These Terms and Conditions of Use (“Terms”) are entered into by and between you and Let’s Breakthrough, Inc. (“Breakthrough”), and govern your use of and access to the websites, services and apps owned or operated by Breakthrough and on which these Terms are posted or expressly referenced (“Breakthrough Sites”).BY ACCESSING OR USING THE BREAKTHROUGH SITES, YOU AGREE TO AND WILL BE BOUND BY THESE TERMS AND ANY ADDITIONAL TERMS. If you do not want to be bound by these Terms or policies, do not use the Breakthrough Sites. IMPORTANT: These Terms include a class action waiver and resolution of disputes by arbitration instead of in court.
- Changes to Terms; Additional Terms
Breakthrough shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Breakthrough Sites. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including without limitation posting the revised or additional terms and conditions on the Breakthrough Sites.
Some Breakthrough Sites may be subject to additional or different terms, conditions, and policies, and click-through agreements that require your acceptance or official rules for a sweepstakes, contest, special offer, survey, or program (“Additional Terms”). Such Additional Terms, which are incorporated by reference into these Terms, are intended to supplement, not replace, these Terms. However, to the extent there is a conflict between any Additional Terms and these Terms, the Additional Terms will control.
These Terms are effective until terminated by Breakthrough. Breakthrough may terminate these Terms without notice and at any time in connection with any of the Breakthrough Sites. In the event of termination, you are no longer authorized to access those Breakthrough Sites. The restrictions imposed on you with respect to the Content (defined below), and the disclaimers, indemnities, and limitations of liabilities set forth in these Terms shall survive termination.
Breakthrough shall also have the right without notice, for any reason and at any time to terminate some or all of the Breakthrough Sites or any feature or portion thereof, or any products or services offered through them, or to terminate any individual’s right to access or use of the Breakthrough Sites or any feature or portion thereof.
- Use of Site
While using the Breakthrough Sites, you agree that you will not:
Upload, send, or otherwise transmit any content or information that is unlawful, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on Breakthrough’s or any third party’s intellectual property or other rights;
Use the services in connection with contests, pyramid schemes, chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
Create a false identity for the purpose of misleading others;
Upload, send or otherwise transmit any information or software that contains a virus, worm, Trojan horse, or other harmful or disruptive component;
Use the Breakthrough Sites for any unlawful purpose;
Modify, adapt, frame, reverse engineer, decompile or disassemble any portion of the Breakthrough Sites; or
Use any spider, robot, crawler, or other automated or manual means to retrieve, index, “scrape”, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Breakthrough Sites or their contents.
- Breakthrough Sites Content
The text, images, trademarks, trade names, photographs, graphics, logos, illustrations, descriptions, data, and other material provided by Breakthrough on or through the Breakthrough Sites, as well as the selection, assembly, and arrangement thereof, are referred to collectively as the “Content”.
The Content may contain errors, omissions, or typographical errors or may be out of date. Breakthrough may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only.
Unless otherwise noted, all Content is protected by copyrights, trademarks, service marks, and other proprietary rights that are owned by Breakthrough or by third parties that have licensed their use to Breakthrough. You may view and use the Content only for your personal information and you shall retain intact all copyright and other proprietary notices. Except as provided in the foregoing, Breakthrough does not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the Breakthrough Sites, including without limitation by transferring, downloading, or otherwise copying any Content onto a hard drive or other storage medium. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in a writing signed by Breakthrough, is strictly prohibited.
- User Contributions
The Breakthrough Sites are a forum for users to share their personal stories. As such, they may contain other forums, bulletin boards, blogs, comment sections or other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “Post”) content or materials (collectively, “User Contributions”) on or through the Breakthrough Sites.
All User Contributions must comply with the Content Standards set out in these Terms.
Any User Contribution you submit or Post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Breakthrough Sites, you grant us and our affiliates, partners and service providers, and each of their respective licensees, successors and assigns, a non-exclusive, royalty-free, worldwide, perpetual, and non-revocable license (with sublicense and assignment rights) to use, reproduce, modify, display online and in any present or future media, create derivative works of, or to allow downloads of, and/or distribute any such User Contribution.
You represent and warrant that:
You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates, partners and service providers, and each of their respective licensees, successors and assigns.
All of your User Contributions do and will comply with these Terms.
You understand and acknowledge that you are responsible for any User Contributions you Post, submit, or contribute, and you, not Breakthrough, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions Posted or otherwise submitted by you or any other user of the Breakthrough Sites.
Monitoring and Enforcement; Termination
Breakthrough retains the right to review User Contributions before they are posted on the Breakthrough Sites to ensure that the content is consistent with the purpose of the Breakthrough Sites. Breakthrough may edit or revise the format of User Contributions. Breakthrough does not edit or revise the substance of the User Contributions or verify their accuracy, reliability or legality and is not responsible, or liable to any third party, for the content or accuracy of any User Contributions.
