Terms & Conditions of Use

THE BREAKERS PALM BEACH, INC.

Last Updated: July 21, 2016

Welcome to The Breakers. The Breakers Palm Beach, Inc. and its affiliated companies, subsidiaries, and properties (collectively referred to as “The Breakers,” “us,” “our,” or “we”) are committed to providing the highest level of service for our guests and all users of our products and services (collectively referred to as “guests,” “you,” or “your”).

These Terms & Conditions of Use (these “Terms & Conditions”) and our Privacy Policy  (the “Privacy Policy”), which is incorporated in these Terms & Conditions, govern our applications, various websites (including, without limitation, TheBreakers.comWeddingsByTheBreakers.com and 
MembershipsByTheBreakers.com), widgets, email notifications, and other mediums, or portions of such mediums (collectively, our “Services”).

Please read these Terms & Conditions and the Privacy Policy carefully before you use our Services. By visiting, using, or submitting information to us through our Services, or registering for our Services, you agree to be bound by (i) these Terms & Conditions; (ii) the Privacy Policy; and (iii) the terms and conditions of any rules specific to any one of our Services (“Rules” and collectively, with these Terms & Conditions and the Privacy Policy, this “Agreement”), including any changes or revisions that we may, in our sole discretion, make to this Agreement from time to time. If you do not agree with all of the terms and conditions of this Agreement, you are not authorized to access or use our Services or register for our Services, and your sole remedy is to stop using our Services.

This Agreement contains an agreement to arbitrate all claims and disclaimers of warranties and liability. You may pursue claims against us only on an individual basis, and not as part of any class or representative action or proceeding, and you may seek relief (including monetary, injunctive, and declaratory relief) only on an individual basis.

 

Consideration and Your Compliance with this Agreement

You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged. Such consideration includes your ability to access, use, or interact with our Services. You represent that you have the capacity to be bound by this Agreement and are legally authorized to make any and all travel reservations and purchases, or if you are acting on behalf of a company or other entity, that you have the authority to bind, and make such travel reservations and purchases on behalf of, such company or entity. In order to determine your compliance with this Agreement, we may monitor your access and use of our Services in accordance with our Privacy Policy.

 

Our Services Are Not Intended for Children

Our online Services are intended to be used only by adults and are not directed to minors. If you are a minor, you may only access and participate in our online Services under the supervision of a parent or legal guardian who agrees to be bond by this Agreement including our Privacy Policy). 

As stated in our Privacy Policy, we do not knowingly collect personally identifiable information from children under the age of 13. If we learn that we have inadvertently gathered Personal Information from a child under the age of 13 we will take reasonable measures to promptly remove that information from our records. 

 

YOUR USE OF OUR SERVICES
Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. You are entitled to use our Services only for lawful purposes and pursuant to the terms and conditions of this Agreement.

In connection with our Services, you may make only legitimate reservations in good faith for use only by you, your invited guests, or others on whose behalf you are authorized to act, and not for other purposes, including reselling, impermissibly assigning, or posting on third-party websites, making speculative, false, or fraudulent reservations, or any reservations in anticipation of demand. We may, in our sole discretion, cancel or modify reservations for any reason, including any breach of this Agreement, where it appears that you engaged in fraudulent or inappropriate activity, or under other circumstances where it appears that the reservations contain or resulted from a mistake or error, even if such mistake or error is ours.

Your access to and use of our Services may be interrupted from time to time for any reason, including the malfunction of equipment, periodic updating, maintenance or repair of our Services, or other actions that we may, in our sole discretion, elect to take. We may suspend or discontinue the availability of our Services or any portion or feature of our Services at any time, in our sole discretion, and without prior notice. We will not be liable if, for any reason, all or any part of our Services are unavailable at any time or for any period. From time to time, we may restrict access to all or any part of our Services by users, including registered users.

