TERMS & CONDITIONS
TERMS OF SERVICE Greetings, and welcome to Daybreaker!
We’re excited you decided to join the party 🙂 Daybreaker lives and thrives on your happiness. Indeed, it is our mission to curate and deliver outstanding early-morning experiences to good folks across the globe. As we blaze forth on our mission, we need to make sure that the greater community interacts with our Services in a fair and respectful way, and that Daybreaker can continue to throw awesome events while keeping the lawyers off our backs (*sorry, lawyers). This verbose set of rules and requirements helps us accomplish those goals.
We encourage you to carefully review our Terms of Service.
If you have any questions, thoughts, or comments about any of these terms, feel free to give us a holler: [email protected]
By accessing any of our Services, you fully acknowledge and unconditionally agree to all of the following terms and conditions.
1. There are a few words and phrases that you’ll see repeatedly throughout our Terms of Service, including in the preceding introduction. Here’s an explanation of those terms:
a. Daybreaker LLC (also “Daybreaker”, “we”, “us”, “Company” and “our”) is a New York limited liability company dedicated to providing morning-based events, activities and entertainment.
b. Daybreaker’s “Affiliates” include our executives, employees, officers, contactors, consultants, attorneys, advisers, board members, directors, joint ventures, parents, subsidiaries, successors, assigns, and any controlling and/or acquiring individual and/or entity and his/her/its affiliates.
c. “You” (also “your” and “user”) refers to you, the individual, as well as any entity or other individual on whose behalf you’re acting.
d. “Services” refer to any and all of Daybreaker’s websites, social media accounts, in-person events, emails, text and SMS messages, feeds (e.g. Real Simple Syndication feeds, Atom feed), ticket sales, merchandising efforts, promotions, advertisements, software, programs, features, systems, platforms, and applications.
e. “User Content” refers to any text, photos, images, video, audio, and multimedia you create, post, provide, upload, send, and/or share in connection with our Services. This includes photos you take at our events and share on social media. User Content specifically does not include any user passwords, personally identifying information, or financially sensitive information – those items are subject to their own rules, as explained in our Statement on Privacy – unless such information appears (against our recommendation) in a public-facing, photo, image, item of text, audio file, video, or multimedia item.
2. Who Can Use our Services?
a. Eligibility. No minors or fakers, please. In order to use our Services – including attending our events –you must be: eighteen (18) years of age or older; of sound mind and body to agree to these Terms of Service; and in possession of the full rights and/or authorization to (a) make use of your User Content and (b) agree to these Terms of Service.
b. Non-Eligibility. Loving our community means keeping a tight handle on who’s allowed to join the party. Daybreaker reserves the right to expel you for any violation of these Terms of Service. Furthermore, you may not use our Services if you are: i. currently restricted or prohibited from using our Services; ii. a past, present, or imminent competitor of Daybreaker and/or closely connected to one or more of our past, present, or imminent competitors; iii. acting on behalf of another person or entity without that person or entity’s permission; iv. under a legal obligation that restricts or precludes your use of our Services; and/or v. Otherwise unable and/or unwilling to fully agree to and follow these Terms of Service, including but not limited to the Basic Standards of User Conduct set forth in Section 3.
c. No Guarantees re: Eligibility. While we make every effort to keep a tight-knit community based on strict eligibility criteria, we make no warranty or representation that every user satisfies our eligibility criteria; there may be ineligible individuals who still gain access to and/or use our Services.
d. Immediate Termination. You need to immediately close your browser window and cease from all further use of our Services if you are or become ineligible to use these Services; you further agree to email [email protected] with the subject “End Use” and details about your reason for ceasing all further use.
3. Basic Standards of User Conduct
a. Common Sense Wins. If you’re down with Daybreaker, you’re probably pretty cool. Just use your common sense and act like a decent human being – our Standards of Conduct should be easy to follow. Here are 5 Simple Guidelines that will help you on your way:
i. Treat your fellow Daybreakers kindly + respectfully. Golden Rule, yada yada yada.
ii. Be truthful with the info you provide. Reflect yourself up-to-date and honestly. Don’t pretend to be anyone other than your actual, current self. (*That said, we encourage your funkiest and finest costumes at all Daybreaker events. Bring it!)
iii. Don’t circulate User Content that might be improper and/or objectionable. If you think a post might be in poor taste, trust that instinct.
iv. Don’t try to breach our security, disrupt our technology, or hijack our I.P. We have no tolerance for \imitators.
v. We run an environment dedicated to a healthy lifestyle. No drugs or alcohol.
