Thank you for visiting www.breakthroughbusinessperformance.com. This website (the “Site”) is operated by Breakthrough Business Performance, LLC (“Breakthrough”, “we”, “us” or “our”) and made available by Breakthrough as a service to professional business consultants and coaches (collectively “consultants”) who may wish to learn about or to determine whether to purchase a non-exclusive license to use Breakthrough’s proprietary BreakthroughAssess ™ business assessment software tool for use with their clients, or any other services or products that Breakthrough may offer for license or sale.   Your use of this Site is subject to the terms of a legal agreement between you and Breakthrough.   Breakthrough’s principal place of business is 31 Major Hale Drive, Suite A, Framingham, MA 01701.   Any person using this Site will be deemed to have agreed to (and to be bound by) the following terms and conditions of use, which govern all use of all content, information and services provided on and through this Site.   This Site and all such content, information and services collectively are called the “Site and Services”.  

                                            

 

1.1   YOUR USE OF OUR SITE AND SERVICES CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THEM CAREFULLY BEFORE USING THE  SITE AND SERVICES. IF YOU DO NOT AGREE OR CANNOT COMPLY WITH ANY PART OF THESE TERMS AND CONDITIONS OF USE, YOU MAY NOT USE THE SITE AND SERVICES.  UNLESS YOU HAVE AGREED OTHERWISE IN WRITING WITH BREAKTHROUGH, YOUR AGREEMENT WITH BREAKTHROUGH WILL ALWAYS INCLUDE, AT A MINIMUM, THESE TERMS AND CONDITIONS OF USE, AS THEY MAY BE MODIFIED FROM TIME TO TIME ON THIS SITE BY BREAKTHROUGH (COLLECTIVELY THE “BASE TERMS”).  

 

1.2 YOUR AGREEMENT WITH BREAKTHROUGH ALSO WILL INCLUDE THE TERMS OF ANY LEGAL NOTICES POSTED ON THIS SITE APPLICABLE TO USE OF THE SITE AND SERVICES. ANY SUCH LEGAL NOTICES ARE HEREAFTER CALLED “SUPPLEMENTAL TERMS”. WHEN SUPPLEMENTAL TERMS APPLY TO USE OF THE SITE AND SERVICES, BREAKTHROUGH WILL MAKE THESE SUPPLEMENTAL TERMS AVAILABLE FOR YOU TO READ ON THIS SITE.  IN THE EVENT OF A CONFLICT BETWEEN THE BASE TERMS AND THE SUPPLEMENTAL TERMS, THE SUPPLEMENTAL TERMS SHALL CONTROL. 

 

1.3 THE BASE TERMS AND ANY SUPPLEMENTAL TERMS FORM A LEGALLY BINDING AGREEMENT (HEREAFTER COLLECTIVELY CALLED THE “TERMS”) BETWEEN YOU AND BREAKTHROUGH REGARDING USE OF THE SITE AND SERVICES. IT IS IMPORTANT TO READ THE TERMS CAREFULLY. BREAKTHROUGH WILL TREAT YOUR USE OF ANY PART OF THE SITE AND SERVICES AS ACCEPTANCE OF THE TERMS. 

 

1.4 IF AND WHEN YOU SHALL HAVE PURCHASED A LICENSE TO USE THE BREAKTHROUGHASSESS™ ASSESSMENT TOOL SOFTWARE (HEREAFTER THE “SOFTWARE”), YOU ALSO WILL BE BOUND BY YOUR BREAKTHROUGHASSESS™ SOFTWARE LICENSE AGREEMENT WITH BREAKTHROUGH.  IN THE EVENT OF ANY CONFLICT BETWEEN THAT AGREEMENT AND THE TERMS, THAT AGREEMENT SHALL CONTROL WITH RESPECT TO THE SOFTWARE AND ANY OTHER PRODUCTS OR SERVICES, IF ANY, SUBJECT TO THAT LICENSE AGREEMENT.   

