Terms of Service
Effective Date: 6/23/23
Momentum Life Technologies, Inc (“Momentum,” “we,” “us,” or “our”) provides these Terms of Service (“Terms”), which govern your access and use of our website, https://havemomentum.com/, (“Site”), the membership services, and other products and services, including without limitation any content, material, information, application, software (collectively, together with the Sites, the “Services”). Please read the Terms carefully before accessing or using our Services to understand your rights, obligations, and restrictions. Our Services are intended solely for individuals who are at least 18 years old or have otherwise reached the age of majority in your jurisdiction. In these Terms, “you” or “your” will refer to you as the end user of the Services.
By using our Services, you agree to be bound by these Terms, and represent and warrant that you are at least 18 or have reached the age of majority in your jurisdiction and have the power and authority to agree to these Terms. You also represent and warrant that all information you provide to us is accurate, current, and complete, and will use the Services only as set forth in these Terms, and the Privacy Policy as applicable. Your access and use of the Services is conditional upon your acceptance and compliance with these Terms. If you do not agree with the Terms, please do not use the Services.
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND MOMENTUM AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND MOMENTUM WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT OF ARBITRATION AS EXPLAINED IN THAT ARBITRATION CLAUSE.
Consent to Electronic Communications
You agree that we or our authorized agents may provide you in electronic form any information or other communications regarding our Services. These communications may be provided through our Site, email, text message, or another website. When you visit our Site, use the Services, or communicate with us electronically, you consent to receive communications from us electronically and to electronically sign documents.
You agree that you have the ability to store electronic communications such that they remain accessible to you in an unchanged form. We will retain a copy of any agreement or document you sign electronically, including through our Services, and you are responsible for retaining a copy of any agreement or document you sign electronically.
You may withdraw your consent to receive communications electronically by sending us an e-mail at legal@havemomentum.com or writing to us at 407 N Maple Drive, Beverly Hills, CA 90210.
Privacy Policy
Your personal information and privacy are important to us. The collection, use, and sharing of your personal information through the Site and while you use the Services are subject to our Privacy Policy (http://havemomentum.com/privacy), which is hereby incorporated into these Terms.
Membership Application
All Membership applications are subject to acceptance by Momentum at its sole discretion. Momentum will notify Applicants in the event that their membership application has been accepted, but Momentum is not required to provide its reasoning for the rejection of an application.
As a part of the application process and throughout the membership, you must provide complete and accurate information. For more information about our collection of your personal information, please see our Privacy Policy (http://havemomentum.com/privacy).
If your membership application is accepted, your Momentum membership is personal to you and is not transferable. You are responsible for ensuring that only you or authorized users of your membership account use your membership.
Membership Fees
Dues and Fees. You agree to timely pay all applicable dues and fees before Momentum provides you any Services under the membership. Failure to pay applicable dues and fees may result in the termination or suspension of your membership or our refusal to provide you Services. All dues and fees paid are nonrefundable.
Cancelation. You may cancel your membership at any time, and such cancellation must be provided to Momentum in writing. If you wish to not renew your membership, you must notify us at least 30 days prior to the date on which your membership will renew.
Payment Card Information. You agree to have on file a current and valid credit card for all charges incurred from the Services, and you authorize Momentum to charge the credit card for all goods or services requested by you. You agree to update your payment card information when the card on file is no longer valid, or if you wish to use a different card to pay for Services. For more information about how your payment card information is collected and processed, please see our Privacy Policy.
Membership Services
Momentum will use reasonable effort to supply Services requested by you, provided that such requests comply with these Terms, and other applicable agreements or conditions. We will use reasonable effort to provide Services on requested performance dates, but we cannot guarantee that we can or will perform the request on a requested performance date. If we are unable to perform your request, we need to modify the request for any reason, or your request incurs a service fee or handling charge, we will notify you as soon as reasonably practicable. MOMENTUM RESERVES THE RIGHT TO REFUSE OR REJECT ANY REQUEST FOR SERVICES AT ITS SOLE DISCRETION.
Admission to any club, restaurant, or other venue is subject to the sole discretion of such club, restaurant, or venue, and Momentum will have no liability where you are refused or denied admission.
Communications between you and Momentum may be recorded and stored, subject to our Privacy Policy.
