Created on 21 November, 2022 | Legal documents | 3,235 views | 21 minutes read

fomomarketing.io Terms and Conditions

Welcome to fomomarketing.io, a cloud-based Social Proof app for websites (the “Platform” or “Service”). These Terms of Service (the “Terms”) constitute a legally binding agreement between you (the “Customer”, “you” or “your”) and Ken Dobrunz Consulting (the “Company”, “we”, “us”, “our” etc.), and govern your use of the Company’s services which are available via the Platform.

We may change these Terms from time to time. The revised Terms shall become effective as soon as they are posted on fomomarketing.io.com. It is your responsibility to review these Terms occasionally. You agree that your continued use of the Service constitutes your consent to the new or revised set of Terms. If the Service has your e-mail address on record (subject to our privacy policy), we may use this to inform you of changes to these Terms in advance.

Your use of the Service signifies your understanding and agreement to be bound to these Terms and to comply with the applicable law, rules, and regulations. If you do not agree to these Terms, please do not register and use the Service.

You may not register and use the Service if you are under the age of 13, if you are not qualified to create a binding legal agreement, or if the use of the Service is prohibited by the law applicable to you.

If you are accepting these Terms on behalf of your employer or another entity you are affiliated with (the “Administrator”), you represent and warrant that: (i) you have full legal authority to bind the Administrator to these Terms; and (ii) you agree, on behalf of the party that you represent, to these Terms. In such case, any reference to “you” shall refer to both you and to the Administrator. If you don’t have the legal authority to bind the applicable Administrator, you may not accept these Terms and the Administrator may not use the Service.

1. The Service

We may change, suspend or discontinue any aspect of the Service, at any time, including the availability of any part of it. We may offer alternative and/or additional services to certain users, that may not be offered to general users. We may also modify, limit, deny or impose limits on certain features and services or restrict access to parts or all of the Service. We may terminate your access for any or no reason at any time by ceasing to provide the Service to you. We will not have any liability whatsoever to you for any such termination.

You agree to use the Service solely for your personal use. In any event, however, you agree not to transfer or resell the Service, in whole or in part, to any third party, or allow unauthorized access to the Service, by any third party. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Service for any purpose.

You agree not to access (or attempt to access) the Service by any means other than through the interface provided by us. We take privacy and the protection of information seriously. Please carefully review our Privacy Policy which explains how we collect information and how we use it. Our Privacy Policy is incorporated into these Terms and forms an integral part of it.

We are not, in any way, responsible for the configurations that you create using the Service, and their results and implications on your applications, software, systems, and hardware, and the applications, software, systems, and hardware of your users.

We are not responsible for any delays, delivery failures, security failures, or any other loss or damage resulting from the storage or transfer of data over communications networks and facilities, including the internet, and to the performance of any third-party communication or storage provider used by you or by the Company. You hereby acknowledge that the use of the Service may be subject to interruptions, limitations, delays, and other risks associated with the use of such storage and communications facilities.

2. Registration

In order to use the Service, you must open an account (the “Account”) and register using your e-mail address, and create a unique password.

You shall maintain your Account, and shall be exclusively responsible for safeguarding and maintaining the confidentiality of the password. You guarantee that any information you provide in connection with your registration is current, complete, and accurate.

You may not permit any third party to use your Account and you may not grant access to any third party to your Account. You are solely responsible for the conduct of any party that uses your Account, whether or not authorized by you. You may use the “Team” feature to grant access to other Individuals.

3. Subscription and Payments

The Service is provided on a subscription basis and shall automatically renew for additional periods equal to the original initial term specified in your Account, unless either party gives the other notice of non-renewal before the end of the relevant subscription term.

If you elected not to renew the Service, you should send such non-renewal request to support@fomomarketing.io or through our designated web interface. We will confirm the non-renewal request when it is processed. If you do not receive a confirmation, please contact us as soon as possible. The Fees (as such term defined below) during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 14 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

If you continue to access or use the Service past any subscription term renewal date, you shall be deemed to have renewed your subscription to the Service for the corresponding renewal period and shall be liable to pay all applicable Fees in connection with such renewal period.