You will not attempt to or otherwise authorize, encourage, or support a third party's attempts to, do any of the following, as determined by us, in our sole discretion, each of which may result in your loss of the right to access and use our Services: (i) violate the terms and conditions of this Agreement; (ii) restrict, inhibit, or prevent any access to, use, or enjoyment of our Services; or (iii) through the use of our Services, defame, abuse, harass, offend, or threaten anyone or any entity.

 

Your Information and Security

Integrity of Your Information. To access or use our Services, you may be required to provide certain registration details or other information (“Your Information”). If you provide Your Information to us, then you agree to provide true, current, complete, and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and update Your Information if any of Your Information changes. Our collection, use, and disclosure of Your Information are governed by this Agreement.

You Must Maintain the Security of Any Password Issued to You. If our Services require you to create a password to use certain portions of our Services, or use a password you have created with a third party, then it is your sole responsibility to maintain the security of that password. We will not be liable for any loss that you may suffer as a result of the authorized or unauthorized use of your password by a third party. You will not allow any minor to use our Services via your registration or password. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our sole opinion, you have violated any provision of this Agreement.

You Must Notify Us of a Breach. You will immediately notify us of any unauthorized use of your password, any unauthorized use of any account that you may have with us, any violation of this Agreement, or any other breach of security known to you in connection with any product or service available on or through our Services by contacting us at privacy.officer@thebreakers.com.

You Must Comply with this Agreement and All Applicable Law. You will comply with the terms of this Agreement and all applicable local, state, national, and international laws, regulations, or rules. You will not submit to our Services any User Generated Content (as defined below) or other material that is contrary to this Agreement (including the User Generated Content Standards described below) or to applicable local, state, national, or international laws, regulations, or rules.

 

User Generated Content

Our Services may contain message boards, forums, bulletin boards, accounts, and other features that allow you and other users to publish, post, submit, transmit, or display (collectively, “post”) information (including messages, photos, and other content) on or through our Services to other users of our Services or third parties (“User Generated Content”). We do not approve or endorse any User Generated Content, and we have no control over the quality, correctness, timeliness, safety, truth, accuracy, or legality of any User Generated Content provided by you or any other person or entity. You are solely responsible for the quality, correctness, timeliness, safety, truth, accuracy, or legality of your User Generated Content. You may find User Generated Content posted by other users to be offensive, harmful, indecent, inaccurate, or deceptive. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect to User Generated Content. Please use caution and common sense, and do not rely solely on User Generated Content published through our Services. Without limiting the generality of the foregoing, and although we do not regularly review User Generated Content, we reserve the right, but not the obligation, to remove or edit any User Generated Content.

Please immediately report problems with the User Generated Content to us at privacy.officer@thebreakers.com.

User Generated Content Standards. These content standards apply to any and all User Generated Content and use of our Services. All User Generated Content must, in its entirety, comply with all applicable federal, state, local, and international laws, ordinances, and regulations. Without limiting the foregoing, User Generated Content must not:

  • Contain any material that is trade libelous, unlawfully threatening, unlawfully harassing, defamatory, obscene, explicit, or vulgar, or otherwise injurious to us or third parties or that infringes on our or any third party’s rights of publicity or privacy;
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, color, pregnancy, national origin, handicap, marital status, veteran status, gender identity or expression, genetic information, or any other characteristic protected by federal, state, or local law;
  • Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement;
  • Contain any material that is false, inaccurate, or misleading;
  • Promote any illegal activity, or advocate, promote, or assist any unlawful act;
  • Involve or contain commercial advertisements or solicitations, including contests, sweepstakes, other sales promotions, barter, or advertising, without our prior written consent, which consent may be withheld in our sole discretion;
  • Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
  • Contain federally trademarked or copyrighted information without appropriate prior written permission;
  • Contain or constitute chain letters, mass mailings, political campaigning, or any form of “spam”; or
  • Contain any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots, or other code or computer programming routines that encompass contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.