b. Improper Use. Unfortunately, The Golden Rule is not clear enough for some people. To be certain, your use of our Services (including, but not limited to, your attendance at our events and your submission of User Content) shall not directly or indirectly constitute, involve, attempt, aid, support, incite, encourage, advise, bring about, or facilitate any of the following:
i. a violation of a law;
ii. infringement of the personal and/or property rights of Daybreaker and/or any third party (including but not limited to infringement of intellectual property rights, moral rights, privacy rights, rights to publicity, and rights concerning privileged, proprietary, and/or confidential information);
iii. a breach of an agreement, legal obligation, or responsibility;
iv. discovery of another user’s information beyond that which is legitimately intended to be made publicly available;
v. an implication or indication of involvement with or endorsement by Daybreaker when Daybreaker has not specifically granted permission to make such an implication or indication;
vi. a violation of a rule, regulation, and/or standard of conduct; vii. interference with an existing business relationship and/or contract; viii. an unlawful, unfair, and/or deceptive business policy, practice, or scheme;
ix. support for or advancement of a potential or actual Daybreaker competitor;
x. threats, harassment, intimidation, abusive conduct, and/or bullying, xi. extortion, fraud, and/or identity theft;
xii. the improper disclosure of privileged, private, confidential, and/or proprietary information;
xiii. obscenity, vulgarity, and/or pornography;
xiv. impersonation, misrepresentation, and/or another reckless or knowing provision of false, incomplete, inaccurate, or outdated information (whether by text, image, photo, audio, video, or otherwise);
xv. libel, slander, defamation, or other attack on character or reputation; xvi. hate speech, prejudice, or unlawful discrimination; and/or
xvii. any other violation of these Terms of Service;
c. Everyone Should Feel Welcome. All eligible individuals deserve to have an awesome time at a Daybreaker event! You agree that you shall not attempt to or actually interfere with another user’s legitimate, good-faith use and/or enjoyment of our Services.
d. Don’t Advance Malicious Conduct. We make a concerted effort to protect our community from malicious conduct. Accordingly, you shall not use our Services, attempt to use our Services, or seek to emulate Daybreaker to engage in spamming, phishing, harvesting, unauthorized advertising (including but not limited to bulk emailing, pyramid schemes, commission-based opportunities, contests, offers), or the circulation of viruses or other malicious programs and/or code; this includes Trojan horses, spyware, worms, Easter eggs, time bombs, and any other harmful and/or invasive files, programs, or code.
e. Don’t Mess with Our Events. Daybreaker exists to throw great events for the good people of the Planet Earth – and we don’t want anything to get in the way of that.
i. No Copycats. It might seem effortless through all the chaos – but rest assured that tremendous time, effort, imagination, and expertise go into what we do. You therefore acknowledge and agree that you will refrain from trying to reverse engineer a Daybreaker event/program or throw an event/program – in a competing or non-competitive market – which seeks to emulate a Daybreaker event/program in whole or in part. This includes, without limitation, a promise to refrain from making use of the word “Daybreaker” or any variation thereof.
ii. No Interference. Balance and concentration are vital when spinning plates. You acknowledge and agree that we reserve the right to immediately eject anyone who we deem an interruption or disturbance to a Daybreaker event, with or without cause. It’s very unlikely, but we have to mention…NO REFUNDS UPON EJECTION.
f. Respect the Integrity of Our Technology. Basically, you agree that you will not break into our systems, impact our Services, or copy our technology.
i. Proper Working Order. Vital things like our event listings, ticket sales, and sign-ups depend on the seamless operation of our technology. Therefore, you agree that you shall not attempt to disrupt or actually disrupt, manipulate, or otherwise interfere with the proper working order of any servers, networks, systems, and other technologies belonging to Daybreaker, our Affiliates, and/or any of our third party partners. Under no circumstances shall you attempt to or actually alter or modify any aspect of our Services or the services of our Affiliates and/or third party partners, including but not limited to our websites and ticketing services.
ii. Public Interface Only. You know it’s not cool to meddle beyond the bounds of intended public access. You shall utilize only those interfaces publicly provided by Daybreaker, its Affiliates, and its third party partners when interacting with our Services. You shall only access that which Daybreaker, its Affiliates, and its third party partners deliberately make publicly available, within the bound of reasonably intended use. You shall not attempt to or actually access any non-public information, data, code, and other material belonging to Daybreaker, it Affiliates, and/or its third party partners – through hacking, password mining, identity theft, and/or another breach of authentication and/or security. Likewise, you are not allowed to test or probe the security/vulnerability of our Services, networks, servers, and other technologies.
iii. Excessive Load. Don’t flood our systems – ya dig? Your use of our Services shall not impose any excessive load or unreasonable demand – per our determination – on the infrastructure, systems, servers, or other technology and operations of Daybreaker, its Affiliates, and/or its third party partners. iv. Reverse Engineering. Again, copycats are not welcome! You shall not attempt to or actually reverse engineer, decompile, or otherwise derive the code underlying any aspect, feature, function, or detail concerning or relating to our Services.
g. Daybreaker Data, Information, IP Materials, Code & Content. These items form the foundation of our business – you agree that you shall not misappropriate or misuse them. In particular, without limitation, you are strictly forbidden from the following with respect to our data, information, intellectual property, materials, code, and content:
i. displaying, publishing, transmitting, licensing, sublicensing, distributing, exhibiting, and/or making commercial use of these items beyond our prior express written consent;
ii. downloading, extraction, copying, indexing, and/or collection of these items (including, without limitation, use of a robot, spider, data miner, crawler, scraper or similar tool);
iii. duplication, rebranding, and/or derivate usage of these items; iv. deleting or modifying the substance and/or appearance of these items; v. displaying these items out of context, obscuring them, including them alongside objectionable content, or otherwise failing to present them as fully intended; and vi. other manual and/or automated means of improper access or retrieval of these items.
h. Limit: One Account per Person. You are only allowed to create a single account – strictly for yourself, as a natural person only.