 

1.5 YOU MAY NOT USE THE SITE AND SERVICES IF (A) YOU ARE A PERSON BARRED FROM RECEIVING , ACCESSING OR USING THE SITE AND SERVICES UNDER THE LAWS OF THE UNITED STATES OR ANY OTHER COUNTRY, INCLUDING THE COUNTRY IN WHICH YOU ARE RESIDENT OR FROM WHICH YOU USE THE SITE AND SERVICES, OR (B) YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BREAKTHROUGH (UNLESS YOU INVOLVE YOUR PARENT OR LEGAL GUARDIAN WHO ACCEPTS THE TERMS ON YOUR BEHALF AND WITH THE LEGAL AUTHORITY TO DO SO). 

 

2.1 We shall have the right at any time to change or discontinue any aspect of the Site and Services, including without limitation the Site’s content, hours of availability, available services or links, and equipment needed for access or use. We also shall have the right at any time to change or modify the Terms or any part thereof or to impose new Terms with or without advance notice. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by any means, including without limitation posting on this Site or by electronic or conventional mail, or by any other means by which you obtain notice thereof. Any use of the Site and Services after such notice shall be deemed to constitute acceptance by the user of such changes, modifications or additions. We reserve the right to refuse access and/or service to you in our sole discretion and without notice, temporarily or permanently.  

 

2.2 You may terminate your agreement to comply with the Terms at any time by giving written notice of such termination to Breakthrough at its principal place of business by certified mail, return receipt requested, postage prepaid, subject to the following provisions:

 

(A) The termination shall be effective upon Breakthrough’s receipt of the written notice;

 

(B) Notwithstanding termination, you shall remain liable for any breach by you of the Terms that occurred before that termination;

 

(C) Sections 4-7, Subsections 8.1, 8.3, 8.5, Sections 9-11, Subsection 12.2, and Sections 13-15 below shall survive the termination for a period of ten years thereafter;

 

(D) Any access to or use of the Site and Services by you after your termination of your agreement to comply with the Terms shall constitute your agreement to be bound by all the Terms again; and

 

(E) Such termination shall not affect any other agreement, if any, between you and Breakthrough that may be in force at the time, including, without limitation, any BreakthroughAssess™ Software License Agreement, if any.

 

2.3 Your agreement to comply with the Terms shall expire on the date that is ten years after you shall have last accessed or used the Site and Services, if you shall not have terminated such agreement earlier under Subsection 2.2 above.   

 

 

3.1   You are granted a limited, non-exclusive, non-transferable license, terminable at any time in our sole discretion, to access the Site and Services in accordance with the Terms, but such license does not extend to the BreakthroughAssess™ software or any other product or service for which you must pay a fee and become a party to another written agreement, regardless of whether such product or service is advertised or can be purchased through this Site.  

 

3.2    Our site is hosted in the United States and contains information that is appropriate for access and use in the United States (the “Applicable Market”). We make no representation that any materials on the Site are appropriate or available for use outside the Applicable Market. Accessing this Site from territories where the Site’s contents are illegal is prohibited. Any references on the Site to specific products or services are applicable only to those available in the Applicable Market, and any product claims and comparisons to other products on the Site apply within the Applicable Market only. Those who access this Site from other locations do so at their own initiative and are responsible for compliance with local laws, including without limitation laws regarding the transmission of technical data exported from the U.S or the territory in which they reside. 

 

 

It is your responsibility to safeguard any password, if any, and any other identification information, if any, that you use to access our Site and Services, and to promptly advise us if you ever suspect that your password has been compromised. We strongly encourage you to change your password regularly to prevent unauthorized access. You also acknowledge your sole responsibility for any and all use of our Site and Services conducted with your password and/or other identification information, if any, if and whenever the provision of such information may be required.    

 

 

 

 

5.1 You are solely responsible for your use of the Site and Services. You shall compensate, indemnify, hold harmless, and defend us from any demands, claims, causes of action, damages, losses, liabilities, costs, expenses and attorneys fees resulting from your use or misuse of the Site and Services and for any use or misuse by any person or entity of any account that you may have with respect to any part of the Site and Services. Posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic, or profane material, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law, is strictly prohibited.