 

TRANSMISSIONS, SUBMISSIONS AND POSTINGS

You represent and warrant to us that you own all of the rights, title, and interest in and to, or that you have a valid license to post, any and all information that you post to our Services (including User Generated Content). If you post information (including User Generated Content) to our Services that is (i) not federally trademarked or copyrighted, you automatically grant us and our affiliates and assigns the worldwide, fully-paid, royalty-free, sublicensable, transferable, and exclusive right and license to use, copy, format, adapt, publish, distribute, create derivative works from, or incorporate any or all such information in any media whatsoever, including the Content (as defined below); and (ii) federally trademarked or copyrighted, you automatically grant us and our affiliates the worldwide, fully-paid, royalty-free right to use, copy, format, adapt, publish, or incorporate any or all such information in any media whatsoever, including the Content, provided that you have obtained prior written permission from the owner of federally trademarked or copyrighted information to post such information to our Services. You also hereby grant each user a non-exclusive license to access your User Generated Content through our Services, and to use, reproduce, distribute, display, and perform such User Generated Content as permitted through the functionality of our Services and under this Agreement. The above licenses granted by you are perpetual and irrevocable.

You are solely responsible for all of your transmissions, submissions, or postings (for example, your own User Generated Content) and the consequences of transmitting, submitting, or posting them. We assume no liability for any action or inaction regarding transmissions, submissions, or postings by any user or third party.

Although we do not regularly review your transmissions, submissions or postings, we may, at our sole discretion and at any time, to edit, refuse to post or remove your transmissions, submissions or postings. Pursuant to our Privacy Policy, we may review transmissions, submissions or postings made by you to determine, in our sole discretion, your compliance with this Agreement.

 

Without limiting the foregoing, we have the right to:

  • Take any action with respect to any User Generated Content that we deem necessary or appropriate, in our sole discretion, including removal of any User Generated Content if we believe, in our sole opinion, that such User Generated Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of our Services or the public, or could create liability for us.
  • Take appropriate legal action, including referral to law enforcement for any illegal or unauthorized use of our Services.
  • Terminate or suspend your access to all or part of our Services for any or no reason, including any violation of this Agreement.

 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through our Services. YOU WAIVE AND HOLD US (AND OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS) HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF THEIR INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

 

INTELLECTUAL PROPERTY RIGHTS

Our Services and their entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of the foregoing) are owned by us, our licensors, or other providers of such material and are protected by United States or international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws (collectively, the “Proprietary Marks”). You may not use the Proprietary Marks without our prior express written permission, which permission may be withheld in our sole discretion. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.

The information, advice, data, software, and content viewable on, contained in, or downloadable from our Services (collectively, the “Content”), including all text, graphics, charts, pictures, photographs, videos, images, line art, icons, and renditions, are copyrighted or trademarked by, or otherwise licensed to, us or our Content suppliers. We also own a copyright in a collective work in the selection, coordination, arrangement, presentation, display, and enhancement of the Content (the "Collective Work"). All software used on or within our Services (the "Software") is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading, or otherwise using the Content or the Collective Work does not entitle you to any ownership or intellectual property rights to the Content, the Collective Work, or the Software.

You are solely responsible for any damages resulting from your infringement of our or any third-party’s intellectual property rights regarding the Proprietary Marks, the Content, the Collective Work, the Software, or any other harm incurred by us or our affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing, or using the Proprietary Marks, the Content, the Collective Work, or the Software for purposes that are contrary to the terms and conditions of this Agreement.

 

YOUR USE OF THE CONTENT AND COLLECTIVE WORK

This Agreement permits you to use our Services only for your personal, non-commercial use. We grant you a limited license to access, print, download, or otherwise make personal use of the Content and the Collective Work in the form of: (i) one machine-readable copy; (ii) one backup copy; and (iii) one print copy, for your non-commercial use; provided, however, that you will not delete any proprietary notices or materials with regard to the foregoing manifestations of the Content and the Collective Work. You may not (a) modify the Content or the Collective Work; (b) utilize the Content or the Collective Work for any commercial purpose or any other public display, performance, sale, or rental; (c) decompile, reverse engineer, or disassemble the Content and the Collective Work; or (d) transfer the Content or the Collective Work to another person or entity.

Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication, or use, other than the non-commercial use of the Content and the Collective Work as permitted by this Agreement, is permitted by you without our prior written permission, which permission may be withheld in our sole discretion.

You will comply with all applicable United States and foreign rules, regulations, and laws relating to the importation and exportation of technical data associated with our Services. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks, or provide links to or frame our Services, without our prior written permission, which permission may be withheld in our sole discretion.

 

INTERFERENCE WITH OUR SERVICES

You will not use any robot, spider, scraper, deep link, or other similar automated data gathering or extraction tools, program, algorithm, or methodology to access, acquire, copy, or monitor our Services, or any portion of our Services, or for any other purpose, without our express written permission, which may be withheld in our sole discretion. Additionally, you will not: (i) take any action that imposes or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute, transmit, or publicly display any Content or Collective Work (except for your personal information) without our prior written permission, which may be withheld in our sole discretion, and the permission of the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; or (iv) bypass any measures we may use to prevent or restrict access to our Services. We may, without prior notice to you, immediately disconnect your access to and use of our Services if you interfere or disrupt our Services.

Notwithstanding the foregoing, we grant the operators of public search engines permission to use spiders to copy materials from our Services for the sole purpose of, and solely to the extent necessary for, creating publicly available searchable indices of the materials, but not caches or archives of such materials. We may revoke these exceptions either generally or in specific cases. You will not collect or harvest any personally identifiable information from our Services. You will not use any communication systems provided on our Services (for example, forums) for any commercial or solicitation purposes. You will not solicit for commercial purposes any users of our Services without our prior written consent, which consent may be withheld in our sole discretion.

 

Our Products

Our Services may contain technical inaccuracies and typographical or other errors in connection with the Content, including rates, fees, or availability applicable to a transaction. We make no representations and assume no responsibility as to the completeness, accuracy, or timeliness of any Content (including any features, specifications, rates, fees, and availability). We may, in our sole discretion, honor reservations or information affected by any errors, inaccuracies, or omissions in connection with the Content. We may make changes, corrections, cancellations, or improvements to the Content, at any time, including after confirmation of a reservation.

 

Transactions

You may have the ability to purchase or otherwise obtain certain products, services, and related promotions and discounts (collectively, “Products”) through our Services (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your name, your credit card number and its expiration date, your billing address, and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner.

 

We may, in our sole discretion and without prior notice, (i) limit the available quantity of or discontinue making available any Product; (ii) impose conditions on the honoring of any discount or similar promotion; (iii) bar any user from making any Transaction; and (iv) refuse to provide any user with any Product. Cancellations, refunds, and exchanges are subject to our applicable cancellation, refund, and exchange policies. You will pay all charges incurred by you or on your behalf through our Services, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions.

 

We are not responsible for communication failures, errors, difficulties, or other malfunctions or lost, stolen, or misdirected transactions, transmissions, messages, or entries on or in connection with our Services. We are not responsible for any incorrect information associated with any Transaction on or to our Services regardless of whether such incident is the result of user error, system error, or human error.

 

WE MAKE NO WARRANTY OR REPRESENTATION REGARDING THE CONFIDENTIALITY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OUR SERVICES OR ANY LINKS ASSOCIATED WITH OUR SERVICES. WE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY INJURY, LOSS, OR DAMAGE TO YOUR COMPUTER, MOBILE PHONE, OR OTHER DEVICE, OR INTERCEPTION OR USE OF CREDIT CARD INFORMATION OR OTHER PERSONALLY IDENTIFIABLE INFORMATION, RELATED TO OR RESULTING FROM USE OF OUR SERVICES OR ANY LINKS ASSOCIATED WITH OUR SERVICES.