i. Each User Is Responsible for His/Her Own Account & User Content. Your account and your User Content are your responsibility. You and you alone are responsible for all actions and omissions arising out of and/or relating to your account, User Content, and/or other use of our Services. Any User Content or other information you provide to us is at your own risk of liability, harm, loss, damages settlement amount, expense, fee, cost, and/or penalty. Neither Daybreaker nor its Affiliates shall not be responsible for any claims, obligations, third party royalties, liabilities, costs, debt, expenses, losses, damages, charges, fees, or fines, including legal fees, accounting fees, business interruption damages, lost profits, and punitive, incidental, special, or consequential damages arising out of or relating to your use of our Services.
j. Unsavory Conduct. We put forth our best efforts to preserve the dignity and class of our Services; however, there is always a chance that, during the course of using our Services, you may encounter people, behavior, interactions, content, and/or other material that you consider inaccurate, objectionable, inappropriate, hostile, indecent, and/or worse. Therefore, you acknowledge and agree that you use our Services at your own risk of encountering such people, behavior, interactions, content, and/or other material; you acknowledge and agree that you shall not under any circumstances hold Daybreaker or its Affiliates responsible or liable in connection with such persons, behaviors, interactions, content, and/or other material.
k. Notice to Parents. You are hereby notified, pursuant to 47 U.S.C. Section 230(d), that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors; information identifying current providers of such protections is available at: http://kids.getnetwise.org and http://onguardonline.gov.
l. Non-Audit of Content. Daybreaker does not guarantee that it will audit, analyze, or review User Content or third party content before it goes live. Neither Daybreaker nor its Affiliates is in any way responsible for what is published in connection with our Services, and we are under no obligation to edit or control User Content or third party content. While we make an effort to help our users, we make no warranties or representations regarding responding to User Content issues or other issues arising out of or relating to our Services; it is possible that your issue may go unaddressed. That said, we reserve the right to delete any User Content or any other content at any time for any reason without notice or consent.
m. Linking & Deep Linking to Daybreaker. You agree that you will not link to any of our Services in an effort to disrupt, obstruct, harass, defame, unfairly profit from, or otherwise harm us. Furthermore, you agree that deep linking to our Services (e.g. our website) is strictly prohibited without our prior express written consent.
n. Report Suspicious or Improper Conduct. As part of a community, we ask that our users keep an eye open for suspicious or improper conduct. You agree to immediately notify Daybreaker of any unauthorized use of your account, any breach of security, or any other suspicious or improper usage of our Services (including but not limited to reporting inappropriate conduct at any in-person event). Likewise, you agree to immediately notify Daybreaker with a detailed explanation if you believe you or any other user has committed or will commit a breach of this Agreement. You can make such a report by emailing [email protected] with the subject line “Improper Conduct” and a detailed account of the issue.
o. Framing & Hidden Technology. You may not utilize framing or mirroring techniques to enclose any Daybreaker trademark, logo, image, text, layout, format, or other proprietary information or intellectual property without our prior express written consent. You may not utilize any “hidden text” (e.g. meta tags) that references Daybreaker’s proprietary information or intellectual property without our prior express written consent.
p. Editing & Deleting Your User Content. With respect to the User Content you create, distribute, or otherwise submit or disseminate in connection with our Services – such as photos, videos, messages, comments, and posts – you cannot revise or delete that which has been submitted. q. User Content Is Public. Your User Content is considered to be public and non-confidential in its entirety – it may be discovered, used, and/or attributed to you by Daybreaker, its Affiliates and/or any third party.
i. All Daybreaker users will have the right to access and use your User Content for any legitimate, personal, non-commercial purpose.
ii. Likewise, your User Content may result in Daybreaker, it Affiliates, and/or a third party making use of or exploiting your User Content, including but not limited to exhibition of your User Content, creation of a derivative work, and disclosure of sensitive information. We have no control over how any third party makes use of or otherwise exploits your User Content.
iii. Therefore THINK CAREFULLY about what you put into the world?
4. Your Rights
a. License to Use Services. Provided that you fully agree to these Terms of Service – and are capable of conducting yourself in accordance with them – you will be granted a limited, non-exclusive, non-sublicensable, non-transferable, non-delegable, non-assignable, fully revocable license to access and make personal, non-commercial use of our Services strictly as intended, in accordance with our terms and conditions (e.g. these Terms of Service). Daybreaker reserves the right to suspend or revoke this license at any time, for any reason, without notification or warning. This clause expressly excludes a license to attend Daybreaker events, which requires a separate ticket license, along with your full and unconditional assent to an additional set of terms and conditions.
b. Single Copy. You are allowed to make a single copy of our content for use in learning about, evaluating, and/or utilizing Daybreaker’s Services, provided you agree that any such copy will be accompanied by a clear, complete, unmodified, and unobscured copy of these Terms of Service – and that these Terms of Service shall control use of said copy.