In consideration for the Service, you shall pay us all fees designated in the Account (the “Fees”). Except as otherwise specified, Fees are based on the number of monthly unique visitors.

You agree to promptly notify us of any changes to your billing information. In case you pay with credit card, you authorize us to charge your credit card on a recurring basis for all applicable Fees and to store your credit card information on our servers and/or on third parties’ payment processing providers servers. All amounts are payable in advanced, on the date of the invoice. Your payment may be processed through a third party payment processing service, and additional terms may apply to such payments. We currently engage a third party, for online payment processing services, and in addition to these Terms, you agree that such third party terms and conditions shall apply to your online payments of the Fees. We reserve the right to use other third party payment processing services for such purposes in the future.

Should you exceed the number of unique visitors allowed for in your purchased plan during a single billing cycle, the Service may be withdrawn until the start of the next billing cycle.

Given the nature of digital products, we do not refund amounts you already paid unless it is legally required. We will assess refund requests on their merits, considering the digital nature of the Service. There is generally no obligation to provide a refund or credit in situations like the following:

1. you have changed your mind about your subscription
2. you purchased a plan by mistake
3. you forgot to cancel your subscription before the start of the next billing cycle
4. you have not used the Service; or
5. you ask for goodwill

4. Intellectual Property and License

Subject to these Terms, We grant you a limited, non-transferable, non-exclusive, non-assignable, non-sub-licensable personal license to access and use the Service for non-commercial use, for as long as your Account is active, provided that you are in full compliance with these Terms. Unless explicitly stated, no other rights or licenses, expressed or implied, are granted to you by us with respect to the Service, including any proprietary information, patent, copyright, trademark, trade secret, or other intellectual property right, whether registered or not.

All right, title and interest in the Service and the Platform and any materials provided by our Website and the Service to you, and any development or derivative thereof, including without limitation, all copyrights, trade secrets, and other intellectual property rights pertaining thereto shall remain vested in the Company and its licensors and these Terms do not convey to you any interest in or to the Service or the Platform, except for a limited right of use in accordance with these Terms.

All information, such as photos, texts, scripts, designs, graphics, logos, audios, videos, songs, interactive features, trademarks, service marks, trade names, data files, computer software and other content (as well as advertisements and sponsored content within the Service) (together, the “Content”) used, displayed, included, incorporated, uploaded, posted or published by the Company or other third parties, as part of the Service (other than Client Content (as such term is defined below)), are the sole property of the Company and/or its licensors (“Company’s Content”), subject to copyright and other intellectual property rights under applicable laws, and you may not use, download, distribute and/or copy them, in whole or in part, without the prior written permission of the Company or any relevant third party. For the sake of clarity, you may not copy, reproduce, modify, publicly display, publicly perform, publish, distribute sell, license, rent, transfer, reproduce, create derivative works based on, or exploit in any way, the Company’s Content or any part thereof.

If you provide feedback or suggestions regarding the Service, such feedback and suggestions shall become the property of the Company and you acknowledge that the Company may use them at its discretion, without any obligation to you.

The Service may contain links to other third parties’ websites, applications or features, or referrals to certain third parties’ products or services that are not owned or controlled by the Company. The Company has no control over them. If you choose to visit such third party’s websites applications or features, or use their products or services, please be aware that such third party’s own terms of use and privacy policy will apply and govern your activities and any information you disclose while interacting with such third parties. The Company does not make any representation or warranty whatsoever regarding such third party websites, applications, features, services, products or content. The Company does not endorse and cannot ensure that you will be satisfied with any content, products or services that you accessed, purchased or download from such other third parties, and is not responsible or liable in any manner for your interaction with those parties.

5. Third Party Materials

The Service may contain software or other materials provided by third parties (including “open source” software) (“Third Party Materials”). Use of such Third Party Materials shall be governed by the license agreements specific to each such Third Party Material, provided, however, that in addition to any terms and conditions of any third party software license as set forth in the abovementioned webpage, and without derogating from such terms, the disclaimer of warranty and limitation of liability set forth herein shall apply to all software. If the Service contains any software provided by third parties not noted in the abovementioned webpage, the restrictions contained in these Terms shall apply to all such third party software providers and third party software as if they were the Company and the Service, respectively. By using the Service, you agree to the licenses that apply to any Third Party Materials.

