How to Prove You Deserve that Commission

I recently had yet another eye-opening experience that reminded me how our profession is often viewed by the general public. It was a seemingly normal night of staring off into space while my children were at the third dance class of the week. I usually take that hour to relax, check out, and have some Eric time at the local coffee shop. But on this particular night I stuck around the studio. I'm not one to mingle with the über-competitive dance parents, so I quietly sat by myself on a bench zoning out until a conversation taking place right next to me caught my attention.

“...It sold in a week and a half! After he took the listing I didn't hear from him until he brought me a contract, and now he expects me to pay him a full commission..."

I continued to eavesdrop as the Realtor-bashing conversation became even more animated. Typically I am not one to stand by and let one of my fellow professionals get lambasted, but this time I just sat and listened.

“...I don't think we listed it high enough. My husband wanted to list it for $425,000 but our Realtor talked us into $400,000. Now we are pretty sure we should have listed it for what we wanted to in the first place!"

As this person kept talking I could heard the emotion in her voice. She was truly upset. She believed in her heart that her Realtor had done her wrong. She was complaining that the Realtor was lazy, that he did not “do anything" to earn his money. The conversation eventually changed to gossip about the parents who weren't there (that's for another blog). That night I couldn't stop thinking about that poor Realtor who probably did a fantastic job!

Let's look at what the “bad" agent did right. He obviously was skilled at pricing: The home sold in a week and a half. He marketed the property in the right places for it to be found by a buyer. He stood his ground both for price and commission (the weakest agents list homes for the highest price for the lowest commissions). Who knows what he did behind the scenes? He could have sent an email out to fellow agents boasting about a great new listing. Posted it up on a company “new listing" board. Utilized social media to bring quick awareness to the home. Essentially, he could have done everything not only right, but above and beyond what a typical agent would have done to sell the home.

And look what his clients are saying about him! Look at what they are going to say to their friends. In his mind, he hit a home run by selling the home in a week and a half! In the client's mind, he wont get repeat business or a referral ever again.

As I thought more and more about this, I realized this probably happens more than we could ever imagine. As a profession we must speak up. Make it a habit to let your clients know what you are doing for them. Show them the “behind the scenes" of selling a home. Let them know how much it costs to properly market the home. CC your emails to other agents. Give them a report of your marketing activities. I know you deserve that commission, and it sucks to have to justify it, but that's life. With the ease of the internet our profession is becoming commoditized. Reality is, as I saw in the dance studio last week, we must justify our existence. Tell your clients what you are doing and how you do it. Show them that you are the reason their home sold in a week and a half!

After a successful career as a top producing real estate agent and building a mid sized real estate company in Colorado, Broker/Owner Eric Sachs and his business partner sold their company and followed their passion of helping real estate agents build their business by founding Breakthrough Broker. Breakthroughbroker has become one of the most widely used real estate agent resources in the industry with over 175,000 agents using the free site. Eric Co-founded the Realtor Engagement resource AgentEngage, helping title and mortgage organizations expand business through effective communication with their Realtor contacts. Eric is a recognized national speaker and is dedicated to helping real estate agents, title and mortgage companies in building their business.

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6.1 Our Communications With You. (TCPA Consent for United States Residents)

6.1.1 EXPRESS WRITTEN CONSENT.BY SUBMITTING YOUR CONTACT INFORMATION, YOU ARE PROVIDING YOUR EXPRESS WRITTEN CONSENT TO RECEIVE COMMUNICATIONS FROM US AT THE EMAIL ADDRESS AND TELEPHONE NUMBERS YOU ENTERED INTO OUR CONTACT FORM, OR THAT YOU LATER PROVIDE TO US OR ENTER INTO YOUR CONTACT PAGE.

6.1.2 E-MAILS, CALLS, AND TEXTS.THESE COMMUNICATIONS MAY INCLUDE TELEMARKETING MESSAGES, THROUGH THE USE OF EMAIL, LANDLINE PHONE, FAX, CELLULAR PHONE, AND TEXT MESSAGES (INCLUDING SMS AND MMS).

6.1.3 DIALER. WE MAY USE AN AUTOMATIC TELEPHONE DIALING SYSTEM (OR “DIALER”), WHICH MAY EMPLOY AN ARTIFICIAL OR PRE-RECORDED VOICE OR “ROBOTEXTS.” YOUR CARRIER’S STANDARD RATES AND CHARGES MAY APPLY.

