Terms of Service
1. General provisions
1. Momentum Tools is the business line and the trade name of the company Momentum Tools BV, a company created under the law of Belgium, with principal place of business at Kroonwinningstraat 113, 3500 Hasselt, Belgium, with enterprise number 0555.782.383 and VAT number BE0555.782.383 (“Momentum Tools, “we”, “us”). We provide online software-as-a-service (SaaS) applications, enabling professional users and consumers to make backups of their files and data processed under certain cloud applications supported by us, and providing the necessary storage space in the cloud in order to store backed-up data. These applications are referred to as our “Products” and the services provided by us as “Services”.
2. Our Products and Services are only available for cloud applications that are currently supported by our Products and Services. Please refer to our website in order to learn about these applications and the applications that we may support in the future.
3. You must register in order to obtain an account. The registration requires an explicit acceptance of our terms and conditions, set forth herein (the “Terms”). If you subscribe to our Products, we urge you to read these Terms carefully because you will de deemed to have accepted these Terms.
4. When you register and subscribe to our Products and Services, you will be bound by a subscription contract with us that governs your use of our Products and Services (the “Agreement”). Further below, we refer to a “Party” and “the Parties” as we and you, being a party to the Agreement.
5. We are entitled to modify or adapt these Terms at all time on the basis of any valid reason to do so, including a changed business environment or changed business policies. The fact that these Terms are modified will be published on our website (https://momentumtools.io) and will be notified by e-mail to our registered users. Our updated Terms can be downloaded from our website. Modified Terms enter into force 5 calendar days after such notification, unless urgency requires a sooner application. If you continue to use our Products and Services, you automatically accept the modified Terms. If you or your company usually apply general terms and conditions for sale or purchase transactions, such terms and conditions will not apply to your use of our Products and Services.
2. Right to access and use
1.Subject to these Terms, we hereby grant you a limited, non-exclusive and non-transferable right during the applicable Service Term to access the subscribed Products in object code form and to use these Products solely for your internal purposes.
3. Account registration
1.You must create an account in order to be able to use our Products and Services. When you register, you declare explicitly that you agree to these Terms as an individual or as an authorized representative of your company. In order to open an account you must be at least 18 years old.
2.In the course of the registration process you will need to connect with the account of your cloud app and authorize Momentum Tools to have access to your account. Such authentication & authorization data are not transferable. You must keep such authentication data confidential and avoid any risk of disclosure to third parties. In case of breach of confidentiality, you must notify us immediately and act in accordance with our instructions. Any actions performed through your account will be deemed performed by you and you may be held liable for such actions.
3.You may request us to block the authentication means. We will also be entitled to block at all times the access to our Products and Services if we are aware or reasonably suspect any unauthorized access or use.
4. Subscription and Service Term
1.The Agreement commences when you subscribe to the service plan of your choice as set forth on your subscriptions page. Our Agreement will remain in effect for the agreed Service Term, which will be automatically renewed for an equal term unless either Party terminates the subscription by notice. You may terminate or downgrade any subscription at any time from within your subscriptions page. Such termination or downgrade will apply after the expiration of the current Service Term. We may discontinue the Agreement at any time, which will enter into effect after the expiration of the current term, but always with a notice period of minimum sixty (60) days, unless in the case of a termination for cause as stated in clause 19.
2.Any renewal or extension of use after a trial version or promotional subscription will occur as a paid subscription in accordance with our price plan in effect at the time of the renewal or extension.
3.Consumers who subscribe to our Products and Services cannot invoke a right to withdraw the subscription during a reflection period, since our Agreement is performed immediately after the subscription.
5. Authorized users
1.Our Products and Services shall be used solely by you or the users authorized by you, which are authorized in accordance with the subscribed service plan. You will cause all authorized users to comply with your obligations under these Terms and you shall be responsible for any noncompliance by any authorized user.
6. Fees and Price
1.The price plans are listed on the subscriptions page, and are due and payable monthly or annually according to the chosen plan. The payment methods accepted by us are indicated on the subscriptions page. Unless indicated otherwise, all fees are exclusive of value-added or other taxes. You agree to pay on or before their due date all taxes, duties and charges which arise out of or in connection with the Agreement.
