Terms and Conditions of Use
Last Updated: March 6, 2023
Please read these terms and conditions of use (the “Agreement”) carefully. This Agreement constitutes a legally binding agreement entered into by and between you (the “Member”, “you”, “your”) and Breakthrough Academy Inc. (“Breakthrough Academy”, “we,” “us,” “our”) and governs access to and use of the Services (as defined in Section 1).
Breakthrough Academy reserves the right, in our sole discretion, to modify and update this Agreement at any time, without notification to you. Any and all such modifications are effective immediately upon being posted to the Site or Apps. It is your responsibility to ensure that you are aware of the current Agreement when you access or use the Services. Your continued use of the Services after any such changes come into effect will constitute your acceptance of such changes. Before you continue, you should print or save a local copy of this Agreement for your records.
In addition to any terms defined elsewhere in this Agreement, the following words capitalized in this Agreement have the meanings set forth below:
1.1 “Affiliate” means, with respect to either party, any Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that party. For the purposes of this definition, “control” means the direct or indirect beneficial ownership of fifty (50%) percent or more of voting securities or interest in an entity.
1.2 “Apps” means the mobile applications created, managed and owned by Breakthrough Academy, including but not limited to Member Apps.
1.3 “Authorized Users” mean the Member’s affiliates, and its and their other employees, representatives, consultants, contractors or agents who are authorized to use the Services on behalf of the Member and have been supplied user identifications and passwords for this purpose.
1.4 “Breakthrough Academy Content” means all content that is not Member Data, including but not limited to the Documentation, and any data, information, guidelines, training programs, procedures, example files, images, live streams, reports, text, artwork, graphics, pictures, templates, material, hardcopy or electronic documents, or any other content that Breakthrough Academy makes accessible to the Member and its Authorized Users through the Services.
1.5 “Breakthrough Academy IP” means the Services, Breakthrough Academy Content, Software and Feedback; the arrangement and look and feel of the Services and any features, functionality or content therein; any and all related or underlying documentation, technology, code, know-how and templates; any updates, modifications or derivative works (excluding Member Data) of any of the foregoing; and all Intellectual Property Rights in or related to the foregoing.
1.6 “Confidential Information” means all non-public information regarding Breakthrough Academy’s business, including, without limitation, Breakthrough Academy IP, technical and non-technical information of Breakthrough Academy, proprietary and other information or materials relating or belonging to Breakthrough Academy or any of its Affiliates (whether or not reduced to writing), including without limitation, all confidential or proprietary information about the Services, or furnished or disclosed to or otherwise obtained in the course of the Services, this Agreement or the Member Agreement. Information is still Confidential Information even if it is: (i) not marked confidential; (ii) disclosed before or after the Term; or (iii) oral, visual, electronic, written or in any other format.
1.7 “Documentation” means any user manuals, handbooks, online materials, specifications or forms furnished by Breakthrough Academy that describe the features, functionality or operation of the Software.
1.8 “Fees” means those fees payable by the Member as set out in the Member Agreement defined.
1.9 “Inside Circle” means a component of the Services created for Members to interact and share information with one another.
1.10 “Intellectual Property Rights” means inventions, discoveries, or improvements (whether patented or able to be patented and whether or not reduced to practice), including patents, patent applications, certificates of invention, utility models, continuations, continuations-in-part, provisional, divisions, reissues, renewals, re-examinations and extensions thereof; trade secrets, know-how, designs, methodologies, processes, rights in data, and similar rights; semiconductor chip protection and mask work right; the protection of works of authorship or expression and copyright (whether or not registered); trademark, trade names, service marks, logos, domain names and trade dress whether or not registered; and similar rights under any laws or international conventions throughout the world, whether now existing or hereafter arising or developed, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce, and obtain damages.
1.11 “Losses” means any and all manner of losses, damages, fines, penalties, costs and expenses (including legal fees and expenses on a full indemnity basis), known or unknown, foreseeable or not foreseeable, liquidated or unliquidated, direct or indirect.
1.12 “Masterplan” means the Member’s goals, business plan, budget and financial results which are entered into file templates, then accessed and used by Breakthrough Academy as benchmarks to measure the success of the program.
