Legal - Terms of Use

ATTENTION: PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS WEBSITE. USING THIS WEBSITE INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS (“TERMS”), DO NOT USE THIS WEBSITE.

Use of Site. BreakingPoint Systems, Inc. (“BreakingPoint”) authorizes you to view and download the materials at this website (“Site”) only for your personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained in the original materials on any copies of the materials. You may not modify the materials at this Site in any way or reproduce or publicly display, perform, or distribute or otherwise use them for any public or commercial purpose. For purposes of these Terms, any use of these materials on any other website or networked computer environment for any purpose is prohibited. The materials at this Site are copyrighted and are protected by worldwide copyright and treaty laws. Any unauthorized use of any materials at this Site may violate copyright, trademark, and other laws. If you breach any of these Terms, your authorization to use this Site automatically terminates and you must immediately destroy any downloaded or printed materials. BreakingPoint’s trademarks may be used publicly with permission only from BreakingPoint. Fair use of BreakingPoint’s trademarks in advertising and promotion of BreakingPoint products requires proper acknowledgement.

Materials Provided to BreakingPoint at any BreakingPoint website.

BreakingPoint does not claim ownership of the materials you provide to BreakingPoint (including feedback and suggestions) or post, upload, input or submit to any services for review by the general public, or by the members of any public or private community (each a “Submission” and collectively “Submissions”). Other than personally identifiable information, which is discussed below, any Submission will be considered non-confidential and non-proprietary. BreakingPoint will have no obligations with respect to the Submission. However, by posting, uploading, inputting, providing or submitting (“Posting”) your Submission you are granting BreakingPoint, its affiliated companies (if any) and necessary sublicensees permission to use your Submission in connection with the operation of their businesses (including, without limitation, all BreakingPoint Services), including, without limitation, the license rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; to publish your name in connection with your Submission; and the right to sublicense such rights to any supplier of services. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law. You may not use the Site to violate any applicable local, state, national, or international law, including without limitation any applicable laws relating to antitrust or other illegal trade or business practices, federal and state securities laws, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any U.S. laws, rules, and regulations governing the export and re-export of commodities or technical data. You may not upload or transmit any material that infringes or misappropriates any person’s copyright, patent, trademark, or trade secret, or disclose via the Site any information the disclosure of which would constitute a violation of a confidentiality obligation on your part. You may not upload any viruses, worms, Trojan horses, or other forms of harmful computer code, nor subject the Site’s network or servers to unreasonable traffic loads, or otherwise engage in conduct deemed disruptive to the ordinary operation of the Site.

No compensation will be paid with respect to the use of your Submission, as provided herein. BreakingPoint is under no obligation to post or use any Submission you may provide, and BreakingPoint may remove any Submission at any time in its sole and absolute discretion.

By Posting a Submission you represent and warrant that you own or otherwise control all of the rights to your Submission as described in these Terms including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

In addition to the representation and warranty set forth above, by Posting a Submission that contains images, photographs, pictures or that are otherwise graphical in whole or in part (“Images”), you represent and warrant that (a) you are the copyright owner of such Images, or that the copyright owner of such Images has granted you permission to use such Images or any content and/or images contained in such Images consistent with the manner and purpose of your use and as otherwise permitted by these Terms, (b) you have the rights necessary to grant the licenses and sublicenses described in these Terms, and (c) that each person depicted in such Images, if any, has provided valid consent to the use of the Images as set forth in these Terms, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Images. By Posting Images, you are granting (x) to all members of your private community (for each such Images available to members of such private community), and/or (y) to the general public (for each such Images available anywhere on the Services, other than a private community), permission to use your Images in connection with the use, as permitted by these Terms, and including, without limitation, a non-exclusive, world-wide, royalty-free license to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Images without having your name attached to such Images, and the right to sublicense such rights to any supplier or other third party. The licenses granted in the preceding sentences for Images will terminate at the time you completely remove such Images from the Site, provided that such termination shall not affect any licenses granted in connection with such Images prior to the time you completely remove such Images. No compensation or other remuneration of any kind whatsoever will be paid with respect to the use of your Images.

Trademark Information. This is a current listing of trademarks owned by BreakingPoint Systems, Inc. Any questions concerning the use of these trademarks or whether a name that does not appear on this list is in fact a trademark of BreakingPoint should be referred to BreakingPoint in the United States at the following e-mail address: info@bpointsys.com.

BreakingPoint, AppExpress, AccuApp, and Superflows are all trademarks or registered trademarks of BreakingPointSystems, Inc. in the United States and/or in foreign countries.