Placing a Request. You (or an authorized user on your behalf) may place a request by designated Momentum Member Services channels. Requests should be made during normal business hours (Monday through Friday, 9:00 a.m. to 6:00 p.m. PST). We may perform reasonable requests or emergency requests outside of normal business hours in limited circumstances, but we reserve the right to charge additional fees. YOU ACKNOWLEDGE AND AGREE THAT SERVICES ARE SUBJECT TO AVAILABILITY AND MAY CHANGE FROM TIME TO TIME WITH OR WITHOUT NOTICE.
Payment and Cancelation. You acknowledge and agree that the provision of services or goods made as a result of a request under the Services are between you and the relevant supplier. You acknowledge and agree that Momentum is not a party to such contract, and any disputes or cancellation of such contracts must be addressed with the relevant supplier directly, subject to the relevant supplier’s policies. You acknowledge and agree that relevant suppliers may not honor returns or refunds for services or goods provided to you. Momentum will not be liable to you if a relevant supplier does not accept a return or exchange of an item.
Courier Services. If you (or an authorized user on your behalf) are not at the specified delivery address to receive your order at the scheduled time, you acknowledge and agree that you may incur further charges for subsequent attempts to re-deliver the requested goods. If you request courier services for delivery outside of the United States, you are responsible for any taxes, duties, additional fees, and applicable shipping rates. You also agree to comply with all applicable laws and rules concerning shipment.
Member Default. If Momentum’s performance of Services is prevented or delayed by any act or omission by you, Momentum will not be liable for any costs or losses incurred by you arising directly or indirectly from Momentum’s failure or delay to perform the applicable request.
Confidentiality
You and Momentum acknowledge and understand that employees of Momentum will have access to information about you and Services provided to you under your membership. Accordingly, Momentum employees are subject to a Confidentiality Agreement that prohibits employees from sharing or disclosing confidential or personal information, except as provided by the Privacy Policy.
Code of Conduct
You agree to comply with all applicable laws, rules, and regulations, as well as any conditions or restrictions provided in these Terms. Prohibited conduct during the membership includes, but is not limited to:
Engaging in or threatening abusive or violent language or behavior directed to the Momentum staff, venues, or partners;
Using the Services for illegal, sexually explicit, inappropriate, or offensive purposes;
Sharing your membership information and/or password with any third party unless they are an authorized user of your membership account;
Engaging in vandalism or destruction of any property during any Momentum booking or event;
Acting in a manner inconsistent with the policies of a particular venue, including refusing to comply with any health, safety, or dress code requirements;
Failing to assume complete responsibility for any of your guests or authorized users of your membership account;
Acting in a deceptive or fraudulent manner by, among other things, impersonating another person or access another user’s membership account or signing up for more than one membership account;
Failing to appear for reservations or timely providing notice of cancelation;
Failing to comply with the Terms;
Failing to provide payment for Services requested by you or on your behalf; and
Engaging in other behaviors that, in the sole discretion of Momentum, do not comply with these Terms or other applicable agreements or conditions.
MOMENTUM RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR MEMBERSHIP FOR ANY REASON IN ITS SOLE DISCRETION.
Failure to Appear for Reservations
We expect our members to respect all establishments with which we work. Failure to timely cancel a reservation or failing to appear for a reservation may result in cancellation fees. If you fail to appear for a reservation more than three times in a 12-month period, we reserve the right to suspend or terminate your membership or no longer fulfill reservation requests.
Illegal, Sexually Explicit, Inappropriate, or Offensive Behavior
We will not perform requests to engage in illegal (including with respect to all applicable federal, state, and local laws and regulations), sexually explicit, inappropriate, or otherwise offensive behavior, and such requests may result in the termination or suspension of your membership. This prohibition includes buying or selling firearms, drugs, or offensive materials. We will also not perform requests involving hate speech, bullying, abuse, defamatory words, violations of intellectual property, or known intrusions on the privacy or seclusion of other individuals. We will not tolerate attacks or abuse based on race, ethnicity, national origin, sex, gender, gender identity, sexual orientation, religion, disability or disease. Momentum in its sole discretion will determine if a request is illegal, sexually explicit, inappropriate, or otherwise offensive.
Non-Solicitation of Momentum Employees
You agree to not, directly or indirectly for your own account or for the account of any other individual or entity, (i) encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any individual employed by, or providing services to, Momentum to terminate such individual’s employment or services with Momentum, or (ii) hire any individual who was employed by Momentum within the six month period prior to the date of such hiring.