1.13 “Member Apps” means the white label version of the Apps configured and customized by Breakthrough Academy and the Member to include the Intellectual Property, branding, “look and feel” of the Member’s business.
1.14 “Member Agreement” means the Agreement between the Member and Breakthrough Academy outlining the program type that the Member has selected and the Fees.
1.15 “Member Data” means any data or information contained in any database, template or other similar document submitted, uploaded or created by the Member or its Authorized Users through the Services, but does not include Breakthrough Academy Content incorporated therein.
1.16 “Person” means an individual, partnership, limited liability partnership, limited partnership, limited liability company, joint venture, trust, business trust, cooperative, association or corporation, as the case may be.
1.17 “Personal Information” means information that can be used to identify an individual.
1.18 “Playbook” means pre-built, industry specific operations manuals developed by Breakthrough Academy and provided to Member to customize and deploy within the Member’s business.
1.19 “Services” means the Software, Site, Apps and all services, functionality and Breakthrough Academy Content made available to the Member by Breakthrough Academy, as specified in the Membership Agreement, including, but not limited to the access and use of Skill Hub, Masterplan, Inside Circle and Playbook, which names and functions may change from time to time at the sole discretion of Breakthrough Academy.
1.20 “Site” means www.members.btacademy.com, and ancillary subdomains.
1.21 “Software” means any software used in connection with delivering the Services, and may include code that is licensed under third party license agreements, including open source code made available or provided with the Software, as applicable.
1.22 “Skill Hub” means the learning portal Members can access on the Site.
2. THE SERVICES
2.1 Services Functionality.The Member agrees that its purchase under the Membership Agreement is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Breakthrough Academy with respect to future functionality or features.
2.2 Access Rights. Subject to the terms of this Agreement and Member cooperating with the reasonable requests of Breakthrough Academy, Breakthrough Academy hereby grants to the Member and any Authorized Users a fee-bearing, non-exclusive, personal, non-sub-licensable, non-transferable, and fully revocable limited right to access and use the Services during the Term solely for Member’s internal business purposes.
2.3 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Breakthrough Academy shall use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation, provided that Breakthrough Academy will have no obligation to provide a correction for all such nonconformities.
2.4 Internet Security Disclaimer. The Member acknowledges and agrees that Breakthrough Academy exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Breakthrough Academy’s control. The Member acknowledges that the Internet is inherently risky despite reasonable measures being taken, and the Member assumes responsibility for its use of the Services over the Internet.
2.5 Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Breakthrough Academy under this Agreement, Breakthrough Academy reserves the right at any time to limit, suspend or terminate the Member’s access to or use of the Services, or any part thereof, in Breakthrough Academy’s sole discretion, without notice for the following reasons:
(a) to prevent damage to, or degradation of the integrity of, the Software or any of the Member’s systems;
(b) comply with any law, regulation, court order or other governmental request or order;
(c) otherwise protect Breakthrough Academy from harm to its reputation or business; or
(d) for Member’s or any Authorized User’s failure to comply with this Agreement or any special terms related to a particular Services.
We also reserve the right, in our sole discretion, to
(e) modify, suspend, discontinue offering or make changes to the Services, in whole or in part, including any of our Breakthrough Academy Content, at any time, for any reason or no reason, with or without notice to you; or
(f) interrupt the Services, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction or other modifications.
Breakthrough Academy will use commercially reasonable efforts to notify the Member of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Breakthrough Academy will restore the Member’s access to the Services and any parts thereof, when Breakthrough Academy determines the event has been resolved. Nothing in this Agreement will limit Breakthrough Academy’s right to take any action or invoke remedies, or will act as a waiver of Breakthrough Academy’s rights in any way with respect to any of the foregoing activities. Breakthrough Academy will not be liable to you or any third party for any loss or damages of any kind incurred by Member as a result of any limitation, termination or suspension of your use of, or inability to use the Services under this Section 2.5.
