TERMs of service:
These Terms of Service (“Terms”) apply to your access to and use of the online website located www.breakr.app (the “Site”), the mobile & desktop apps (the "Apps"), and the related applications, tools, players, features, software, and services (collectively with the Site and the Apps, the “Platform”) provided by BREAKR, LLC (“BREAKR,” “we,” or “us”). BY CLICKING “I AGREE” OR BY USING OUR PLATFORM, YOU AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 19. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR PLATFORM.We may make changes to these Terms from time to time. If we make materials changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Platform, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Platform. If you have any questions about these Terms or our Platform, please contact us at email@example.com. For information about how we collect, use, share and otherwise process information about you, please see our www.breakr.app/privacy-policy.
1. Eligibility; Authority
You must be at least 18 years of age and a resident of the United States to use our Platform. By creating an account, you represent and warrant that you are 18 years of age or older and reside in the United States. If you use our Platform on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. Payment of Slot Fee; Platform Fee
Artist must submit payment of the Slot Fee to the Platform at the time the Song is submitted for consideration for that Slot, via the payment methods accepted on the Platform. However, such funds will not be paid to the Tastemaker until the Tastemaker accepts the bid and provides verification (as determined by the Platform in accordance with Section 4 below) that the Song was played in the designated Slot. After verification has been made by the Tastemaker to the satisfaction of BREAKR, the Platform will pay the applicable Slot Fee, less any applicable Platform Fees (as defined below) if applicable, to the Tastemaker. If the Tastemaker rejects the Song or accepts the Song but does not provide verification that the Song was played during the Slot within two (2) days of the completion of such Slot (the “Verification Period”), the Slot Fee will be refunded to the Artist. Once Artists submit a Song for consideration for a Slot, Artists may not cancel the submission, and the Artist is not entitled to a refund unless the Tastemaker does not verify, as determined by BREAKR, that the Song was played. All decisions as to the payment or withholding of the Slot Fee will be at the sole discretion of the Platform. “Platform Fees” means the amount we deduct from the Slot Fees payable to Tastemakers.
(a) Tastemakers must provide verification within the Verification Period that the Song was played during the applicable Slot, in accordance with the method designated by BREAKR as set forth herein, which method may be changed from time to time. (b) The method of verifying that the Tastemaker has played the Song is as follows:(i) For live shows and livestreams, the Tastemaker takes a video evidencing that the Tastemaker has played the Song (the “Verification Video”). For live shows, the Verification Video must show the date, location and time the Song was played as well as the primary area of party where the majority of people are standing. For livestreams, the Verification Video must show the date and duration of the livestream and the platform on which it was streamed. The Tastemaker sends the Verification Video to the Artist via the Platform(ii) For other Social Media Slots, the Tastemaker must send the URL of the location on the social media platform on which the Song has been played to the Artist through the Platform (the “Verification URL”).(iii) The Artist reviews the Verification Video or Verification URL to determine whether it evidences that the Song was played, and must send notice of approval or rejection thereof within two (2) days of receipt thereof (the “Approval Period”), which approval will not be unreasonably withheld or delayed;(iv) For Social Media Slots other than livestreams, once the Artist has approved the Verification URL, BREAKR will verify that the Song has been played for the designated duration.If Artist rejects the Verification Video or Verification URL, then BREAKR will review the Verification Video or Verification URL and determine whether it evidences that the Song was played (which BREAKR may determine in its sole, good faith discretion);(v) Verification occurs when the Artist or BREAKR approves the Verification Video or Verification URL, or if Artist fails to approve or reject the Verification Video or Verification URL within the Approval Period.(c) If there are any disputes as to whether verification was sufficient, the final decision as to whether the Tastemaker has provided such verification will be made by BREAKR, in its sole discretion. If such verification is not provided within the Verification Period, the Tastemaker is not entitled to receive the Slot Fee.
