Terms of Service

Last revised January, 2021

1. ACCEPTANCE OF TERMS

The following agreement outlines your obligations when using the Breakwater website available at https://www.breakwatersolutions.com/ or any other websites of Breakwater Solutions, LLC or its subsidiaries (collectively, “Breakwater”), (each a “Site”). The Site is owned and operated by Breakwater, and is accessed by you under the terms of use described below (“Terms of Use”).

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING OR USING THE SITE OR ANY CONTENT ON THE SITE. BY ACCESSING THE SITE OR ANY CONTENT ON THE SITE, YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS THE SITE OR USE THE CONTENT OR ANY SERVICES IN THE SITE. BREAKWATER’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS AND CONDITIONS, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY BREAKWATER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

2. MODIFICATIONS OF TERMS OF USE

Breakwater reserves the right, at its sole discretion, to modify or replace the Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, Breakwater will notify you by posting an announcement on the Site. What constitutes a “material change” will be determined at Breakwater’s sole discretion, in good faith and using common sense and reasonable judgment. You are responsible for reviewing and becoming familiar with any such modifications. Use of the Site by you following such notification constitutes your acceptance of the terms and conditions of the Terms of Use as modified.

3. CONTENT OWNERSHIP AND USAGE RIGHTS

Breakwater shall retain all worldwide rights in the intellectual property of the Site and any content on the Site, including, but not limited to, trademarks, the “look and feel” of the Site, its color combinations, layout, and all other graphical elements, and the copyright in and to its original content. You should assume that everything you read or see on the Site is copyrighted or otherwise protected and owned by Breakwater, or a third party who licensed the right to use such content to Breakwater. Unless otherwise expressly noted, nothing that you read or see on the Site or other site content, or any of the source code or HTML code that Breakwater uses to generate the Site may be copied, reproduced, modified, distributed, transmitted, republished, displayed, or performed for commercial use without the prior written consent of Breakwater, except as provided in the Terms of Use, without prior written consent or otherwise permitted by relevant law.

4. USE OF SOFTWARE

To the extent that Breakwater provides for the download of or access to hosted Breakwater software from the Site and any information or documentation related thereto (collectively “Software”), such Software is protected by the applicable copyright, patent or other intellectual property rights of either Breakwater or the third-party licensor. Any use of the Software is subject to the terms of the applicable end-user or other license terms contained in the files for such Software. As between the parties, Breakwater solely shall own and hereby retains all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual or industrial property rights embodied in the Software). You shall not reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law expressly prohibits such a reverse engineering restriction or to the extent the specific Software was provided in source code form by Breakwater).

5. INDEMNITY

You will indemnify and hold harmless Breakwater, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys. fees and cost) from (i) any claim or demand made by any third party due to or arising out of your access to or use of the Site or any content on the Site, violation of the Terms of Use by you, or the infringement by you of any intellectual property or other right of any person or entity.

6. WARRANTY DISCLAIMERS

Diligent care has been taken in acquiring and providing the information included and posted on the Site. Nonetheless, Breakwater makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of that information and assumes no responsibility for any errors or omissions therein. USER ACCESSES THIS SITE AT HIS OR HER OWN RISK. THE SITE AND ALL CONTENT ON THE SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. NEITHER BREAKWATER NOR ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON THIS SITE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF BREAKWATER, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. BREAKWATER IS NOT LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THIS SITE. IN NO EVENT WILL BREAKWATER OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR THIRD PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTIOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL BREAKWATER OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES OR ASSIGNS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OF USER OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH USE OF THE SITE.

7. LINKING AND FRAMING

Breakwater does not object to links on third-party sites to the homepage of the Site in an appropriate context. However, “framing” or “mirroring” the Site or any of its content is prohibited without the prior written consent of Breakwater. The Site may provide links to other sites or resources available on the Internet. Because Breakwater has no control over such sites and resources, you acknowledge and agree that Breakwater is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Breakwater shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

8. TRADEMARKS AND TRADE NAMES

The company name, graphics, logos, designs, page headers, button icons, scripts, and other product and service names are the trademarks and trade names of Breakwater. Breakwater’s trademarks and trade names may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.

9. ELECTRONIC COMMUNICATIONS

We use reasonable security measures and take reasonable system, process, and administrative precautions to protect the security and integrity of email and other electronic communications that you may send to us. Despite all these precautions, no method of transmission over the Internet is entirely secure and we cannot guarantee the confidentiality or security of the electronic communications or its contents. You transmit such information at your own risk and you should decide very carefully which information you want to send us via any electronic communication.

10. SECURITY

Users are prohibited from violating or attempting to violate the security of the site. Breakwater will investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators.

11. UNITED STATES GOVERNMENT RIGHTS

The Software is a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software”, “commercial computer software documentation” and “commercial services”. If you are a U.S. governmental entity, then you acknowledge and agree that (i) use, duplication, reproduction, release, modification, disclosure, or transfer of the Software and any related documentation of any kind, including, without limitation, technical data and manuals, will be restricted in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes, (ii) the Software were developed fully at private expense and (iii) all other use of the Software except in accordance with the license grant provided above is strictly prohibited.

12. MISCELLANEOUS

The Terms of Use constitutes the entire agreement between users of the Site and Breakwater, and regarding the subject matter hereof. If you breach any term of the Terms of Use, Breakwater may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. Breakwater’s remedies are cumulative and not exclusive. Failure of Breakwater to exercise any remedy or enforce any portion of the Terms of Use at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. Users of this Site are responsible for compliance with all applicable regulations and laws. Any dispute arising out of the Terms of Use shall be governed by the laws of Texas, notwithstanding any conflicts of law principles. Any action relating to the Terms of Use must be filed and maintained in a court in the state of Texas, USA, and users consent to exclusive jurisdiction and venue in such courts for such purpose.