3. MEMBER’S USE OF SERVICES
3.1 Access and Security Guidelines. Subject to any limitations associated with the Member’s subscription under the Membership Agreement, the Member will be given a unique account for each Authorized User (“UserID”). Authorized Users may only access and use the Services with the specific UserID it was provided with. The Member is responsible for ensuring that UserIDs are not shared, and that Authorized Users retain the confidentiality of their UserIDs. Member is responsible for any and all activity occurring under the UserIDs. Member will promptly notify Breakthrough Academy at email@example.com of any actual or suspected unauthorized use of the Services or any UserID or account, or of any actual or supposed security breach involving its account(s) or the Services. Breakthrough Academy may require that a UserID be replaced at any time. We are not responsible for any unauthorized access to the Services using a UserID even if you have advised us of such unauthorized access. You are responsible for all activities that occur under your UserIDs, whether or not such activities have been authorized by you. Breakthrough Academy strives to ensure the security of Member Data, however, we cannot guarantee that unauthorized third parties will not circumvent our security measures.
3.2 Necessary Equipment to Use the Services. The Member is responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment and services required to connect to, access, and use the Services. Except as specifically set out in an Membership Agreement, Breakthrough Academy shall not be responsible for supplying any hardware, software or other equipment to Member under this Agreement.
3.2.1 Member Responsibilities and Restrictions.
Member Responsibilities. Member is responsible for:
(a) its and its Authorized Users’ compliance with the Documentation, this Agreement and applicable laws;
(b) the accuracy, completeness, quality, integrity and legality of all Member Data;
(c) ensuring it has all necessary legal rights for it and its Authorized Users to possess and use Member Data with the Service;
(d) obtaining all required consents, permissions and authorizations and providing any required disclosures to Authorized Users or other Persons as required by applicable law and maintaining legally-adequate privacy policies;
(e) protecting the confidentiality of its account passwords and other login information, and for restricting access to its computers and network;
(f) ensuring that only those individuals authorized by the Member have access to the Services; and
(g) for all activities that occur under the UserIDs.
3.2.2 Members Restrictions. Member agrees that Member will not, and will not permit any Person, including without limitation the Authorized Users, to:
(a) use the Services other than as permitted by this Agreement;
(b) use the Services to violate, infringe or appropriate any Person’s privacy rights, publicity rights, defamation rights, Intellectual Property Rights, proprietary rights, contractual rights or any other legal right;
(c) use the Services in a manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(d) use the Services to impersonate a Breakthrough Academy employee, or any other person, or falsely state or otherwise misrepresent its affiliation with any person or entity;
(e) sublicense or transfer any of Member’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Services for the benefit of a third party or to operate a service bureau;
(f) Copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services;
(g) Use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services;
(h) License, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services;
(i) Access the Services in order to develop a competing product;
(j) Disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services;
(k) Interfere with, or attempt to interfere with, the Services, the Software or any other networks or services connected to the Services, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware; or
(l) Alter, disable, or erase any computer data, computer programs or computer software without authorization.
4. FEES, PAYMENT AND SUSPENSION
4.1 Fees. As consideration for the subscription to the Services, Member will pay Breakthrough Academy the Fees in accordance with the Membership Agreement. All fees are non-cancellable and non-refundable, and are based on Services subscriptions purchased and not actual usage. For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Services. All Fees will be billed in advance on a monthly basis, are non-refundable, and are paid by credit card automatically upon receipt of invoice.
4.2 Expenses. Member shall reimburse Breakthrough Academy for all expenses (including reasonable attorneys’ fees) incurred by Breakthrough Academy to collect any amount that is not paid when due. All Fees owed by Member in connection with this Agreement are exclusive of, and Member shall pay, all sales, use, excise and other taxes that may be levied upon Member in connection with this Agreement.
4.3 Late Fees. Breakthrough Academy reserves the right (in addition to any other rights or remedies Breakthrough Academy may have) to discontinue the Services and suspend all UserIDs and Member’s access to the Services if any Fees set forth in the Membership Agreement are more than thirty (30) days overdue until such amounts are paid in full. Member shall maintain complete, accurate and up-to-date Member billing and contact information at all times.
