BREAKTHROUGH PHYSICAL THERAPY MARKETING, LLC
MASTER TERMS & CONDITIONS

We made updates to our Master Terms & Conditions. These updated terms are effective on October 31, 2023. Please be aware that, by continuing to use our services after the effective date, you are accepting these updated terms.

Last modified: October 31, 2023

  1. Breakthrough Physical Therapy Marketing, LLC (“Breakthrough”, “we”, “us”, “our”), provides its programs, products and services (the “Programs”) indicated on one or more order forms that are signed by you and Breakthrough (each an “Order Form”) subject to your compliance with the following terms and conditions (“Terms”).
  2. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE SIGNING AN ORDER FORM TO PURCHASE ANY BREAKTHROUGH PROGRAMS. These Terms constitute an agreement between Breakthrough and you. We recommend that you print out a copy of these Terms for your records.
  3. By completing an Order Form and participating in the Programs, you affirm that you are able and legally competent to agree to and comply with these Terms. If you do not agree to these Terms or if you are not legally competent to agree to them, then you may not participate in the Programs. If the Order Form indicates that you are purchasing Programs in the name or on behalf of an organization or company, by signing, you certify to us that you have the legal authority to bind any such organization or company to these Terms.
  4. Please note that these Terms contain provisions that govern the resolution of claims between Breakthrough and you. Please see the Legal Disputes section for complete details. Privacy & Security.
  5. PRIVACY.Please review our Privacy Policy, which is incorporated into these Terms and governs your participation in and use of the Programs. To the extent there is a conflict between the terms of the Privacy Policy and these Terms, the Terms govern. Information security is important to Breakthrough. We have established appropriate physical, electronic and managerial safeguards to protect the information that we collect from or about our customers. Breakthrough does, however, reserve the right at all times to disclose any information as Breakthrough deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
  6. CHANGES.We reserve the right, at any time, to change these Terms, our Privacy Policy and/or the content of the Programs. your use of the Programs following any such change constitutes your agreement to follow and be bound by the Terms and/or Privacy Policy as revised. The revised Terms and/or Privacy Policy supersede all previous versions, notices or statements regarding the Programs. If we request, you agree to sign a non-electronic version of these Terms. We will notify you of any change to these Terms by updating the “Last Updated” date at the top of this webpage.
  7. BREAKTHROUGH’S OBLIGATIONS. Breakthrough agrees to use commercially reasonable efforts to make the applicable Program(s) available, excluding any scheduled downtime for maintenance and any downtime due to causes outside of Breakthrough’s reasonable control.
  8. INSIDE CIRCLE.  A subscription to any Program includes access to Breakthrough’s Inside Circle Facebook group.  However, if at any time you do not have any active Program subscriptions you have the right to subscribe to the Inside Circle for $49 per month.  Inside Circle shall be deemed a “Program” for purposes of these Terms and paid subscriptions to Inside Circle may be terminated at any time on 30 days advance written notice to Breakthrough. 
  1. YOUR OBLIGATIONS. You acknowledge that it is your responsibility to assure that your use of the Program, including any collection, use, disclosure or other processing of data that identifies or can be used to identify an individual patient, consumer or other person (“Personal Data”), is in full compliance with all federal, state, and local laws, rules, and regulations applicable to you and your business and by extension, to Breakthrough, as applicable. Without limiting the forgoing, you represent and warrant that you will:

(a) be solely responsible for the accuracy, quality, reliability, and integrity of Personal Data collected, used, or disclosed to Breakthrough in relation to any Program;

(b) Comply with all laws, regulations and contractual obligations that apply to Personal Data, including making any required disclosures and obtaining any required authorizations from individuals or otherwise taking such actions as required to permit Breakthrough to lawfully create, receive, transmit or maintain the Personal Data;

(c) Maintain the security of your users’ account credentials, assign unique log-in names and passwords to individual users, and take such other actions as required to prevent unauthorized access to or use of the Program; and

(d) Promptly notify Breakthrough of any suspected or actual breach of security of the Program, lost or stolen access credential or other security incident that creates potential risk to the security of the Program.

You further represent and warrant that you have the right to provide the Personal Data to us and by providing such Personal Data, we have the right to use such Materials to provide the Program(s) or as otherwise described in these Terms or the 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 for Breakthrough to use such Personal Data to send SMS text messages or other marketing communications on your behalf, 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 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 any Program.

