Title Marketing Services Advertising and Consulting Terms and Conditions of Use

LAST MODIFIED February 2020

The following terms and conditions (the “Terms and Conditions”) govern the use of Title Marketing Services Advertising & Consulting Program (the “Service”) developed, operated, and maintained by Breakthrough Broker, LLC (“Breakthrough Broker”). Any use of the Service by an individual or entity (each, a “Customer”) is subject to the terms and conditions contained herein.

1. Acceptance of Terms

By using the Service, the Customer agrees to the terms as they are set forth below. Title Marketing Services Terms and Conditions may be updated from time to time with written notice to Customer. If Customer rejects such updated terms, Customer has the right to cancel the Agreement immediately.

2. Privacy Policy

Breakthrough Broker warrants that it shall protect any Customer information provided by Customer through the use of the Service with no less care than it protects its own confidential information, but in no event less than commercially reasonable care. Customer will provide information regarding who shall be branded on their advertising on Breakthrough Broker. i.e.sales team photographs, company name, email addresses, zip codes, and telephone numbers. Such information shall not be sold or distributed to any third party and shall only be used in furtherance of Title Marketing Services Advertising & Consulting Agreement.

3. Use of the Service

The Customer shall be able to advertise and track usage of those services available on the Breakthrough Broker website by End Users.

Within 30 calendar days after termination of any relevant agreement, Breakthrough Broker will delete or destroy any data regarding advertising data collected regarding End Users on the Breakthrough Broker website. Before such destruction however, Breakthrough Broker shall provide a final list of those End Users associated with Customer to Customer.

4. License Grant and Restrictions

Subject to the Terms and Conditions and subject to payment of applicable fees contained herein, Breakthrough Broker hereby grants Customer, a non-exclusive, non-transferable, worldwide license to use the Service, solely for Customer’s own internal business purposes during the Term. The Terms and Conditions do not represent a sale and do not convey to Customer any rights of ownership in the Service.

Except as set forth in any applicable Title Marketing Services Advertising & Consulting Agreement, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to, “frame” or “mirror” the Service on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

5. Customer Data and Security

Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any Customer Data. Customer and Breakthrough Broker shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Service, including those related to data privacy, the Real Estate Settlement and Procedures Act, commonly known as RESPA, international communications, and the transmission of technical or personal data.

Breakthrough Broker acknowledges and agrees that Customer provides services in an industry in which the consumer protection laws and regulations of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173) (“Dodd-Frank”) and the Gramm-Leach-Bliley Act of 1999 (“GLBA”) apply. To the extent that Breakthrough Broker handles NPI (as defined below), Breakthrough Broker will therefore implement and maintain a comprehensive information security program written in one or more readily accessible parts and that contains administrative, technical, and physical safeguards that are appropriate to Breakthrough Broker’s size and complexity, the nature and scope of its activities, and the sensitivity of the information, including the non-public personal information of a consumer as defined in 15 U.S.C. Section 6809(4) (“NPI”) and any information which, if misused, could lead to the discovery of NPI (“Consumer Information”) provided to Breakthrough Broker by Customer. Such safeguards will that meet the objectives of the Interagency Guidelines Establishing Standards for Safeguarding Customer Information as set forth in Section 501(b) of the GLBA and also include the elements set forth in 16 CFR 314.4, so that the information security program will be reasonably designed to (1) ensure the security and confidentiality of any NPI of Consumer Information provided to Breakthrough Broker by Customer, (2) protect against any anticipated threats or hazards to the security or integrity of such NPI or Consumer Information, and (3) protect against unauthorized access to or use of such NPI or Consumer Information that could result in substantial harm or inconvenience to any consumer.

Breakthrough Broker will immediately notify Customer if Breakthrough Broker discovers any actual or reasonably suspected breach of security or unauthorized use of Customer’s data, Confidential Information, or Consumer Information (i) in the possession, custody, or control of Breakthrough Broker, Breakthrough Broker’s employees, or Breakthrough Broker’s subcontractors and/or (ii) effectuated using access permissions or credentials extended to an employee or subcontractor of Breakthrough Broker (said (i) and (ii), a “Security Incident”). In no event shall Breakthrough Broker’s notification to Customer be later than three (3) calendar days after Breakthrough Broker discovers the Security Incident; provided, however, that more immediate notification shall be given as the circumstances warrant or if more immediate notification is required by law. Breakthrough Broker must provide all necessary and reasonable cooperation with respect to the investigation of such Security Incident, including the exchange of pertinent details (such as log files). In addition, Breakthrough Broker must promptly undertake appropriate remediation measures and inform Customer regarding the same.

