Welcome to the Proximate Global, Inc. (also referred to herein as "Proximate", "face2face" "We", "Our") mobile device software application (the "Proximate Software"), Web site www.proximate-global.com and any other website owned and operated by Proximate and all of such websites' contents including but not limited to the text, software, scripts, graphics, photos, sounds, music, videos, and interactive features, web widgets, feeds and applications for third-party software applications, Web sites and services, face2face, and any other mobile or web services or applications owned, controlled, or offered by Proximate (collectively, the "Proximate Services"). Subscribers, customers, users, and others who download, access, use, purchase and/or subscribe to the Proximate Services (collectively or individually "You" or "Users") must do so under the following terms and conditions of use.
BEFORE USING ANY PROXIMATE SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, BROWSING AND/OR USING THE PROXIMATE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL CONSENTS AND DISCLOSURES SET FORTH IN THE PROXIMATE REGISTRATION PROCESS (AND HEREBY INCORPORATED HEREIN BY THIS REFERENCE), ALL OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS TO SUCH TERMS AND CONDITIONS, AND ALL GUIDELINES ISSUED BY PROXIMATE IN CONNECTION THEREWITH FROM TIME TO TIME (COLLECTIVELY, THIS "AGREEMENT"). IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE PROXIMATE SERVICES IMMEDIATELY.
THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND PROXIMATE. You may receive a copy of this Agreement by emailing us at: support@proximate-global.com , Subject: Terms of Service Agreement.
ALL THE PROXIMATE SERVICES ARE AVAILABLE ONLY FOR INDIVIDUALS AGED 14 YEARS OR OLDER, AND SOME OF THE PROXIMATE SERVICES ARE AVAILABLE ONLY FOR PERSONS 18 YEARS OR OLDER. IF YOU ARE 14 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THESE TERMS AND CONDITIONS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THIS AGREEMENT. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF THROUGH THE PROXIMATE REGISTRATION PROCESS. IF YOU ARE A PARENT OR GUARDIAN ENTERING INTO THIS AGREEMENT FOR THE BENEFIT OF A CHILD OVER 14, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE PROXIMATE SERVICE, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
1. IMPORTANT DISCLAIMERS.
THE PROXIMATE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE UNDER THE APPLICABLE LAW, PROXIMATE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROXIMATE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE PROXIMATE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABLITY, OR OTHERWISE.
FURTHERMORE, THE PROXIMATE SERVICES SHOULD NOT BE: USED OR RELIED ON FOR ANY CRITICAL PURPOSE, USED AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE PROXIMATE SERVICES COULD LEAD DIRECTLY TO ANY KIND OF NONTRIVIAL LOSS OR DAMAGE INCLUDING BUT NOT LIMITED TO DEATH, PERSONAL INJURY, SEVERE PHYSICAL OR PROPERTY DAMAGE.
ALSO, PROXIMATE AND face2face IS NOT SUITED OR INTENDED FOR FAMILY FINDING PURPOSES, FLEET TRACKING, OR ANY OTHER TYPE OF BUSINESS OR ENTERPRISE USE.
YOU ACKNOWLEDGE AND AGREE THAT PROXIMATE HAS OFFERED THE PROXIMATE SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PROXIMATE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PROXIMATE. PROXIMATE WOULD NOT BE ABLE TO PROVIDE THE PROXIMATE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
2. PRIVACY NOTICE; GUIDELINES TO INDIVIDUAL FEATURES AND SERVICES
Proximate's Privacy Notice is hereby incorporated into this Agreement by reference. Please read this notice carefully for disclosures relating to the collection, use, and disclosure of your personal information and real-time location information.
When using any of the Proximate Services, you will be subject to any additional posted guidelines or rules applicable to certain features, which may be posted or otherwise made available to you from time to time (the "Guidelines").
You understand that through your use of the Proximate Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Proximate. As part of providing you the Proximate Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Proximate Services and your Subscription Account, which you may not be able to opt-out from receiving.
3. AMENDMENTS TO THIS AGREEMENT
We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement, including any Guidelines at any time without any prior notice. Please check this Agreement, including all Guidelines periodically for changes. Your continued use of the Proximate Services after the posting or otherwise being made available to you of any modifications or changes constitutes your binding acceptance of such changes. Please note that additional and/or different conditions and terms of use may apply to services or products provided through one or more of our partners, advertisers, or business associates, and you should refer to those before using such services or products. For any material changes to this Agreement, including any Guidelines, you acknowledge and agree that any such amended or modified terms shall automatically be effective after they are initially posted or otherwise made available to you.
4. OWNERSHIP; PROPRIETARY RIGHTS
The Proximate Services are owned and operated or licensed by Proximate. The Proximate Software, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including, but not limited to, the mobile device applications, and all other elements of the Proximate Services (collectively, the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Proximate Services are the property of Proximate or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names displayed on the Proximate Services are proprietary to Proximate or its affiliates and/or third-party licensors. Except as expressly authorized by Proximate, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
No Materials from this website or any other website owned and operated by Proximate may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way without written permission of the copyright owner, except that you may use information on Proximate Services (such as brochures, knowledge based articles, and similar materials) purposely made available by Proximate for downloading, provided that you (1) not remove any proprietary notice language in all copies of such documents, (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media, (3) make no modifications to any such information, and (4) not make any additional representations or warranties relating to such documents. You agree not to circumvent, disable, or otherwise interfere with security related features of www.proximate-global.com or features that prevent or restrict use or copying of any Materials or content.