5. CONFIDENTIAL INFORMATION
5.1 Restrictions on Use and Disclosure. The Member will only use the Confidential Information for the purposes of this Agreement. The Member will protect the Confidential Information from any unauthorized access, use or disclosure using the same degree of care that the Member uses to protect its own confidential information, but in no event less than a reasonable degree of care. The Member may share the Confidential Information with its employees, officers, directors, agents and professional advisors (“Representatives”), provided they: (i) need to know the Confidential Information; and (ii) are bound to the Member by confidentiality obligations those set out in this Agreement. The Member is responsible for any breach of this Agreement by its Representatives. The Member may disclose the Confidential Information if required by law, provided that the Member: (iii) gives Breakthrough Academy as much notice as possible prior to the disclosure to the extent permitted by law; and (iv) reasonably cooperates with the Breakthrough Academy, to seek a protective order or otherwise prevent disclosure.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which:
(a) is or becomes a part of the public domain through no act or omission of the Member;
(b) was in Member’s lawful possession prior to the disclosure, as shown by Member’s competent written records;
(c) is independently developed by Member without reference to the Confidential Information, as shown by Member’s competent written records; or
(d) is lawfully disclosed to Member by a third party without restriction on disclosure.
5.3 Non-Disclosure Agreement. To the extent that the Member has entered into a non-disclosure agreement with Breakthrough Academy in contemplation of this Agreement (“NDA”): (i) all Confidential Information disclosed under that NDA is deemed to have been disclosed under this Agreement; (ii) this Agreement is deemed to replace and supersede the NDA; and (iii) the NDA is hereby terminated.
6. INTERACTIVE AREAS
6.1 Interactive Areas. The Services may include areas or features that offer the opportunity for Authorized Users to submit content for public viewing, including without limitation documents, advice, upcoming events, referrals and other information (the “Interactive Areas”). Notwithstanding anything to the contrary herein, you acknowledge that the Interactive Areas are for public and not private communications, and you have no expectation of privacy with regard to any of your Member Data submitted to an Interactive Area. We may, but do not always, monitor these Interactive Areas and take no responsibility for the content in the Interactive Areas, including without limitation another Person’s failure to comply with the posting guidelines, or for any losses arising from or in any way related to your use of the Interactive Areas.
7. MOBILE APPLICATIONS
7.1 Mobile Applications. Services can be accessed on the Site or the Apps using certain operating systems available through third party application stores on mobile devices. Currently, the Apps are available to be downloaded onto mobile devices through iOS and Android operating systems from the Apple App Store and Google Play. You acknowledge and agree that Breakthrough Academy is not responsible for ensuring that your mobile device’s software is compatible with the Apps, or that you can use or access Services through your mobile device. If you are using our Apps, you should check with your carrier to understand what data and messaging rates will apply as all such costs shall be borne by you. You agree that we may enforce this Agreement directly, as may the owners of the operating systems on which the Apps run, such as Apple and Google, who will also have the right to enforce this Agreement against you as a third party beneficiary. If you download the Apps from Apple and Google, then this Agreement incorporates by reference Apple and Google End User License Agreement, for purposes of which you are “the end-user”. In the event of a conflict in the terms of such End User License Agreement and this Agreement, the terms of the End User License Agreement shall control.
8.1 Breakthrough Academy Intellectual Property. Title and full ownership of the Breakthrough Academy IP will at all times remain with Breakthrough Academy. Except for the limited rights expressly granted under this Agreement, Breakthrough Academy reserves all rights, title and interests in and to the Breakthrough Academy IP and nothing in this Agreement grants, by implication, estoppel, or otherwise, any Intellectual Property Rights or other right, title or interest in or to the Breakthrough Academy IP to Member, its Affiliates, their respective Authorized Users or any other third party.
8.2 Feedback. Member hereby grants Breakthrough Academy a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, disclose or exploit any suggestions, ideas, enhancement requests, corrections, recommendations or other feedback provided by Member and any Authorized User, relating to the Breakthrough Academy IP (“Feedback”) without restriction or any obligation to account to you. Breakthrough Academy is not required to consider or implement any Feedback.