You shall not: (a) access or use any Program Data after termination of the applicable Program; (b) copy, modify, or create derivative works or improvements of any Program or Program Data; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Program or Program Data to any person or entity; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Program or Breakthrough property, in whole or in part; (e) bypass or breach any security device or protection used by any Program; (f) input, upload, transmit, or otherwise provide to or through the Program or Program Data, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, malware, or other harmful code; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner any Program or Program Data, or Breakthrough’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any trademarks, copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Program or Program Data, including any copy thereof; (i) access or use a Program or Program Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any third party or that violates any applicable Law; (j) access or use the Program and Program Datta for purposes of competitive analysis of any Program or any other Breakthrough products or services, the development, provision, or use of a competing software service or product or any other purpose that is to Breakthrough’s detriment or commercial disadvantage; or (k) access or use any Program or Program Data in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Program could lead to personal injury or severe physical or property damage; or (l) otherwise access or use any Program or Program Data beyond the scope of the authorization granted under these Terms; or (m) use the Program for any self-promotional activities.

You agree to submit in a timely and accurate manner the necessary videos and practice-specific information, in compliance with Breakthrough’s technical requirements and other specifications. It is understood that Breakthrough requires this information to begin work on creating and completing your automated funnel, its Facebook advertisements and landing pages. You also agrees to run at least the required number of workshops each month as indicated on the applicable Order Form, to fully bucket workshop registrant-leads after each workshop as instructed by their customer success coach, to maintain an up-to-date email list, to complete the monthly Metric Submission to Breakthrough, to select at least the required number of Monthly Email Campaigns set forth on the applicable Order Form, and to attend required Program calls as well as the required number of one-on-one coaching calls.

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 and for a period of two years thereafter.

  1. GUARANTEES.  

(a)   Guarantee Credits:

 (i)         If your Order Form includes a “Guarantee Credit” that indicates a specific number of “Leads”, Breakthrough guarantees that the subscriptions you purchase to a Program will generate an aggregate number of leads that are indicated in the column entitled “Guarantee” in the Order Form (the “Guaranteed Leads”) during the period of time indicated in the table on which the guaranteed number of leads is indicated (the “Lead Guarantee”). If you receive less than the specified number of Guaranteed Leads during the applicable period of time you will, subject to the terms set forth below, qualify for a credit. To qualify for the credit, you must (i) attend at least 1 coaching call per month and complete all of the assigned action plans by your coach, (ii) maintain a monthly Facebook ad spend budget of at least $1,000 USD, (iii) not run ads outside of the applicable Program within Facebook’s Family of Apps & Services, (iv) schedule at least one email campaign per month for the applicable Program, (v) fulfill all of your obligations under these Terms, and (vi) make any request for a Lead Guarantee credit within 15 days of the end of the applicable period of time described in the Lead Guarantee. If you qualify for the Lead Guarantee, you will receive a credit toward future subscription fees for the Program under which the Lead Guarantee was provided. The amount of credit will be calculated by (A) first, subtracting the total number of leads delivered during the applicable Program subscription term from the number of Guaranteed Leads, (B) second, dividing the difference by the total number of leads delivered during the applicable Program subscription term, and (C) third, multiplying the resulting percentage by the total subscription fees paid during the applicable program subscription term.  All credits may be applied to future payments due, but will NOT be issued as a refund.

(ii)        If your Order Form includes a “Guarantee Credit” that indicates a specific percentage of referral growth, Breakthrough guarantees that the applicable Program will generate direct access referral growth by the specified percentage during the applicable Program subscription term, each as indicated in the Order Form (“Growth Guarantee”). “Direct access referral growth” is defined as direct access referral patient growth. If you receive less than 20% direct access referral growth during the applicable subscription term of a Program you may qualify for a credit. To qualify for a Growth Guarantee credit, you must (i) attend at least 1 coaching call per month, (ii) complete all of the assigned action plans by your coach, (iii) maintain a monthly Facebook ad spend budget of at least $1,000 USD, (iv) not run ads outside of the applicable Program within Facebook’s Family of Apps & Services, (v) schedule at least one email campaign per month for the applicable Program, (vi) submit the monthly metric report by the last day of each month, (vii) not make any business model changes, including but not limited to converting from insurance based to cash only patients, and (viii) fulfill all of your obligations under these Terms, and (ix) make any request for a Growth Guarantee credit within 15 days of the end of the applicable Program subscription term. The amount of credit will be calculated by (A) first, subtracting the total percentage of direct access referral growth during the applicable Program subscription term from the percentage guaranteed, and (B) multiplying the resulting percentage by the total subscription fees paid during the applicable Program subscription term.  All credits may be applied to future payments due but will NOT be issued as a refund.