5. Compliance with Law; FTC Endorsement Guidelines
Tastemaker will comply with all applicable laws, rules and regulations regarding Tastemaker’s activities in connection with the Platform. Without limiting the foregoing, for all Social Media Slots, and for any Club Slots for which Tastemaker makes any comments regarding the Song or otherwise takes any action that might be viewed as an endorsement, Tastemaker will at all times comply with the FTC Endorsement Guidelines. This includes (a) clearly and prominently disclosing Tastemaker’s relationship with Artist and BREAKR (e.g. by stating or including the following language in connection with any Social Media Slot: “#BREAKrPartner”); and (b) ensuring that all statements by Tastemaker are accurate and reflect the honest opinions of Tastemaker. Additional information about the FTC Endorsement Guidelines can be found in the FTC’s brochure entitled Disclosures 101 for Social Media Influencers available at https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf 6. User Accounts and
6. Account Security
Artists and Tastemakers need to register for an account to be able to submit and play Songs and access certain other areas of our Platform. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
7. Ownership; Limited License to Platform
The Platform, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, and the selection and arrangement thereof (the “Platform Content”), and all rights therein are owned by BREAKR or our licensors and are protected under both United States and foreign copyright and other laws. Except as explicitly stated in these Terms, all rights in and to the Platform are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Platform for your own personal, noncommercial use, subject to any restrictions or limitations imposed on the Platform or in these Terms. Your rights to use any Songs you access through the Platform are limited to the terms of the licenses granted by the Artist who downloaded such Songs, as set forth in Section 9(b) below. Any use of the Songs or the Platform other than as specifically authorized herein, without the written permission of the applicable copyright owner, is strictly prohibited, will terminate the license granted herein, and may violate our (or our Artist’s) intellectual property rights. All rights granted under these Terms are revocable at the sole discretion of BREAKR.
8. Marketing Partnership
BREAKR will have the right, at its sole discretion, to use the designation “Marketing Partner” to describe its relationship with Artist, including in connection with the promotion of Artist, BREAKR, and the Platform. BREAKR may promote Artist and Artist’s relationship with BREAKR and the Platform in any manner or media, and such right will include the right to use Artist’s name, stage name, band name, likeness, and trademarks in connection therewith.
BREAKR, our logos, product or service names, and slogans, and the look and feel of the Platform are trademarks or service marks of BREAKR and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Platform are the property of their respective owners. Nothing in these Terms grants you any rights to use the trademarks or service marks of BREAKR or any third party. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise, or to individuals, does not constitute or imply any endorsement, affiliation, sponsorship or recommendation.
10. User Content; Grant of License; User Representations and Warranties
(a) Our Platform allows you to create a profile page and to upload and post Songs and other content, including music, lyrics, messages, text, graphics, photos, and other materials (collectively including Songs, “User Content”). Subject to the licenses granted below, you retain all rights in and to your User Content, as between you and BREAKR. (b) With respect to Songs you upload to the Platform, by uploading such Songs, you hereby grant the following licenses:(i) You grant us a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable right and license to: (A) host and stream such Songs, or any portion thereof, on and in connection with the Platform and the marketing and promotion thereof, including in a public facing compendium of Songs available for streaming on the Platform (the “Compendium”) and on third-party social media sites designated when the Slot is selected, and (B) reproduce, distribute, modify, remix, adapt, stream, transcode, publicly perform and publicly display, and otherwise use and exploit such Songs, or any portion thereof, as necessary or appropriate to provide the Platform and facilitate making your Songs available to Tastemakers; (ii) If a Tastemaker accepts your Song, you grant such Tastemaker a nonexclusive, royalty-free, worldwide, fully paid, perpetual, irrevocable, right and license to download, stream and otherwise publicly perform such Song, or any portion thereof, during the Slot in any manner or media, and to adapt and remix the Song as needed to facilitate such streaming and public performances; and(iii) You grant to anyone who uses or accesses the Platform, or who uses or operates any third-party website, app, or platform to which your Songs have been shared or embedded through the Platform (“Linked Services”), a nonexclusive, royalty-free, worldwide, fully paid up, right and license to (A) access and listen to such Songs through the Platform and the Linked Services. Artists may request removal of any of Song from the Platform, in which case such Song will be promptly removed from BREAKR’s servers (including the Artist Page, the Tastemaker Page and the Compendium), except that you acknowledge and agree that: (A) such removal will not affect in any manner the rights of any