8.3 Member Data. Subject to the limited licence granted to Breakthrough Academy in this Section 8.3, Member retains all rights, title and interests in and to the Member Data. Breakthrough Academy will only use Member Data to provide the Services under this Agreement. Member will be solely responsible for providing all Member Data required for the proper operation of the Services, including all data that the Member is required to submit on the Masterplan file templates. The Member grants to Breakthrough Academy a non-exclusive, worldwide, fee and royalty free, non-transferrable (subject to Section 14.5 Assignment), and sub-licensable right and license to host, copy, display and use Member Data, solely as necessary for Breakthrough Academy to provide the Services to the Member. Breakthrough Academy will not knowingly use or access any Member Data unless authorized to do so by Member and, in such circumstances, Breakthrough Academy will access and use such Member Data only as required to perform requested services on behalf of Member.
8.4 Mobile Application License. Subject to your strict compliance with this Agreement, Breakthrough Academy grants you a non-exclusive, non-transferable, non-sub-licensable and fully revocable limited license during the Term to download, install, use and run the Apps on a single mobile device (provided such download is from a legitimate marketplace) only for the purpose of accessing the Services for internal business purposes and non-commercial use (the “Mobile Application License”). Your Mobile Application License will terminate immediately, automatically and without notice if you attempt to circumvent any technical protection measures used in connection with the Services or you otherwise breach this Agreement or the Members Agreement.
9. COPYRIGHT POLICY
9.1 Infringing Intellectual Property. Breakthrough Academy respects the Intellectual Property Rights of others and expects Members and Authorized Users to do the same. We will respond to notices of alleged copyright infringement that are properly provided to us and comply with applicable law. If you believe that anything on the Services infringes any copyright that you own or control, please provide us with the following information:
(a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
(b) identification of the copyrighted work claimed to have been infringed;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
(d) your contact information, including your address, telephone number, and an email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
9.2 Remove Infringing Content. We reserve the right to remove content alleged to be infringing and/or terminate a UserID without prior notice and at our sole discretion. If you knowingly misrepresent that any content on the Services is infringing, you may be liable to Breakthrough Academy for certain costs and damages. Please submit all notices of alleged copyright infringement appearing on the Services to firstname.lastname@example.org.
9.3 Possible Infringement. If Breakthrough Academy believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then it may:
(a) obtain the right for you (at our expense) to continue using the Services;
(b) provide a non-infringing functionally equivalent replacement; or
(c) modify the Services so that they no longer infringe. If we do not believe that the options described in this Section 9.3 are commercially reasonable, then we may suspend or terminate Member’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
10. TERM & TERMINATION
10.1 Term. The term of this Agreement will commence on the effective date of the Membership Agreement and will continue until the Membership Agreement is terminated by either party in accordance with it’s terms, unless otherwise agreed to in writing between the parties hereto (the “Term”).
10.2 Termination for Convenience. Breakthrough Academy may terminate this Agreement for any reason by giving the Member at least thirty (30) days’ prior written notice.
10.3 Termination for Default. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within thirty (30) days’ after written notice of such breach.
10.4 Effect of Termination. Upon the termination of this Agreement for any reason,
(a) any amounts owed to Breakthrough Academy under this Agreement before such termination will become immediately due and payable;
(b) Member will delete and certify to Breakthrough Academy that all property (including any Confidential Information) of Breakthrough Academy in its possession or control has been deleted; and
(c) Breakthrough Academy will remove all UserIDs, and Member access to or use of the Services will be immediately suspended. Upon termination or expiration of this Agreement and the Member Agreement, all licenses and rights granted under this Agreement shall immediately terminate, except for the rights and obligations of the parties under those sections which should, by nature of their terms, survive termination.
10.5 Data Export. During the Term, Breakthrough Academy will make Member Data available to Member for export or download by existing means available to Member within the Services. After the Term, subject to being prohibited by any applicable laws, Breakthrough will have no obligation to maintain or provide any Member Data and may delete or destroy all copies of Member Data in Breakthrough Academy’s Services or otherwise in Breakthrough Academy’s possession or control, including, without limitation the Member Apps.