 

THIRD PARTY LINKS, PRODUCTS AND SERVICES

Our Services may (i) provide links or access to other websites or mediums belonging to our advertisers, business partners, affiliates, and other third parties; and (ii) make available Products of such third parties, as well as references and links to such third-party Products. The availability of any links or access through our Services does not constitute our endorsement of any third party or any Product of any third party. We are not responsible for the activities or policies of any third party. We accept no responsibility for such third parties or for any loss or damage that may arise from your use of the third-party links or the Products of those third parties. If you decide to access any of the third-party websites or mediums, you do so entirely at your own risk and subject to the terms and conditions of use of such third-party websites and mediums.

 

PROMOTIONAL INFORMATION

As provided in our Privacy Policy, we or our third-party service providers may mail, email, telephone, or contact you by other means to notify you of exclusive offers, promotions, events, and resort updates. We also may display or provide information regarding such promotions on our Services. Any such Promotional Offer is subject to its respective Rules and other terms, conditions, and restrictions. Please refer to and read carefully such Rules and other terms, conditions, and restrictions. We may, in our sole discretion, alter or withdraw any such promotion at any time without notice. Each such promotion is void where prohibited by applicable laws, regulations, or rules.

 

Electronic Communications with Us

When you visit our Services or send email or other electronic messages to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by other communications. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

 

Authorization to Contact You

You authorize us and our affiliates, agents, representatives, and independent contractors to contact you at any telephone number (including telephone numbers associated with mobile, cellular, wireless, or similar devices) you provide to us or from which you place a call to us, or any telephone number at which we reasonably believe we may reach you, using any means of communication, including calls or text messages using an automatic telephone dialing system or prerecorded messages, even if you incur charges for receiving such communications.

 

Your Responsibility for Equipment and Related Costs

You are solely responsible for obtaining and maintaining all telephone, computer hardware, Internet access services, and other equipment or services needed to access and use our Services, and for all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of our Services.

 

Geographic Restrictions

Our Services are controlled, operated, and administered from our offices within the United States of America. We make no representations that our Services are appropriate or available for use in other jurisdictions. If you access our Services from a location outside the United States of America, you are responsible for compliance with all local laws. You will not use our Services or any content obtained from our Services in a manner prohibited by any applicable state, federal, or local laws, restrictions, or regulations.

 

Copyright Infringement

Our policy is to comply with the Digital Millennium Copyright Act, Title 17, United States Code, Section 512, including responding to notices of alleged copyright infringement, and other applicable intellectual property laws. We will, in appropriate circumstances, disable, or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of ours or others.

Notifications (each a “Notification”) of claimed copyright infringement should be sent by either express mail or U.S. mail to:

The Breakers

Attention: Privacy Officer/Internal Audit

One South County Road

Palm Beach, FL 33480

Main Fax Number: (561) 659-8403

Pursuant to Title 17, United States Code, Section 512(c)(3), to be effective, the Notification must include the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner (“Complaining Party”) of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  4. Information reasonably sufficient to permit us to contact the Complaining Party, such as an address, telephone number, and if available, an email address at which the Complaining Party may be contacted;
  5. A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the Notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of the Notification containing the information as outlined in 1 through 6 above, and pursuant to Title 17, United States Code, Section 512:

  1. We will remove or disable access to the material that is alleged to be infringing;
  2. We will forward the Notification to the alleged infringer (“Subscriber”); and
  3. We will take reasonable steps to promptly notify the Subscriber that we have removed or disabled access to the material.

Pursuant to Title 17, United States Code, Section 512(g)(3), a Subscriber may counter a Notification by providing a written communication (“Counter Notification”) to our designated agent that includes substantially the following:

  1. A physical or electronic signature of the Subscriber;
  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  3. A statement under penalty of perjury that the Subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  4. The Subscriber’s name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located (or Palm Beach County, Florida if the Subscriber’s address is outside of the United States), and that the Subscriber will accept service of process from the person who provided the Counter Notification or an agent of such person.

Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above, and pursuant to Title 17, United States Code, Section 512:

  1. We will promptly provide the Complaining Party with a copy of the Counter Notification;
  2. We will inform the Complaining Party that we will replace the removed material or cease disabling access to the removed material within 10 business days; and
  3. We will replace the removed material or cease disabling access to the removed material not less than 10 business days, nor more than 14 business days, following receipt of the Counter Notification, provided our designated agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain the Subscriber from engaging in infringing activity relating to the removed material on our network or system.