6. Anonymous Information

We may collect, use and publish Anonymous Information (defined below), and disclose it to its third party service providers, inter alia to provide, develop improve and publicize the Service. You hereby grant us full access to such Anonymous Information. “Anonymous Information” means information about use of the Service or the Platform which does not enable identification of an individual, such as aggregated and analytics information about the use of the Service.

7. Customer Data

Some parts of the product may allow the Service to collect information from your customers, website visitors and end-users (“Customer Data”).

By using the Service, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for the correct operation of the Service. You acknowledge and agree that the Company may disclose Customer Data if required to do so by law or protect the rights, property, or personal safety of the Company, the Service, its users, and the public. The Company shall have no right to sublicense or resell Customer Data, except that you agree that the Company analyses and use data derived from Customer Data for purposes of analysing, enhancing, or marketing the Service and any related services. In the event such data is publicly disclosed in marketing campaigns or in other operations, such data will be aggregated or anonymised. You further agree that the Company will have the right, both during and after the term of this Agreement, to continue using such aggregated and anonymised data.

To the extent we process any Customer Data and the Customer Personal Data relates to individuals located in the EEA or are established in the EEA, the parties agree to process such data in accordance with the DPA.

You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.

8. Client Content

While using the Service, you may provide certain content to us, such as images and texts (“Client Content”). You shall be solely responsible and liable for any Client Content and for any damage or loss resulting therefrom, and shall comply in all respects with any and all applicable laws, regulations and industry guidelines applicable to the Client Content. We shall have no right in the Client Content, except for the minimal rights required in order to facilitate the use of the Service and shall not use the Client Content for any other purpose.

9. Prohibited Use

You may not, and may not permit or aid others to:

1. use the Service for any purpose other than the purpose explicitly set forth in these Terms;
2. copy, alter, translate, emulate, create derivative works based on, or reproduce the Service;
3. modify, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms;
4. reverse engineer, de-compile, modify, revise or disassemble the Service or any part thereof, or extract source code from the object code of the Service, or access the Service in order to build a competing product or service;
5. bypass any measures we may use to prevent or restrict access to the Service, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Service;
6. access the Service via any means other than through the interface provided by us, or via automated means, including by crawling, scraping, caching or otherwise (except as may be the result of standard search engine protocols or technologies used by a search engine with our express consent);
7. use the Service in any manner that is illegal or not authorized by these Terms;
8. take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our service providers’) infrastructure;
9. infringe your organization’s internal policies, guidelines, and procedures;
10. provide any information, including any e-mail addresses or telephone number of friends or team members, if you do not own or have permission to provide us with such information;
11. use the Service (a) in a way that infringes, violates, misuses or otherwise interferes with any copyright, patent, trademark, trade secret or other right of any third party; (b) in a way that is defamatory, abusive, harassing, threatening, racist, or constitutes an invasion of a right of privacy of another person, or is otherwise offensive, violent, vulgar, obscene, or otherwise harms or can reasonably be expected to harm any person or entity; (c) in a way that is illegal or encourages or advocates illegal activity; (d) to post or transmit any communication or solicitation designed or intended to obtain password, account, or private information from any third party; (e) to introduce viruses, trojan horses, worms, or any other computer programs designed to interrupt, destroy, or limit the functionality of the Service or any system, computer software, hardware or telecommunications equipment; (f) to create a false identity or impersonates another person; (g) to “stalk” or otherwise harass another or in a way that is antisocial, disruptive, or destructive, including “flaming”, “spamming”, “flooding”, “trolling”, and “griefing” as such terms are commonly understood and used on the internet; (h) to violate any applicable local, state, national or international law or regulation; or (i) in relation to crimes such as theft and fraud.

10. Termination

We may terminate or suspend your license, Account and access to the Service (or any part thereof) immediately, without prior notice or liability, if you breach, or fail to comply with, any of the provisions contained in these Terms. All the provisions of these Terms which by their nature should survive termination (including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve you from any obligation arising or accruing prior to such termination or limit any liability which you otherwise may have to the Company.