Breakthrough has the right to:
Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Breakthrough Sites or the public or could create liability for Breakthrough.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Breakthrough Sites.
Terminate or suspend your access to all or part of the Breakthrough Sites for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Breakthrough Sites.
However, we cannot review all material before it is posted on the Breakthrough Sites, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These Content Standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
Contain any material which is defamatory, libelous, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender identity or expression, or age.
Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote or assist any unlawful act.
Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- User Contributions-Adult Content
The Breakthrough Sites are a forum for users to share their personal stories, including stories from survivors of violence. Some of these stories may be difficult, upsetting and suitable only for a mature audience. Before entering the Breakthrough Sites, you should be sure that you are prepared to encounter stories that contain trauma, violence, abuse, sexual violence, including violence against children, and that may upset or offend you.
- Copyright Infringement Policy
Reporting Copyright Infringement
Breakthrough takes claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Breakthrough Sites infringe your copyright, you may request removal of those materials from the Breakthrough Sites by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Breakthrough Sites, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law.
A statement that the information in the written notice is accurate.
A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
You may submit your DMCA Notice to the address below:
Attn: Marc Sokol
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Breakthrough Sites is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable access to the Breakthrough Sites and/or terminate the accounts of users who are repeat infringers.
If access on the Breakthrough Sites to a work that you submitted to Breakthrough is disabled or the work is removed as a result of a DMCA copyright infringement notice, and you believe in good faith that the allegedly infringing works have been removed or blocked by mistake or misidentification, then you may send a “Counter-Notification” to the email address listed above. Your DMCA Counter-Notification should contain the following information:
a legend or subject line that says: “DMCA Counter-Notification”;
a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Breakthrough Sites from which the material was removed or access to it disabled);
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
your full name, address, telephone number, email address, and the username of your account with us (if any);
a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Southern District of New York), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and your electronic or physical signature.
Receipt of DMCA Counter-Notification
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the address above that the party who sent us the DMCA copyright infringement notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Breakthrough Sites. Upon our receipt of a Counter-Notification that satisfies the requirements of DMCA, we will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA's procedures regarding counter notification. All Counter-Notifications must satisfy the requirements of Section 512(g)(3) of the U.S. Copyright Act. In all events, you expressly agree that neither Bartleby nor any of its affiliates or their employees, officers, directors, or agents will be a party to any disputes or lawsuits regarding alleged copyright infringement. Please note you may be held liable for money damages if you materially misrepresent an activity is infringing your copyrights.
- Information for Users Outside the United States
- Disclaimer and Limitation of Liability as to the Breakthrough Site, Content, and Services
BREAKTHROUGH MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE BREAKTHROUGH SITES OR ANY LINKED SITE OR THE CONTENT, INCLUDING THE AVAILABILITY OF ANY SITE OR THE CONTENT, INFORMATION, AND MATERIALS ON IT OR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THAT CONTENT, INFORMATION, AND MATERIALS. BREAKTHROUGH ALSO DOES NOT WARRANT OR REPRESENT THAT YOUR ACCESS TO OR USE OF THE BREAKTHROUGH SITES OR ANY LINKED SITE WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE BREAKTHROUGH SITES OR ANY LINKED SITE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS.
WITHOUT LIMITING THE FOREGOING, THE BREAKTHROUGH SITES AND ALL CONTENT PROVIDED ON OR THROUGH THE BREAKTHROUGH SITES IS PROVIDED TO USERS “AS IS,” WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE “AS IS” CONDITION OF CONTENT IS EXPRESSLY MADE A CONDITION OF ANY TRANSACTION ARISING THROUGH OR AS A RESULT OF THE BREAKTHROUGH SITES. Please note that some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to you. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
UNDER NO CIRCUMSTANCES SHALL BREAKTHROUGH, ITS PARTNERS AND AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, ARISING IN ANY WAY OUT OF ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE ANY OF THE BREAKTHROUGH SITES OR ANY LINKED SITE OR ITS CONTENTS, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, EVEN IF BREAKTHROUGH IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to defend, indemnify, and hold harmless Breakthrough, Breakthrough’s affiliates and partners, and their affiliates and related entities and its and their respective directors, officers, employees, and agents from and against all claims, losses, damages, liabilities, and costs (including without limitation reasonable attorneys’ fees and court costs), arising out of or relating to your breach of these Terms, your User Contributions, or your access to or use of the Breakthrough Sites. You are solely responsible for interactions with our business partners and affiliated companies and other users of Breakthrough Sites. To the extent permitted by applicable law, you hereby release Breakthrough from any and all claims or liability related to any product or service provided through the Breakthrough Sites and any conduct, action, or inaction by a business partner or affiliated company. The foregoing indemnification obligation shall survive termination of these Terms and the operation of the Breakthrough Sites or any product or service provided to you arising out of or relating to your use of the Breakthrough Sites.