2.In the event of any overdue payments, we reserve the right to suspend, downgrade or terminate your account and your access to our Products and Services.
3. In the event that you reach the storage limit of your chosen storage plan, you are allowed to upgrade your existing storage plan to a subsequent tier or to subscribe to a custom storage plan, in accordance with our Upgrade Policy.
4.Paid fees are non-refundable.
5.We reserve the right to modify the applicable price plans at any time, for any valid reason, taking into consideration the business environment, technical evolution, adaptations to our business strategy. We will provide notice of any such change at least thirty (30) days before its effective application. Such changes will be effective when your current Service Term expires and your next payment is due after the notice of the change. If your current Service Term expires before thirty (30) days will have passed after said notice, the price change will not enter into effect for the first renewal, but will apply to the following renewal. If you do not agree with the proposed price change, you may terminate or downgrade your subscription during the notice period from within your subscriptions page.
7. Suspension of Services
1.We will be entitled to deny any access to our Products and Services, and to suspend our Services, if you or your authorized users materially or repeatedly breach any provision of these Terms. Unless we reasonably believe that we are entitled to act urgently, in view of the circumstances, we will provide a notice of default by e-mail before we undertake such action. Without limitation, such circumstances may be considered when we may incur legal liability caused by your actions, when the security of our Services or Products is at risk, or when other users’ ability to access and use our Products or Services may be disrupted.
8. Warranties and disclaimers
1.We warrant that, during the term of our Agreement, we will provide our Services using a reasonable level of skill and care and that our Products and Services will substantially conform to any specifications contained in our documentation, which may be provided in any form. Our sole responsibility under this limited warranty shall be to use reasonable efforts to correct or replace the Products or Services which fail to conform to such limited warranty.
2.We shall have no liability under such limited warranty if: (a) you or any authorized user or third party modifies any part of our Products or Services; (b) you fail to give us timely notice of the claimed breach of warranty; c) the failure to conform is caused in whole or part by third parties, other than us, or by products, equipment, software, services, infrastructure or environments not supplied by us; (d) you use our Products or Services in any way that is not in conformity with our Terms and/or documentation.
3.You acknowledge that you are responsible for your connections that are necessary to make use of our Services, that online services are not guaranteed to be uninterrupted nor error-free, and that such services rely on a multitude of services and factors that are not under our control. Furthermore, you acknowledge that our Services depend on applications of third parties that may be modified by such third parties, and that certain errors may occur in case of such modifications.
4.Except as otherwise expressly stated, the above warranties are the only warranties given by us with respect to our Services and Products, which are otherwise provided on an as-is and as-available basis. We, and our suppliers, licensors, and distributors disclaim all other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
9. Modifications to our Services or Products
1.In an evolutive environment, we are constantly changing and improving our Products and Services. We may make performance or security improvements, change functionalities or features, adapt our Services or Products in order to be compatible with products or services that we depend on, or make changes to comply with legal obligations or to prevent illegal activities on, or abuse of, the systems used by our Services. We will provide notice of material changes to our Products and Services that we reasonably believe will adversely impact your usage. However, it may occur that we will need to make urgent changes to our Services or Products without giving notice. These will be limited to instances where we need to take action to ensure the security and operability of the Service, prevent abuse or where we must act to meet legal requirements or imposed standards. If you do not agree with any changes, you are entitled to terminate the Agreement as stated in clause 4.
10. Suspension for reasons of maintenance or security
1.We reserve the right to suspend our Services for certain reasons including maintenance, adjustments, improvements or upgrades to the Services or Products, as well as reasons of security. We shall arrange to our best efforts to operate such activities outside office hours and shall notify you in good time of any planned outage, unless urgent circumstances force us to act immediately. We will never be liable for any such actions, which are undertaken in the best interest of our users.
