PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE MOMENTUM SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE MOMENTUM SERVICES.
Supplier may, in its sole discretion, elect to suspend or terminate access to, or use of the Momentum Services to anyone who violates these Terms.
The original language of these Terms is English. Supplier may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
Account : the primary means for accessing and using the Momentum Services, subject to payment of a Fee designated in the selected Plan;
Additional Terms : Provisions applicable to the Client’s use of a particular Feature as indicated by the Supplier in relevant areas of Momentum Services;
Authorization : the set of rights and privileges on the Web Site assigned to a User by a Client;
Beta Service : A Feature or functionality of Momentum Services that is in development or has not been released as a final product which Supplier has made available to Client for testing and evaluation;
Client: a natural or legal person who has accepted these Terms with the Supplier;
Client Data : Files and any other digital data and information, which is subjected to the Momentum Services or otherwise inserted to the System by the Client (including the specific Users, products, persons, and other information associated with the Client);
Content : any data and information available through Momentum Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Feature : A function or set of functions providing a particular capability within Momentum Services as determined by the Supplier;
Fee : regular payment for using the activated Account;
Files : documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the Client;
Guidelines : additional guidelines or rules applicable to specific Features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Momentum Services;
Momentum Materials : the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Momentum Services;
Momentum Services : the Web Site, System, Content, Platform and all content, services and/or products available on or through the Platform;
Better Good, Inc. : Better Good, Inc., d/b/a Momentum, a corporation established under the laws of the State of Delaware, having its principal place of business at 3004 16 th St Ste 301 San Francisco CA 94103;
Plan : various criteria related to the use and functionality of the Momentum Services and on which the Fee is based;
Platform : the Momentum donor stewardship and fundraising management application;
: any particulars, specifications and conditions by which the parties have agreed to deviate
from these Terms;
Supplier : Better Good, Inc. d/b/a Momentum
System : the integrated cloud computing solution for providing the Momentum Services, including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
User : a natural person granted with the Authorization to use the Account on behalf of a Client;
Web Site : the compilation of all web documents (including images, php and html files) made available via https://givemomentum.com or its sub domains or domains with identical names under other top domains and owned by Supplier.
2. Authority to Enter into These Terms with Supplier
The use of the Momentum Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs first:
You may not, without Supplier’s prior written consent, access the Momentum Services (i) for production purposes, (ii) if you are a competitor of Momentum, (iii) to monitor the availability, performance or functionality of the Momentum Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
3. Modifications to Terms
Supplier reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the Momentum Services. Please check these Terms periodically for changes. Your continued use of the Momentum Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the Momentum Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Supplier will be governed by the Terms in effect at the time such dispute arose.
4. Our Responsibilities
4.1. Provision of Momentum Services
Supplier will (a) make the Momentum Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the Momentum Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Momentum Services available 24 hours a day, 7 days a week, except for:
4.2. Protection of Client Data
Supplier will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Supplier personnel except (a) to provide the Momentum Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
Supplier may use service providers to perform the Services. Supplier will make commercially reasonable efforts to ensure that data transfers to service providers meet requirements applicable to Clients’ processing of data and will provide information on such data transfers in these Terms for Client’s consideration.
5. Using the Momentum Services
5.1 Establishing an Account
Certain Features, functions, parts or elements of the Momentum Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
Each Client may have only one Account. If several persons need to use an Account on behalf of Client, Client must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.
If Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Client when using the Account. Supplier is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, Supplier may, in its discretion, request additional information or proof of the person’s credentials. If Supplier is not certain if a User has been granted Authorization, Supplier may, in its sole discretion, prevent such User from accessing the Momentum Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
The Client and any User associated with an Account must provide Supplier with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
5.2 Logging Into an Account
Client shall designate a username and password (“Login Credentials”) to be used to log in to its Account. These Login Credentials must not be used by multiple persons. If Client has designated several Users, each User will select separate Login Credentials. Client and each User are responsible for keeping confidential all login credentials associated with an Account. Client must promptly notify Supplier:
5.3 Termination of Account
Client may terminate these Terms at any time as provided in Section 16.
Supplier shall permanently delete the Account within six months of the effective date of the termination. Account termination does not mean deletion of all Client data, which may be retained for the purposes set forth in Section 4.2 and Section 7.4.
The use of an Account is subject to a Fee. Client Fees shall be determined by mutual written agreement as set forth in an applicable Service Agreement.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
5.5 Changing Plans
Any Client has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Supplier. In such an event, the Client’s credit card on file with the Supplier will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.
Downgrading of the current Plan may cause the loss of Features, functionality, or capacity of the Account, as well as the loss of Client Data.
6.1 Payment Card Authorization
Supplier may seek pre-authorization of Client’s payment card account prior to your purchase of Momentum Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts as prompted, and authorize Supplier to charge all sums described in these Terms to such card account. You agree to provide Supplier updated information regarding your payment card account upon Supplier’s request and any time the information earlier provided is no longer valid.