- DISPUTE RESOLUTION AND CLASS ACTION WAIVER
MANDATORY BINDING ARBITRATION
Certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Breakthrough agree that we intend that this Section 13 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 13 can only be amended by our mutual agreement.
A. Binding Arbitration
You and Breakthrough agree that ANY AND ALL DISPUTES, CONTROVERSIES, ALLEGATIONS, OR CLAIMS ARISING OUT OF OR RELATING TO THE BREAKTHROUGH SITES, THE CONTENT, YOUR USER CONTRIBUTIONS, THESE TERMS, ANY ADDITIONAL TERMS, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THE TERMS, REGARDLESS OF THE DATE OF ACCRUAL OF SUCH DISPUTE (COLLECTIVELY “DISPUTE”), ARISING BETWEEN YOU AND BREAKTHROUGH (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE, COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, BREAKTHROUGH SITES OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE BREAKTHROUGH SITES. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Breakthrough and you regarding these Terms (and any Additional Terms) and the Breakthrough Sites. Breakthrough and you agree, however, that New York or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Breakthrough, whether arising under or stated in contract, statute, common law, or any other legal theory, without regard to California’s choice of law principles that might apply other states’ laws. Disputes will be resolved solely by binding arbitration in accordance with the then-current Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”). If you initiate arbitration proceedings by filing a Demand for Arbitration with the AAA, you must send a copy of such Demand to Breakthrough at 4 West 43rd Street, Suite 715 New York, NY 10036. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to schedule a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ Streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Breakthrough consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Breakthrough to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then Breakthrough will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and any Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis. Subject only to the limited exceptions expressly set forth in this Section 13, the arbitrator, and not any federal, state or local court, agency or other authority, will have the exclusive authority to resolve any and all Disputes, including issues relating to the scope, interpretation, applicability and enforceability of this arbitration provision. This arbitration provision shall survive termination of these Terms or the Breakthrough Sites. The agreement to arbitrate shall survive termination of these Terms. Notwithstanding anything to the contrary, if any part of the agreement to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable. If any part of this agreement to arbitrate is deemed invalid or inapplicable, you and Breakthrough waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages and any right to pursue any claims on a class, mass, consolidated, or combined basis.
B. Limited Time to File Claims
C. Injunctive Relief.
The foregoing provisions of this Section 13 will not apply to any legal action taken by Breakthrough to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, your User Contributions and/or Breakthrough’s intellectual property rights (including those which Breakthrough may claim are subject to a dispute), Breakthrough’s operations, and/or Breakthrough’s products or services.
D. No Class Action Matters.
Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. YOU AND BREAKTHROUGH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 13.A to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 13.E. Notwithstanding any other provision of this Section 13, any and all issues relating to the scope, interpretation, application and enforceability of this Section 13.D, including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.
E. Federal and State Courts in New York, New York.
Except to the extent that arbitration is required in Section 13.B, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute may only be instituted in state or Federal court in New York City, New York County, New York. Accordingly, you and Breakthrough consent to the exclusive personal jurisdiction and venue of such courts for such matters.
F. Small Claims Matters Are Excluded From Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes in small claims court, subject to Section 13.E.
- Third-Party Content Disclaimer
Breakthrough routinely contains links to external, third party websites. By providing links to other websites, Breakthrough does not guarantee, approve or endorse the information or products available at these sites, nor does a link indicate any association with or endorsement by the linked site to Breakthrough. Breakthrough does not operate or control and has no responsibility for the information, products and/or services found on any external sites. Nor do such links represent or endorse the accuracy or reliability of any information, products and/or services provided on or through any external sites, including, without limitation, warranties of any kind, either express or implied, warranties of title or non-infringement or implied warranties of merchantability or fitness for a particular purpose. Visitors to the Breakthrough Sites assume complete responsibility and risk in their use of any external sites. Visitors should direct any concerns regarding any external link to its site administrator or webmaster.
- Entire Agreement
These Terms constitute the entire agreement between the parties with respect to your access, use, and receipt of services from the Breakthrough Sites and supersede all prior agreements, negotiations and discussions between you and Breakthrough relating to the same. There are no third-party beneficiaries of the agreement.
No waiver by Breakthrough of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any other provisions of the Terms. The headings and captions in these Terms are intended for convenience only and shall in no way affect the interpretation of the Terms.