Terms of Use
THIS TERMS OF USE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DAILYBREAK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. Your Acceptance of Terms of Use
Breaktime Media MWH LLC (“Dailybreak,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.Dailybreak.com (the “Web site”) subject to the following Terms of Use (as amended from time to time, these “Terms of Use”). The Website, and any other services made available with the Website, including any new features or applications, whether or not provide by us or our affiliates or other third parties, are collectively referred to as the “Service(s).” By accessing or using the Services, you signify your agreement to these Terms of Use and any other legal notices or guidelines located on or within the Services. If you do not agree to any of the terms and conditions of these Terms of Use or other notices or guidelines, please do not use the Services and exit now. You may be required to register with Dailybreak in order to communicate with other registered members, and access and use certain Services or features. If you choose to register, you must meet the eligibility requirements and further read these Terms of Use and indicate your acceptance of them.
2. Important Legal Information Regarding Privacy
You agree that you have read, understood and accept Dailybreak’s Privacy Policy. The Privacy Policy explains Dailybreak’s collection of personal and non-personal information from you when using the Services and our use and sharing of such personal and non-personal information.
3. Modification to These Terms of Use and Our Services
We may add to, update, delete from or modify the Services at any time in our sole discretion. We reserve the right, at any time and in our sole discretion, to change the Terms of Use. We may post or display notices of changes to the Terms of Use on or through the Services. Once posted, these changes to the Terms of Use become effective immediately. If any change that we make is not acceptable to you, promptly stop using the Services. Any access or use by you of the Services after any changes to our Terms of Use become effective will signify your agreement to be bound by those changes. You should check back regularly and review these Terms of Use so that you are aware of the most current rights and obligations which apply to your agreement with us. Nothing in these Terms of Use shall be deemed to confer any third-party rights or benefits to you.
4. Dailybreak Services
A. These Terms of Use apply to all users of the Services, including users who are also registered members. The Dailybreak Content (defined below) is provided as a courtesy to our users and is intended for personal, informational, educational and non-commercial purposes only.
B. The Services may contain links to institutional or other third-party websites or applications that are not owned or controlled by Dailybreak. Dailybreak has no control over, and assumes no responsibility for, the products, services, content, privacy policies or practices of any institutional or third-party web site or application. In addition, Dailybreak is unable and unwilling to censor or edit the content of any institutional or third-party web site or application. Dailybreak is not involved in any transactions between you and any third party whose products and/or services are listed on the Services. By accessing or using the Services, you expressly relieve Dailybreak from any and all liability arising from your use of any linked institutional or third-party web site or application. Accordingly, we encourage you to be aware when you leave our Services and to read the terms and conditions and privacy policy of each web site or application that you access or use. If you decide to access any other web sites or applications linked to or from our Services, you do so entirely at your own risk. Any questions, complaints, or claims related to any product or service provided by a third party on the Services should be directed to the applicable third party.
C. Dailybreak encourages you to carefully choose the information you submit, post, or provide to others using the Services or Services features (e.g., comments, blogs, video chat sessions, mobile application, Promotion entries). Any conversations or information you have or share with others using features that are available on the Services and any User Submissions (defined below) may be accessible and viewable by all other users or by other registered members of the Services. Dailybreak does not control, or have any knowledge of the content of any communication(s) spread by the use or functions of the Services, such as the video chat feature or the posting of User Submissions. The content of the communication is entirely the responsibility of the person from whom such content originated.
D. Dailybreak reserves the right to remove, edit or reject any User Submissions (defined below) at any time, in its sole discretion. Furthermore, Dailybreak may restrict, suspend or terminate any user’s access to or use of all or any part of the Services or its features at any time, for any or no reason, with our without notice and with no liability to Dailybreak whatsoever.
5. Services Access
A. Dailybreak hereby grants you a limited, personal, non-exclusive, fully revocable license to use and access the Services and its features as set forth in these Terms of Use, provided that: (i) you will not copy or attempt to copy all or any portion of the Services; (ii) you will not distribute any part of the Services (other than User Submissions owned by you) in any medium without Dailybreak’s prior written authorization; (iii) you will not, and will not attempt to, alter, disassemble, decompile, reverse engineer, translate or otherwise modify any part of the Services other than as may be reasonably necessary to use the Services for its intended purpose, and will not attempt to circumvent the technological measures that control access to the Services; and (iv) you will otherwise comply with these Terms of Use. You agree not to delete, change or modify in any way the copyright notices or trademarks contained on the Services.