Account Details
In order to register, you will be required to provide certain account related information, including but not limited to, your name, mobile telephone number, email address, residential address, and password. All personal details provided in connection with registration and your use of the Services will be collected and processed in accordance with the Privacy Policy.
You confirm and agree that all information and personal details provided to use through the registration process is true and accurate. You are solely responsible for keeping your registration information and other personal details relating to your account (including your email and password) confidential. You agree to notify us immediately in the event of actual or suspected unauthorized access to your account. You are solely responsible for any use of your account and you agree to cooperate with and assist us in any action or proceedings taken to remedy any such unauthorized access to your account or membership.
We reserve the right to approve or deny registration applications for membership as well as suspend membership or Services at any time at our sole discretion.
Proprietary Rights, License and Restrictions
The Services you have accessed and all of its contents as a whole and in part are protected by copyrights, trademarks, service marks, trade names, international treaties, and/or other proprietary rights and applicable laws, and are owned or controlled by Momentum, its affiliates, and licensors. You agree to protect the proprietary rights of us and all others having rights in the Services. YOU HAVE NO OBLIGATION TO PROVIDE MOMENTUM WITH IDEAS, SUGGESTIONS, OR PROPOSALS RELATING TO THE SITE, PRODUCTS, SERVICES, BUSINESS OR TECHNOLOGY OF MOMENTUM (COLLECTIVELY, “FEEDBACK”). HOWEVER, IF YOU SUBMIT FEEDBACK TO MOMENTUM IN ANY WAY, THEN YOU HEREBY IRREVOCABLY ASSIGN TO MOMENTUM ALL RIGHT, TITLE, AND INTEREST IN, AND MOMENTUM IS FREE TO USE, WITHOUT ANY ATTRIBUTION OR COMPENSATION TO ANY PARTY, THE FEEDBACK, FOR ANY PURPOSE WHATSOEVER, ALTHOUGH MOMENTUM IS NOT REQUIRED TO USE ANY FEEDBACK.
Subject to the Terms, we grant you a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license to use the Services for your own personal or legitimate business purposes. You are responsible for making all arrangements necessary for you to access the Services and we reserve the right to refuse any Service request, at our sole discretion. You acquire absolutely no rights or licenses in or to the Services or materials contained within the Services other than the limited right for you to access and use the Services in accordance with the Terms. Except for the limited license granted in these Terms, Momentum and its licensors retain all right, title, interest and all proprietary rights in and to the Services, including without limitation copyrights, patents, trademarks, service marks and trade names. Momentum may change, suspend, or discontinue any aspect of the Services at any time, without any liability or obligation to you. Momentum, its suppliers, and service providers reserve all rights not granted in these Terms.
You agree that, while using the Services, you are solely responsible for your use of the Services, including but not limited to, the content or information you publish, display or otherwise communicate in any manner, or transmit to other users of the Services. You will not post on the Services, or transmit to other users, or otherwise communicate any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, tortious or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity).
You agree that, while using the Services, you will not, and will not permit any third party to: (i) post or transmit through the Services any material which contains advertising or any solicitation with respect to products or services; (ii) remove any proprietary notices, including copyright and trademark notices, or labels from the Services on any materials accessed through the Services; or (iii) reverse engineer, decompile, disassemble, modify or create works derivative of the Services or any materials trademark notices, or labels from the Services on any materials accessed through the Services. You are solely responsible for ensuring your use of the Services is in compliance with all applicable foreign, federal, state and local laws, rules, and regulations.
You may use and access the Services solely for your personal, non-commercial use. All use of the Services must be in accordance with these Terms. You may not use, copy, store, reproduce, transmit, distribute, display, modify, alter, license, sublicense, or commercially exploit the Services or any contents, information, data or materials provided through the Services in any manner not expressly permitted by these Terms. You may not: (i) use any “deep link”, “page scrape”, “robot”, “spider”, or other automatic device, program, script, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Services or in any way reproduce or circumvent the navigational structure or presentation of the Services to obtain or attempt to obtain any materials, documents, or information through any means not purposefully made available through the Services; (ii) attempt to gain unauthorized access to any portion or feature of the Services, including without limitation, data or materials not intended for you, the account of any other authorized user or any other systems or networks connected to the Services or to any server used by Momentum, by hacking, password “mining” or any other illegitimate or prohibited means; (iii) violate or attempt to violate the security of the Services, including without limitation, probe, scan, or test the vulnerability of the Services or any network connected to the Services, or breach the security or authentication measures on the Services, or any network connected to the Services; (iv) attempt to interfere with the Services being provided to any user, host or network, including, without limitation, by means of submitting a virus to the Services, overloading, “flooding,” “mailbombing” or “crashing” the Services; (v) reverse look-up, trace, or seek to trace any information on any other authorized user of or visitor to the Services; (vi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or systems or networks of Momentum or networks connected to the Services; (vii) use any device, software, or routine to interfere with the proper working of the Services or any transaction being conducted on the Services, or with any other person’s use of the Services; (viii) use the Services to harvest or collect e-mail addresses or other contact information; (ix) market, co-brand, private label, separately distribute, resell or otherwise permit third parties to access and use the Services; (x) create an intact reproduction of a page or pages of Services into another service; or (xi) use the Services in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact Momentum.