6. Our Rights
a. Terms, Services & Access. In order to make Daybreaker the best it can be, we need the ability to freely update, fix and change things. We therefore reserve the right to do any and all of the following at any time, effective immediately, without liability, cause, notice, or preservation obligation:
i. add to, remove, or modify any and/or all of our terms and conditions(including but not limited to these Terms of Service and our Statement on Privacy) – in which case your subsequent access and/or use of our Services constitutes acceptance of the amended term(s);
ii. suspend, discontinue, remove, interrupt, restrict, update, improve, or otherwise modify (a) our Services, (b) features, functions, details, and/or portions of our Services, and (c) material, data, information, code, and/or content arising out of or relating to our Services, including without limitation any user’s User Content.
iii. suspend, terminate, ban, restrict, or otherwise modify your – or any other user’s – access to and/or ability to use: (a) our Services, (b) features, functions, details, or portions of our Services, and/or (c) material, data, code, information, and/or content arising out of or relating to our Services; and
iv. Add or remove vendors, performers, service providers, goods, services, and/or features from our in-person events, as well as change the time, cost, and location of our in-person events. If you do not wish to be bound by modifications relating to our terms, Services, or access rights, you must stop using our Services immediately and cease from all further use; you further agree to email [email protected] with the subject “End Use” and details about your reason for ceasing all further use. Daybreaker is under no obligation – and shall face no penalty, liability, damage, claim, suit, or loss – to take action or refrain from taking action with respect to maintaining, updating, modifying, improving, and/or providing: (a) our Services; (b) features, functions, details, or portions of our Services; (c) terms and /or conditions relating to our Services; and/or (d) material, data, information, and/or content arising out of or relating to our Services.
b. License to Daybreaker. Daybreaker counts on being able to show the world that our community knows how to have a good time. You grant Daybreaker a perpetual, irrevocable, non-exclusive, royalty-free, fully sublicensable, worldwide license to exercise any and all rights you may have in your User Content and any other data and information arising out of and/or relating to your use of our Services (e.g. data regarding your Web history and use of our Services). You agree that Daybreaker may, at our sole discretion: copy, reproduce, adapt, translate, sell, distribute, syndicate, publish, transfer, communicate, modify, exhibit, advertise, market, create derivative works from, display, make commercial use of (including currently known and future, currently unknown commercial uses), and/or otherwise use your User Content and other data and information arising out of and/or relating to your use of our Services throughout the world in any media in any manner, fashion and/or context we wish. You further agree that you waive any moral rights – including but not limited to the rights of attribution – in connection with any User Content and any other data and information arising out of and/or relating to your use of our Services. Furthermore, you represent that you have full authority and right to grant these licenses and waive these rights pursuant to these Terms of Service.
c. Handling Your Information & User Content. It’s up to us to decide if we use and how we handle your information and User Content. You agree that Daybreaker may, at its sole discretion: store, save, retain, screen, filter, flag, edit, remove, censor, delete, filter, edit, or destroy your User Content as it deems fit, with or without notice or cause, effective immediately. Furthermore, you agree that Daybreaker may store, save, retain, delete, or destroy any information and data it collects, including but not limited data concerning your personally identifying and financially sensitive information. Specific details about how we use your information – including your personally identifying and financially sensitive information – can be found in our Statement on Privacy. We encourage you to review this Statement carefully.
d. All Rights Reserved. Our team works very hard to continuously deliver our Services and develop our Intellectual Property. All code, content, materials and information that are included in our Services – in various formats, including, but not limited to, images, illustrations, photographs, posters and banners, messages, videos, audio, software, data, and text – is the property of Daybreaker or third-parties (“Daybreaker Content”). Daybreaker Content is protected by the copyright laws, trademark laws, and other intellectual property laws of the United States and other countries – and you acknowledge and agree all copyrights, trademark rights, and other proprietary rights and interests arising out of and/or relating to the Daybreaker Content are owned by us or our licensors to the fullest extent permitted under applicable law. Except as expressly authorized in these terms and conditions, you may not use, download, upload, copy, print, enter into a database, exhibit, display, perform, reproduce, republish, license, post, create derivative works from, transmit, distribute, or otherwise, exploit Daybreaker Content in whole or in part without our prior express written consent. You further acknowledge and agree that all rights in the Daybreaker name, trade names, logos, services marks, trade dress, slogans, and designs – regardless of the size of the print or the presence of a legal designation (e.g., ™ or © ) – are the exclusive property of Daybreaker and/or its licensors and are protected by United States and international law from reproduction, imitation, confusing and/or misleading usage, dilution, and/or any other unfair usages. Nothing expressly stated or implied by these Terms of Service – or by our Services in general – shall give you any right, license, or other form of permission to use the Daybreaker name or any trade names, logos, services marks, trade dress, slogans, and designs that belong to Daybreaker and/or our licensors; your use or misuse of intellectual property belonging to Daybreaker and/or is licensors is hereby expressly prohibited. If you wish obtain permission to use our marks, or if you have any questions, please direct your inquires to us at <[email protected]>
e. Messages & Notifications to You. We need to be able to notify our community of important information as easily as possible. For the purpose of service messages and notices, we reserve the right to contact you through any means we choose, including by mail, telephone, email, social media, or website banner. You agree that any means of contact we choose will suffice for the purpose of providing adequate, timely legal notice.
f. Catch-All. Daybreaker reserves any and all rights and interests relating to our Company, our Affiliates, and our property which were not expressly enumerated in these Terms of Service, including but not limited to rights relating to ownership, title, copyright, patent, proprietary rights, and trademark.