11. DISCLAIMER OF WARRANTIES
11.1 Assumption of Risks and Release of Liability. Member acknowledges and agrees that Member is solely responsible for the consideration, assessment, and implementation of, and reliance upon, the source and any Breakthrough Academy Content, or any other output therefrom, including the completeness, accuracy, effectiveness and the compliance with applicable laws thereof. Furthermore, Member should not rely solely on Breakthrough Academy Content or any other information, recommendation, referral source or other information contained on the Services, including information shared by other Members and Authorized Users through the Services. Member further acknowledges and agrees that any Breakthrough Academy Content does not, and is not intended to, constitute legal advice and that all Breakthrough Academy Content is for general informational purposes only. It is essential that you receive independent legal advice suitable for your purposes or in conjunction with any Breakthrough Academy Content. BY ACCESSING OR USING THE SERVICES, MEMBER, IT’S AFFILIATES AND ITS AND THEIR AUTHORIZED USERS HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE, RELEASE AND FOREVER DISCHARGE BREAKTHROUGH ACADEMY TO THE FULLEST EXTENT PERMITTED BY LAW AND AGREE NOT TO PURSUE ANY CLAIM, SUIT, ACTION OR PROCEEDING OF ANY KIND, NATURE OR CHARACTER WHATSOEVER AGAINST BREAKTHROUGH ACADEMY OR ITS AFFILIATES, SUBCONTRACTORS OR PERSONNEL, IN ANY COURT, ADMINISTRATIVE AGENCY, ARBITRAL FORUM, OR OTHER TRIBUNAL, ARISING OUT OF OR IN ANY WAY RELATED TO ANYTHING SETFORTH IN THIS SECTION 11.1.
11.2 Disclaimer of Warranties. THE SERVICES ARE MADE AVAILABLE ON AN “AS IS”, “WHERE AS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. BREAKTHROUGH ACADEMY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING USAGE OR TRADE. WITHOUT LIMITATION, BREAKTHROUGH ACADEMY DOES NOT WARRANT THAT:
(a) THE SERVICES ARE SUITABLE FOR OR WILL MEET YOUR REQUIREMENTS;
(b) THE SERVICES ARE OR WILL REMAIN FREE OF DEFECTS, HARMFUL CODE, VIRUSES OR MALWARE;
(c) THE SERVICES ARE OR WILL REMAIN FREE FROM INTERRUPTION;
(d) THE SERVICES ARE OR WILL BE ERROR-FREE; OR
(e) ANY ISSUES WITH THE SERVICES WILL BE CORRECTED.
11.3 Disclaimer of Third Party Providers. BREAKTHROUGH ACADEMY IS NOT RESPONSIBLE OR LIABLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY OTHER MEMBER OR ANY THIRD PARTY PROVIDER OF ANY SERVICES, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO REFERRALS, APPROVED VENDOR PARTNERS, INTERNET SERVICES PROVIDERS, HOSTING SERVICES UTILIZED BY BREAKTHROUGH ACADEMY, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY BREAKTHROUGH ACADEMY.
11.4 Location of Services. THE SERVICES ARE CONTROLLED BY BREAKTHROUGH ACADEMY FROM ITS FACILITIES IN CANADA, AND ARE OFFERED BY BREAKTHROUGH ACADEMY TO MEMBERS IN CANADA, THE UNITED STATES, AUSTRALIA AND NEW ZEALAND. BREAKTHROUGH ACADEMY MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
12.1 Member Indemnification. Member agrees to indemnify, defend and hold harmless Breakthrough Academy and its Affiliates, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively, the “Indemnified Parties”), from and against all claims (including any third party claims), causes of actions, demand, suits, investigations, proceedings or liability (collectively and individually, “Claims”) brought against, and all losses, of whatever nature incurred or suffered by, any of the Indemnified Parties arising out of or in any way related to:
(a) Member’s or Authorized Users’ acts or omissions, including, but not limited to use, non-use, misuse or reliance on the Sevices or any third-party linked websites therein;
(b) Members’ or Authorized Users’ breach or alleged breach of this Agreement;
(c) Members or Authorized Users ‘fraud, negligence or wilful misconduct; and
(d) an allegation that the Member Data, or the use of Member Data pursuant to this Agreement, infringes the Intellectual Property Rights or other rights of a third party or otherwise causes harm to a third party.