Tastemaker who accepted and played such Song to continue to stream and publicly perform the Song in any manner or media (as such rights are irrevocable); (B) once a Song is distributed to a Linked Service, BREAKR is not obligated to ensure the deletion of such Song from any servers or systems operated by the operators of any Linked Service, and such removal will not affect the rights of such Linked Service with respect to such Song; (C) such removal will not affect any use by BREAKR or its users that was commenced prior to the receipt of such request or require deletion of a Song by any user of the Platform or of any Linked Service who downloaded the Song as authorized herein or by the applicable Artist prior to removal; and (D) if you authorize any Song to be available for offline listening, the Song may still be temporarily available after removal to users of the Platform who saved the applicable Content for offline listening on their devices. Except as set forth in this paragraph, or if revoked by BREAKR, the rights granted here in shall be perpetual.All rights not expressly granted to you are hereby reserved to the owner of such rights.(c) With respect to User Content (other than Songs) that you post to the Platform, you hereby grant BREAKR a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display such User Content, and any name, username or likeness provided in connection with such User Content, in and in connection with the Platform and the marketing and promotion thereof in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share such User Content on or through our Platform, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others, consistent with any applicable account settings.(d) You may not upload or post any User Content that violates these Terms or for which you do not have all the rights necessary to upload or post and to grant us the licenses described above. With respect to Songs, this means that you own all rights in and to the Song, including the underlying musical composition, or otherwise have the right to upload the Song and grant the rights granted hereunder.(e) You represent and warrant to BREAKR that (i) User Content you post to the Platform (including all musical compositions, or portions thereof contained in any Songs) is original to you and you have obtained any and all rights, licenses, consents, permissions, or releases necessary to upload or post such User Content and to grant the rights granted herein (including with respect to the use of any name, voice, likeness or performance contained therein) (ii) your User Content, and our use thereof as permitted by these Terms, will not infringe upon or violate any rights of, or cause injury to, any person or entity (including copyright, trademark, and other intellectual property rights and rights of publicity and privacy) and will not violate any applicable laws, rules or regulations or create any liability for BREAKR and our users; and (iii) your User Content complies in all respect with these Terms, including the User Content restrictions set forth in Section 9 below. Although we have no obligation to screen, edit or monitor User Content, we may review, delete and remove User Content at any time and for any reason with or without notice.(f) You hereby acknowledge and agree that BREAKR is merely a marketplace for connecting Artists and Tastemaker and that BREAKR (i) stores User Content solely at the direction, request and with the authorization of its users, (ii) acts merely as a passive conduit and/or host for the uploading, storage and distribution of such User Content, and (iii) plays no active role and gives no assistance in the selection and distribution of the User Content submitted by Artists or other users or the Songs selected by Tastemakers. As a result, you acknowledge that BREAKR is not responsible or liable for any User Content uploaded or posted by users, or for any loss or damage thereto, or for the conduct or Artists, Tastemakers or other users. Nor is BREAKR liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of Platform is at your own risk. (g) Although BREAKR has no obligation to screen, edit or monitor any User Content, BREAKR reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense. (h) You agree to the following: The Client(s) involved in the Campaign may post and promote each piece of Campaign Content you are creating on their social channels and websites in all territories for a period of no less than 90 days (from the date each piece of content is posted). They may continue to keep the Campaign Content on their social channels and websites thereafter. 11. User Conduct and Content
You agree that you are solely responsible for your conduct on and in connection with the Platform. You agree to treat other users with respect and that you will not do any of the following in connection with the Platform or its users (whether on or outside the Platform):▪ Violate any applicable law, contract, intellectual property right or other third-party rights;▪ Engage in any harassing, threatening, hostile, aggressive, abusive, violent, discriminatory, intimidating, predatory or stalking conduct;▪ Use or attempt to use another user’s account without authorization from that user and BREAKR;▪ Impersonate anyone, post on behalf or any person or entity, or otherwise misrepresent your identity or affiliation with a person or entity;▪ Sell, resell or commercially use our Platform;▪ Copy, reproduce, distribute, modify, publicly perform, publicly display, or otherwise use or exploit any portion of our Platform, including any third-party Songs that are available on the Platform, except as expressly permitted by us in these Terms or as