           

5.2  You agree to access and use this Site only for the services and purposes that are permitted by (1) the Terms and (2) any applicable law. No portion of our Site may be copied, reproduced, reverse engineered, modified, altered, decompiled, extracted, republished, downloaded, posted, displayed, transmitted, or distributed in any way, without our express prior written permission.  Without our express prior written permission, you may not frame or mirror any material contained on this Site on any other server. The unauthorized use of any such material on any other website or computer environment is expressly prohibited. All trademarks, service marks, trade names, and trade dress on this Site are proprietary to us unless otherwise explicitly identified to the contrary.  

 

5.3 You agree not to access or attempt to access the Site and Services by any means other than through any on-line interfaces or portals provided by Breakthrough, unless you have been specifically allowed to do so by separate written agreement with Breakthrough. 

 

5.4 You will not encourage, nor assist or engage in any activity that interferes with, damages or disrupts the Site and Services (or any server or network connected to the Site and Services). 

                           

 

Your use of the Site and Services is also subject to the terms of our Privacy Statement. You acknowledge that you have read and understand our Privacy Statement, and you consent to the use of any personal information that you provide in accordance with the terms of, and for the purposes set forth in, our Privacy Statement. 

 

7.1  Ownership of Site and Services Generally. Breakthrough owns all legal rights, titles and interests in and to the Site and Services (whether those rights, titles and interests happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Site and Services may contain information designated by Breakthrough as confidential and that you shall not disclose such information without Breakthrough’s prior written consent. You shall not remove, obscure, or alter any proprietary rights notices, including without limitation any copyright or trademark notices, that may be present in the Site and Services. Unless you have been expressly authorized to do so in writing by Breakthrough, you agree that in using the Site and Services, you will not use any trademark, service mark, trade name, or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. 

7.2 Copyright

 

The Site design, text, context, selection and arrangement of elements, organization, graphics, compilation, magnetic translation, digital conversion and other matters related to this Site are protected under applicable copyright laws, ALL RIGHTS RESERVED. Unauthorized use or reproduction of some or all of these elements may constitute copyright infringement. The posting of any such elements on the Site does not constitute a waiver of any right in such elements. You do not acquire ownership rights of any such elements viewed through our Site.   Except as otherwise provided herein, none of these elements may be used, copied, reproduced, reverse engineered, downloaded, posted, displayed, transmitted, modified, altered or distributed in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission. 

 

7.3 Trademark

 

Breakthrough owns certain U.S. trademark applications for the trademarks BreakthroughAssess™ and Breakthrough Business Performance ™ (the “Marks”). Unauthorized use of the Marks or of confusingly similar marks may constitute trademark infringement. All other trademarks, product names, company names, logos, service marks, and/or trade dress, if any, mentioned, displayed, cited or otherwise indicated on the Site are the property of their respective owners. Your use or misuse of any Marks or any other materials contained on or in the Site and Services, without the prior written consent of their owner, is prohibited. If you have been given an explicit right to use any of these brand features in a separate written agreement with Breakthrough, then your use of such features shall be in compliance with that agreement and any applicable provisions of the Terms. 

                                              

 

8.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images), if any, not created by Breakthrough to which you may have access through the Site and Services is the sole responsibility of the person from which such content originated. All such information is hereafter called “Outside Content”.   Outside Content presented to you as part of the Site and Services, including without limitation any advertisements, if any, in the Site and Services and any sponsored Outside Content within the Site and Services may be protected by intellectual property rights owned by the sponsors or advertisers who provide that Outside Content to Breakthrough (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Outside Content (either on whole or in part) unless you have been specifically authorized to do so by Breakthrough or the owners of that Outside Content, in a separate written agreement. 

 

8.2 Breakthrough reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Outside Content from the Site and Services. In addition, there are commercially available services and software to limit access to material that you may find objectionable.   You understand that by using the Site and Services, you may be exposed to Outside Content that you find offensive, indecent or objectionable.   You use the Site and Services at your own risk.  