6.1.4 NO PURCHASE NECESSARY. AGREEING TO THESE COMMUNICATIONS IS NOT A CONDITION OF PURCHASING ANY PROPERTY, GOODS, OR SERVICES FROM US.

6.1.5 REVOKING CONSENT AND OPTING OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE COMMUNICATIONS AT ANY TIME BY REPLYING “STOP” TO ANY OF OUR TEXTS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT, BUT REPLY “STOP” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER TEXT COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP COMMUNICATIONS IF YOU USE A METHOD OTHER THAN THE AUTOMATIC REPLY “STOP.” YOU CONSENT TO RECEIVE A FINAL TEXT MESSAGE CONFIRMING YOUR OPT-OUT. YOU MAY REVOKE YOUR CONSENT TO RECEIVE EMAIL COMMUNICATIONS BY USING THE “UNSUBSCRIBE” LINK IN AN EMAIL OR ON THE WEBSITE OR BY ANY OTHER REASONABLE MEANS. WE WILL MAKE A COMMERCIALLY REASONABLE EFFORT TO COMPLY WITH ANY COMMUNICATIONS FROM YOU OPTING OUT OF EMAIL, BUT “UNSUBSCRIBE” WILL AUTOMATICALLY REVOKE YOUR CONSENT TO FURTHER EMAIL COMMUNICATIONS, AND WE RECOMMEND THAT METHOD. WE MAY TAKE UP TO 30 DAYS TO STOP EMAIL COMMUNICATIONS IF YOU USE A METHOD OTHER THAN “UNSUBSCRIBE”. THE “UNSUBSCRIBE” LINK WILL ALSO PERMIT YOU TO STOP TEXT COMMUNICATIONS.

6.1.6 COMMUNICATION FREQUENCY. HOW OFTEN WE SEND YOU COMMUNICATIONS WILL VARY BECAUSE THE INDIVIDUAL SALESPERSON WHO COMMUNICATES WITH YOU WILL DETERMINE THE FREQUENCY OF COMMUNICATION. You represent and warrant that:

You are at least 18 years old

You live in the United States (or Canada, in which case the Canadian consents below apply)

You have not registered on a national or statewide Do Not Call list

You are the account holder for the email addresses and phone numbers you provided, or you have authorization from the account holder to give this consent

The email addresses and phone numbers you provided are accurate, and you will let us know if you release them to another person or individual

6.1.7 Availability. Our mobile service may only be available only in certain states. Certain mobile features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.

6.2 Additional Communications Provisions (For Residents of Canada)

In addition to the consent provided above in the Our Communications With You (United States) section, Canadian residents agree to the following provisions related to compliance with Canada’s Anti-Spam Legislation (“CASL”), Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) and Canadian provincial law including Alberta’s Personal Information Protection Act (“PIPA”), and Quebec’s Act Respecting the Protect of Personal Information in the Private Sector:

You agree to the provisions governing use and disclosure of personal information that are found in our Privacy Policy

Because the purpose of our communications include your interest in our services, our communication with you will continue until you revoke your consent or opt-out.

Your personal information may also be transmitted to, used in, and stored in the United States.

7. Arbitration / Class action waiver

READ THIS “ARBITRATION AGREEMENT” CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW LEGAL CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. For example, if we elect to require you to arbitrate any claim, you will not have the right to a jury trial or the right to participate in a class action in court or in arbitration.

Binding arbitration lets an independent third party resolve a Claim without using the court system, judges, or juries. Either you or we may require the submission of a Claim to binding arbitration at any reasonable time, even if a lawsuit or other proceeding has begun. If either you or we don't submit to binding arbitration following a lawful demand, the one who fails to so submit bears all costs and expenses (including attorney's fees and expenses) incurred by the other in compelling arbitration.

Neither you nor we will be entitled to:

Join, consolidate, or combine Claims by or against others in any arbitration; or

Include in any arbitration any Claims as a representative or member of a class; or

Act in any arbitration in the interest of the general public or in a private attorney general capacity.

YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT AS DESCRIBED BELOW. If you do not reject this Arbitration Agreement and a Claim is arbitrated, neither you nor we will have the right to: (1) have a court or a jury decide the Claim; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action, private attorney general or other representative action in court or in arbitration; or (4) join or consolidate a Claim with claims of any other person. The right to appeal is more limited in arbitration than in court and other rights in court may be unavailable or limited in arbitration.