B. In order to access many features of the Services, you will have to create a registered member account and access our Services through a third party platform that requires you to have a login name and password (e.g, Facebook). Dailybreak does not have access to your password, but as part of such integration, the third party platform will provide us with access to certain information that you have provided to such third party platform, and we will use, store and disclose such information in accordance with our Privacy Policy. However, please remember that the manner in which the third party platforms use, store and disclose your information is governed solely by the policies of such third parties, and Dailybreak shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled or accessed within the Services. You may never use another Registered Member’s account or share your account with any other user or entity. When creating your account, you agree that you will provide current, complete and accurate information, and you agree that you will update your account information as necessary to keep it current, complete and accurate. As part of the Services, other Registered Members may request to be your friend or follow you. By accepting a Register Member’s request to friend or follow you, you permit such Registered Member to view your Badges and Points (as those terms are defined below) and access other information and content you may post on the Services from time to time. You are solely responsible for the activity that occurs on your account. You must notify Dailybreak immediately of any breach of security or unauthorized use of your account by contacting us at support@dailybreak.com.
C. You agree that you will not use the Services and the features offered through the Services (i) in connection with any commercial activities and/or sales, including without limitation advertising, contests, sweepstakes or pyramid schemes, without Dailybreak’s prior written consent, (ii) to promote information that you know is false or misleading or to promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous, (iii) to further or promote any criminal activity or enterprise, including without limitation, harassment, stalking, copyright infringement, patent infringement, or theft of trade secrets, (iv) to solicit personally identifiable information for commercial or unlawful purposes, (v) to advertise to, solicit, or sell to any person without their prior explicit consent, (vi) to harvest or collect personally identifiable information such as e-mail addresses, account names, passwords or other contact information of users or members for purposes of sending unsolicited communications or commercial solicitations. In order to protect third parties and other users from such prohibited conduct, Dailybreak reserves the right to restrict, in its sole discretion, communications which a user may send through the Services.
D. The Services include certain services that are available via a mobile device, including (i) the ability to upload User Submissions to the Service via a mobile device, (ii) the ability to browse the Serviced from a mobile device and (iii) the ability to access the Services and Promotions through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Dailybreak, Promotions, and other entities related to any of our Services or Promotions by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dailybreak account information to ensure that your messages are not sent to the person that acquires your old number.
6. Arbitration Agreement
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
A. Agreement to Arbitrate
This Section 2 is referred to in this Terms of Use as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Dailybreak, whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Use, you and Dailybreak are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.B. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND DAILYBREAK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DAILYBREAK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).C. Pre-Arbitration Dispute Resolution
Dailybreak is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@dailybreak.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Dailybreak should be sent to Breaktime Media, Attn: Josh Ginsberg, 24 School St 2nd floor, Boston, MA 02108 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Dailybreak and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Dailybreak may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Dailybreak or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Dailybreak is entitled.D. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Use as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Dailybreak and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Dailybreak agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.E. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is [$75,000] or less, at your request, Dailybreak will pay all Arbitration Fees. If the value of relief sought is more than [$75,000] and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Dailybreak will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Dailybreak will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.F. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.G. Severability
Without limiting the severability provision in Section 2(g) of the this Terms of Use, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Section 2(b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 2(b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Use will continue to apply.H. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Use to the contrary, Dailybreak agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Dailybreak written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.7. Intellectual Property Rights
The content on and in the Services, except all User Submissions (“Dailybreak Content”) is owned by or licensed to Dailybreak, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Breaktime Media MWH LLC is the owner of the trademark Dailybreak™ and such mark may not be used in connection with any product or service in any manner without Dailybreak’s prior written consent. You in no way will obtain any ownership interest in the Dailybreak Content, trademarks or service marks contained or displayed on or through the Services. Dailybreak Content is provided to you “AS IS” for your information and personal or educational use only and may not be reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owner. Dailybreak reserves all rights not expressly granted in and to the Services and the Dailybreak Content. You agree to not engage in the use, copying, or distribution of any of the Dailybreak Content other than as expressly permitted herein or as reasonably necessary to use the Services for its intended purpose. You agree not to circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Dailybreak Content or User Submissions or enforce limitations on use of the Services or the Dailybreak Content and User Submissions.
8. User Submissions
A. The Services may permit the submission of certain Promotion entries, user-generated text, information, data, video, chats, audio, photographs, files or other content to or through the Services (“User Submissions”) and the hosting, sharing, transmission and/or publishing of such User Submissions. User Submissions may be used, distributed and published by Dailybreak and viewed by both general users and registered members of the Services. You understand that Dailybreak does not guarantee any confidentiality with respect to any User Submissions.