 

8.3 You are solely responsible for (and Breakthrough has and shall have no responsibility to you or to any third party for) (a) any Outside Content that you create, transmit, or display while using the Site and Services and (b) the consequences of your actions (including without limitation any loss or damage that Breakthrough may suffer) by doing so.  

 

8.4 Sometimes when you use the Site and Services, you may access or use a service or download Outside Content or purchase goods provided by another person or company. Your purchase, license or use of the Outside Content or goods may be subject to separate terms between you and the provider or seller. If so, the Terms do not affect your legal relationship with these other companies or individuals. 

 

8.5 You retain any copyright and other rights, if any, that you already hold in any Outside Content that you submit, post or display on or through the Site and Services (if the Site allows such actions). However, by submitting, posting, or displaying the Outside Content, you give Breakthrough a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Outside Content that you submit, post or display on or through the Site and Services. This license is for the primary purpose of enabling Breakthrough to display, distribute and promote the Site and Services. You agree that this right allows Breakthrough to make such Outside Content available to other companies, organizations and individuals with which Breakthrough has relationships for the provision of services and to use such Outside Content in connection with the provision of those services. 

 

9.1 Nothing in this Section 9 or Section 10 below shall exclude or limit any warranties or liability for losses that may not be lawfully excluded by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or for incidental or consequential damages. Accordingly, only the limitations that are lawful in your jurisdiction will apply to you, and Breakthrough’s liability will be limited to the maximum extent permitted by applicable law.  

9.2  YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. THE SITE AND SERVICES ARE PROVIDED “AS IS, WHERE IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND.   NEITHER BREAKTHROUGH, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OWNERS, EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, AGENTS, OUTSIDE CONTENT PROVIDERS OR LICENSORS, IF ANY, WARRANT THAT THE OPERATION, FUNCTION OR AVAILABILITY OF THE SITE AND SERVICES WILL BE UNINTERRUPTED OR FREE OF ERRORS; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS OF USE OF, OR INFORMATION TO BE OBTAINED FROM USE OF, THE SITE AND SERVICES, NOR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SITE AND SERVICES. 

 

9.3  TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BREAKTHROUGH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE, OF NON-INFRINGEMENT, CONDITION OF TITLE, QUIET ENJOYMENT, QUIET ACCESS, AND CORRESPONDENCE TO DESCRIPTION, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.  BREAKTHROUGH MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE COMPLETENESS, ACCURACY, CORRECTNESS, INTEGRITY, RELIABILITY, CURRENCY, SUITABILITY, FUNCTIONALITY, AVAILABILITY, OR OPERATION OF THE SITE AND SERVICES OR THE CONTENT, INFORMATION OR SERVICES PROVIDED ON, OR ACCESSIBLE FROM, THE SITE. BREAKTHROUGH DOES NOT WARRANT THAT THE OPERATION OF THE SITE AND SERVICES IS FREE FROM VIRUSES AND OTHER HARMFUL COMPONENTS TO EQUIPMENT OR SOFTWARE, NOR THAT THE SITE AND SERVICES FUNCTIONS OR OPERATIONS WILL MEET YOUR SPECIFICATIONS, IF ANY. 

 

9.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE AND SERVICES IS DONE AT YOUR OWN RISK AND DISCRETION, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.    

 

 

 

SUBJECT TO SUBSECTION 9.1 ABOVE, IN NO EVENT WILL BREAKTHROUGH OR ITS AFFILIATES, OR THEIR RESPECTIVE MEMBERS, OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, EVER BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR  USE OF, OR INABILITY TO ACCESS OR USE THE SITE AND SERVICES,  INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES FOR ANY ALLEGED OR ACTUAL INACCURACIES, ERRORS, OMISSIONS, DEFECTS, UNTIMELINESS OF INFORMATION, LACK OF AUTHENTICITY OF INFORMATION, DELAY OR INTERRUPTION IN THE TRANSMISSION OF INFORMATION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF OR USE OF RECORD, OR LOSS OF DATA, LOSS OF CONFIDENTIAL OR OTHER BUSINESS INFORMATION, OR OTHERWISE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE DAMAGES ARE CLAIMED TO ARISE OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION, OR ARE KNOWN, UNKNOWN, FORESEEABLE OR OTHERWISE. YOU ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. 