expressly authorized through the Platform or by the owners of such Songs;▪ Modify our Platform, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Platform;▪ Use our Platform other than for its intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Platform or that could damage, disable, overburden or impair the functioning of our Platform in any manner;▪ Reverse engineer any aspect of our Platform or do anything that might discover source code or bypass or circumvent any filtering, security features, or other measures employed to prevent or limit access to any part of our Platform or otherwise protect the Platform, its users, or third parties;▪ Access or attempt to access any portion of the Platform, or any content, data or information on the Platform, you are not authorized to access;▪ Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Platform;▪ Harvest or otherwise collect information about users, including email addresses, without their consent;▪ Develop or use any applications that interact with our Platform without our prior written consent;▪ Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;▪ Bypass or ignore instructions contained in our robots.txt file; or▪ Use our Platform for any fraudulent, illegal or unauthorized purpose, or to commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.▪ Engage in, encourage or promote any activity that violates these Terms.You are solely responsible for any User Content you upload, post, or otherwise communicate through the Platform and you agree not to upload, post or otherwise communicate any User Content that:▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or misleading;▪ Promotes or incites violence, terrorism, illegal acts, or hatred on the grounds of race, ethnicity, cultural identity, religious belief, disability, gender, identity or sexual orientation;▪ Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;▪ May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right or that you otherwise do not have the right to upload or post;▪ Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;▪ Impersonates or misrepresents you, your User Content, or your affiliation with, any person or entity;▪ Contains any unsolicited promotions, political campaigning, advertising or solicitations;▪ Is confidential or that you otherwise do not have the right to disclose;▪ Contains any private or personal information of a third party without such third party’s consent;▪ Contains any viruses, corrupted data, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful, malicious, or destructive files or content; or▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Platform, or may expose BREAKR or others to any harm or liability of any type.You also agree to comply with any Community Guidelines that BREAKR may from time to time establish and make available through the Platform. Enforcement of this Section 9 is solely at BREAKR's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 9 does not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by such rules.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about BREAKR or our Platform (collectively, “Feedback”). You understand and agree that we have no obligation to treat Feedback as confidential and that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in BREAKR’s sole discretion.
13. Repeat Infringer Policy; Copyright Complaints.
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at BREAKR's sole discretion, subscribers or account holders who are deemed to be repeat infringers. BREAKR may also at its sole discretion limit access to the Platform and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.If you believe that anything on our Platform infringes any copyright that you own or control, you may notify BREAKR’s designated agent as follows:
Designated Agent: BRKR.IO INC. C/O MUSIC BREAKR
Address: 3343 Peachtree Rd NE Ste 145-1208
Atlanta, GA 30326 US
Telephone Number: 850-212-8392
E-Mail Address: firstname.lastname@example.org
Please see [url=https://www.gpo.gov/fdsys/pkg/USCODE-2011-title17/pdf/USCODE-2011-title17-chap5-sec512.pdf]17 U.S.C. § 512(c)(3)[/url] for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Platform is infringing, you may be liable to BREAKR for certain costs and damages.
14. Third-Party Content; Third-Party Products and Services
We may provide, or may provide links to or information about, third-party content on or through the Platform (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. BREAKR does not control or endorse, and makes no representations or warranties of any kind regarding, any Third-Party Content, including without limitation regarding its accuracy or completeness or noninfringement. You acknowledge and agree that BREAKR is not responsible or liable for, and undertakes no responsibility to update or review, any Third-Party Content. Your access to and use of such Third-Party Content is at your own risk.BREAKR may also provide information about or links to third-party products or services on the Platform, including the services provided by Tastemakers and the Linked Services (“Third-Party Products or Services”). BREAKR does not endorse or make any representations or warranties regarding any Third-Party Products or Services or any related promotions or vendors. Your business dealings or correspondence with, and the performance of, such third parties (including Tastemakers), and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. BREAKR does not control or endorse, and is not responsible or liable in any manner for, any third parties or any third party products or services, for any loss or damage of any sort incurred as the result of any products, services, dealings or promotions.