a. Termination by Daybreaker. We’re nice people, we promise – but we do have a Ban Hammer, and we’re not afraid to swing it. Use of our Services is a privilege, and we may revoke that privilege at any time. Daybreaker reserves the right to – whenever we choose, effective immediately, without liability, cause, notice, or warning – suspend, terminate, ban, interrupt, restrict, or otherwise modify your (or any other User’s) access to and/or use our Services, or any, functions, details, features or portions of our Services. This includes but is not limited to deleting your User Content, restricting the scope of your access, and/or outright banning you for an indefinite period of time.
b. Termination by You. If you wish to terminate this Agreement and no longer access or utilize our Services, you may do so at any time; simply send an email to [email protected] from the account you use in connection with Daybreaker and include the subject line “End Use”, along with a few details about your reason for ceasing all further use. You acknowledge and agree that termination has no impact on our ability to maintain and use the information and content you communicated to Daybreaker.
c. Clauses Surviving Termination. All terms and conditions in these Terms of Service survive termination of this Agreement indefinitely, regardless of which party terminates the Agreement, except as to Section 4 (“Your Rights”).
8. Legal Disclaimers & Limitations
a. DISCLAIMERS. We need to make sure that we don’t lose the farm if something happens to go awry. Accordingly, you acknowledge and fully agree to the following disclaimers:
i. DAYBREAKER AND ITS AFFILIATES PROVIDE ALL SERVICES – AND ALL INFORMATION, MATERIALS, DATA AND CONTENT THERETHROUGH AVAILABLE – ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. ii. DAYBREAKER AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE IN CONNECTION WITH OUR SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER IMPLIED WARRANTY THAT MAY ARISE FROM THE COURSE OF DEALING, USAGE, PERFORMANCE OR TRADE. iii. DAYBREAKER & ITS AFFILIATES DISCLAIM ANY DUTIES, RESPONSIBILITIES, LIABILITIES, AND OBLIGATIONS IN CONNECTION WITH ANY “FORWARD-LOOKING STATEMENT” WE MAKE, JUST AS WE DISCLAIM ANY DUTIES, RESPONSIBILITIES, LIABILITIES, AND OBLIGATIONS IN CONNECTION WITH ANY AND ALL OF THE STATEMENTS WE MAKE. iv. NEITHER DAYBREAKER NOR ITS AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY AND/OR RELATED RIGHTS AS THEY ARISE IN CONNECTION WITH OUR SERVICES. v. NEITHER DAYBREAKER NOR ITS AFFILIATES IN ANY MANNER WARRANTS THAT: DAYBREAKER PRODUCTS AND/OR SERVICES FUNCTION OR WILL FUNCTION IN AN UNINTERRUPTED OR ERROR-FREE MANNER; INFORMATION, MATERIALS, CONTENT, AND/OR DATA WILL BE AVAILABLE AND/OR PRESERVED; MALFUNCTIONS OR DEFECTS HAVE BEEN OR WILL BE CORRECTED; OUR SERVICES ARE AND WILL REMAIN SECURE; OR OUR SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE AND WILL CONTINUE TO BE FREE OF VIRUSES OR OTHER HARMFUL AND/OR DESTRUCTIVE COMPONENTS. NEITHER DAYBREAKER NOR ITS AFFILIATES WARRANTS THAT ANY MESSAGES, EMAIL, OR ATTACHMENTS WE SEND – OR ANYTHING ELSE WE MAKE AVAILABLE FOR DOWNLOAD OR ACCESS – ARE FREE OF VIRUSES OR OTHER HARMFUL OR DESTRUCTIVE COMPONENTS. vi. NEITHER DAYBREAKER NOR ITS AFFILIATES MAKES ANY PROMISES OR WARRANTIES REGARDING THE ACTS AND/OR OMISSIONS OF ANY THIRD PARTY. vii. NEITHER DAYBREAKER NOR ITS AFFILIATES WARRANTS OR MAKES ANY REPRESENTATIONS REGARDING THE QUALITY, USE, EFFICACY, OR THE RESULTS OF THE USE OF OUR SERVICES – OR ANY INFORMATION, MATERIALS, DATA, AND CONTENT THERETHROUGH AVAILABLE. NEITHER DAYBREAKER NOR ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE INFORMATION, DATA, MATERIALS, AND CONTENT AVAIALBLE THROUGH OUR SERVICES WILL BE ACCURATE, PRECISE, COMPLETE, RELIABLE, UP-TO-DATE, ERROR-FREE, AND/OR FREE OF INAPPROPRIATE CONTENT. viii. DAYBREAKER AND ITS AFFILIATES HANDLE PRIVATE, FINANCIAL, AND OTHERWISE SENSITIVE INFORMATION WITH THE UTMOST LEVEL OF SECURITY AND CARE; HOWEVER, WE CANNOT AND DO NOT GUARANTEE THAT ANY TRANSACTION OR TRANSFER OR STORAGE OF INFORMATION IS 100% SECURE. DAYBREAKER AND ITS AFFILIATED THEREFORE DISCLAIM ALL LIABILITY IN CONNECTION WITH ANY UNDESIRED AND/OR HARMFUL DISCLOSURE AND/OR USAGE OF YOUR INFORMATION – PERSONALLY IDENTIFYING INFORMATION, FINANCIALLY-SENSITIVE INFORMATION, OR OTHERWISE. ix. OUR SERVICES MAY RUN ADVERTISEMENTS, FEEDS, OR CONTENT OR OTHERWISE BE LINKED TO OTHER SITES WHICH ARE NOT MAINTAINED BY DAYBREAKER; NEITHER DAYBREAKER NOR ITS AFFILIATES CONTROLS, ENDORSES, OR IS RESPONSIBLE FOR ANY ISSUES ARISING OUT OF OR RELATING TO THE INFORMATION, CONTENT, DATA, MATERIALS, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH THESE ADVERTISEMENTS, SITES, AND THIRD PARTY FEEDS/LINKS. DAYBREAKER AND ITS AFFILIATES DISCLAIM ANY ENDORSMENT RELATING TO