This Arbitration Agreement describes when and how a Claim (as defined below) arising under or related to the Terms between you and us may be arbitrated. Arbitration is a method of resolving disputes in front of one or more neutral persons, instead of having a trial in court in front of a judge and/or jury. If a claim is arbitrated, each party waives its, his or her respective rights to a trial before a jury in connection with the Claim. It can be a quicker and simpler way to resolve disputes. As solely used in this Arbitration Agreement, the terms “we,” “us” and “our” mean “us” as defined above, our parent companies, wholly or majority owned subsidiaries, affiliates, commonly-owned companies, management companies, successors, assigns and any of their employees, officers and directors. For purposes of this Arbitration Agreement, these terms also mean any third party providing any goods or services in connection with the Terms, if such third party is named as a party by you in any lawsuit between you and us.

7.1 Your Right to Reject Arbitration

You may reject this Agreement by mailing a rejection notice to 3457 Ringsby Ct, Suite 212, Denver CO, 80216 Attn. Terms Arbitration Rejection, within 30 days after you agree to these Terms. Any rejection notice must include your name, address and telephone number; the date you agreed to the Terms that your rejection notice applies to; and your signature. Your rejection notice will apply only to this Agreement in the Terms but will not affect any term of any other policy or contract between you and us (including without limitation any prior or subsequent agreement), nor will it change your obligation to arbitrate claims or matters covered by any prior or subsequent agreement to arbitrate.

7.2 What Claims Are Covered

“Claim” means any claim, dispute or controversy between you and us, whether preexisting, present or future, that in any way arises from or relates to the Terms, your use of the Services, your Account, any transaction in your Account, the events leading up to the Terms (for example, any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), communications between you and us and the manner of communicating, any product or service provided by us or third parties in connection with the Terms, the collection of amounts due and the manner of collection, enforcement of any and all of the obligations a party hereto may have to another party, compliance with applicable laws and/or regulations or the relationships resulting from any of the foregoing. “Claim” has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims and federal, state, local and administrative claims and claims which arose before the effective date of this Arbitration Agreement. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity and claims for money damages and injunctive or declaratory relief. However, “Claim” does not include: (i) any dispute or controversy about the validity, enforceability, coverage or scope of this Arbitration Agreement or any part thereof (including, without limitation, the Class Action Waiver set forth below, subparts (A) and (B) of the part (k) set forth below titled “Rules of Interpretation” and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide; but disputes about the validity or enforceability of the Terms as a whole are for the arbitrator and not a court to decide; (ii) seeking and obtaining from a court of competent jurisdiction (notwithstanding ongoing arbitration and without waiver of rights under this Arbitration Agreement) provisional or ancillary remedies including but not limited to injunctive relief, temporary restraining orders, property preservation orders, foreclosure, sequestration, eviction, attachment, replevin, garnishment, and/or the appointment of a receiver; (iii) the exercising of any self-help or non-judicial remedies by you or us; (iv) any individual action in court by one party that is limited to preventing the other party from using a self-help remedy and that does not involve a request for damages or monetary relief of any kind; or (v) any individual action brought by you against us in small claims court or your state’s equivalent court, if any. But if that action is transferred, removed or appealed to a different court, we then have the right to choose arbitration.

7.3 Electing Arbitration; Starting an Arbitration Proceeding

Either you or we may elect to arbitrate a Claim by giving the other party written notice of the intent to arbitrate the Claim or by filing a motion to compel arbitration of the Claim. This notice may be given before or after a lawsuit has been filed concerning the Claim or with respect to other Claims brought later in the lawsuit, and it may be given by papers filed in the lawsuit, such as a motion to compel arbitration. Each of the arbitration administrators listed below has specific rules for starting an arbitration proceeding. Regardless of who elected arbitration or how arbitration was elected, the party asserting the Claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. Thus, if you assert a Claim against us in court, and we elect to arbitrate that Claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Similarly, if we assert a Claim against you in court, you assert a counterclaim against us, and we elect to arbitrate that counterclaim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement.