(iii)      By requesting a credit, you acknowledge that your account will be in review and that Breakthrough may terminate the applicable Program subscription if the performance of ads is deemed to be consistently below expectations in Breakthrough’s reasonable discretion.

(b) 30 Leads in 90 Days or You Don’t Pay Guarantee.  If your Order Form includes a “Guarantee” of “30 leads in 90 days or you don’t pay”, Breakthrough guarantees that you will receive a minimum of 30 Leads in the first 90 days of the applicable Program subscription term. “Leads” are defined as anything generated by the concepts, strategies, and systems that are trackable by Breakthrough, including reactivation (past patient) leads, including every response from emails and text messages. If you receive less than 30 Leads in the first 90 days of the applicable Program subscription term, you may qualify for a refund. To qualify for the refund, you must attend at least 3 onboarding coaching calls within the first 90 days of the Start Date of the applicable Program subscription and complete all of the assigned action plans by your Customer Success Manager, as well as (a) upload a minimum of 1,000 contacts with active cell phone numbers or emails within 2 weeks of the Start Date of the applicable Program subscription, (b) schedule all recommended email and text campaigns, (c) adopt the Breakthrough software platform to phase Leads to the patient phase and (d) respond to leads with one (1) business day. In order to qualify for the refund, you must request the refund in writing within 105 days of the applicable Program subscription Start Date.  If you qualify for the Guarantee, you will receive a full refund of payments you paid to Breakthrough and you will have the right to terminate the remainder of the applicable Program subscription at no cost to you.

 

(c) Profitability Under Pressure Guarantee.  If you take the Profitability Under Pressure course, Breakthrough guarantees that you will achieve Increased Profits of $10,000 during the 90 days period following completion of the Profitability Under Pressure course. “Increased Profits” is calculated by subtracting (i) your gross billed revenue net of payroll, benefits, marketing, rent, and office expenses and taxes during the 90 day period immediately preceding the start of the Profitability Under Pressure course from (ii) your gross billed revenue net of payroll, benefits, marketing, rent, and office expenses and taxes for the 90 day period immediately after the completion of the Profitability Under Pressure Course. If your Increased Profits are less than $10,000 you may qualify for a refund. To qualify for the Increased Profit Guarantee refund, you must (i) complete the Profit Planner provided by Breakthrough within the first month of the Profitability Under Pressure course, (ii) attend at least 3 coaching calls during the course and complete all of the assigned action plans by your coach, (iii) implement a minimum of three (3) strategies defined by Breakthrough in the Profitability Under Pressure course, and provide documentation of implementation (vi) attend a minimum of nine (9) live course group calls, and (v) provide an updated Profit Planner at the completion of the Profitability Under Pressure course. Any refund request must be made in writing within 105 days after completion of the Profitability Under Pressure course.  If you qualify for the guarantee, you will receive a full refund of the total fees paid to Breakthrough for the Profitability Under Pressure course. 

  1. NO CUSTOMIZATIONS. Unless otherwise expressly stated in your Order Form, to protect the Program’s integrity and conversion optimization, no customization to landing pages, Facebook advertisements, email campaigns, or to any other Program part is permitted. 
  2. ADDITIONAL PARTNERSHIP ADD-ON OPTIONS. If any Program to which you subscribe requires or permits you to purchase or implement services by one of Breakthrough’s partners, such as Lightforce Laser or Hands on Diagnostic Services, you are responsible for notifying your customer success coach so that they can obtain free access to the corresponding campaign and/or funnel offerings and, by notifying your coach, you agree to be bound by any additional terms and conditions Breakthrough imposes in connection with your use of those offerings.
  3. OWNERSHIP.

What you own: you will at all times retain ownership of the data you own or control prior to your participation in the Program(s) (“Your Data”). As a result of Breakthrough’s provision of the products and services under these Terms, Breakthrough may make enhancements, modifications, and/or improvements to Your Data and deliver the same to you. You have an unrestricted right to use enhancements, modifications, and/or improvements to Your Data in connection with your business even after termination of the applicable Program.

What we own: Breakthrough at all times retains all right, title, and interest in and to: (a) the Program(s); (b) all associated content, materials and information, including intellectual property rights in and to the foregoing; 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 term of each Program subscription, 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 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.