OR LIABILITY FOR (A) LINKS OR FEEDS TO OUR SERVICES FROM ANOTHER SITE; AND (B) LINKS OR FEEDS FROM OUR SERVICES TO ANOTHER SITE. x. IT IS ENTIRELY YOUR RESPONSIBILITY TO ASSESS THE ACCURACY, RELIABILITY, UP-TO-DATENESS, VIABILITY AND APPROPRIATENESS OF OUR SERVICES – AND ANY DATA, INFORMATION, MATERIALS, AND CONTENT THERETHROUGH AVAILABLE – ESPECIALLY AS THEY RELATE TO YOUR SPECIFIC NEEDS. YOU ASSUME THE ENTIRE COST OF ALL SERVICES, REPAIRS, CORRECTIONS, DEBTS, LIABILITIES OR OTHERWISE THAY MAY ARISE FROM AN ATTEMPT TO USE OR THE USE OF OUR SERVICES OR ANY INFORMATION, DATA, MATERIALS, AND CONTENT THERETHROUGH AVAILABLE. xi. YOUR JURISDICTION MAY NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OF CERTAIN TYPES OF DAMAGES. THUS, IT IS POSSIBLE THAT PORTIONS OF THE AFOREMENTIONED OR SUBSEQUENT DISCLAIMERS MAY NOT APPLY TO YOU; HOWEVER, THE LIMITATION OR EXCLUSION OF A PARTICULAR DISCLAIMER OR LIABILITY LIMITATION SHALL IN NO MANNER IMPACT ANY OTHER PROVISION HEREIN, NOR SHALL IT AFFECT THE VALIDITY OR FORCE OF THAT LIABILITY LIMITATION OR DISCLAIMER IN OTHER JURISDICTIONS.
b. Sole Responsibility. You agree that you hold sole responsibility for any and all risks, harms, liabilities, responsibilities, damages, settlements, awards, disputes, controversies, claims, losses, fees, and/or penalties that arise from and/or relate to your use of our Services and/or a breach of these Terms of Service.
c. LIMITATION OF LIABILITY. You hereby agree, on behalf of yourself, as well as your executors, administrators, heirs and assigns, to fully and unconditionally release Daybreaker and its Affiliates from any and all disputes, controversies, and/or claims for damages, harms, debts losses, liabilities, fines, statutory amounts, fees, costs and expenses and/or penalties – regardless of how they occur or their legal implications –arising out of or relating to Daybreaker, our Affiliates, our third party partners and providers, and/or our Services, i. This clause embraces, but is not limited to, a full and unconditional release from: lost profits; lost revenue; loss of opportunity; harm to reputation; pain and suffering; loss of earning capacity and other economic losses; emotional damages; loss of enjoyment and/or consortium; loss of use of Services or any associated products or services; interruption of business; cost of capital, facilities, services, labor, and/or salaries; downtime, shutdown, and/or slowdown costs; spoilage of materials; inaccuracy, destruction, and/or loss of any data; any damages multiplier, including but not limited to any provision at law for double or treble damages; attorney fees; litigation costs; the cost of substitute services; any additional penalties(including without limitation administrative and/or civil penalties); and any other actual, direct, indirect, special, incidental, consequential, exemplary, reliance and/or punitive damages – even if Daybreaker and/or its Affiliates were advised as to the possibility of such. ii. This clause applies regardless of whether the matter implicates negligence, intentional conduct, or otherwise. This clause applies regardless of whether the matter involves a statutory, tort, contractual and/or other dispute. iii. In no event whatsoever will our maximum aggregate liability exceed $50 for damages, harms, losses, costs, fees, expenses, penalties, and fines arising out of or relating to Daybreaker, our Services, and/or your account. d. Indemnification. You agree to indemnify, defend, and hold Daybreaker and its Affiliates harmless in connection with any and all third party disputes, controversies, and/or claims for damages, harms, debts, losses, liabilities, statutory remedies, fines, fees, costs and expenses and/or penalties arising out of or relating to your use of Services and/or your acts and/or omissions in connection with Services, regardless of whether said acts and/or omissions are alleged to have resulted from negligence, reckless, and/or knowing intent. You acknowledge and agree that Daybreaker and its Affiliates reserve the exclusive right to control the defense, settlement, and selection of counsel in connection with any claim, dispute, or controversy for which you are bound to provide indemnification by this clause or any other term or condition. e. Attending Daybreaker Events. Throwing an event opens up its own can of worms. As part of these Terms of Service, you hereby acknowledge and agree to be unconditionally bound by all Event Terms – including without limitation all disclaimers and limitations therein listed – whenever you attend any Daybreaker event, program, party, concert, class tour, activity, trip/excursion, or other gathering – regardless of whether you purchased admission for said event, program, party, concert, class, tour, activity, trip/excursion, or other gathering.