6.2 Direct Debit Payments
In some markets Supplier may, if Client elects, request that Client complete a direct debit mandate to enable direct debit payments. In such cases Supplier shall comply with all applicable national rules and regulations related to direct debit payments.
We use Stripe, Inc. to process your Direct Debit payments. More information on how Stripe, Inc. processes your personal data and your data protection rights, including your right to object, is available at https://support.stripe.com/search?q=data%20processing.
6.3 Electronic Invoice
If Supplier has not sought pre-authorization of your payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
7. Client data
7.1 Uploading Client Data to Platform
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users) whether posted and/or uploaded by you or made available on or through the Momentum Services by Supplier. By uploading Client Data to the Platform, Client authorizes Supplier to process the Client Data. The Client is responsible for ensuring that:
7.2 No Guarantee of Accuracy
Supplier does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Momentum Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Supplier, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Momentum Services, as well as for any actions taken by the Suppliers or other Clients or Users as a result of such Client Data.
7.3 Unlawful Client Data
You will not use the Momentum Service in any way that violates these Terms or Client Data that in any manner is prohibited by law. Supplier is not obliged to pre-screen, monitor or filter any Client Data or its processing by the Client in order to determine if it is unlawful in nature. However, if the Supplier has reason to believe that the Client is processing unlawful Client Data, or the action of its processing is unlawful by in nature, Supplier has the right to:
If Supplier is presented convincing evidence that the Client Data is not unlawful, Supplier may, at its sole discretion, restore such Client Data, which was removed from the Momentum Services, Account or access to which was restricted.
In addition, in the event the Supplier believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, the Supplier may (but has no obligation), to remove such Client Data at any time with or without notice.
Without limiting the generality of the preceding sentence, Better Good, Inc complies with the Digital Millennium Copyright Act, and will remove Client Data from the Platform upon receipt of a compliant takedown notice.
The Momentum Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Momentum Services where your communications would be subject to such laws. You may not use the Momentum Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
7.4 Compelled Disclosure
Supplier may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide Client with prior notice of the compelled disclosure (to the extent legally permitted) and Client shall provide reasonable assistance, at its cost, if Client wishes to contest the disclosure. If Supplier is compelled by law to disclose Client’s confidential information as part of a civil proceeding to which Supplier is a party, and Client is not contesting the disclosure, Client will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.
8.1 Use of the Momentum Services
Subject to these Terms, and the payment of the applicable service Fee, Supplier grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the Momentum Services to:
If Supplier determines Client usage of the Services to be outside of the permitted and intended use as outlined herein, or bandwidth usage of the Service or any Features or functionality to be significantly excessive in relation to other Users, Supplier reserves the right to suspend respective Client Account, (or part thereof) until Client assures Supplier that Client shall refrain from further abuse of the Services.
8.2 Technical Support
Supplier shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. Supplier shall respond to enquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Clients and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.
The contacts for all enquiries of support is: firstname.lastname@example.org.
8.3 Modifications to Service
Supplier reserves the right to modify the Momentum Services or any part or element thereof from time to time without prior notice, including, without limitation:
As applicable, Client may be notified of such modifications when logging in to the Account.
If the Client does not accept a modification, the Client shall notify Supplier before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Client’s continued use of the Momentum Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Supplier shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Momentum Services, or any part or element thereof.
8.4 Additional Features
Supplier may from time to time make additional Features available through the Momentum Services, which may be subject to Additional Terms. The Client's use of any such Feature is subject to their acceptance of Additional Terms presented within the relevant Feature or these Terms.
9.1 Prohibited Activities
Client and its authorized Users may use the Momentum Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
9.2 Certain Uses Require Supplier Consent
The Client or any User may not, without Supplier’s prior express written consent (e-mail, fax, etc.):
11. Intellectual Property Rights
11.1 Momentum’s Intellectual Property Rights in the Momentum Services
The Momentum Services, Momentum Materials, Momentum trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Supplier and its third party vendors and hosting partners. Momentum Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Supplier, its affiliates and licensors retains all right, title and interest in such Momentum Services, Momentum Materials, Momentum trade names and trademarks, and any parts or elements. Your use of the Momentum Services and Momentum Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the Momentum Materials is strictly prohibited unless you have received the express prior written permission from Supplier or the otherwise applicable rights holder. Supplier reserves all rights to the Momentum Services, Momentum Materials and Momentum trade names and trademarks not expressly granted in the Terms.
11.2 Client Data
Supplier may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes, as well as in any manner reasonably related to the provision of the Momentum Services. Supplier may not otherwise use or display Client Data without Client’s written consent. Supplier respects your right to exclusive ownership of your Client Data. Client expressly grants Supplier the right to use and analyze aggregate system activity data associated with use of the Momentum Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Momentum Services operate, and to create new Features and functionality in connection with the Momentum Services in the sole discretion of Supplier.
