These Terms of Service (“Terms”) form a contract between the subscriber of Momos’ Services (“Customer”) and Merchant Management Solutions PTE. LTD. ( “Momos”) and govern the Customer’s access and use of Our Services. By accessing and/or using Our Services:
- b. The individual accepting these Terms on behalf of the Customer warrants that they are aged 18 years or above and are competent to enter into this agreement and that they possess the requisite authority to bind the Customer, its affiliates or its groups to these Terms.
Customer and Momos are individually referred to as “Party” and collectively as “Parties”.
- 1.1. Account means any accounts or instances created by or on Customer’s behalf for access and use of the Services.
- 1.2. Ad/Marketing/Promotion Spend means the amount the Customer spends on the marketing or promotion of their restaurant, including discount coupons’ amount or advertisement expenses per month.
- 1.3. API means the application programming interfaces developed, enabled by or licensed to Momos that permits certain functionalities provided by the Services.
- 1.4. Customer Data means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and end-users, provided by Customer or provided or obtained on Customer’s behalf basis which the Service(s) will be provided and/or submitted to the Services by Customer through Customer’s Account in connection with Customer’ use of the Services.
- 1.5. Confidential Information means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third-party without a breach of such third-party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
- 1.6. Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by Momos to Customer or Customer’s Users through the Services or otherwise.
- 1.7. Order Form means any service order form specifying the Services provided, particular features and functionalities in the Services that the Customer wishes to avail, and the Term for provision of the Services agreed to by the Parties.
- 1.8. Personal Data means any information relating to an identified or identifiable natural person that is submitted by the Customer to the Services as part of Customer Data.
- 1.10. Process means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- 1.11. Services means the cloud-based proprietary platform of Momos that enables restaurant businesses to manage and grow their business through content management, reputation management, digital marketing management, and data and analytics tools.
- 1.12. Software means software provided by Momos (either by download or access through the internet) that allows Customer to use any functionality in connection with the Services.
- 1.13. Subscription Charges means all charges associated with Customer’s Account and use of the Services.
- 1.14. Subscription Term the period during which Customer has agreed to subscribe to the Services as specified in the relevant Order Form.
- 1.15. Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services
- 1.16. User means a designated user within the Services including an Account administrator, agents and other designated users.
2. CUSTOMER’S RIGHTS
Subject to Customer’s compliance with these Terms and solely during the Subscription Term, Customer has the limited, non-exclusive, revocable right to access and use the Services for its internal business purposes in accordance with the subscription plan set forth in an Order Form.
3. CUSTOMER OBLIGATIONS
- 3.1. Customer Account: Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.
- 3.2. Acceptable Use: Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than Users in furtherance of its internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (c) use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; or (d) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);
- 3.3. Customer agrees that the Services shall be provided only upon prompt access to the Customer Data being granted by the Customer to Momos.
- 3.4. Customer represents and warrants to Momos that the Customer owns or has the necessary rights to provide the Customer Data to Momos and that doing so does not violate any applicable law, proprietary or privacy rights. Momos shall have no liability for any claims with respect to the Services arising in connection with the unavailability, inaccuracy or insufficiency of Customer Data.
- 4.1. Any enhancements, new features or updates (“Updates”) to the Services are also subject to these Terms and Momos reserves the right to deploy Updates at any time.
- 4.2. The Services may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case Momos shall use commercially reasonable endeavours to notify the Customer in advance.
- 4.3. Notwithstanding anything to the contrary contained elsewhere, Momos shall not be liable for unavailability of the Services caused by circumstances beyond Momos' reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Momos' reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.
5. Intellectual property rights
- 5.1. Except for the rights granted to the Customer under clause 2, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with Momos.
- 5.2. Momos shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from the Customer.
- 5.3. Customer owns the rights to the Customer Data that the Customer provides to Momos. Momos does not claim ownership over such Customer Data, however, by posting or transferring Customer Data to Momos, the Customer grants a royalty-free, non-exclusive license and permission to use the Customer Data generated by Customer solely to provide, maintain and improve the Services.