Without derogating from our termination rights above, we may decide to temporarily suspend your Account (including any access thereto) and/or the Service, in the following events:

1. we believe, in our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability by us or any third party;
2. we believe, in our sole discretion, that you or any third party, are using the Service in breach of these Terms or applicable laws;
3. the payment obligations under your Account, in accordance with these Terms, are or are likely to become, overdue.

The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable law.

11. Limitation of Liability

We accept no responsibility or liability in contract, tort, negligence, breach of statutory duty or otherwise for any inconvenience, loss, damage, costs or expenses whatsoever incurred or suffered by anyone as a result of any information contained in or provided by the Service (unless such liability may not be excluded or limited as a matter of law, and in such case, our liability will be limited to the maximum extent permitted by law).

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE 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 AS TO THE OPERATION OF THE SERVICE, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THE SERVICE. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THE TERMS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR (OR YOU USERS’) COMPUTER SYSTEM OR ELECTRONIC DEVICE OR LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE USE OF THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY AND ITS AFFILIATES, OFFICERS, AGENTS, MEMBERS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. YOU SPECIFICALLY AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE SERVICE, OR FOR ANY INFRINGEMENT OR VIOLATION OF RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN SUCH JURISDICTIONS OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF US, AND OUR SUPPLIERS AND DISTRIBUTORS, FOR ALL CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE HIGHER OF (I) THE AMOUNT YOU PAID US TO USE THE SERVICE IN THE SIX MONTHS PRECEDING THE CAUSE OF CLAIM, OR (II) US$ 25.

You hereby represent and warrant to us, that any users of your services are and will be bound by an exemption and limitation of liability toward us at the same scope as provided herein. If you are dissatisfied with any portion of the Service, or with any of these terms of use, your sole and exclusive remedy is to discontinue using this Service.

12. Indemnification

Your use of the Service constitutes your agreement to defend, indemnify, and hold harmless the Company and its affiliated entities, and their employees, contractors, officers, directors, agents and representatives, from any claim or demand, including reasonable attorneys’ fees, arising out of your use or misuse of the Service or the use or misuse of contents of the Service by a third party (even while using your password), including, without limitation, any claim by your own users. This Indemnification section of the Terms survives termination of your account with the Service or of your use of the Service.

13. Applicable Laws and Jurisdiction

You agree that the laws of Germany, excluding its conflicts-of-law rules, shall govern these Terms. The Convention on International Sale of Goods will not apply. Please note that your use of the Service may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with the Company or relating in any way to your use of the Service resides solely in the competent courts in the town of Paderborn, Germany. Where these laws prevent the application of any part of these Terms, such laws will prevail to the extent mandated by them.

14. Force Majeure

Without derogating from any other provision limiting our responsibilities, we will not have any liability if we are prevented from or delayed in performing the Service, or otherwise 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, 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 (“Force Majeure Event”). If a Force Majeure Event prevents, hinders or delays our performance of the Service for a continuous period of more than thirty (30) days, you, as your sole remedy, may terminate the Service immediately by a written notice.

15. Parties’ Relationship

These Terms do not, and shall not be construed, to create a joint venture, agency relationship, employment or partnership between us. These Terms do not confer any rights on any person or party other than you and us.

16. Definition of "Lifetime"

Lifetime specifies the life of the offered service and may be changed or removed at any time. The Lifespan of the User or the Company is in no relation to the service lifetime.

We guarantee a minimum service lifetime of at least 2 years and offer a partially money-back guarantee for anything less than 2 years related to the time used.

17. Miscellaneous

Correspondence should be sent to support@fomomarketing.io.

You agree to report any copyright violations to the Company as soon as you become aware of them. In the event you have a claim of copyright infringement with respect to material that is contained in the Service, please notify us as soon as possible at: support@fomomarketing.io.

If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. We may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign, transfer or sublicense these Terms or any or all of your rights or obligations under these Terms without our express prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

This is the entire agreement between you and the Company relating to the subject matter herein. You may not modify these Terms. These Terms will inure to the benefit of our successors, assigns and licensees. Without limitation, you agree that a printed version of these Terms and of any notice recorded in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.