  1. MARKETING OPPORTUNITIES.You acknowledge and agree that certain Programs will incorporate local or national marketing, advertising, and promotional programs that are developed or established by Breakthrough. You agree to participate in such marketing, advertising and promotional programs as directed by Breakthrough or as otherwise incorporated into the applicable Program. You acknowledge that, unless we otherwise agree in writing, you are not entitled to any compensation in connection with such programs and that we are able to offer you the pricing set forth in the applicable Order Form based in part on your agreement to participate in such programs.
  2. MARKETING COSTS. Client agrees Facebook ad spend budget will be $1,000 USD per month. Based on how Facebook ads are run and managed, actual ad spend can never be presumed to be exact and is therefore an estimate. Client agrees Breakthrough may over- or underspend by plus or minus 20% of the set ad spend budget per workshop. Client authorizes Breakthrough to provide Facebook the Client’s valid credit card in good standing to be charged directly by Facebook in accordance with Facebook’s policies and procedures. Client acknowledges Breakthrough is not responsible for the frequency or infrequency with which Facebook charges Client’s credit card. Client may choose to increase ad spend budget per workshop.
  3. FEES AND TERM.You agree to pay all fees set forth in each applicable Order Form from the credit card that you provide. The Greatest Promotion Ever (“GPE”) Funnel is an add-on to other condition funnels that we offer. The GPE Funnel is available at no charge to all of our Premium customers who maintain and pay fees for at least two condition funnels. You must provide written notice to your customer success coach to activate the GPE Funnel. If you use the GPE Funnel and then reduce your subscription to only one active condition funnel, you will be required to pay $600.00 USD per month to continue using the GPE Funnel and if you choose not to pay the $600.00 monthly fee, your access to the GPE Funnel will be terminated as of the date that you no longer maintain two active condition funnels.  If you have only one active condition funnel and wish to add the GPE Funnel for $600.00 USD per month, you must provide written notice to your customer success coach and execute an Order Form for the add-on. The GPE funnel will continue to be made available so long as your one condition funnel. Upon termination or expiration of your condition funnel, the GPE Funnel shall automatically terminate. If we are unable to process a payment, we will notify you and you will have five business days to notify us of an acceptable alternative payment method or a resolution of the issue with your credit card on file. If we do not hear from you within that five business day period, we may suspend your access to the applicable Program or terminate your participation in the Program. Any declined payment that is not resolved within five business days after Breakthrough provides you with notice will be assessed an additional fee of $25 and late payments will also accrue interest at the lesser of: (a) one and one-half percent per month; and (b) the highest rate permitted by applicable law. Even if we suspend your account for non-payment, you will remain responsible for all Program fees through the end of the term of the applicable Program. All fees you pay to us are non-refundable and we are not obligated to grant any requests for holds, refunds, or early cancellation of any Program. Quantities purchased cannot be decreased during the applicable Program 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 more than 60 days past due. You are responsible for any collection, attorney fees, or other costs we incur in connection with collecting any unpaid fees. These Terms shall be effective upon the execution by you and Breakthrough of an Order Form and shall remain in effect until all Order Forms have been terminated. Notwithstanding the foregoing, Breakthrough may terminate any Program upon written notice to you: (a) immediately if you breach these Terms; or (b) upon 30 days written notice without cause.
  1. TERM LENGTH. These Terms shall remain and full force and effect from the date you sign an Order Form and shall apply during the applicable term of all Program subscriptions that you purchase from Breakthrough, including any trial or pilot subscriptions.  Any subscription governed by these Terms shall be terminable by you providing Breakthrough with advance written notice of your intent to terminate at least thirty (30) days before the end of the then current subscription term. Notwithstanding the foregoing, Breakthrough may terminate any Program subscriptions at any time upon written notice to you in the event you materially breach any term of this Agreement, including the Breakthrough Master Terms & Policies or any other Breakthrough policy or procedure, and you fail to cure such breach within fifteen (15) days upon receiving written notice from Breakthrough.  In the event Breakthrough terminates any Program subscription for cause, you shall not be entitled to any refund or credit of fees paid or otherwise be relieved from paying all fees due for the remainder of the then current Term.  You will not be granted any holds or early cancellation requests for any circumstances.
  1. THIRD PARTY PRODUCTS. You acknowledge and agree that it may be necessary for Breakthrough to use various third-party products and services, including but not limited to Facebook, in providing the Program(s). Access to such third party platforms is provided “as is” and “as available” without any warranty or condition, express, implied or statutory and is subject to the platform provider’s terms and conditions and privacy policy. You should review those terms prior to beginning any Program. Breakthrough does not control the underlying functionality of the third party platforms used as part of the Program or their future modifications and in no event shall Breakthrough be liable for any costs, fees, or damages that you incur in connection with any third party platform or other third party product or service. In particular, and without limiting the generality of the foregoing and without limiting any disclaimer or limit of liability set forth in these Terms, you agree not hold Breakthrough responsible for any changes, decisions, or effects caused directly or indirectly by Facebook or the algorithms contained therein that may affect workshop registration numbers. You are responsible for all costs and fees of such third party products and services.
  2. CONFIDENTIAL INFORMATION.Confidential Information means all of Breakthrough’s non-public information and specifically includes but is not limited to, the products and services, business plans, financial information, pricing and sales data, marketing research, methods, protocols, manuals and training materials, ideas, concepts, designs, inventions (whether patentable or not), customer lists, distribution methods, computer programs, software, algorithms, business methods, trade secrets, know how, reports, discussions and negotiations under these Terms or any other contract between you and Breakthrough. Breakthrough may provide you with certain Confidential Information to enable you to receive the full benefit of a particular product or service. You may use such Confidential Information solely in connection with your use of the Program during the applicable Program term. In no event will you use or disclose any Confidential Information to or for the benefit of any third party. You agree that Confidential Information has been developed or obtained by Breakthrough’s investment of significant time, effort, and/or resources and that Breakthrough’s Confidential Information constitutes a valuable asset and provides significant commercial and business value to Breakthrough and you through participating in a Program. You agree to protect the Confidential Information by using the same degree of care as you use to protect your own confidential information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. If you become aware of any unauthorized access or disclosure of Confidential Information, you will promptly notify Breakthrough and reasonably cooperate with Breakthrough to minimize any adverse effects and further breach of Confidential Information.
  3. DISCLAIMER.As part of the Program, Breakthrough may provide template messages, disclosures, model text messaging terms and conditions and privacy policies, ongoing educational information and other materials that are or may be legally required for your business. These materials are offered for informational and educational purposes only, and neither Breakthrough, nor any outside counsel it may work with, are providing you legal advice. By providing these materials, no party is creating an attorney-client relationship. You expressly represent and warrant that you will take no action in reliance on the information provided by Breakthrough, understand and agree that such services are expressly excluded from the scope of our indemnification obligations, and that neither Breakthrough nor its agents shall have any liability with respect to actions taken or not taken based on these materials. Breakthrough encourages you to seek the advice of an attorney for all relevant legal matters, including, to ensure that any mobile messaging campaigns are fully compliant with all applicable federal and state laws and regulations because you are solely responsible for the messages you send through Breakthrough’s text messaging services.