7.4 Choosing the Administrator

The party starting the arbitration proceeding must choose one of the following arbitration organizations as the Administrator: the American Arbitration Association (the “AAA”), 120 Broadway, Floor 21, New York, N.Y 10271, www.adr.org., or JAMS, 1920 Main St. Ste. 300, Irvine, CA 92614, www.jamsadr.com. You may contact these organizations directly if you have any questions about the way they conduct arbitrations or want to obtain a copy of their rules and forms (which are also available on their websites). A single arbitrator shall be appointed. If for any reason the Administrator selected is unable or unwilling to serve or continue to serve as Administrator, the other company will serve as Administrator. If neither the AAA nor JAMS is able or willing to serve as Administrator, we and you will mutually agree upon an Administrator or arbitrator or a court with jurisdiction will appoint the Administrator or arbitrator (or arbitrators, in the case of a three-arbitrator panel provided for in Section 7.10, below). No company may serve as Administrator, without the consent of all parties, if it adopts or has in place any formal or informal policy that is inconsistent with and purports to override the terms of the Class Action Waiver in section 7.5 of this Arbitration Agreement. In all cases, the arbitrator(s) must be a lawyer with more than 10 years of experience or a retired judge. Arbitration of a Claim must comply with this Arbitration Agreement and, to the extent not inconsistent or in conflict with this Arbitration Agreement, the applicable rules of the arbitration Administrator.

7.5 Class Action Waiver

Notwithstanding any other provision of the Terms, if either you or we elect to arbitrate a Claim, neither you nor we will have the right: (a) to participate in a class action, private attorney general action or other representative action in court or in arbitration, either as a class representative or class member; or (b) to join or consolidate Claims with claims of any other persons. No arbitrator shall have authority to conduct any arbitration in violation of this provision or to issue any relief that applies to any person or entity other than you and/or us individually. (Provided, however, that the Class Action Waiver does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency).

7.6 Location of Arbitration

Any arbitration hearing that you attend must take place at a location reasonably convenient to your residence.

7.7 Cost of Arbitration

Each Administrator charges fees to administer an arbitration proceeding and the arbitrator also charges fees. This includes fees not charged by a court. At your written request, we will pay all filing, hearing and/or other fees charged by the Administrator and arbitrator to you for Claim(s) asserted by you in an individual arbitration after you have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court (whichever is less) in the judicial district in which you reside. (If you have already paid a filing fee for asserting the Claim(s) in court, you will not be required to pay that amount again). In addition, the administrator may have a procedure whereby you can seek a waiver of fees charged to you by the Administrator and arbitrator. We will always pay any fees or expenses that we are required to pay by law or the Administrator’s rules or that we are required to pay for this Arbitration Agreement to be enforced. With respect to Claim(s) asserted by you in an individual arbitration, we will pay your reasonable attorney, witness and expert fees and costs if and to the extent you prevail, if applicable law requires us to or if we must bear such fees and costs in order for this Arbitration Agreement to be enforced. We will not ask you to pay or reimburse us for any fees we pay the Administrator or the arbitrator or for our attorneys’ fees and costs unless (1) the arbitrator finds that you have acted in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), and (2) this power does not make this Arbitration Agreement invalid. At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

7.8 Governing Law

The Terms evidence a transaction involving interstate commerce and, therefore, this Arbitration Agreement is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “FAA”), and not by any state arbitration law. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, or by state or local laws that relate to arbitration proceedings. The arbitrator will apply the same statutes of limitation and privileges that a court would apply if the matter were pending in court. The arbitrator will have the authority to hear and rule on appropriate dispositive motions for judgment on the pleadings, for failure to state a claim, or for full or partial summary judgment. All parties (the AAA/JAMS, the arbitrators, you and we) must, to the extent feasible, take any action necessary to ensure that an arbitration proceeding, as described in this Arbitration Agreement, is completed within 180 days of filing the Claim with the AAA or JAMS. This provision will be liberally construed to ensure the enforcement of this Arbitration Agreement. In determining liability or awarding damages or other relief, the arbitrator will follow the applicable substantive law, consistent with the FAA that would apply if the matter had been brought in court. The arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (which shall be governed by the Constitutional standards employed by the courts) and injunctive, equitable and declaratory relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). The arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Terms, the Administrator’s rules or applicable law.