Restrictions and Limitations on Services
We reserve the sole and exclusive right to refuse any request and are not required by law or under these Terms to provide a reason or explanation for such refusal. You agree that you will not use the Services: (i) in a manner which violates any local, national or other laws or regulations, ii) for any commercial or business purpose unless expressly authorized by us and the applicable service provider, (iii) in any way that infringes our intellectual property rights or the intellectual property rights of any service provider, (iv) violates the privacy or contractual rights of any person or entity, (v) in a manner which violates the Momentum Code of Conduct as set forth in the section of these Terms entitled “Code of Conduct”, (vi) to solicit, provide or promote illegal or unlawful activities, (vii) to gain unauthorized access to our systems, equipment, or other materials or those of any service provider, (viii) to gain unauthorized access to the confidential information or other data of any other member, (ix) in any way that deceives or defrauds any other person or entity, (x) to copy, modify, transmit, distribute, perform, create derivative works from or re-sell any content, intellectual property, or other proprietary information belonging to us or any service provider, (xi) to bypass any measures meant to restrict or limit access to any Services, (xii) to promote or support any involvement in any political or religious platform or cause, or (xiii) for any other purpose that is not expressly permitted by these Terms. In addition, you agree that you will not make requests for Services in excess of the hours permitted under your current membership plan.
Use of Trademarks and Other Marks or Rights
You may not use any of our trademarks, trade names, service marks, copyrights, or logos, or our partners’, affiliated entities’, licensors’, or their licensors’ trademarks, trade names, service marks, copyrights, or logos, including but not limited to Momentum, in any manner which creates the impression that such items (i) belong to or are associated with you or indicate the sponsorship or approval of us, our licensors, any partners, affiliates, or their licensors; or (ii) except as otherwise provided herein, are used with our partners’, affiliates’, or their licensors’ consent, and you acknowledge that you have no ownership rights in or to any such items.
Membership Fees
Failure to pay applicable dues and fees may result in the termination or suspension of your membership or our refusal to provide you Services.
Your membership will automatically renew upon expiration unless you notify us of your intention to terminate your membership at least 14 days prior the end of any given membership period.
We reserve the right to refuse to grant or renew any membership request in our sole discretion for any reason.
Termination
These Terms will take effect the moment you access or use the Services and will be in effect until terminated as set forth below or as otherwise set forth in these Terms. The right to access the Services will automatically terminate in the event you breach any of these terms. Termination will be effective without notice. All applicable provisions of these Terms as identified below will survive termination. Upon termination, you must destroy all copies of any aspect of the Services in your possession. The following will survive termination of these Terms for any reason: Momentum’s proprietary rights, indemnity, disclaimers of warranty, limitation of liability, and governing law.
