Last modified: June 18, 2020
1. PROGRAM AND OWNERSHIP. By purchasing any Breakthrough Physical Therapy Marketing (“Breakthrough”) program (each a “Program”), You agree to be bound by the following terms set forth in this Agreement (“Terms”) as well as any terms set forth in the Program Agreement or Order Form. Please read these Terms carefully before purchasing any Program. By purchasing any Breakthrough Program, You affirm that You are of legal age to enter into the Program Agreement or Order Form and these Terms. You affirm that if You purchase a Breakthrough Program on behalf of an organization or company, You have the legal authority to bind any such organization or company to these Terms. Breakthrough may, in its sole discretion, modify these Terms at any time. All modifications shall be posted on the Breakthrough website. Breakthrough at all times retains all right, title, and interest in and to: (a) its Program(s); (b) all associated content, materials, information, and other intellectual property; and (c) all leads, contacts, data, and customers that result from Your use of a Program ((a)-(c), collectively referred to as the “Program Data”). During the applicable subscription term, Breakthrough grants You a limited, non-exclusive right to access and use the Program Data for Your internal business purposes at the practice location indicated on the applicable Program Agreement or Order Form only. You hereby assign to Breakthrough all right, title and interest in and to any feedback, recommendations, or suggestions that You may provide to Breakthrough during Your use of a Program. You acknowledge and agree that Breakthrough may use the results of any Program in its marketing and promotional materials without compensation, acknowledgement or notice to You. All Program Data shall remain the confidential information of Breakthrough and You may not disclose any Program Data to any third party. You acknowledge and agree that it will be necessary for Breakthrough to use various third-party products and services, including but not limited to the Facebook Platform, in providing the Program(s). In no event shall Breakthrough be liable for any costs, fees, or damages incurred by You in connection with any third-party product or service. These third parties will have terms and conditions that will apply to Your use of such third-party product or service and You should review those terms prior to using any third party products or services.
2. FEES AND TERM. You agree to pay all fees set forth in the applicable Program Agreement or Order Form. In the event a payment is not received by Breakthrough, Breakthrough will notify you and You will have five (5) business days to notify Breakthrough of an alternative payment method that is accepted by Breakthrough or notification that the issue of the card on file has been resolved. If Breakthrough is not contacted by You within that five (5) business day period, Breakthrough may suspend Your access to the applicable Program or terminate the Program Agreement or Order Form. Suspension of Your access to any Program or termination of any Program Agreement or Order Form does not relieve You of any payment obligations and any fees paid are non-refundable. Breakthrough is not obligated to grant any account requests for holds, refunds, or early cancellation of any Program. Quantities purchased cannot be decreased during the applicable subscription term. Breakthrough reserves the right to adjust fees at any time and to turn over our account receivables over to a collection agency for any amounts that are sixty (60) days past due. You shall be responsible for any collection, attorney fees, or other costs incurred by Breakthrough in connection with collecting any unpaid fees. These Terms shall be effective upon the execution by You and Breakthrough of a Program Agreement or Order Form and shall remain in effect until all Program Agreements or Order Forms have been terminated. Notwithstanding the foregoing, Breakthrough may terminate any Program Agreement or Order Form upon written notice to you: (a) immediately if You breach these Terms; or (b) upon thirty (30) days written notice without cause.
3. DISCLAIMER. YOU AGREE THAT ANY USE OF THE PROGRAM(S) IS AT YOUR OWN RISK AND THAT THE PROGRAM DATA IS BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” TO THE EXTENT PERMITTED BY APPLICABLE LAW, BREAKTHROUGH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT IT’S PROVISION OF ANY PROGRAM DATA INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. BREAKTHROUGH DOES NOT WARRANT THAT THE PROGRAM DATA WILL BE ERROR FREE, FREE FROM ANY VIRUS, MALWARE, OR HARMFUL CODE, FREE FROM INTERRUPTIONS, WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR ACCOMPLISH ANY PARTICULAR RESULT. YOU AGREE THAT BREAKTHROUGH IS NOT ACTING AS A PUBLIC RELATIONS MANAGER, BUSINESS MANAGER, PHYSICAL THERAPIST, OR AGENT IN PROVIDING THE PROGRAM DATA TO YOU. FURTHER, YOU AGREE THAT BREAKTHROUGH HAS NO OBLIGATION TO PROCURE OR ATTEMPT TO PROCURE ANY BUSINESS OR SALES FOR YOU OR TO INTRODUCE YOU TO BREAKTHROUGH’S FULL NETWORK OF CONTACTS, MEDIA PARTNERS OR BUSINESS PARTNERS. THERE IS NO GUARANTEE THAT YOU WILL EARN ANY MONEY USING THE TECHNIQUES AND IDEAS IN THE PROGRAM DATA. EARNING POTENTIAL ENTIRELY DEPENDS ON YOU. YOUR LEVEL OF SUCCESS IN ATTAINING RESULTS DEPENDS ON FACTORS OUTSIDE BREAKTHROUGH’S CONTROL SUCH AS THE TIME YOU DEVOTE TO THE PROGRAM AND YOUR FINANCES, KNOWLEDGE, AND INDIVIDUAL SKILLS.