Customer reserves the right to audit Breakthrough Broker’s data security, disaster recovery, and business continuity plans (“IT Audit”) at Customer’s sole expense, during Breakthrough Broker’s business hours, after reasonable advance notice to Breakthrough Broker by Breakthrough Broker, and no more than once per year.  Breakthrough Broker must cooperate and permit Customer (and any governmental authorities with jurisdiction in connection with an audit requested by Customer) reasonable access for an on-site review of Breakthrough Broker’s data security systems and procedures to verify Breakthrough Broker’s compliance with the obligations herein. If, in the process of the IT Audit, Customer discovers that Breakthrough Broker’s systems are at risk for Security Breaches, then Breakthrough Broker and Breakthrough Broker will enter into a mutually-agreeable plan to lower any risks and cure any deficiencies (“Correction Plan”), Failure for Breakthrough Broker to follow or complete the Correction Plan may be grounds for termination of this Agreement by Breakthrough Broker.

Breakthrough Broker will also indemnify, defend, and hold harmless the Indemnified Parties from any Claim to the extent arising from or related to: (a)  any unauthorized access to NPI or Consumer Information; and (d) a breach of this section, no matter if such breach or incident was intentional or unintentional or despite Breakthrough Broker’s use of best commercially reasonable efforts to comply with this section.

6. Manner of Display and Acceptable Content

Breakthrough Broker shall confirm all materials developed for Customer will follow FTC guidelines regarding online/internet advertising and shall be approved by the applicable Customer designee.

7. Fees and Payment

Customer is responsible for paying all undisputed fees for the Service as set forth on an applicable Title Marketing Services Advertising & Consulting Agreement. All fees are irrevocable and nonrefundable, unless otherwise provided pursuant to applicable state or federal law. Payment of all fees for the Service shall be in accordance with the applicable Title Marketing Services Advertising & Consulting Agreement.

Breakthrough Broker will invoice Customer for all applicable fees at Customer’s corporate headquarters (or other location specified in writing by Customer). If Customer believes their invoice is incorrect, Customer must contact Breakthrough Broker in writing within fifteen (15) days of the date of the invoice in question to be eligible to receive an adjustment or credit.

8. Taxes

Breakthrough Broker fees are exclusive of all taxes, levies, or duties which may be imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties.

9. Non-Payment and Suspension of Service

In addition to any other rights granted to Breakthrough Broker herein, in the event Customer’s account is thirty (30) days or more past due, Customer’s advertisement materials may be withdrawn from the Web Site at Breakthrough Broker’s sole and absolute discretion and other Services provided by Breakthrough Broker may be suspended until Customer’s account is made current Any and all reasonable attorney fees and costs of suit expended in relation to an action for collection of unpaid amounts under this Agreement shall be borne by the party deemed judicially responsible for the breach.

10. Warranties

Breakthrough Broker warrants that the Service will be provided in a manner consistent with industry standards and according to applicable laws and regulations. In the event of a breach of the foregoing warranty, Breakthrough Broker shall, at its sole election, either repair or replace the Service so as to bring it into compliance with the applicable warranty, or pay any fines assessed against Customer by a legal or regulatory body. If Breakthrough Broker is unable to do so, it shall refund to Customer any prepaid fees which were to apply for the unused portion of the Term, such refund to be Breakthrough Broker’s sole liability. Breakthrough Broker further warrants that it is not a real estate brokerage and that it is not Networkd in the purchase and sale of real property.

11. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10 ABOVE, BREAKTHROUGH BROKER AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH THE SERVICE AND ANY OTHER SERVICES PROVIDED TO CUSTOMER. THIS DISCLAIMER SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY IMPLIED REPRESENTATIONS OR WARRANTIES, CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. BREAKTHROUGH BROKER AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT THAT THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. ADDITIONALLY, BREAKTHROUGH BROKER’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BREAKTHROUGH BROKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SAVE FOR WHERE EXPRESSLY PROVIDED OTHERWISE, THE SERVICE IS PROVIDED “AS IS”.

Furthermore, Breakthrough Broker acknowledges that compliance requirements vary in different jurisdictions and therefore, not all services may be available in all geographic locations.

12. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED TWICE THE AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATION OF BREAKTHROUGH BROKER’S LIABILITY IN THE PRECEDING SENTENCE SHALL NOT APPLY TO BREAKTHROUGH BROKER’S INDEMNITY OBLIGATIONS AS SET FORTH IN SECTION 14 BELOW. Certain states and jurisdictions do not allow for the exclusion of implied warranties or limitation of liability for incidental and consequential damages, so the exclusions set forth above may not apply in such jurisdictions.

13. Term and Termination

The Terms and Conditions shall become effective on the date of execution of an applicable Title Marketing Services Advertising & Consulting Agreement and continue through the balance of the Term. Customer agrees and acknowledges that Breakthrough Broker has no obligation to retain Customer Data after termination or expiration of the applicable Title Marketing Services Advertising & Consulting Agreement and these Terms and Conditions and, after such time, that Breakthrough Broker will delete or destroy such Customer Data (except to the extent a copy is required to be retained pursuant to applicable law). The following provisions shall survive termination or expiration of Title Marketing Services Advertising & Consulting Agreement: 4, 5, 7, 8, 9, 13, 14, 15, 19, and 22.