Disclaimer of Warranties and Limitations of Liability
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND YOU ASSUME ALL RISK. YOU ACKNOWLEDGE THAT THE SERVICES, AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES AND LINKS CONTAINED IN THE SERVICES, IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON- INFRINGEMENT, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, ACCURACY OR COMPLETENESS OF DATA, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. MOMENTUM DOES NOT ENDORSE, RECOMMEND, OR MAKE ANY WARRANTIES AS TO THE CONTENT, INFORMATION, MATERIALS, THIRD PARTY MATERIALS, USER MATERIALS, FEATURES, SERVICES, PRODUCTS, OPINIONS, OR STATEMENTS AVAILABLE ON OR THROUGH LINKS ON THE SERVICES. MOMENTUM DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU SPECIFICALLY ACKNOWLEDGE THAT MOMENTUM IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
We do not warrant that the Services are compatible with your equipment or that the Services, or e-mail sent by us or our representative, is free of errors or viruses, worms or “Trojan horses,” or any other harmful, invasive, or corrupted files, and is not liable for any damage you may suffer as a result of such destructive features. You agree that we and our partners and affiliates and their respective owners, members, agents, directors, officers, employees, representatives, affiliates, successors, and assigns shall have no responsibility or liability for: (i) any injury or damages, whether caused by our negligence or that of our partners and affiliates and their respective owners, members, agents, directors, officers, employees, representatives, affiliates, successors, and assigns or otherwise arising in connection with the Services and shall not be liable for any lost profits, losses, punitive, incidental, or consequential damages, or any claim against us; or (ii) any fault, inaccuracy, omission, delay, or any other failure in the Services caused by your computer equipment or arising from your use of the Services on such equipment.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL WE OR OUR PARTNERS AND AFFILIATES AND THEIR RESPECTIVE OWNERS, MEMBERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, SUCCESSORS, AND ASSIGNS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE), WHICH INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, EVEN IF WE OR THEY HAVE BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM USE OF OR INABILITY TO USE THE SERVICES, THE SERVICES’ CONTENT OR PRODUCTS, ANY THIRD PARTY MATERIALS OR PRODUCTS AVAILABLE OR SOLD ON OR THOUGH THE SERVICES, OR ANY LINKS OR ITEMS ON THE SERVICES OR ANY PROVISION OF THE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ANY CASE, THE ENTIRE LIABILITY OF MOMENTUM AND AFFILIATES AND LICENSORS UNDER THESE TERMS FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) IS LIMITED TO THE TOTAL VALUE OF YOUR ANNUAL MEMBERSHIP FEE.
Third Party Suppliers
You acknowledge and agree that third party suppliers (“Third Party Suppliers”) may be responsible for providing you with the services, products and benefits that may request and that such Third Party Suppliers may have their own terms and conditions. In the event that we purchase products or services or make bookings or reservations on your behalf, facilitate any of the foregoing, or act as an agent or intermediary between you and a Third Party Supplier with respect to any of the foregoing, you agree that (1) you are solely responsible for paying for all services and products ordered through the use of the Services, (2) you are solely responsible for completing any necessary steps to confirm or accept any services or products that may be required by a Third Party Supplier, (3) none of our actions in providing the Services should be construed as an endorsement of any Third Party Supplier and that you are solely responsible for ensuring that such Third Party Supplier is suitable to meet your needs, (4) you are responsible for complying with any additional terms or conditions that apply to the products or services provided by such Third Party Supplier, and (5) you are solely responsible for making any changes or amendments to a purchase service or product after it has been confirmed through direct communication with the Third Party Supplier. We cannot guarantee that Third Party Suppliers will accommodate any requested changes or amendments. You hereby authorize us to act as the agent of any Third Party Supplier to contract with you for the provision of such Third Party Supplier’s goods and services. Some Third Party Supplier services may be subject to acceptance from the applicable Third Party Supplier and availability of such services may change after booking. We are not responsible for any canceled or amended bookings.
You acknowledge and agree that the price of products and services of Third Party Suppliers are not within our control and that, while we will make significant efforts to ensure that the Services are accurately priced, certain Services may from time to time be priced inaccurately. You will have the ability to approve any changes that we make on your behalf prior to confirming the transaction and we will provide receipts for any such charges upon your request.
Third Party Websites and Links
We may allow access to third party information, products, services, and other materials (collectively “Third Party Materials”), including via links. The content of other websites, services, goods, advertisements, or other Third Party Materials that may be linked to or from the Services is not maintained, endorsed or controlled by us. We are not responsible for the availability, content, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, safety or accuracy of Third Party Materials, or any intellectual property rights therein, that may be linked to or from the Services. In addition, the availability of any Third Party Materials through the Services does not imply Momentum’s endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. Such third parties may have a privacy policy and/or terms of use that are different from Momentum’s and may provide less security than Momentum. Notwithstanding anything to the contrary herein, Momentum is not responsible or liable for any such differences or discrepancies within the Third Party Materials. We do not: (a) make any warranty, express or implied, with respect to the use of the links provided on, or to, the Services; (b) verify or guarantee the accuracy, completeness, usefulness, or adequacy of any other websites, services, goods or other Third Party Materials that may be linked to or from the Services; or (c) make any endorsement, express or implied, of any other websites, services, goods or other Third Party Materials that may be linked to or from Services. You agree to access these other websites, services, goods, advertisements or other Third Party Materials at your own risk. For the avoidance of doubt, this paragraph covers websites linked to or from the Services. Any statements, opinions, or other information made available by third parties, including users, are solely those of the respective author(s) or distributor(s).