B. You shall be solely responsible for your own User Submissions and the consequences of submitting, posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Dailybreak to use all copyrights, trademarks, trade secrets, patents or any other proprietary or personal rights in and to your User Submissions to enable inclusion and use of such User Submissions in the manner contemplated by the Services and these Terms of Use; (ii) submitting, posting or publishing your User Submission on or through the Services does not and will not violate any confidentiality obligations between you and any person or organization or the privacy rights, publicity rights or other rights of any person; and (iii) you have the written consent, release, and/or permission of each and every identifiable person or organization in your User Submission to use the name or likeness of each and every such identifiable person or organization to enable inclusion and use of the User Submissions in the manner contemplated by the Services and these Terms of Use. You further affirm, represent and warrant that your User Submissions are not defamatory or libelous in any manner whatsoever.
C. You will retain all ownership rights in your User Submissions, and Dailybreak will not use, reproduce, publish, distribute or display User Submissions owned by you and stored on or through the Services for Dailybreak’s commercial, marketing or any similar purpose, without your consent. By submitting a User Submission to Dailybreak and permitting it to be viewed, posted or published on or through the Services, you hereby grant to Dailybreak a perpetual, worldwide, non-exclusive, royalty-free, fully paid up, sublicenseable and transferable license to use, post and store User Submissions on or through Services and servers and publish, distribute and display such User Submissions in connection with the Services and Dailybreak’s (and its successor’s) business, including without limitation the right to distribute such User Submissions to other users and third parties. You further hereby waive any and all moral rights and all rights of a similar nature in any jurisdiction in your User Submission.
D. In connection with any User Submissions, you further agree that you will not: (i) submit or publish falsehoods, misrepresentations or statements that could damage Dailybreak or any third party; (ii) submit material that is false, misleading, inaccurate, derogatory, unlawful, obscene, defamatory, contains nudity, libelous, threatening, sexually explicit or pornographic, harassing, hateful, intimidating, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense of any federal, state or local law, give rise to civil liability, violate any law, or is otherwise inappropriate or objectionable; (iii) post advertisements or business solicitations, including any “junk mail” or “spam”; (iv) impersonate another person, institution or organization or falsely state or otherwise misrepresent yourself, your age or your affiliation with any third party, organization, institution or person; (v) upload, post, store or otherwise make available any virus, bug, Trojan horse or other computer file or program that is capable of destroying, interrupting or interfering with or limiting the functionality of the Services or any server, computer hardware, software or equipment. Dailybreak does not endorse any User Submission or any opinion, recommendation, or advice expressed therein. Dailybreak reserves the right to remove Dailybreak Content and User Submissions without prior notice. Dailybreak also reserves the right to decide whether Dailybreak Content or a User Submission is appropriate and complies with these Terms of Use for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, trademark infringement, violations of rights of publicity or privacy, obscene or defamatory material, or excessive length. Dailybreak may remove such User Submissions and/or terminate a user’s access for accessing or distributing such material in violation of these Terms of Use at any time, without prior notice and at its sole discretion. Dailybreak will have no liability for any removed, deleted or lost User Content.
E. You understand that when accessing and using the Services, you will be exposed to User Submissions and third party information from a variety of sources and that Dailybreak is not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to such User Submissions and third party information. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Dailybreak with respect thereto.
9. Generative AI Usage and Liability Disclaimer
A. Generative AI Functionality: The website may utilize generative artificial intelligence (AI) technology to generate content, including but not limited to text, images, and other media. This technology may be employed to enhance user experience, provide personalized recommendations, or generate custom content.
B. User Responsibility: Users are solely responsible for evaluating the accuracy, usefulness, and appropriateness of AI-generated content before relying on it for any purpose. Users should exercise caution and cross-reference information obtained from generative AI with other sources when making decisions or taking action based on such content.
C. Accuracy Disclaimer: While we strive to maintain accuracy and quality in the content generated by AI, users acknowledge and understand that AI-generated content may not always be entirely accurate, reliable, or error-free. The results produced by generative AI are based on algorithms and machine learning models, which may occasionally yield unexpected or erroneous outcomes.
D. No Guarantees or Warranties: We make no guarantees, warranties, or representations regarding the accuracy, completeness, or reliability of AI-generated content. Users agree to use such AI-generated content at their own discretion and risk.
E. Limitation of Liability: In no event shall the website, its affiliates, partners, licensors, or advertisers be liable for any damages, losses, or liabilities arising out of or in connection with the use or reliance on AI-generated content, including but not limited to direct, indirect, incidental, consequential, or punitive damages.
F. Indemnification: Users agree to indemnify and hold harmless the website, its affiliates, partners, licensors, and advertisers from any claims, losses, liabilities, damages, costs, or expenses (including attorney fees) arising from or related to the use of AI-generated content.