 

 

While we use reasonable efforts to include accurate and current information on our Site, we do not warrant or represent that the Site and Services will be error-free. Data entry errors or other technical problems may sometimes result in inaccurate information being shown. We reserve the right to correct any inaccuracies or typographical errors on our Site, including without limitation pricing and availability of products and services, and we shall have no liability for such errors. We also may make improvements and/or changes to the Site’s features, functionality or content at any time. If you see any information or description that you believe to be incorrect, please contact us as described in the “Contact Us” section below, so that we may have the opportunity to verify the information.  

 

                                            

12.1 The Site may contain links to other web sites for your information and convenience. These third-party websites are responsible for, and undertake to maintain, their own site terms of use. We suggest that you carefully review the terms of use of each site you choose to access from the Site. 

 

12.2  Breakthrough is not and shall not be liable for any loss or damage that may be incurred by you as a result of the availability of those external sites or resources referenced in Subsection 12.1 above, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such web sites or resources.  

 

 

We would be pleased to hear from our Site users and welcome your comments regarding our content and services. Other than personally identifiable information, which is covered under our Site’s Privacy Statement, any suggestions, ideas, concepts, material or other information that you submit to us or send via this Site (“Communications”) shall become and remain our exclusive property. We shall have no obligation of any kind with respect to such Communications and shall be free to use and disclose the Communications to others without limitation.  

 

 

You agree that Breakthrough would suffer irreparable harm if you were to breach any provision of the Terms and that monetary damages would be inadequate to compensate Breakthrough for the injury that would be caused by any such breach and/or that the monetary damages would be difficult or impossible to ascertain and prove. Accordingly, in the event of a breach or threatened breach by you of any of the Terms, Breakthrough shall be entitled to injunctive relief and recovery of its reasonable and necessary attorney’s fees incurred in connection with obtaining such relief (in addition to any other remedies available to Breakthrough at law or in equity).     

 

15.1 The Terms are governed by and shall be construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that might cause another state’s laws to govern. Any controversy or dispute arising out of your use of our Site and Services shall be submitted, and you irrevocably consent, to the personal jurisdiction of any state or federal court located in, or whose district includes, Middlesex County, Massachusetts.

 

15.2 The Terms constitute the entire legal agreement between you and Breakthrough and govern your use of the Site and Services, replacing any prior agreements, if any, between you and Breakthrough concerning the Site and Services (but subject to any additional agreements to which you may become a party in connection with Breakthrough’s licensing of the Software to you or selling any other services or products to you, if applicable).  Breakthrough does not make oral agreements concerning the Site and Services or the Terms, and you shall not claim that Breakthrough has made any oral agreement with you concerning the Site and Services or the Terms.  

 

15.3 If Breakthrough fails to exercise or enforce any legal right or remedy contained in the Terms or available under applicable law, then any such failure shall not constitute a waiver of Breakthrough’s rights to enforce the same or other provisions of the Terms, and Breakthrough still may avail itself of those rights and remedies.

 

15.4 If any provision of the Terms is judicially held to be unlawful, invalid or unenforceable by a court of competent jurisdiction, then such provision shall be deemed modified to the minimum extent necessary to render it legal, valid and enforceable, or, if such modification is not possible, then the provision shall be deleted from the Terms without affecting the rest of the Terms (which shall continue in full force and effect).

 

 

We reserve the right, in our sole discretion, to change the Terms at any time. Updated versions of the Terms will be posted here on our Site and are effective immediately upon posting. The date of the newest version is posted below. Please check back frequently, especially before you use the Site and Services, to see if the Terms have changed. Your continued use of any part of the Site and Services after any revisions to the Terms constitutes your consent to the revised Terms.

 

 

If you would like to contact us, please send an e-mail to info@breakthroughbusinessperformance.com, or call 508-788-0446.    

 

Updated and effective as of September 25, 2007. 

 

© 2007 Breakthrough Business Performance LLC, All Rights Reserved.