WE DISCLAIM ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR WEBSITES, SERVICES, GOODS, INFORMATION, ADVERTISEMENTS OR OTHER THIRD PARTY MATERIALS THAT MAY BE LINKED TO OR FROM, OR PROVIDED THROUGH, THE SERVICES. YOU ACKNOWLEDGE THAT NO REPRESENTATION HAS BEEN MADE BY US AS TO THE FITNESS OF THE WEBSITES, SERVICES, GOODS, ADVERTISEMENTS OR OTHER THIRD PARTY MATERIALS THAT MAY BE LINKED TO OR FROM THE SERVICES. YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR SOLE RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF USE OR PRIVACY POLICY OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
You may link to the Services provided that you do so in a way that indicates that the link is direct to the Services and is fair and not misleading and is in compliance with any terms and conditions of the applicable provider. You may not integrate or make use of all or part of the Services in ways that would confuse or mislead visitors as to the nature and origin of the Services’ content.
Payments for Third Party Products and Services
You acknowledge and agree that you may be required to pay for certain products and services provided by Third Party Suppliers by invoice or before your order is finalized. You agree to pay all amounts due for such products and services in full without counterclaim, deduction, withholding or set-off (except as required by law) and that failure to pay for such products and services may result in the termination of your membership. Without limiting any of the rights or remedies set forth under these Terms, we may at any time set-off any amount owed to us against any amount payable by you to us, whether such liability is present or future, or arises under these Terms.
If you elect to pay for products and/or services provide by Third Party Suppliers by card, you acknowledge and agree that we may pre-authorize such payment and that you are solely responsible for contacting your card company in the event that your payment card is lost or stolen.
Payment Processing
We use the third party processor Stripe to process payments made by credit card. Stripe’s terms of service for the United States can be found at https://stripe.com/legal/ssa and its privacy policy can be found at https://stripe.com/privacy. By accepting these terms, you are consenting to the use of your personal data as described in Stripe’s terms of service and privacy policy. We recommend that you review these documents prior to making any payments by credit card. We have no liability for any omission or action by Stripe or any other third party payment processors that we may use in the future.
Indemnification
You agree, at your own expense, to indemnify, defend, and hold harmless us and our partners and affiliates and their respective owners, members, agents, directors, officers, employees, representatives, affiliates, successors, and assigns against any claim, suit, action, or other proceeding from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ and experts’ fees, arising out of or in connection with the Services, or any links on the Services, including but not limited to: (i) any breach or violation of the Terms by you; (ii) material, information, or content submitted or provided by you; (iii) your use of the Services; or (iv) any deletions, additions, insertions, or alterations to, or any unauthorized use of, the Services by you. You agree to pay any and all costs, damages, and expenses, including but not limited to reasonable attorneys’ fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action, or proceeding attributable to any such claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defense.
Governing Law
The Terms shall be governed and construed in accordance with the laws of the United States and the State of New York, without giving effect to conflicts-of-law principles thereof. For any claims not subject to mandatory arbitration pursuant to these Terms, you agree to submit to the personal jurisdiction of the state and federal courts located in New York, New York with respect to any legal proceedings that may arise in connection with the Services or from a dispute as to the interpretation or breach of the Terms and hereby waive any objection to the propriety or convenience of venue in such courts. These Terms shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. These Terms constitute the entire understanding and agreement between Momentum and you with respect to the Services and any transactions contemplated, and supersede all prior or contemporaneous oral or written communications with respect to the subject matter of these Terms, all of which are merged into these Terms. You may not modify, amend or alter in any way these Terms. In the event any provision of these Terms are found to be invalid or unenforceable pursuant to judicial decree, the remainder of these Terms will remain valid and enforceable according to its terms. Any failure by Momentum to strictly enforce any provision of these Terms will not operate as a waiver of that provision or any subsequent breach of that provision. The disclaimers and limitations of liability will survive any termination or expiration of these Terms. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.