4. INDEMNIFICATION AND LIMIT OF LIABILITY. YOU SHALL INDEMNIFY, DEFEND, AND HOLD BREAKTHROUGH HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM OR RELATING TO YOUR: (A) BREACH OF THESE TERMS; (B) INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY; (C) NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW; OR (D) BREAKTHROUGH’S ACCESS, USE OR DISCLOSURE OF MATERIALS. NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SPECIAL DAMAGES RELATING TO THESE TERMS, THE PROGRAM AGREEMENT OR ORDER FORM OR THE PROGRAM DATA (INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF DATA, REVENUE PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, OR STATUTORY DUTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, OR OTHERWISE. IN NO EVENT SHALL BREAKTHROUGH’S TOTAL LIABILITY UNDER ANY PROGRAM AGREEMENT OR ORDER FORM EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PROCEEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
5. YOUR OBLIGATIONS. You shall provide Breakthrough with all information and materials necessary for Breakthrough to provide the Program(s), including when applicable, individually identifiable personal information pertaining to consumers, Your patients or prospective patients or other individuals (“Personal Data”) (collectively, the “Materials”). You represent and warrant that You have obtained all necessary rights to provide the Materials to Breakthrough and by providing such Materials, Breakthrough has the right to use such Materials to provide the Program(s) or as otherwise described in these Terms, the Program Agreement or Order Form. Without limiting the generality of the foregoing, You represent and warrant that You have provided any required notices, obtained any necessary consents or permissions, or taken any other actions required under applicable law for Breakthrough to access, use or disclose any Personal Data You provide to Breakthrough or which Breakthrough creates, receives, transmits or maintains on Your behalf in connection with the Program(s), and will at all times comply with laws applicable to the collection, use and processing of such information. The accuracy of any funnel or other deliverable provided to You under a Program Agreement or Order Form is entirely driven by the information that You provide to Breakthrough. Breakthrough hereby disclaims any and all liability for any inaccuracies or ineffectiveness of the funnel or other deliverables provided under this Agreement, a Program Agreement or Order Form. You shall not: (a) access or use any Program Data after termination of the applicable Program Agreement or Order Form; (b) disassemble, decompile, reverse engineer, or modify the Program Data; (c) rent or sublicense the Program Data or permit any use by a third party; (d) disclose, transmit, or store any data or other information that infringes upon the intellectual property or other proprietary right of any third party or violates any third party’s right of privacy; (e) use the Program, Program Data or Materials in violation of any applicable law or regulation; and (f) use the Program for any self-promotional activities. In exchange for Your participation in the Program(s) You agree not to: (i) make any disparaging or derogatory remarks regarding Breakthrough; or (ii) to the extent You participate in Breakthrough’s Inside Circle Facebook Group, form, join, become employed by, be engaged in, or provide any advice or services to, any enterprise (including, without limitation, any corporation, partnership, proprietorship, or other venture) which competes with Breakthrough during the term of any Program Agreement or Order Form and for a period of two (2) years thereafter.
6. MISCELLANEOUS. Should any provision of these Terms be found unenforceable, the remainder of these Terms shall remain in full force and effect. These Terms shall be governed by and construed in accordance with the laws of Delaware. You may not assign these Terms or any right or obligation herein without the prior written consent of Breakthrough. These Terms and any Program Agreement or Order Form constitute the entire agreement between the You and Breakthrough and supersedes any oral or written communications between us. In the event of conflict between these Terms and a Program Agreement, Order Form or any other agreement or understanding between the parties, these Terms shall govern. The communications between Breakthrough and You use electronic means, whether through the Breakthrough website or via email. For contractual purposes, You (i) consent to receive communications from Breakthrough in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Breakthrough provides to You electronically satisfy any legal requirement that such communications would satisfy if it were in a writing.