f. Third Parties. To provide a better user experience, our Services may make use of third party services, feature third party content, run third party applications, or link to third party web sites. For example, you might see us use a third party like Facebook for logging-in or YouTube for videos. i. Neither Daybreaker nor any of its Affiliates makes any representations or warranties regarding any third party content, web site, application, or other service with which you come into contact via our Services. Furthermore, we do not support, affiliate with, or endorse any third party or its content, web site(s), application(s), or other service(s) unless we explicitly state otherwise in writing. ii. You agree that neither Daybreaker nor any of its Affiliates is not responsible for any claims, obligations, liabilities, costs, debt, expenses, losses, damages, charges, fees, penalties, or fines, arising out of or relating a third party and/or its content, web site(s), application(s) and/or other service(s). These third parties are wholly and completely responsible for their own content, web site(s), application(s), and/or other service(s). iii. We do not examine or audit any third party services or offerings. You are solely responsible for evaluating any third party services and offerings – you access and/or use these services and offerings at your own risk. Therefore, we encourage you to carefully review all third party terms and conditions, privacy policies, operational histories, and security protocols.
g. Injunctive Relief. You agree that under no circumstances will you seek to enjoin or restrain Daybreaker or any of its Affiliates from providing Services, including without limitation operating the website dybrkr.com, selling tickets to events, selling merchandise in-person or online, running events of any type or manner, running targeted ads and promotions, and/or staying in touch with our community and its individual members. You acknowledge and agree that you are not entitled to injunctive relief, rescissions, or any other equitable remedy under this Agreement.
h. Affiliate Ads & Marketing. Daybreaker needs to make money, just like everyone else. We reserve the right to run advertisements and promotions through our Services, and to receive a contingency payment, structured payment, bonus and/or commission in connection with our ads and promotions. i. Non-Endorsement & Non-Responsibility. Your words and actions are yours and yours alone. Daybreaker does not support or endorse any User Content or any other third party statements or interactions arising out of or relating to our Services; any User Content and any third party statements and interactions solely reflect the statements, positions, and opinions of the person or persons creating the User Content, making the statement, and/or engaging in the interaction.
j. Construed in Favor of Daybreaker. Everybody makes mistakes, and we are certainly no different. Insofar as these Terms of Service include any errors or ambiguities related to spelling, grammar, or syntax – or any other clear errors or ambiguities – these errors and ambiguities shall be construed in a light most favorable to Daybreaker. Specifically, without limitation: i. Any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the words “and” vs. “or” vs. “and/or” shall be construed in favor of protecting the rights, interests, liability exposure of Daybreaker. ii. Our use of the word “including” shall not be an exclusive term – but shall mean “including without limitation” – unless otherwise noted.
9. Miscellaneous but Important
a. Liquidated Damages. When we say that we want to preserve a constructive community for our users, we mean business. Daybreaker reserves the right to recover – as liquidated damages (i.e. not a penalty) – a $2,000 “Prohibited Commercial Activity Charge” for each instance of unauthorized commercial activity in connection with our Services. (For example, someone who posts 10 comments which advertise discount Air Jordans would draw $20,000 in Prohibited Commercial Activity Charges.) You acknowledge that the Prohibited Commercial Activity Charge is a fair and good-faith estimate of our damages and losses, and that you agreed on this amount with Daybreaker in advance of any dispute given the difficult of calculating actual harm and losses (e.g. lost opportunity, harm to reputation). You agree that you will pay any Prohibited Commercial Activity Charge within 14 days of receipt of an invoice from Daybreaker.
b. Force Majeure. Daybreaker shall hold no liability or responsibility for any harms, damages, penalties, losses, costs, expenses, fees, or issues that result from factors beyond the scope of our reasonable control. This includes without limitation, acts of God, weather, the shutdown of civic transportation and/or utilities, strikes and protests, acts of warfare and/or terrorism, and actions taken by government agencies. (For more information about the cancellation and/or rescheduling of events, please view our Event Terms)
c. Severability. In case you were ever wondering, a severability clause acts kind of like a line-item veto provision. If any of the Terms of Service – or any portion thereof – are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible; moreover, the remainder of the Terms of Service herein – and all other portions thereof – shall nevertheless remain in full force and effect. Your jurisdiction may not allow the disclaimer of certain warranties or limitations of certain types of damages. Thus, it is possible that portions of these Terms of Service may not apply to you. However, the limitation or exclusion of a particular disclaimer, restriction, limitation, term, or condition shall in no manner impact any other provision herein, nor shall it affect the validity or force of that disclaimer, restriction, limitation, term, or condition in other jurisdictions.
d. Translation. Any translation of these Terms of Service is merely provided as a convenience. Any discrepancy or dispute involving a translated version of these Terms of Service and the English version of these Terms of Service shall be resolved in favor of the English version.
e. Non-Waiver. We don’t think you’ll mind us giving you a “get of jail free card.” You acknowledge and agree that any failure by Daybreaker to require your strict adherence to any term or condition herein shall in no manner be construed as a waiver of any right by Daybreaker, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement herein stated. In other words, we may enforce and/or exercise our rights under these Terms of Service as we deem fit, without having to waive them at any point.