7.9 Right to Discovery

In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

7.10 Arbitration Result and Right of Appeal

Judgment upon the award given by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except in a dispute between the same parties, in which case it could be used to preclude the same claim from being re-arbitrated. If the amount of the Claim exceeds $25,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. (If an appeal is not filed within that time period, the arbitration award shall become final and binding). The panel shall reconsider de novo (anew) any aspect of the initial award requested by the appealing party. This means that they shall reach their own findings of fact and conclusions of law rather than deferring in any manner to the original arbitrator. The decision of the panel shall be by majority vote. Reference in this Arbitration Agreement to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Section 7.7 above, captioned “Cost of Arbitration.” Any final decision of the appeal panel is subject to judicial review only as provided under the FAA.

7.11 Rules of Interpretation

This Arbitration Agreement shall survive the termination, cancellation or suspension of the Terms, any legal proceeding, and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Agreement, on the one hand, and the applicable arbitration rules or the other provisions of the Terms, on the other hand, this Arbitration Agreement shall govern. If any portion of this Arbitration Agreement is deemed invalid or unenforceable, it shall not invalidate the Terms Policy or the remaining portions of this Arbitration Agreement, except that:

7.11.1 The parties acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between them and is non-severable from this Arbitration Agreement. If the Class Action Waiver is limited, voided or found unenforceable, then this Arbitration Agreement (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and

7.11.2 If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.

7.12 Notice of Claim; Right to Resolve; Special Payment

Prior to initiating, joining or participating in any judicial or arbitration proceeding regarding any Claim, the Claimant (the party who asserts or seeks to assert a Claim in a lawsuit or arbitration proceeding) shall give the other party written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice you send must include your name, address, telephone number and loan or account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests. If: (i) you submit a Claim Notice in accordance with this paragraph on your own behalf (and not on behalf of any other party); (ii) we refuse to provide the relief you request before an arbitrator is appointed; and (iii) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $7,500 (not including any arbitration fees and attorneys’ fees and costs to which you may be entitled under this Arbitration Agreement or applicable law). We encourage you to address all Claims you have in a single Claim Notice and/or a single arbitration. Accordingly, this $7,500 minimum award is a single award that applies to all Claims you have asserted or could have asserted in the arbitration, and multiple awards of $7,500 are not contemplated by this Section.

8. INTERNAL USERS

The Services are controlled, operated and administered by Breakthrough from the United States of America. If you choose to access the Services from a location outside of the United States of America, you do so at your own risk and you are responsible for compliance with all applicable local or international laws, regulations or treaties. You agree that you will not use the Services in any country or in any manner prohibited by any applicable laws, restrictions, or regulations.

9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES

BREAKTHROUGH DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE SITE, THE SERVICES, AND THE DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH “ALL FAULTS”.BREAKTHROUGH SPECIFICALLY DOES NOT WARRANT THAT ITS SITE AND SERVICES OR ANY COMPONENT THEREOF WILL (I) PERFORM WITHOUT INTERRUPTION OR ERROR, OR THAT ALL IRREGULARITIES, ERRORS, PROBLEMS OR DEFECTS WILL BE CORRECTED, (II) BE SECURE OR FREE OF DEFECTS, MALWARE, VIRUSES, OR OTHER HARMFUL COMPONENTS, (III) MEET YOUR REQUIREMENTS OR COMPLIANCE OBLIGATIONS, INCLUDING THOSE RELATING TO THE TCPA, TSR AND OTHER APPLICABLE STATE LAWS RELATED TO AUTOMATED CALLING, TEXTING OR OTHER DELIVERY OF TELEMARKETING MESSAGES, OR (IV) BE ACCESSIBLE FROM THE CONFIGURATION THAT YOU MAY SELECT. IN NO EVENT SHALL BREAKTHROUGH, OR ANY OF ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH, BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, ITS SITE, OR ANY SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST, REVENUE, DATA OR USE, SECURITY BREACH, OR INTERRUPTION OF BUSINESS, INCURRED BY USER, CLIENT/CONTRIBUTOR OR ANY THIRD PERSON OR ENTITY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF BREAKTHROUGH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE TOTAL CUMULATIVE LIABILITY OF BREAKTHROUGH, OR ANY OF ITS THIRD-PARTY LICENSORS, AND ITS AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH, TO USER, OR ANY THIRD PERSON OR ENTITY FOR ANY LOSSES, SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL COMPENSATION PAID BY YOU TO BREAKTHROUGH DURING THE CONSECUTIVE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY; OR (B) $10,000. AS USED HEREIN, “SECURITY BREACH” MEANS THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO, YOUR CONTENT, INCLUDING ANY PERSONAL INFORMATION.