Accessibility
Momentum is committed to helping those with disabilities access the Site and/or Services. We strive to provide an excellent online experience for all our guests – including those with sight, hearing and other disabilities. If you have difficulty using or accessing any element of the Site or the Services or if you have any feedback regarding accessibility of the Site or the Services, please feel free to contact us at legal@havemomentum.com.
Digital Millennium Copyright Act (“DMCA”) Notice
Momentum is committed to complying with copyright and related laws, and requires all users of the Site to comply with these laws. Accordingly, you may not store any material or content or use or disseminate any material or content through the Services in any manner that constitutes infringement of third party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Momentum to terminate use privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to Momentum by the copyright owner or the copyright owner’s legal agent.
If you feel that a posted message is objectionable or infringing, Momentum encourages you to contact us immediately.
If you believe that any content appearing on the Services has been copied and posted using the Services in a way that constitutes copyright infringement, please provide a written communication containing the following information to the Copyright Agent named below:
Your name, address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
The exact URL or a description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The designated Copyright Agent to receive notification of claimed infringement under Title II of the Digital Millennium Copyright Act is: Scott Fisher, CEO, 407 N Maple Dr, Beverly Hills, CA 90210.
International Users
While the Services are controlled and operated within the United States, this publication may be distributed internationally and may contain references to Momentum services, products, and programs that are not in your country. These references do not imply that Momentum intends to announce or provide the programs, products, or services in your country. Momentum makes no representation that content, materials or products available on or through the Services are appropriate or available for use outside of the United States. If you access or use the Services from a location outside the United States, you are responsible for compliance with applicable laws, including local laws regarding online conduct and content and product use, local or national rules and policies, and U.S. export laws and regulations.
Dispute Resolution and Arbitration
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT ANY AND ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, UNLESS OTHERWISE PROVIDED FOR IN THIS SECTION.
a) Applicability of Arbitration Agreement. In this Section (the “Arbitration Agreement”), you and Momentum agree that any and all causes of action, claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms that cannot be resolved in small claims court will be fully and finally resolved by binding arbitration on an individual basis except that, notwithstanding anything in this Section to the contrary, we retain the right to seek injunctive or other appropriate relief in any state or federal court of competent jurisdiction, and you consent to jurisdiction and venue of such courts. The phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below. You and Momentum further agree that any claim or dispute you may have under these Terms must be commenced within one year after the claim or dispute arises.
b) Arbitration Rules. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. Arbitration will be conducted by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum, and if they cannot agree, will ask the court to appoint an arbitrator pursuant to 9 U.S.C. § 5. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If you are the party initiating an arbitration against us, you will be responsible for an amount toward the nonrefundable filing fee that is equal to the amount it would cost to file such claim in New York, New York, and we will pay the remainder of your filing fee and both parties’ administrative fees, but excluding, for the avoidance of doubt, attorneys’ fees. If we are the party initiating an arbitration against you, we will pay all filing fees and administrative fees associated with the arbitration, including the entire filing fee, but excluding, for the avoidance of doubt, attorneys’ fees. The expenses of the arbitration charged by the arbitrator shall be appropriately allocated between the parties to the arbitration by the arbitrator in his or her discretion. However, in every other regard, each party shall pay for and bear its own costs and legal fees, costs, and expenses. The arbitration shall be completed within one hundred twenty (120) days of filing a demand to arbitrate with AAA or alternative arbitral forum.
c) Pre-Arbitration Procedures. If you elect to seek arbitration, you must first send to us, by certified mail, a written Notice of your claim (“Notice”). The Notice must be addressed to: 407 N Maple Dr, Beverly Hills, CA, 90210 (“Notice Address”). If we initiate arbitration, we will send a written Notice to the email address that is associated with your membership account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute (including the identity of the claimant and the claimant’s counsel (if any), and a detailed description of the legal claims being asserted); and (b) set forth the specific relief sought (“Demand”). Following receipt of a Notice, we and you agree to first attempt to negotiate the applicable claim informally for up to thirty (30) days and you agree to personally participate in such informal negotiations. If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, we and you agree that such claim or dispute shall be the subject of a confidential mediation to be conducted via telephone or video conference, before a single neutral mediator with expertise in the subject matter of the dispute, the costs of which shall be borne equally by the parties. The mediation shall be completed within sixty (60) days following completion of the applicable thirty (30)-day informal negotiation period. In the event such claim or dispute is unable to be resolved through mediation, you or we may commence an arbitration proceeding. During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by either of the parties, or their agents, employees and/or attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
d) Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.