G. Advertiser Disclaimer: Advertisers and sponsors featured on the website understand and acknowledge the nature of AI-generated content and agree that the website shall not be held liable for any inaccuracies, misrepresentations, or unintended outcomes resulting from the use of generative AI technology.
H. Modification of Terms: We reserve the right to modify, update, or revise this liability disclaimer at any time without prior notice. Users shall review this section every time they visit the website. By accessing or using this website, users agree to abide by the terms and conditions outlined in this disclaimer regarding the use of generative AI technology. If you do not agree with these terms, please refrain from using this website.
10. Promotions and Points
A. From time to time Dailybreak may make available certain sweepstakes, contests, challenges and other promotions on or through the Services (collectively referred to herein as “Promotions”). Your participation in any such Promotions is subject to and governed by the Promotion General Terms & Conditions and any other additional specific terms and conditions as set forth on any specific landing page for any such Promotion on or through the Services. All such Promotion terms and conditions are hereby incorporated by reference into these Terms of Use.
B. Dailybreak may provide you with opportunities to earn and achieve points (“Points”) through Promotions and other activities through the Services. If you are logged into your Dailybreak Account, the Points you earn will be automatically added into your Dailybreak Account.
C. After accruing certain levels of Points, you may earn breaks (“Breaks”), which are represented by an icon on your Dailybreak Account. You may also receive badges (“Badges”) for completing challenges and other activities that may be offered from time to time through the Services. Accruing certain levels of Points may also provide you with access to additional levels of Rewards (as defined below) in the Dailybreak Store. Badges and Points are viewable by all other users or by other Registered Members of the Services.
D. The specific ways in which you may earn Points, Badges and Breaks are described in more detail on the Website in connection with each opportunity to earn such Points, Badges and Breaks. For instance, if you scroll over a Promotion, it may indicate that you will receive a certain number of Points by entering the Promotion. Dailybreak may modify the Points, Badges and Breaks and ways in which you may earn such Points, Badges and Breaks from time to time, in Dailybreak’s sole discretion.
E. FAILURE TO LOG INTO YOUR DAILY BREAK ACCOUNT WILL RESULT IN EACH POINT EXPIRING WITHIN 120 DAYS OF EARNING SUCH POINT. Otherwise, you may redeem your Points by (i) clicking “Store” on the Website (the “Store”), (ii) selecting the item for which you have accrued the required number of Points (“Reward”), and (iii) completing any further actions required to redeem such Reward, as will be communicated to you as part of the process or in a confirmatory e-mail from Dailybreak. Rewards may include entry into Promotions or other activities that may be offered from time to time through the Services. All Rewards, and the number of Points required to receive such Rewards, will be set forth in the Store. Dailybreak may modify the Rewards and/or the number of Points required to receive such Rewards from time to time, in Dailybreak’s sole discretion. Dailybreak expressly reserves the right to add, withdraw, amend or otherwise change the terms set forth on the Website with respect to the Points, Badges, Breaks and Rewards at any time in its sole discretion, with or without notice to users. We recommend that you frequently review the Website to view the current ways to earn Points, Badges, Breaks and available Rewards. The Points, Badges and Breaks (a) do not constitute property of the holder, (b) are not transferable, (c) are not redeemable for cash or for any other form of currency or credit, (d) have no fixed or ascertainable cash value, and (e) cannot be returned, exchanged, refunded or replaced by cash.
11. Digital Millennium Copyright Act
A. Notification
If you are a copyright owner or an agent thereof and believe that any User Submission or other Dailybreak Content infringes upon your copyright, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) (see 17 U.S.C. 512(c)(3) for further information) by providing our Copyright Agent (listed below) with the following information: (i) an electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) a description of the copyrighted work claimed to have been infringed or if multiple copyrighted works are covered by a notification, a representative list of such works on or in the Services; (iii) a description of the location on the Services of the allegedly infringing material(s); (iv) your address, telephone number, and e-mail address; (v) a written statement that you have a good faith belief that use of the material(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a written statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Dailybreak’s designated Copyright Agent for notice of claims of infringement is:
Josh Ginsberg
Breaktime Media
24 School St 2nd floor
Boston, MA 02108e-mail: jginsberg@breaktimemedia.com
telephone: +1 (617) 451-1790Only notices of alleged copyright infringement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Dailybreak’s customer service at support@dailybreak.com. You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid.