10. INDEMNIFICATION

You and any associated Breakthrough Client jointly and severally agree to indemnify, defend, and hold harmless Breakthrough, its affiliates, and their respective directors, officers, employees, and agents from any and all actions, judgments, damages, demands, liabilities, losses, costs and claims, including reasonable attorney’s fees, whether asserted or threatened claims and demands made by any third party due to or arising out of: (a) your access to or use of the Services; (b) any claims arising out of any content, products or services sold or otherwise distributed by us through the Services, including any personal or property injury and damage; (c) your breach of these Terms; (d) your violation of any law or the rights of a third party, including but not limited to your Compliance Obligations; (e) any dispute or issue between you and any third party; (f) any materials you, or anyone using your credentials, upload to, or otherwise make available through, the Services, including but not limited to Your Content; (g) your willful misconduct; and (h) any other party’s access to and/or use of the Services using your account and password, whether authorized or unauthorized by you. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in that case, you agree to cooperate with our defense of that claim.

11. GENERAL

11.1 Governing Law

The parties agree that the laws of the State of Colorado, United States of America, without regard to principles of conflict of laws, will govern these Terms and/or any dispute of any sort that might arise between you and Breakthrough or its affiliates, except for the Arbitration Agreement, which is governed by the Federal Arbitration Act.

11.2 Assignment

The use of the Services and license grants by Breakthrough hereunder are personal to you and may not be assigned, sub-licensed or transferred, in whole or in part, by you, whether by agreement, operation of law, sale, merger, reorganization or change of control of your company or business. Any assignment or transfer by you in violation of this section shall be void and of no force or effect and shall constitute a material breach of these Terms. Breakthrough may assign its rights and responsibilities pursuant to these Terms and any applicable Subscription Agreement upon notice to you.

11.3 Notice

Breakthrough may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Site or in the Services, as determined by Breakthrough in our sole discretion. Breakthrough reserves the right to determine the form and means of providing notifications to you. Breakthrough is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. All notices, requests or demands to Breakthrough shall be delivered in writing and shall be deemed given only if delivered personally or sent via overnight delivery to Breakthrough’s mailing address. Any legal notice sent by You to Breakthrough must also be emailed to Support@BreakthroughBroker.com Please contact us at support@breakthroughbroker.com with any questions regarding these Terms.

11.4 No Waiver

The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under these Terms by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.

11.5 Entire Agreement and Severability

These Terms together with any other agreement(s) entered into between you and Breakthrough, including but not limited to any applicable Breakthrough Subscription Agreement(s) or order form(s), constitute the entire, complete and only agreement between the parties regarding the subject matter contained herein and supersedes all proposals or prior agreements, whether oral or written, and all other communications between the parties relating to this subject matter. Whenever possible, each provision of these Terms shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of these Terms or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of these Terms or the application of the provision to the other parties or other circumstances.

11.6 Relationship of the Parties

These Terms do not constitute and shall not be construed as constituting a partnership, agency or joint venture between any of the parties. These Terms shall not be construed as authority for any party to act for any other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other.

11.7 Changes to Terms and Authority to Bind

Breakthrough reserves the right, at our sole discretion, to update or revise these Terms at any time without further notice. Any changes shall be effective immediately upon posting by Breakthrough, whether you have actual notice of such changes. Your continued use of Breakthrough’s Services following the posting of any changes to the Terms constitutes acceptance of those changes and your representation that you have the authority to agree and accept any and all changes. Should you wish to opt-out of such future changes, you must communicate your request to opt-out to us in writing, either by email at Support@BreakthroughBroker.com. or at this address: 3457 Ringsby Ct, Suite 212, Denver CO, 80216 – ATTN: OPT-OUT. The opt-out shall be effective 10 days after receipt. In the event you opt-out, our agreement will continue to be governed by the Terms in effect at the time you originally submitted your information, or at the time of the last update to which you did not opt-out.

Breakthrough LLC

3457 Ringsby Ct, Suite 212

Denver CO 80216

United States of America

Email Address:

Support@BreakthroughBroker.com

Telephone number: 720-440-6236

*Last updated: March 2025

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