e) Fees. AAA sets forth fees for its services, which are available at https://www.adr.org/sites/default/files/Commercial_Arbitration_Fee_Schedule_1.pdf. If Momentum is the party initiating an arbitration against you, Momentum will pay all filing fees and administrative fees associated with the arbitration, including the entire filing fee, but excluding, for the avoidance of doubt, attorneys’ fees. If you are the party initiating an arbitration against Momentum, you will be responsible for the first $100 toward the nonrefundable filing fee, and Momentum will pay the remainder of your filing fee and both parties’ administrative fees.
f) Authority of the Arbitrator and Final Arbitration. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Momentum. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Momentum and may be entered as a judgment in any court of competent jurisdiction. If the arbitrator finds that a Claim was frivolous, brought for an improper purpose and/or was asserted in bad faith, the prevailing party in such arbitration shall be entitled to (i) recover all reasonable attorneys’ fees and arbitration costs incurred in connection with such arbitration from the non-prevailing party, and (ii) seek sanctions against the non-prevailing party. The testimony, evidence, ruling and all documentation regarding any arbitration shall be considered confidential information. Neither party may use, disclose or divulge any such information unless otherwise required by law.
g) Waiver of Jury Trial. YOU AND MOMENTUM WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Momentum are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Momentum over whether to vacate or enforce an arbitration award, YOU AND MOMENTUM WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. NEITHER YOU NOR WE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST THE OTHER USERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Whether through class arbitration proceedings or otherwise, to the fullest extent permitted by applicable law, no arbitration or other proceeding under these Terms shall be joined to any proceeding involving any other person or entity subject to these terms. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or AAA’s Rules, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
i) Right to Waive. Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
j) Opt-out. You may opt out of this Arbitration Agreement. If you do so, neither you nor Momentum can force the other to arbitrate. To opt out, you must notify Momentum in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Momentum membership account information, and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must either mail your opt-out notice to this address: 407 N Maple Drive, Beverly Hills, CA 90210 or legal@havemomentum.com. ANY SUCH OPT-OUT WILL IN NO WAY LIMIT (1) THE PRE-ARBITRATION PROCEDURES SET FORTH IN THIS SECTION, AND/OR (2) THE JURY TRIAL WAIVER AND CLASS ACTION WAIVER SET FORTH IN THIS SECTION.
k) Small Claims Court and Other Claims and Disputes. Notwithstanding the foregoing, either you or Momentum may bring an individual action in small claims court. For any claim or dispute that is not subject to mandatory arbitration pursuant to these Terms, you agree to submit to the exclusive jurisdiction of the courts of the New York located in New York or, if appropriate, the United States District Court for the Southern District.
l) Certification of Legal Representation. Upon our request, you agree to personally certify in writing within five days of receiving such request, that you have engaged and authorized legal representation to represent you with respect to any claim or dispute under these Terms. Without limiting the foregoing, to the extent that you engage any legal representative(s) to represent you in connection with any claim or dispute and to initiate an arbitration proceeding hereunder on your behalf, and you have not already certified such legal representative(s) as set forth in the foregoing sentence, you agree to personally certify in writing, at least twenty four (24) hours prior to such arbitration filing, that you have engaged, and have authorized, such legal representative(s) to represent you in such capacity.
m) Arbitration Agreement Survival. This Arbitration Agreement will survive the termination of your relationship with Momentum.
Force Majeure
We are not liable or responsible to you, or considered in any way to be in breach of these Terms, for any failure or delay in our performance under these Terms to the extent that any such failure or delay is caused by or results from acts or circumstance beyond our reasonable control, including but not limited to, acts of God, flood, fire, earthquake, governmental actions, changes in law, war, invasion, hostilities, terrorists threats or actions, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes, cyberattacks, denial of service attacks, restraints or delays affecting carriers, inability to obtain or delay in obtaining adequate or suitable supplies, breakdown of materials or telecommunication, or power outage.
Modifications to the Terms
Momentum reserves the right to change or modify the Terms at any time, and such modification shall be effective immediately upon posting to the Site. Your access to or use of the Services after the posting of modifications to the Terms will constitute your acceptance of the modifications.
Notice for California Users
Under California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N. 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Questions
If you have any questions or comments regarding these Terms, our Privacy Policy, the Site, or the Services, please feel free to contact us by e-mail at legal@havemomentum.com.