11. Acceptable use
1.Without prejudice to any other provision of these Terms, you are not allowed to:
- upload, transfer or post any content that is false or misleading, defamatory, illegal or otherwise harmful to other users or third parties;
- distribute computer viruses or any other form of harmful code;
- try to gain unauthorized access to our systems, undertake hacker attacks, try to circumvent any security provisions or try to interfere in any other way with our services and communications;
- copy, analyse, re-engineer or modify the software code that is used for the performance of our Services.
2.If you, or any authorized user, acts in violation of one or more of the aforementioned provisions, you will be obliged to follow the instructions given by us in this respect. If files or data that are stored using our Services are unlawful, we will be entitled to remove these files or data with immediate effect and to destroy these without prior notice. We shall in no event be liable for any damage arising from such actions.
12. Your files and data
1.You retain sole and exclusive ownership of all files and data that are transferred and stored through our Services.
2.We will have the right to use and disclose your files and data to: (a) provide our Services under our Agreement; (b) monitor your use of our Services for security and other internal business purposes; (c) enforce the terms of our Agreement.
4.Any decision by you to transfer and disclose personal data as part of backed-up data is entirely your decision, and you will respect the applicable legislation in relation to the protection of personal data, in particular the GDPR Regulation 2016/679. To that end, you agree to the terms and conditions of the Momentum Tools data processing addendum, which shall be considered an annex to these Terms and is available at [link].
13. Intellectual property
1.We, and our licensors and suppliers, are the sole owners of our applications, documentation in any form and the know-how incorporated in our Products and Services, and of all copyright, trade secret, patent, trademark and other intellectual property rights incorporated or used therein. No Agreement provides you or any authorized user with title to or ownership of any of such Products, copies thereof or intellectual property rights.
1.We warrant that our Products and Services are not counterfeiting of any element, work or creation of a third party. If one or more of our Products or Services is the basis of any action, claim, or opposition from a third party claiming an adverse intellectual property right, or opposing to the exercise of any rights granted to you on any ground, we will defend you, provided that the alleged violation does not result from modifications or additions made by you, or from any use that is not allowed by us.
2.If one or more Products or Services is judged, or alleged, to be counterfeiting or a violation of any third party's rights, we shall, at our choice: (1) either provide another element having similar functionalities and performances, (2) either obtain the right to continue using and exploiting the concerned Product or Service, (3) or to reimburse the price received for the relevant Product or Service.
1.Each Party agrees that any non-public information, data, materials or know-how, including without limitation, prices, fees, methods, software, documentation, processes, techniques, which may be supplied by one Party to the other Party in connection with the Agreement, which, by its nature, would be considered by a reasonable person to be confidential (“Confidential Information”), are confidential and constitute valuable assets of the disclosing Party.
2.During the term of the Agreement and for five (5) years thereafter, each Party agrees to use the Confidential Information only for the purposes specifically authorized in these Terms, to hold such Confidential Information in strict confidence, and not to disclose any of the Confidential Information to any third party except as necessary to provide the Services or as otherwise contemplated under the Agreement. Each Party agrees to limit access to Confidential Information to those employees and contractors whose use of or access thereto is necessary for the authorized use of the Confidential Information under the Agreement.
3.The obligations of non-disclosure set forth above shall not apply to the extent that a Party is legally required to produce Confidential Information pursuant to a subpoena or other legal process or order of a court of competent jurisdiction, provided that such Party provides prompt written notice to the other Party of such process or order and produces only that portion of the applicable Confidential Information legally required under such process or order after the other Party has had an opportunity to challenge such process or order.
1.We, our suppliers, licensors and distributors, do not accept any liability for:
- Losses that are not caused by our breach of these Terms;
- Any loss or damage that was not, at the time of your subscription to our relevant Product or Service, a reasonably foreseeable consequence of a breach of the Terms by us;
- Any indirect and consequential damage, including without limitation, commercial damage, moral damage, loss of good standing or goodwill, lost profits or revenues, loss of expected savings or opportunities, loss of data, claims of third parties;
- Losses that could reasonably have been prevented or mitigated by you;
- Losses caused by circumstances that were not notified to us within a short period of time after their occurrence;
- Losses caused by the infrastructure, goods or services provided by third parties.