YOU AGREE THAT ANY USE OF THE PROGRAM(S) IS AT YOUR OWN RISK AND THAT THE PROGRAM DATA IS BEING PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF THE APPLICABLE ORDER FORM AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, BREAKTHROUGH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PROGRAM AND 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.

Further, you agree that we have no obligation to procure or attempt to procure any business or sales for you or to introduce you to our 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(s). Earning potential depends entirely on you. Your level of success in attaining results depends on factors that you control, such as the time you devote to the Program as well as your finances, knowledge and individual skills.

  1. INDEMNIFICATION AND LIMITATION OF LIABILITY.You shall indemnify, defend and hold us 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; (d) your acts or omissions in connection with your use of the Program(s); and (e) our access, use or disclosure of the Materials.

NEITHER YOU NOR BREAKTHROUGH SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SPECIAL DAMAGES ARISING FROM OR RELATING TO THESE TERMS, THE PROGRAMS, THE 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 YOU HAVE 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.

  1. LEGAL DISPUTES. YOU AND BREAKTHROUGH AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Any dispute between you and us arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration. Before initiating any arbitration, the initiating party will give the other party at least 60-days’ advanced written notice of its intent to file for arbitration. we will provide such notice by e-mail to your e-mail address on file and you must provide such notice by e-mail to [email protected].

During such 60-day notice period, we both agree to work in good faith to settle amicably any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either you or Breakthrough may initiate arbitration. The arbitrator will conduct any arbitration proceedings by telephone or videoconference unless in-person appearances are requested by you or us and approved by the arbitrator. Any in-person appearances will be held at a location mutually agreed upon by you and us, or, in the absence of such agreement, at a location determined by the arbitrator. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. Breakthrough and you agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Breakthrough nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative or private attorney general arbitration). These Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA) and, where otherwise applicable, by the laws of the State of California.

  1. 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 your rights or obligations under any Program without the prior written consent of Breakthrough. These Terms, the applicable Order Form and all documents expressly incorporated therein by reference constitute the entire agreement between you and Breakthrough and supersedes any oral or written communications between us regarding your participation in the Program(s). Unless otherwise specifically provided in an Order Form, in the event of a conflict between these Terms, an Order Form or any other written agreement or understanding between the parties, these Terms shall govern. You agree to communicate with us using 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.