- 5.4. Momos reserves its rights to re-use any and all techniques and know-how gathered by Momos while providing the Services to the Customer.
- 5.5. All rights not expressly provided to Customer herein are reserved.
6. THIRD-PARTY SERVICES
- 6.1. Customer acknowledges and agrees that Customer’s use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that Momos shall not be liable for Customer’s enablement, access or use of such Third-Party Services, including for processing of Customer Data by such third-party. The Customer should contact that Third-Party Service provider for any issues arising in connection with use of such Third-Party Service.
7. Charges and payments
- 7.1 Subscription Charges: Unless otherwise mentioned in an Order Form, the Subscription Charges are due in full and payable in advance, in accordance with clause 7.2, when Customer subscribes to the Services. The Subscription Charges are specified in the Order Form.
- 7.2. Payment: Customer hereby authorizes Momos or Momos' authorized agents, as applicable, to bill Customer upon Customer’s subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Customer’s payment is due within thirty (30) days of Momos' invoice date.
- 7.3. Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by Customer.
- 7.4. Late Payments/Non-payment of Subscription Charges: Momos will notify Customer if Momos does not receive payment towards the Subscription Charges within the due date for Customer’s Account. Momos must receive payments within a maximum of ten (10) days from the date of Momos' notice. If Momos does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, Momos may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Customer’s access to and use of the Services until Momos receives Customer’s payment towards the Subscription Charges as specified herein and/or; (iii) terminate Customer’s Account.
- 7.5. Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
8. Term, Termination, Suspension
- 8.1. The Subscription Term shall be as set forth in the Order Form.
- 8.2. Termination by Customer: The Customer may terminate their Account and subscription to the Services at any time with thirty (30) days prior written notice, but will remain liable for all Subscription Charges for the Subscription Term. Unless the Customer’s Account and subscription to the Services is terminated, the Customer’s subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at Momos' then prevailing Subscription Charges unless specified otherwise in an Order Form.
- 8.3. Termination and Suspension by Momos: In addition to suspension for late payment or non-payment of Subscription Charges, Momos may suspend Customer’s access to and use of the Customer’s Account or the Services if the Customer is in violation of the terms of these Terms. Momos will notify the Customer of its activities that violate these Terms and provide the Customer with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If the Customer does not cure or cease such activities within the said Cure Period or if Momos believes that Customer’s breach of these Terms cannot be cured, the Customer’s Account shall be terminated immediately.
- 8.4. Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
- 8.5. Effect of Terminating Customer’s Account: Following the termination of Customer’s Account either by Customer or Momos, the Customer may export Customer Data from within the Services within six (6) months of effective termination of the Customer’s Account (“Data Retention Period”), beyond which period Momos may delete all Customer Data. The Customer may reactivate their terminated Account within such Data Retention Period, unless the termination is by Momos.
- 9.1. If the Customer chooses or is provided with a user identification code, login, password or any other information as part of Momos' security procedures, Customer must treat such information as confidential and shall not disclose such information to any third-party other than a User. Momos has the right to disable any user identification code or password, whether chosen by Customer or allocated by Momos, at any time, if in Momos' reasonable opinion, Customer has failed to comply with any of the provisions of these Terms. Momos will not be responsible for any activities, including any attempted or actual access or loss of data occurring under Customer’s Account as a result of Customer’s non-compliance of its obligations under this clause 9.1.
- 9.2. Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information.
10. Data Protection and Privacy
- 10.2. Momos may Process Customer Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at the Customer’s request in connection with support requests.
- 10.3. The Customer acknowledges and agrees that Momos may access or disclose information about the Customer, their Account and their Users in order to comply with the law or respond to lawful requests or legal process, or prevent any infringement of Momos' customers’ or Momos' proprietary rights. Further, at Momos' sole discretion, any suspected fraudulent, abusive, or illegal activity by the Customer may be referred to law enforcement authorities.
- 10.4. Momos shall use appropriate technical and organizational measures to protect the Customer’s Personal Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the data. Momos shall ensure that any person authorized by Momos to Process the Customer’s Personal Data shall protect it in accordance with Momos' confidentiality obligations under these Terms.
