurate or incomplete. Access to the Payment Services will be revoked if information provided by You is not accurate or if it does not comply with requirements set by the Payment Service Provider. Please be informed that these processes may be updated by the Payment Service Provider from time to time. To the extent that Zomentum is informed of any such updates, Zomentum may notify the same to You.

b. Order Process: The process for procuring the Payment Services is as set forth above. Please be informed that your order for the Payment Services may be rejected following the review of your application.

c. Fraud control: All transactions processed via the Payment Services (each, a “Transaction”) will be screened to check whether such Transaction is fraudulent. The Payment Service Provider reserves the right to cancel Transactions where it has reasonable grounds to suspect to be fraudulent or involving other criminal activities. In such an event, Zomentum shall notify You once the Payment Service Provider notifies Zomentum of the cancellation of a particular Transaction.

d. Authorized Representative: You hereby designate Zomentum as your authorized representative in relation to the services procured through the Payment Service Provider. You hereby authorize Zomentum to access and use your data, which is processed on the Payment Service Provider’s platform.

e. Data: Zomentum and the Payment Service Provider may use de-identified Transaction-related data, which may also be aggregated data, for various purposes including but not limited to analysing, tracking, and comparing transaction and other data to develop and provide insights for You and/or other customers as well as for developing, marketing, maintaining and/or improving Zomentum’s or the Payment Service Provider’s products and services. You hereby authorize Zomentum and the Payment Service Provider to use Transaction-related data for the aforementioned purposes. You acknowledge and agree that Zomentum does not collect, use, access, store or process any personal data or personally identifiable information to provide the Payment Services. Personal data or personally identifiable information may be collected by the Payment Service Provider in the course of providing Payment Services. Such collection and processing of personal data or personally identifiable information shall be governed by the terms and conditions issued by the Payment Service Provider.

f.  Monitor: Zomentum may monitor your use of the Payment Services in order to determine whether: (i) your use of the Payment Services violates applicable laws, rules, regulations, or any Scheme Rules issued by any Scheme Owner; (ii) the Payment Services are provided to You under the correct MCC code, where relevant and (iii) You are compliant with the terms of the agreement entered between You and the Payment Service Provider.

g. Restricted Use: You may only use the Payment Services to accept payment for products and services sold by You to your end customers, as described in your application, and for no other purpose whatsoever.

h. Compliance with Laws and Scheme Rules: You agree and undertake that You shall not use the Payment Services for the sale of any product or service which is violating any applicable law or any bylaws, rules, regulations, operating regulations, procedures and/or waivers as may be amended or supplemented over time, issued by a party who regulates and provides a specific payment method (“Scheme Owner”) (e.g. Visa, MasterCard) (“Scheme Rules”).  You are required to regularly review the then current Scheme Rules and relevant changes to applicable laws, to ensure compliance with applicable laws and Scheme Rules. You shall on demand indemnify, defend and hold harmless the Zomentum Parties and the Payment Service Provider against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to breach of applicable laws and/or Scheme Rules by You. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

i.  Prohibitive Services: You agree that You are not engaged in selling and shall not sell products and services listed on https://www.adyen.com/legal/list-restricted-prohibited. Zomentum has the right to audit and validate regarding the same. Zomentum may discontinue your Payment Services if your products and services are listed on the prohibited list.

j.  Investigation: Where Zomentum becomes aware of and/or received any notice from the Payment Service Provider of a potential exposure to a fine from the Scheme Owners related to your acts or omissions, You shall, on request provide all reasonable co-operation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Zomentum in such situation. You shall on demand fully indemnify, defend and hold Zomentum Parties and the Payment Service Provider harmless from any fines applied by the Scheme Owners and any claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your breach of these Terms of Service or your breach of the terms of any agreement entered between You and the Payment Service Provider. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

k. Payment Service Charges: The pricing and other commercial considerations for the use of the Payment Services shall be notified to You by Zomentum. These terms of payment are subject to change at Zomentum’s sole discretion. Zomentum shall invoice You for the use of the Payment Services in which reflect the corresponding fees deducted by Payment Service Provider, in accordance with the terms agreed between us. You shall indemnify, defend and hold harmless the Zomentum Parties and the Payment Service Provider against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to any taxes or levies due on any of your products or services. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.

The Payment Service Provider shall settle the funds received from the Scheme Owner or a financial institution authorized by a Scheme Owner, directly into your account, subject to deduction of the fees payable by You for the Payments Services. You hereby authorize Zomentum to instruct the Payment Service Provider to withhold such amounts. To the extent that the Payment Service Provider charges Zomentum for chargebacks and refunds to your end customer processed by the Payment Service Provider, and (as far as applicable) Scheme Owner fines caused by You, Zomentum shall charge You for the same.

l.  Settlement Flow: The process for the settlement of funds by the Payment Service Provider is more fully set forth by Zomentum (“Settlement Flow”). Zomentum will not be liable to you or any third party whatsoever for any delay or non-compliance with the Settlement Flow by the Payment Service Provider, Scheme Owner, intermediary banks or any other party.

m.  Deposit: If required by Zomentum, You shall deposit a sum of funds up to the amount and at the frequency specified by Zomentum from time to time.

n. Chargeback: You will at all times be responsible and liable for any chargeback initiated by your end users or customer. Zomentum has the right to set off chargeback against any outstanding amounts payable to You by Zomentum or charge You for this via your credit card on file. Zomentum will also charge administration fees for chargeback. You can find these fees on our website.

o. Refund: You will be responsible for addressing any refund claims by your end user or customer. Zomentum has the right to set off any refunds against any outstanding amounts payable to You by Zomentum or charge You for this via your credit card on file. Zomentum will also charge administration fees for refunds. You can find these fees on our website.

p. Currency Conversion: As standard and where supported, the Payment Service Provider will process Transactions and settle funds in the currency in which the Transaction was submitted for processing, provided You make a bank account available in the relevant currency to enable settlement in such currency.

q. Termination: You can terminate the Payment Services by giving Zomentum a one month notice in writing (email Us at support@zomentum.com). 

1. Zomentum has the right to terminate Your Payment Services if You go insolvent or are about to. 
2. Zomentum also may terminate Your Payment Services if Your use of our Payment Service might be of risk to Zomentum. 
3. Zomentum also may terminate Your Payment Services if You are in material breach of this agreement and fail to remedy that breach within 28 days of You being notified of the breach.
4. Zomentum also may terminate Your Payment Services if You fail to complete verification of Your business

o. Miscellaneous: The terms of Section 3 (Privacy Policy and Data Protection Agreement), Section 7 (Cloud Offerings) and Section 14 (Disputes between Zomentum Service Users and Cloud Offerings) of the Terms of Service shall not apply to the Payment Services.