Platform users may from time to time organize and/or attend face-to-face meetings or other events ("Meetups"). While BREAKR is generally supportive of Meetups and may provide branded promotional materials to help organizers promote their Meetups, BREAKR does not sponsor, oversee or in any way control such Meetups. You hereby acknowledge and agree that your attendance and participation in any Meetups is entirely at your own risk and BREAKR does not bear any responsibility or liability for the actions of any Platform users or any third parties who organize, attend or are otherwise involved in any Meetups.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless BREAKR and our officers, directors, agents, partners and employees (individually and collectively, the “Indemnified Parties”) from and against any losses, liabilities, claims, actions, judgements, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Platform, including of any Songs or other content you access through the Platform; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Platform and its users. You agree to promptly notify Indemnified Parties of any third-party Claims, cooperate with Indemnified Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). You also agree that the Indemnified Parties will have control of the defense or settlement, at BREAKR's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and BREAKR or the other Indemnified Parties.
YOUR USE OF OUR PLATFORM (INCLUDING ANY SONGS OR OTHER CONTENT ACCESSED THROUGH THE PLATFORM) IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR PLATFORM AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, BREAKR DOES NOT REPRESENT OR WARRANT THAT OUR PLATFORM ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE BREAKR ATTEMPTS TO MAKE YOUR USE OF OUR PLATFORM AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR PLATFORM OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PLATFORM.
18. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:(A) IN NO EVENT WILL BREAKR AND THE OTHER BREAKR PARTIES BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE— FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING FOR LOST PROFITS), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PLATFORM OR THE SONGS OR OTHER CONTENT CONTAINED IN OR ACCESSED THROUGH THE PLATFORM OR FROM ANY INTERACTIONS WITH OTHER USERS, EVEN IF BREAKR OR THE OTHER BREAKR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND(B) THE TOTAL LIABILITY OF BREAKR AND THE OTHER BREAKR PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, THE USE OF OR INABILITY TO USE OUR PLATFORM, OR THE SONGS OR OTHER CONTENT CONTAINED IN OR ACCESSED THROUGH THE PLATFORM, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU TO USE OUR PLATFORM IN THE 12 MONTHS PRIOR TO THE DATE OF THE CLAIM.THE LIMITATIONS SET FORTH IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF BREAKR OR THE OTHER BREAKR PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you release BREAKR and the other BREAKR Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
20. Transfer and Processing Data
In order for us to provide our Platform, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.22. Governing Law and VenueAny dispute arising from these Terms and your use of the Platform will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Alameda County, California.
21. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with BREAKR and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.No Representative Actions. You and BREAKR agree that any dispute arising out of or related to these Terms or our Platform is personal to you and BREAKR and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.Arbitration of Disputes. Except for small claims disputes in which you or BREAKR seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or BREAKR seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and BREAKR waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Platform, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against BREAKR you agree to first contact BREAKR and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to BREAKR by email at email@example.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and BREAKR cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in [Alameda County, California] unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 19, a “consumer” means a person using the Platform for personal, family or household purposes. You and BREAKR agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the [url=https://www.jamsadr.com/rules-streamlined-arbitration/]JAMS website[/url] and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.You and BREAKR agree that these Terms affect interstate commerce and that the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, BREAKR, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision. You and BREAKR agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and BREAKR will pay the remaining JAMS fees and costs. For any arbitration initiated by BREAKR, BREAKR will pay all JAMS fees and costs. You and BREAKR agree that the state or federal courts of the State of California and the United States sitting in Alameda County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and BREAKR will not have the right to assert the claim.You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 19 by emailing us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.If any portion of this Section 19 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 19 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 19 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 19 will be enforceable.
23. Modifying and Terminating our Platform
We reserve the right to modify our Platform or to suspend or stop providing all or portions of our Platform at any time. We also reserve the right, for any reason or for no reason in our sole discretion, to terminate your license to use the Platform and to block or prevent future your access to and use of the Site. You will immediately cease all use of the Platform upon notice of such termination. You also have the right to stop using our Platform at any time. We are not responsible for any loss or harm related to your inability to access or use our Platform.
24. Additional Terms and Amendments
We may supply different or additional terms in relation to some of our Platform, and those different or additional terms become part of your agreement with us if you use those Platform. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
(a) The failure of BREAKR to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. (b) Under California Civil Code Section 1789.3, California consumers 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 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.