2. Important Legal Information Regarding Privacy
4. Dailybreak Services
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
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
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 firstname.lastname@example.org. 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 MWH LLC, Attn: Josh Ginsberg, 303 Wyman Street, Suite 300, Waltham, MA 02451 (“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
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.
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.
H. Future Changes to 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.
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.
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. Promotions and Points
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.
10. Digital Millennium Copyright Act
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:
Breaktime Media MWH LLC
303 Wyman Street, Suite 300
Waltham, MA 02451
telephone: +1 (978) 604-4156
Only 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 email@example.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.
11. Member Disputes
You are solely responsible for your interactions with other users or members of the Services and any disputes that may arise.
12. 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.
13. 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.
If you are under 17 years of age, then please do not use the Services and exit now.
17. Governing Law, Location, Entire Agreement
18. Invalidity; Waiver
20. 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.
21. 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 firstname.lastname@example.org or at the following address: Breaktime Media MWH LLC, Attn: User Comments, 303 Wyman Street, Suite 300, Waltham, MA 02451.
22. Effective Date