2.In case we would be held liable for any damage caused by third parties acting as our supplier, notwithstanding the above provisions, the terms and conditions of such third party will be applicable. You may request us to provide you with such terms and conditions.
3.The total liability of Momentum Tools, and its suppliers and distributors, for any claims under these Terms, including for any implied warranties, is in the aggregate limited to the total amount that you paid to us to use the Services.
4.You and your authorized users determine which files and data are transferred and stored using our Products and Services. We have no knowledge of these data and shall not supervise or control such data. Therefore you remain responsible for the transferred data. You shall indemnify us against any claim from third parties against us insofar such claim is based on the use that you or your authorized users make of our Services.
5.Nothing in these Terms is intended to exclude or limit the liability of any Party for death or personal injury, fraud, fraudulent misrepresentation or any liability that cannot be excluded by law. In the latter case, the liability can still be limited up to a maximum amount that will be considered reasonable, which may be decided by court if necessary.
6.You acknowledge that the price of our Products and Services is impacted by the financial risk that we undertake, and that the present clause is a reflection thereof.
17. Force Majeure
1.We will not be liable for any failure to perform our obligations or for any delay in such performance, to the extent that such failure or delay is due to causes beyond our reasonable control (“Force Majeure”), including, but not limited to, acts of God, government actions, fire, general strikes, civil disturbances, acts of terror, transportation interruptions, interruptions of power or communications, natural or supervening disasters or epidemic disease.
2.The occurrence of a Force Majeure event will not as such operate to terminate our Agreement, but in the event that the non-performance as a result of such Force Majeure continues in excess of thirty (30) days, each Party may terminate the Agreement upon the giving of thirty (30) days notice in writing to the other Party.
1.We provide standard support services (the “Support Services”) as described in the then-current Support Policy.
19. Termination for cause
1.A Party may terminate the Agreement for cause (1) upon thirty (30) days written notice to the other Party of a material or repeated breach if such breach remains uncured at the expiration of such period, or (2) insofar authorized by applicable law, immediately on written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding in relation to insolvency, receivership, restructuring, liquidation or assignment for the benefit of creditors or undergoes any similar procedure in consequence of debt.
20. Effect of termination
1.Upon the effective date of termination of the Agreement, all use rights hereunder shall terminate. If we decide to terminate the Agreement, we will give you at least 60 days’ prior notice. During this notice period, you will have the opportunity to migrate your files out of the backup that is stored by us, and we will give the relevant instructions upon your request. After such 60 days period, you will no longer be able to access the stored files and data and we will be entitled to delete all files and data.
2.If you decide to terminate the Agreement, you will be able to migrate such files and data before the effective date of termination.
3.In case of termination for cause as stated in clause 19, we will decide whether or not you should have the opportunity to migrate your files, taking into consideration the circumstances of the case.
21. Independent contractors
1.The Parties are independent contractors. Our Agreement does not create a partnership, franchise, joint venture, agency, or employment relationship between the Parties.
1.If any provision of these Terms is held by a court of competent jurisdiction too be invalid, illegal or unenforceable, it shall, insofar it is severable from the remainder of these Terms, be deemed replaced by a valid and enforceable provision that respects the intention of the unenforceable provision insofar as possible.
1.Neither Party may assign any of rights or obligations hereunder, without the other Party’s prior written consent, which will not be unreasonably withheld, provided, however, either Party may assign the Agreement in its entirety without the other Party’s consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
24. Applicable law
1.These Terms and the contractual relationship between us and you, are governed by Belgian law, without prejudice to the right of any user acting as a consumer with a permanent residence in the EU to apply laws of consumer protection that are valid in his country of residence. Legal instruments of international private law, such as the Vienna Convention on the international sale of goods, are not applicable.
1. The courts of Leuven (Louvain), Belgium shall have exclusive jurisdiction for all disputes arising out of or in connection with these Terms and the use of Momentum Tools, without prejudice to any legal provisions that are applicable to consumers.
2. Furthermore, in case of a dispute between a consumer with permanent residence in a EU member state, there is an option for online dispute resolution – see the website for online dispute resolution at http://ec.europa.eu/odr.