If you are an agent or employee of another entity you represent and warrant that (i) the individual accepting this agreement is duly authorized to accept this agreement on such entity’s behalf and to bind such entity, and (ii) such entity has full power, corporate or otherwise, to enter into this agreement and perform its obligations hereunder.
(i) "Customer" or "You" means the individual or the business entity to which a license is granted by Momentum for the use of the Software;
(ii) "Effective Date" means the date on which Customer first subscribes to receive the Service through Momentum’s website or through a third-party application store such as the Chrome Web Store;
(iii) “Licensed Software” means the web based software application called Momentum, which is proprietary to Momentum;
(iv) “Licensee Data” means all electronic data or information submitted by Customer to the Service;
(v) “Service” means the provision of access to the Licensed Software for the purpose of transmitting Licensee Data;
(vi) “Usage Data” means data collected about Customer’s use of the Service, for example how often Customer accesses a to do list or specific bookmarks.
2.1 Software License Grant
Subject to all of the terms and conditions of this Agreement and payment of any applicable fees, Momentum grants to Customer a royalty-free, non-exclusive, non-transferable license to download, install and use the Licensed Software as part of the Service.
2.2 License to Licensee Data
Customer grants to Momentum a non-exclusive license to access, modify and otherwise exploit Licensee Data as required in order to provide the Service.
2.3 Usage Data
Customer agrees that Momentum will have the right to collect Usage Data and to create statistics and analytics therefrom (“Derived Data”). Customer further agrees that Momentum may use and disclose Derived Data without restriction provided that such Derived Data does not identify the Customer and does not contain personally identifiable information.
3.1 Momentum makes commercially reasonable efforts to provide support for the Service through the online Help Center located at http://help.momentumdash.com.
4.1 To the greatest extent permitted by law, the licensed software and technical support provided by Momentum hereunder are provided on an "as is" basis and there are no warranties, representations or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding them or any other product or service provided under this agreement or in connection with this agreement by Momentum. Momentum disclaims any implied warranties or conditions of quality, merchantability, merchantable quality, durability, fitness for a particular purpose and non-infringement. Momentum does not represent or warrant that the software shall meet any or all of customer’s particular requirements, that the software will operate error-free or uninterrupted or that all errors or defects in the software can be found or corrected.
4.2 In certain jurisdictions some or all of the provisions in this Section may not be effective or the applicable law may mandate a more extensive warranty in which case the applicable law will prevail over this Agreement.
5.1 To the greatest extent permitted by applicable law, in no event shall Momentum be liable to customer or any other person for any direct, indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, including without limitation, legal expenses, loss of business, loss of profits, loss of revenue, lost or damaged data, loss of computer time, cost of substitute goods or services, or failure to realize expected savings or any other commercial or economic losses arising out of or in connection with this agreement, even if Momentum has been advised of the possibility of such loss or damages, or such losses or damages are foreseeable.
5.2 The entire liability of Momentum and customer’s exclusive remedy with respect to the software and technical support and any other products or services supplied by Momentum in connection with this agreement for damages for any cause and regardless of the cause of action, whether in contract or in tort, including fundamental breach or negligence, will be limited in the aggregate to the amounts paid by customer to Momentum under this agreement for the software, technical support or services giving rise to the claim.
5.3 The disclaimer of representations, warranties and conditions and limitation of liability constitute an essential part of this agreement. You acknowledge that but for the disclaimer of representations, warranties and conditions and limitation of liability, neither Momentum nor any of its licensors or suppliers would grant the rights granted in this agreement.
6.1 Customer acknowledges and agrees that the Licensed Software contains confidential and proprietary information and trade secrets belonging to Momentum and its licensors. Customer acknowledges and agrees that title in and rights to the Software remains exclusively with Momentum and its licensors. Customer’s rights to the Software are strictly limited to those granted in this Agreement. Customer shall not decompile, disassemble or otherwise reverse engineer the Software. If the foregoing provision is prohibited by applicable law, Customer will provide Momentum with advance written notification of (a) its intention to decompile, disassemble or otherwise reverse engineer the Software, and (b) the nature of the work involved. Momentum will be given the right of first refusal to perform such work at its prevailing rates and prices.
7.1 Customers using the Service as a Chrome extension can uninstall the Licensed Software at any time by following the process outlined here: https://support.google.com/chrome_webstore/answer/2664769?hl=en&rd=2
8.1 The term of this Agreement will begin upon the Effective Date and shall continue for as long as Customer uses the Service under subscription and pays all applicable fees, unless earlier terminated under this section 8.
8.2 Momentum may terminate this Agreement in the event of any breach by Customer if such breach has not been cured within thirty (30) days of notice to Customer. No termination of this Agreement will entitle Customer to a refund of any amounts paid by Customer to Momentum or affect any obligations Customer may have to pay any outstanding amounts owing to Momentum.
8.3 Customer’s rights to use and access the Service will immediately terminate upon termination or expiration of this Agreement and sections 1, 4, 5, 6, 7, 8.3, 8.4, 9 and 10 of this Agreement shall survive the expiration or termination of this Agreement.
9.1 No Waiver
No delay or failure in exercising any right under this Agreement, or any partial or single exercise of any right, will constitute a waiver of that right or any other rights under this Agreement. No consent to a breach of any express or implied term set out in this Agreement constitutes consent to any subsequent breach, whether of the same or any other provision.
If any provision of this Agreement is, or becomes, unenforceable, it will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.
Customer may not transfer or assign this Agreement (whether voluntarily, by operation of law, or otherwise) without Momentum’s prior written consent. Momentum may assign this Agreement at any time without notice. This Agreement is binding upon and will inure to the benefit of both parties, and their respective successors and permitted assigns.
9.4 Governing Law and Venue
This Agreement shall be governed by the laws of the Province of British Columbia. No choice of laws rules of any jurisdiction shall apply to this Agreement. Customer consents and agrees that the courts of the Province of British Columbia shall have jurisdiction over any legal action or proceeding brought by Customer arising out of or relating to this Agreement, and Customer consents to the jurisdiction of such courts for any such action or proceeding.
9.5 Entire Agreement
This Agreement is the entire understanding and agreement between Customer and Momentum with respect to the subject matter hereof, and it supersedes all prior negotiations, commitments and understandings, verbal or written, any purchase order issued by Customer. This Agreement may only be amended or otherwise modified by written agreement signed by the authorized signatories of both parties.
If you have any questions, please contact us.
Last updated August 4, 2015