 

DISCLAIMER OF WARRANTIES

Your use of our Services and all products and services included on or associated with our Services is at your sole risk. It is your sole responsibility to independently evaluate our Services and the content, services, and products associated with our Services. Our Services and all content, services, and products associated with our Services are provided to you on an “AS-IS” and “AS AVAILABLE” basis. We make no representations or warranties of any kind, express or implied, or guarantee, as to the operation of our Services and the information, content, materials, products, or services included on or associated with our Services, including their accuracy, correctness, completeness, safety, reliability, title, timeliness, non-infringement, merchantability, conformity, or fitness for a particular purpose.

Without limiting the foregoing, you acknowledge that we cannot guarantee the continuous operation of or access to our Services. You further acknowledge that operation of and access to our Services may be interfered with as a result of technical issues or numerous factors outside of our control. We make no representation, warranty, or guarantee that the content that may be available for downloading from our Services is free of infection from any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots, or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer, device, data, programs, or other equipment or material due to your use of the Services or items obtained through the Services or to your downloading of any material posted on the Services or any links to the Services.

The foregoing does not affect any warranties which cannot be excluded or limited under applicable law.

 

LIMITATIONS OF LIABILITY

IN NO EVENT ARE WE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER RESULTING, IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT INCLUDE DAMAGES FOR ANY LOSS OF PROFIT, REVENUE, OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS OR USE OF OUR SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF THE CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF THE SERVICES, THE CONTENT, THE COLLECTIVE WORK OR ANY OTHER INFORMATION, MATERIALS, SOFTWARE, PRODUCTS, OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES; (VI) ANY THIRD PARTY'S USE OF OUR SERVICES ON YOUR BEHALF; (VII) THE BREACH OF OUR SECURITY AND UNAUTHORIZED DISCLOSURE OF YOUR PERSONAL INFORMATION; (VIII) ANY TRANSACTION OR PROCESSING OF A TRANSACTION; OR (IX) ANY USER GENERATED CONTENT OR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, EVEN IF WE OR OUR THIRD-PARTY SERVICE PROVIDERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED $100.

ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you.

In the event that any limitation on the period of time for bringing an action, claim, dispute, or proceeding against us, located in this “Limitations on Our Liability” section, is determined or held to be inapplicable or unenforceable by any court, arbitration panel, or other tribunal, then the statute of limitations for the State of Florida, including Florida Statutes Section 95, will apply to any such action, claim, dispute, or proceeding referred to final or binding arbitration.

 

YOUR INDEMNIFICATION OF THE BREAKERS

You will defend, indemnify, and hold harmless us and our officers, directors, shareholders, employees, independent contractors, agents, representatives, and affiliates from and against all claims and expenses, including attorneys’ fees, arising out of or attributable to: (i) any breach or violation of this Agreement; (ii) your failure to provide accurate, complete, and current personally identifiable information requested or required by us; (iii) your access or use of our Services; (iv) access or use of our Services under any password that may be issued to you; (v) your transmissions, submissions, or postings (for example, your own User Generated Content); (vi) your interactions or exchanges with other users; or (vii) any death, personal injury, property damage, or emotional distress caused by you.

 

AMENDMENTS TO THIS AGREEMENT

We reserve the right to update, amend, or change this Agreement at any time, in our sole discretion and without notice. Amendments will take effect immediately upon us posting such updates on our Services. We encourage you to periodically check this Agreement for changes, as your continued access and use of our Services following the posting of any changes will automatically be deemed your acceptance of all changes. This Agreement replaces all previous notices or statements with respect to this subject, and cannot be modified orally by any of our representatives, employees, or agents.