- 10.5. Momos shall, without undue delay, notify the Customer of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer’s Personal Data processed by Momos.
- 10.6. Momos may perform analytics on Customer Data to improve, enhance, support and operate the Services and compile statistical reports and record insights into usage patterns. Customer acknowledges that Momos uses Customer Data for the aforementioned purpose in compliance with applicable laws.
- 10.7. Momos shall reasonably assist the Customer, at the Customer’s expense, in meeting the Customer’s obligations under applicable data protection laws.
11. DISCLAIMER OF WARRANTIES
- 11.1. THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
- 11.2. CUSTOMER ACKNOWLEDGES THAT MOMOS DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND MOMOS’ CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
12. LIMITATION OF LIABILITIES
- 12.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EXCEPT PAYMENT OBLIGATIONS OF THE CUSTOMER EVEN IF EITHER PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOMOS’ AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICES, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID FOR THE SERVICES; OR (B) THE CHARGES PAID BY CUSTOMER, FOR THE SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- 13.1. Indemnification by Momos: Subject to Customer’s compliance with these Terms, Momos will indemnify and hold Customer harmless, from and against any claim brought against Customer by a third-party alleging that the Services Customer subscribed to infringes or misappropriates such third-party’s valid patent, copyright, or trademark (an “IP Claim”). Momos shall, at its expense, defend such IP Claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) Customer promptly notifies Momos of the threat or notice of such IP Claim; (b) Momos has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) Customer fully cooperates with Momos in connection therewith. Momos will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Momos; or (iii) the combination, operation or use of the Services with other hardware or software where the Services would not by themselves be infringing. If use of the Services by Customer has become, or in Momos' opinion is likely to become, the subject of any IP Claim, Momos may at its own option and expense (a) procure for Customer the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Momos, terminate Customer’s subscription to the Services and repay Customer, on a pro-rated basis, any Subscription Charges Customer has previously paid Momos for the corresponding unused portion. This clause states Momos' sole, exclusive and entire liability to Customer and constitutes Customer’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services by Customer.
- 13.2. Indemnification by Customer: Customer will indemnify and hold Momos harmless against any claim brought by a third-party against Momos, and its respective employees, officers, directors and agents arising from Customer’s acts or omissions in connection with clause 3 of these Terms provided that (a) Momos promptly notifies Customer of the threat or notice of such a claim, (b) Customer has or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) Momos fully cooperates with Customer in connection therewith. Customer will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of Momos.
- 14.1. Assignment: Customer may not directly or indirectly, assign all or any part of these Terms or its respective rights under these Terms or delegate performance of its respective duties under these Terms without the prior consent, which consent shall not be unreasonably withheld.
- 14.2. Entire Agreement: These Terms together with any supplementary terms, constitute the entire agreement, and supersede any and all prior agreements between the Customer and Momos with regard to the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation the Customer or any entity that the Customer represents provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. In case of a conflict between these Terms and an Order Form, these Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.
- 14.3 Amendment: Momos may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Momos will notify the Customer of any material revisions not less than ten (10) days prior to the effective date of any amendments to these Terms and the Customer’s continued use of the Services following the effective date of any such amendment may be relied upon by Momos as the Customer’s acceptance of any such amendment. The most current version of the Terms can be reviewed at any time by visiting this page.
- 14.4 Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Momos' non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of these Terms.
- 14.5. Relationship of the Parties: The Parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
- 14.6. Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of Momos' agreement with respect to use of the Services by the Customer. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
- 14.7. Notices and Consent to Electronic Communications: All notices to be provided by Momos to Customer under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by Customer on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Customer’s Account. Momos’ address for a notice to Momos in writing by Courier is 10 Anson Road, #22-02 International Plaza, Singapore 079903 with a CC to firstname.lastname@example.org by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
- 14.8. Publicity Rights: Customer hereby grants Momos the right to identify Customer as Momos' customer on Momos’ websites and/or marketing collateral and to include Customer’s use of the Services in case studies.
- 14.9. Governing Law and Dispute Resolution: These Terms shall be governed by the laws of Singapore without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these Terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force.