f. Entire Agreement. These Terms of Service – along with the incorporated Statement on Privacy and Event Terms – represent the entire agreement between you and Daybreaker with respect to your access to and use of our Services. These terms and conditions supersede any conflicting agreements or terms or conditions– however and whenever established – between you and Daybreaker, unless Daybreaker explicitly states otherwise. We reject any term or condition, however and whenever set forth, that conflicts with any term or condition herein listed. You hereby agree that any term or condition you set forth, however and whenever set forth, that conflicts with any term or condition herein listed shall be void and of no force or effect, regardless of any statement or indication to the contrary.
g. Choice of Law & Venue. All disputes will be handled in New York, NY. Any claim, dispute, suit, matter, or controversy arising out of or relating to Daybreaker, our Services and/or these Terms of Service will be construed and governed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. You agree that claims, disputes, cause of actions, and proceedings against Daybreaker must commence within one year of when the cause of action arises and shall be submitted exclusively to the jurisdiction of a state or federal court located New York, NY. You hereby waive any defense or claim of lack of personal jurisdiction, the inappropriateness of venue, or forum non conveniens. You acknowledge and agree that this provision is not intended to, in any manner, limit or negate the force or effect of the immediately subsequent provision entitled “Arbitration of Claims.”
h. Arbitration of Claims. Arbitration is a great way to avoid a protracted legal dispute. Any claim, dispute, suit, matter, or controversy arising out of or relating to Daybreaker, our Services and/or these Terms of Service may, at Daybreaker’s sole election, be settled exclusively and finally by arbitration. The arbitration shall be conducted in accordance with the commercial arbitration rules created by the American Arbitration Association and before a sole arbitrator. Under no circumstance shall punitive damages be awarded in the arbitration. Any award rendered in such arbitration proceedings shall be final and binding on each of the parties, and judgment may be entered thereon in any court of competent jurisdiction. Furthermore, you agree that, prior to taking any legal action against Daybreaker, you will seek negotiate in good faith with Daybreaker and undertake reasonable efforts to reach a mutually satisfactory conclusion to your dispute.
i. Class Action Waiver. We can’t let a few angry users gang-up to send us out of business. You may only pursue a claim, dispute, suit, matter, or controversy arising out of or relating to Daybreaker, our Services and/or these Terms of Service in an individual capacity. You agree that you shall not be involved with any class or representative proceeding – or otherwise participate as a lead plaintiff or class member, in a putative or certified class – involving any claim, proceeding, action, controversy, or dispute arising out of or relating to Daybreaker, our Services, our Affiliates, and/or any agreement you may have formed with us.
j. Export Control Laws. To be clear, United States export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. As with all applicable laws, rules, regulations, and standards, you are agree to abide by all applicable laws, rules, regulations, and standards concerning export control.
k. Digital Millennium Copyright Act (17 U.S.C. §512) i. Reporting Infringement. If you believe that your copyrighted work appears in connection with our Services and/or is accessible through our Services in a way that constitutes copyright infringement, please notify Daybreaker by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf; (2) a description of the copyrighted work you claim has been infringed, and a description of the activity that you claim to be infringing; (3) identification of the URL or other specific location where the material or activity you claim to be infringing is located or is occurring; (4) your name, address, telephone number and, if you have one, your e-mail address; (5) a statement by you that you have a good faith belief that use in our Services of the copyrighted work in the manner you are complaining of is not authorized by the copyright owner, any agent of the copyright owner, or the law; and (6) a statement by you, made under penalty of perjury, that the information you have provided in your notice is accurate and that you are either the copyright owner or are authorized to act on behalf of the copyright owner. ii. Counter-Claims of Infringement. If you believe you are the subject of an improper infringement claim, please notify Daybreaker by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf; (2) a detailed description of the copyrighted work you claim has been subject to an improper infringement claim; (3) identification of the URL or other specific location from where the allegedly infringing material has been removed, modified, and/or deleted; (4) your name, address, telephone number and, if you have one, your e-mail address; (5) the following statement: “I hold a legitimate, good faith belief that the allegedly offending material, as herein described, has been subject to complaint, removed, or rendered inaccessible as the result of misidentification, misfeasance, malfeasance, and/or mistake. All of the factual information I have provided in connection with this document is true and correct. I consent to the jurisdiction of the District Court in the United States judicial district in which I live – or, to the extent I reside outside the United States, in the Southern District of New York– and will accept service of process from the person or the agent of the person who sent the initial notice of infringement to Daybreaker. All attestations herein are given under penalty of perjury.”
l. Headings. Our headings and section titles – in these Terms of Service and the incorporated Statement on Privacy – are provided strictly for your convenience; they have no binding or representative effect on either Party.
m. Contacting Daybreaker. i. Legal Notices. You agree that all legal notices and legal-related correspondence will be provided in hard copy to: Daybreaker LLC, Attention: Legal Department, 163 North 6th Street #B10 Brooklyn, NY 11211 ii. California Consumer Affairs. Per California Code of Civil Procedure 1789.3, California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: 1625 North Market Blvd., Sacramento, CA 95834; (916) 445-1254 or (800) 952-5210. iii. Your feedback matters to us. Please let us know if you have questions, concerns, or feedback regarding these Terms of Services or our Statement on Privacy by emailing [email protected] Likewise, please share any general feedback Daybreaker and our Services by emailing [email protected]