14. Mutual Indemnification

(a) Breakthrough Broker shall defend, indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim related to a breach of a warranty, a breach of the provisions of Section 5, or alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party; provided, however, that: Customer (i) promptly gives written notice of the claim to Breakthrough Broker; (ii) gives Breakthrough Broker sole control of the defense and settlement of the claim (provided that Breakthrough Broker may not settle or defend any claim without written permission from Customer); (iii) provides to Breakthrough Broker all available information and reasonable assistance; and (iv) has not compromised or settled such claim. The parties are responsible for each of their own costs and liabilities, for claims arising from any infringement arising from the combination of the Service with any of Customer’s products, service, and hardware or business process. The parties will cooperate with one another and exchange appropriate information reasonably available to assist in developing a course of action. Breakthrough Broker shall be relieved from its obligations under this paragraph to the extent the claim is primarily attributable to (i) Customer’s use of the Service in a manner not authorized under this Agreement; (ii) Customer’s modification of the Service not recommended by Breakthrough Broker; or (iii) Customer’s use of the Service or any data derived from the Service in violation of any federal, state or local law, rule, or regulation.

(b) Customer shall defend, indemnify and hold Breakthrough Broker, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a third party claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, any third party User provided in any such case that Breakthrough Broker: (i) gives written notice of the claim promptly to Customer (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim without written permission from Customer ); (iii) provides to Customer all available information and assistance; and (iv) has not compromised or settled such claim. Customer shall be relieved from its obligations under this paragraph to the extent the claim is covered by an indemnification obligation of Breakthrough Broker as set forth in this Agreement.

15. Notice

Breakthrough Broker may give notice applicable to the general customer base of the Service by electronic mail to Customer’s e-mail address on record in Breakthrough Broker’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Breakthrough Broker’s account information. Other notices as may be required hereunder must be sent to the corporate headquarters of the respective party by nationally recognized overnight delivery service, pre-paid certified United States mail, or electronic mail at such address as has been previously provided in writing by the receiving party. Notices to Breakthrough Broker shall be addressed to the attention of the Account Management and sent to 3457 Ringsby Ct. Suite 212 Denver CO. 80216.

16. Assignment; Change in Control

Title Marketing Services Advertising & Consulting Agreement and these Terms and Conditions may not be assigned by either party without the prior written approval of the other party. Notwithstanding the foregoing, an assignment may be made without Breakthrough Broker’s consent to (i) a parent or subsidiary, (ii) an acquirer of all, or substantially all, of Customer’s assets, or (iii) a successor by merger. Notwithstanding the foregoing, no such assignment shall be permitted if any proposed assignee is reasonably deemed to be a competitor of Breakthrough Broker. Breakthrough Broker may assign its rights and responsibilities pursuant to these Terms and Conditions or any applicable Title Marketing Services Advertising& Consulting Agreement by notifying Customer in writing of the same.

17. Force Majeure

Neither party shall be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage, an act of God, electrical, internet or telecommunication outage that is not caused by the obligated party, or other events outside of the reasonable control of the obligated party.

18. General

(a) Governing Law: Title Marketing Services Advertising& Consulting Agreement, these Terms and Conditions, and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of Texas. To the extent permitted, the parties hereby waive their right to trial by jury and agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in the Denver, State of Colorado.

(b) Severability: In the event any provision of any applicable Title Marketing Services Advertising & Consulting Agreement or these Terms and Conditions shall be deemed unenforceable, or void, or invalid, such provision shall be modified so as to make it valid and enforceable and as so modified, the entire agreement shall remain in full force and effect.

(c) Relationship of the Parties: In furnishing products and services to Customer, the Parties are acting only as independent contractors. Nothing in any applicable Title Marketing Services Advertising & Consulting Agreement or these Terms and Conditions is intended to be construed to establish any relationship of agency, partnership, joint venture or employment between the Parties. Additionally, the Parties: (a) expressly disclaim such relationship; (b) agree that they are acting solely as independent contractors hereunder; and (c) agree that they have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Neither Party has any authority to act as agent for, or to incur any obligations on behalf of or in the name of the other Party or its affiliates, except as expressly stated herein.

(d) Waiver: The failure of Breakthrough Broker to enforce any right or provision hereunder shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Breakthrough Broker in writing.

(e) Entire Agreement: These Terms and Conditions, together with any applicable Title Marketing Services Advertising & Consulting Agreement, comprises the entire agreement between Customer and Breakthrough Broker and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

(f) By: _____
(g) By: _____
(h) Name:_____

Name: _____
Title: _____
Title: ______
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