All other referenced marks are those of their respective owners.

Personally Identifiable Information. If you transmit or post personally identifiable information (name, address, e-mail address, phone number, etc.) to this Site, BreakingPoint will handle, process and safeguard it in accordance with BreakingPoint’s privacy practices as set forth at http://www.bpointsys.com/privacy

User Chat Rooms. BreakingPoint may, but is not obligated to, monitor or review any areas on the Site where users transmit or post Submissions or communicate solely with each other, including but not limited to chat rooms, bulletin boards or other user forums, and the content of any such Submissions. BreakingPoint, however, will have no liability related to the content of any such Submissions, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. BreakingPoint retains the right to remove messages that include any material deemed abusive, defamatory, obscene or otherwise unacceptable.

Links To Other Websites. Links to third party websites on this Site are provided solely as a convenience to you. If you use these links, you will leave this Site. BreakingPoint has not reviewed all of these third party sites and does not control and is not responsible for any of these sites or their content. Thus, BreakingPoint does not endorse or make any representations about them, or any information, software or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk.

Indemnification. As a condition to using this Site you agree to indemnify and hold BreakingPoint AND ITS DIRECTORS, OFFICERS, STOCKHOLDERS, EMPLOYEES AND AGENTS harmless from and against any and all damages, costs (including reasonable attorneys fees), losses, and liabilities incurred by BreakingPoint as a result of any third-party claims, actions, suits, or proceedings arising out of or relating to your use of the Site or breach or alleged breach of these terms of use.

Disclaimer. THE MATERIALS PROVIDED AT THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. BreakingPoint further does not warrant the accuracy and completeness of the materials at this Site. BreakingPoint may make changes to the materials at this Site, or to the products and prices described in them, at any time without notice. The materials at this Site may be out of date, and BreakingPoint makes no commitment to update the materials at this Site. Information published at this Site may refer to products, programs or services that are not available in your country. Consult your local BreakingPoint business contact for information regarding the products, programs and services that may be available to you. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.

Limitation of Liability. IN NO EVENT WILL BREAKINGPOINT, ITS SUPPLIERS, OR OTHER THIRD PARTIES MENTIONED AT THIS SITE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THIS SITE, ANY WEBSITES LINKED TO THIS SITE, OR THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE MATERIALS OR INFORMATION FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Procedure for Making Claims of Copyright Infringement. In accordance with the Digital Millennium Copyright Act (17 USC § 512), BreakingPoint Systems, Inc. is registered with the US Copyright Office as a Service Provider. Any notifications of claimed copyright infringement must be sent to the Service Provider’s Designated Agent.

U.S. Government Restricted Rights. Government users will receive no greater than Restricted Rights as defined in FAR 52.227-19 (c) (1-2) (June 1987). Government users will receive no greater Limited Rights as defined in FAR 52.227-14 (June 1987) or DFAR 252.227-7015 (b) (2) (November 1995), as applicable in any technical data at this site. Use of the materials on this site by the Government constitutes acknowledgement of BreakingPoint’s proprietary rights therein.

Applicable Laws. This Site is administered by BreakingPoint from its offices in Austin, Texas. BreakingPoint makes no representation that materials at this Site are appropriate or available for use outside the United States, and access to them from territories where their contents are illegal is prohibited. You may not use or export or re-export the materials at this Site or any copy or adaptation in violation of any applicable laws or regulations including without limitation U.S. export laws and regulations. If you choose to access this Site from outside the United States, you do so on your own initiative and are responsible for compliance with applicable local laws. These Terms will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any principles of conflicts of laws. The provisions of the UN Convention on Contracts for the International Sale of Goods will not apply to these Terms. A party may give notice to the other party only in writing at that party’s principal place of business, attention of that party’s principal legal officer, or at such other address or by such other method as the party shall specify in writing. Notice shall be deemed given upon personal delivery or, if sent by certified mail with postage prepaid, 3 days after the date of mailing. If any provision herein is held to be unenforceable, the remaining provisions will continue in full force without being affected in any way. Further, the parties agree to replace such unenforceable provision with an enforceable provision that most closely approximates the intent and economic effect of the unenforceable provision. Section headings are for reference purposes only and do not define, limit, construe or describe the scope or extent of such section. These Terms set forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to their subject matter. The waiver of a breach of any provision of these Terms shall not be construed as a waiver of any other or subsequent breach.

General. BreakingPoint may revise these Terms at any time without notice by updating this posting. You should visit this page from time to time to review the then-current Terms because they are binding on you. Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages at this Site.

Revised April 24, 2008