 

Our Remedies

You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we are entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, or to a decree for specific performance of the provisions of this Agreement. For purposes of this “Our Remedies” section, any action or proceeding with regard to an injunction will be brought exclusively in the state courts of record for Palm Beach County, Florida, or the United States District Court, Southern District of Florida, West Palm Beach Division. You consent to the jurisdiction of such court and waive any objection to the laying of venue for such action or proceeding in such court. Service of any court paper may be effected on you by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.

 

Legal Disputes

You and we agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this Agreement or your use of or access to the Services will be resolved in accordance with the provisions set forth in this “Legal Disputes” section. Please read this “Legal Disputes” section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.

 

Applicable Law

The laws of the State of Florida, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

 

Agreement to Arbitrate

You and we each agree that any and all disputes or claims that have arisen or may arise between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services sold, offered, or purchased through our Services, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, will be resolved exclusively through final and binding arbitration, before a single arbitrator, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this “Agreement to Arbitrate” section (this “Agreement to Arbitrate”).

Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would.

The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement to Arbitrate, any part of it, or of this Agreement, including any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable.

The arbitration will be conducted by the American Arbitration Association (the “AAA”) in Palm Beach County, Florida, under the AAA’s rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org.

You and The Breakers will select the arbitrator, and if you and The Breakers are unable to reach agreement on selection of the arbitrator within 30 days after the notice of arbitration is served, then the AAA will select the arbitrator. Arbitration will not commence until the party requesting arbitration has deposited $1,000 with the arbitrator for the arbitrator’s fees and costs. The party requesting arbitration will advance such sums as are required from time to time by the arbitrator to pay the arbitrator’s fees and costs until the prevailing party is determined or the parties have agreed in writing to an alternate allocation of fees and costs.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of Florida, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. Judgment upon any award rendered by the arbitrator is final, binding, and conclusive upon you and us and your and our respective administrators, executors, legal representatives, successors, and assigns, and may only be entered in the state courts of record for Palm Beach County, Florida or the United States District Court, Southern District of Florida, West Palm Beach Division.

Prohibition of Class and Representative Actions and Non-Individualized Relief.

 

YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. 

THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. By using OUR SERVICES, you consent to these restrictions.

 

Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Palm Beach County, Florida. You and The Breakers will submit to the personal jurisdiction of the courts located within Palm Beach County, Florida for the purpose of litigating all such claims or disputes. You also agree that our Services will be deemed solely based in the State of Florida and will not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of Florida.

 

GENERAL INFORMATION

If any provision of this Agreement is contrary to, prohibited by, or deemed invalid under applicable law, such provision will be inapplicable and deemed omitted to the extent so contrary, prohibited, or invalid, but the remainder of this Agreement will not be invalidated thereby and will be given full force and effect so far as possible. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision will have the meaning that renders it valid and enforceable.

No waiver by us of any term or condition set forth in this Agreement is deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by us to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.

For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and the word “or” is not exclusive. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and will not limit or otherwise affect in any way the meaning or interpretation of this Agreement.

All covenants, agreements, representations, and warranties made in this Agreement, as may be amended by us, from time to time, will survive your acceptance of this Agreement and the termination of this Agreement.

We may give, assign, or transfer our rights or obligations under this Agreement to any person or entity at any time with or without your consent. You may not give, assign, or transfer your rights or obligations under this Agreement to any person or entity without our prior written consent, which may be withheld in our sole discretion. Any attempt to assign your rights or obligations under this Agreement without our consent will be void.

We will not be liable for any changes, delays, failures, or problems out of our control, including any changes, delays, failures, or problems caused by natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, shortage of transportation facilities, fuel, energy, labor, or materials, and other similar events.

You and The Breakers are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

This Agreement (together, with any documents they expressly incorporate by reference, including the Privacy Policy and all applicable Rules) represents the entire understanding and agreement between you and us regarding the subject matter of this Agreement, and supersede all other previous agreements, understandings, or representations regarding this Agreement.

If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at privacy.officer@thebreakers.com or in writing at:

The Breakers

Attention: Privacy Officer/Internal Audit

One South County Road

Palm Beach, FL 33480

Main Fax Number: (561) 659-8403