B. Counter-Notification. If you believe that any User Submission of yours that was removed is not infringing, or that you have the appropriate rights from the copyright owner or third party, or pursuant to the law, to post and use the material in your User Submission, you may send a counter notification containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled; (iii) a statement (under penalty of perjury) that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the material; and your name, address, telephone number, and e-mail address, along with a statement that you consent to the jurisdiction of the federal court in the commonwealth or state you are located in or the Commonwealth of Massachusetts and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter notification is received by the Copyright Agent, Dailybreak shall send a copy of such counter notification to the original notifying party. The original notifying party shall have ten (10) business days to file an action for copyright infringement and seek a court order against the content provider or user posting such material. If no such infringement action is filed within such 10 business days, Dailybreak may, in its sole discretion, reinstate the removed material or cease disabling such material.
C. In accordance with the DMCA and other applicable law, Dailybreak shall, in appropriate circumstances, terminate access, at Dailybreak’s sole discretion, of any registered member that Dailybreak finds to be a repeat infringer of others copyrights. Dailybreak may also, in its sole discretion, limit or fully terminate access to the Site of any user infringing the intellectual property rights of others, regardless of whether such user is repeat offender or not.
12. Member Disputes
You are solely responsible for your interactions with other users or members of the Services and any disputes that may arise.
13. Warranty Disclaimer
You agree that your access and use of the Services shall be at your sole risk. The Services, the Dailybreak Content, User Submissions and any services or features made available on or through the Services are provided on an “as is” and “as available” basis. Dailybreak does not make and disclaims any and all express and implied warranties and representations, including but not limited to any implied warranty or fitness for a particular purpose, with regard to the Services, the Dailybreak Content, User Submissions or any services of features provided on or through the Services, to the fullest extent permitted by law. Without limiting the foregoing, Dailybreak does not represent or warrant that: (i) the Services will be accurate, reliable, uninterrupted, secure or error-free; (ii) defects in the Services will be corrected; or (iii) the Services or the server that makes it available are free of viruses or other harmful components. Dailybreak does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by any institution or third party through the Services or any hyperlinked web site or application.
14. Limitation of Liability.
In no event shall Dailybreak, its officers, directors, employees, affiliates, subsidiaries, agents and other partners be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for: (i) any indirect, special, incidental or consequential damages that may be incurred by you; (ii) any loss of data, income, business or profits (whether direct or indirect) that may be incurred by you; and (iii) any claim, damage, or loss which may be incurred by you as a result of (a) the availability of the Servcies and/or any other third-party web sites or applications, (b) any reliance placed by you on any advertising, products, services or other content or materials on, or available from, the Services or any third-party web site or application; or (iii) any of your transactions with third parties or other users. The limitations on Dailybreak’s liability to you above shall apply whether or not Dailybreak has been advised of the possibility of such losses or damages arising. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. You specifically acknowledge that Dailybreak shall not be liable for User Submissions or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you.
15. Indemnity
You agree to indemnify and hold harmless Dailybreak, its officers, employees, agents, subsidiaries, affiliates and other partners, from and against any claims, actions, demands, liabilities or settlements, including without limitation reasonable legal and accounting fees, resulting from, or alleged to result from, your conduct using the Services, your violation of these Terms of Use or, your violation any other legal notices or guidelines.
16. Ability to Accept Terms of Use
You affirm that you are more than 17 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. The Services are not intended for children under the age of seventeen (17).
If you are under 17 years of age, then please do not use the Services and exit now.
17. Assignment
These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Dailybreak without restriction.
18. Governing Law, Location, Entire Agreement
These Terms of Use shall be governed by the laws of the Commonwealth of Massachusetts and the applicable federal laws of the United States of America. All disputes arising under, or in any way connected with these Terms of Use, membership in or use of the Services, shall be subject to the Arbitration Agreement in Section 6.
19. Invalidity; Waiver
If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Dailybreak’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
20. Termination/Exclusion
We reserve the right, in our sole discretion, to revoke, terminate or suspend any and all privileges associated with accessing or using the Services for any reason or for no reason whatsoever including improper use of the Servcies or failure to comply with these Terms of Use or any other notices or guidelines, and to take any other action we deem appropriate.
21. User Suggestions
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information provided by you to Dailybreak are not confidential and you grant us a worldwide, royalty-free license to distribute, publish, modify, edit or otherwise use your submissions. Dailybreak shall be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise without any acknowledgement of or compensation to you.
22. Questions; Comments
If you have any questions or comments about the Services or become aware of misuse of the Services by any person, please contact us at support@dailybreak.com or at the following address: Breaktime Media, Attn: User Comments, 24 School St 2nd floor, Boston, MA 02108.
23. Effective Date
These Terms of Use are effective as of January 1, 2020.