Breakthrough Academy reserves the right, at Member’s expense, but is not under any obligation, to assume the exclusive defense and control of any matter for which Member is required to indemnify Breakthrough Academy and Member agrees to cooperate with Breakthrough Academy’s defense of these Claims. Member agrees to not settle any matter without the prior written consent of Breakthrough Academy. Breakthrough Academy will use reasonable efforts to notify you of any such Claims upon becoming aware of them.
13. LIMITATION OF LIABILITY
The following provisions have been negotiated by each party, are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
13.1 Limited Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL THE INDEMNIFIED PARTIES’ TOTAL AGGREGATE LIABILITY ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY BREAKTHROUGH ACADEMY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO LIABILITY AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
13.2 Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE UNDER OR IN RELATION TO THIS AGREEMENT FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY OR SPECIAL LOSSES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS OPPORTUNITY, PROFITS (WHETHER CHARACTERIZED AS DIRECT OR INDIRECT), REVENUE, ECONOMIC ADVANTAGE, USE, REPUTATION OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSSES FROM BUSINESS INTERRUPTIONS, LOSSES RESULTING FROM FAILURE TO MEET OTHER CONTRACTUAL COMMITMENTS OR DEADLINES, LOSSES FROM DOWNTIME, OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) REGARDLESS OF THE THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, MISREPRESENTATION, OR UNDER ANY OTHER THEORY OF LIABILITY WHATSOEVER) EVEN IF SITEDOCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL BREAKTHROUGH ACADEMY BE LIABLE FOR COSTS OF SUBSTITUTE SERVICES, AND YOU HEREBY IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE THE INDEMNIFIED PARTIES FROM ANY LIABILITY WITH RESPECT TO THE SAME.
13.3 No Participating in Class Action. MEMBER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, MEMBER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
13.4 Limitation of Time. Member agrees that it will not bring a Claim under or related to this Agreement more than twelve (12) months from when such Claim first arose.
14. GENERAL PROVISIONS
14.1 Remedies. You acknowledge and agree that monetary damages may not be an adequate remedy for any violation of this Agreement by you and, without limiting any of Breakthrough Academy’s other remedies, you hereby consent to, and authorize Breakthrough Academy to obtain, an injunction or other equitable relief from any court of competent jurisdiction without the necessity of having to post any bond or other form of security. You further authorize Breakthrough Academy to disclose your Personal Information where reasonably necessary in connection with the foregoing.
14.2 Force Majeure. Breakthrough Academy will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to strikes, riots, insurrections, wars, acts of terrorism, military or national emergencies, acts of governmental authority, natural disasters, pandemics or epidemics, power outages and interruptions, brownouts, internet service provider failures or delays, Azure downtime, cyber attacks and fires, provided that Breakthrough Academy uses commercially reasonable efforts to resume performance as soon as reasonably practicable.
14.3 Amendments. Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party.
14.4 Publicity. Breakthrough Academy may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties hereto and of the Membership Agreement. Member agrees to allow Breakthrough Academy to use the Member’s name in member lists and other promotional materials describing the Member as a member of Breakthrough Academy and user of the Services.
14.5 Assignment. Member may not assign this Agreement to a third party without Breakthrough Academy’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Member. Breakthrough Academy may assign this Agreement or any rights hereunder to any third party without Member’s consent. Any assignment in violation of this Section 14.5 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
14.6 Governing Law. This Agreement is governed by, and will be enforced, construed, and interpreted in accordance with, the laws applicable in British Columbia, Canada without regard to conflicts of law doctrine or the United Nations Convention on Contracts for the International Sale of Goods. Any action or proceeding between the parties will be resolved exclusively by the courts of the Province of British Columbia in the city of Vancouver. Each party hereby irrevocably accepts and submits to the exercise of exclusive personal jurisdiction over such party by such courts, agrees that venue will be proper in such courts and irrevocably waives and releases any and all defenses in such courts based on lack of personal jurisdiction, improper venue and forum non-conveniens. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees on a full indemnity basis.
14.7 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing:
(a) to Breakthrough Academy, by email at email@example.com; or
(b) to Member, by email at the addresses set forth in the Member Agreement.
Notices will be deemed to have been given upon the date such email is delivered.
14.9 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.10 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
I understand the importance of the confidentiality obligations in this Agreement