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the Momentum Service. In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize the Suppliers to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended Features and functionality of the Momentum Services and these Terms, and to grant the rights and license set forth in Section 11.2, (ii) Client Data, Supplier’s or any Momentum Licensee’s use of such Client Data pursuant to these Terms, and Supplier’s or any Momentum Licensee’s exercise of the license rights set forth in Section 11.2, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Supplier to any third party for the performance of any Momentum Services Client has chosen to be performed by Supplier or for the exercise of any rights granted in these Terms, unless Client and Supplier otherwise agree.
If Client or a User provides Suppliers with any comments, bug reports, feedback, or modifications for the Momentum Services (“Feedback”), Supplier shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Momentum Services.
Client or User (as applicable) hereby grants Supplier a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. Supplier shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if the Supplier deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
12. Third-Party Sites, Products and Services
The Momentum Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, Supplier does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Supplier makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by Momentum. By using any community marked code or libraries in your software development, you acknowledge and agree that Momentum is not in any way responsible for the performance or damages caused by such community provided code or library.
13. Disclaimers; No Warranty
UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, THE MOMENTUM SERVICES, MOMENTUM MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MOMENTUM SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUPPLIER AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY. UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT THAT THE MOMENTUM SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MOMENTUM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MOMENTUM SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MOMENTUM SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE MOMENTUM SERVICES, MOMENTUM MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
ANY INFORMATION PROVIDED TO YOU THROUGH THE MOMENTUM SERVICES DOES NOT, AND IS NOT INTENDED TO, CONSTITUTE LEGAL, TAX, OR ACCOUNTING ADVICE.
ANY INFORMATION PROVIDED THROUGH THE MOMENTUM SERVICES DOES NOT PURPORT TO BE COMPREHENSIVE AND HAS NOT BEEN INDEPENDENTLY VERIFIED. WHILE THE MOMENTUM SERVICES ARE PROVIDED IN GOOD FAITH, NO REPRESENTATION, WARRANTY, ASSURANCE OR UNDERTAKING (EXPRESS OR IMPLIED) IS OR WILL BE MADE, AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY MOMENTUM OR ANY OF ITS RESPECTIVE OFFICERS, EMPLOYEES OR AGENTS IN RELATION TO THE ADEQUACY, ACCURACY, COMPLETENESS OR REASONABLENESS OF THE MOMENTUM SERVICES. ALL AND ANY SUCH RESPONSIBILITY AND LIABILITY IS EXPRESSLY DISCLAIMED. IN NO EVENT SHALL MOMENTUM BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN BY ANY PARTY IN RELIANCE UPON THE MOMENTUM SERVICES OR FOR ANY INACCURACIES OR ERRORS IN, OR OMISSIONS FROM, THE INFORMATION PROVIDED IN THE MOMENTUM SERVICES.
You agree to defend, indemnify and hold harmless Supplier and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Momentum Services, Momentum Materials, representations made to the Supplier, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Supplier reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Supplier, and you agree to cooperate with such defense of these claims.
15. Limitation of Liability
15.1 No Liability
Supplier shall not be liable to the Client or User for any consequences resulting from:
In addition, Supplier and its affiliates shall not be liable to the Client for any claim by any User, or third persons against the Client arising out of the Client’s failure to:
15.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOMENTUM AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE MOMENTUM SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
15.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
16. Termination of These Terms
16.1 For Convenience
These Terms may be terminated for convenience in the following situations;
16.2 For Default
These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:
16.3 Effect of Termination
Upon termination of these Terms,
If Supplier terminates these Terms as a result of an uncured breach by a Client or User, Supplier is entitled to use the same or similar remedies against any other persons who use the Momentum Services in conflict with these Terms. Notwithstanding the foregoing, Supplier may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain Features, functions, parts or elements of the Momentum Services.
If Supplier has reasonable grounds to believe that the Client’s or User’s use of the Momentum Services, including the Account may harm any third persons, Supplier has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
The Supplier has the right to suspend access to all or any part of the Service, including removing Content, at any time for violation of this Agreement or to protect the integrity, operability, and security of the Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Service or any third party, Supplier typically provides notice in the form of a banner or email on or before such suspension. Supplier will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Service.
17. Governing Law and Jurisdiction
These Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Client and Better Good, Inc, any dispute arising out of or relating to these Terms, or the breach thereof, shall be governed by the terms set forth in this Section 17 Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in San Francisco, California, in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
18. General Provisions
18.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and either Supplier, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
18.3 Entire Agreement
These Terms are the entire agreement between Client and Supplier regarding Client’s use of the Momentum Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Supplier’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
18.5 No Waiver
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Last updated: December 19, 2023