Modification of any Materials or use of any Materials for any other purpose is a violation of the copyrights and other proprietary rights of Proximate, or other entities or persons where so indicated, unless Proximate or the copyright owner has provided said Material for such express purpose. Permission for all other uses of Materials contained herein, including reproducing and distributing multiple copies or using Materials on any other website or networked computer, or linking to any page at this website or any other website owned and operated by Proximate except the "home page" www.proximateglobal.com must be obtained from Proximate or the appropriate copyright owner in advance; otherwise, such use is prohibited. Requests for such authorization from Proximate should be submitted via an email to support@proximate-global.com. All design rights, databases and compilation and other intellectual property rights associated with this website or any other website owned and operated by Proximate, in each case whether registered or unregistered, and related goodwill are proprietary to Proximate or a third party licensor of Proximate.
Proximate may now or in the future permit the submission of commentary, feedback or other communications submitted by you and other users ("User Feedback") and the hosting, sharing, and/or publishing of such User Feedback. Any commentary, feedback or other communication you provide at this site shall be deemed to be non-confidential. Proximate shall be free to use such information on an unrestricted basis.
5. ACCOUNT INFORMATION
All the Proximate Services are unavailable to persons under the age of 14 or to any Users suspended or removed from the Proximate Services by Proximate. In addition, some Proximate Services may not available to persons under the age of 18 or such other age as is determined by Proximate in its sole discretion. You agree that the information you provide to Proximate upon registration and at all other times will be true, accurate, current and complete. You agree that you will not provide any false personal information to Proximate, or create an account for anyone other than yourself without permission. You also agree that you will ensure that such information is kept accurate and up to date at all times. By way of illustration, you should promptly notify Proximate if your mobile device number changes.
Proximate also reserve the right to access, read, preserve, and disclose any information about any user, including any User Submissions (as defined below) as Proximate believes in its sole discretion is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Proximate, its users and the public.
6. PASSWORD
When you register for the Proximate Services you may be asked to provide a password. We recommend passwords that use a combination of upper and lower case letters, numbers and symbols. As you will be responsible for all activities that occur under your password, you should keep your password strictly confidential at all times. YOU MUST NOTIFY PROXIMATE IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR PASSWORD OR IF YOU BELIEVE THAT YOUR PASSWORD IS NO LONGER CONFIDENTIAL AND KNOWN ONLY TO YOU. We reserve the right to suspend your account and/or require you to alter your password if we believe for any reason that your password is no longer secure. YOU MAY NOT SHARE YOUR PROXIMATE ACCOUNT PASSWORD WITH ANY OTHER PERSON FOR ANY REASON. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
7. PAYMENT TERMS; CANCELLATION
You agree to pay any fees due for and incurred by your use of the Proximate Services. Any payments and fees for your purchase and use of the Proximate Services may be managed by your mobile carrier or Proximate. Please refer to your mobile carrier's regular billing statement for charges related to the Proximate Services, and contact your mobile provider directly with any questions or comments related to these fees. If your mobile provider notifies Proximate that your account is past due, then your Proximate Services subscription may be deactivated without notice to you. If you wish to discontinue using the Proximate Services, then you may cancel your Proximate Services subscription. To cancel your Proximate Services subscription, please send an email to support@proximate-global.com.
8. USAGE RULES; PROHIBITED CONDUCT & USES
YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:
a. use the Proximate Services if you are a convicted sex offender;
b. use the Proximate Services to aid, abet, commission or carry out any activity that may be illegal under or in violation of any applicable local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, rights of publicity, and import or export control;
c. use the Proximate Services or any location information displayed within the Proximate Services to "stalk", harass, bully, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other users without their consent;
d. solicit login or other account information or access an account belonging to someone else;
e. use the Proximate Services if you are under the age of 14 years old, or 18 years old (or of such higher age as determined by Proximate in its sole discretion) where applicable;
f. post or otherwise transfer or disseminate content using the Proximate Services that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence;
g. develop or operate a third party application containing, or advertise or otherwise market, using the Proximate Services directly or indirectly, alcohol-related or other mature content without appropriate age-based restrictions;
h. use the Proximate Services to run any contest, giveaway, or sweepstakes;
i. use the Proximate Services for any commercial or non-private use, it being understood that the Proximate Services are for personal, non-commercial use only;
j. fail to deliver payment for the Proximate Services;
k. make unsolicited offers, advertisements, proposals, or send junk or spam mail, to other Users of the Proximate Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
l. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Proximate Services accounts of other Users;
m. share Proximate-issued passwords or access to your mobile device while Proximate is running and accessible with any third party or encourage any other user to do so;
n. misrepresent the source, identity or content of information transmitted via the Proximate Services;
o. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Proximate Services, features that prevent or restrict use or copying of any content accessible through the Proximate Services, or features that enforce limitations on use of the Proximate Services;
p. intentionally interfere with or damage operation of the Proximate Services or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
q. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
r. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
s. use the Proximate Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
t. use the Proximate Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the Proximate Services could lead directly to death, personal injury, or severe physical or property damage;
u. attempt to gain unauthorized access to the Proximate Services, or any part of it, other accounts, computer systems or networks connected to the Proximate Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Proximate Services or any activities conducted on the Proximate Service;
v. use any robot, spider, scraper or other automated means to access the Proximate Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Proximate Services or modify the Proximate Services in any manner or form, nor to use modified versions of the Proximate Services, including (without limitation) for the purpose of obtaining unauthorized access to the Proximate Services; or
w. sell or transfer or allow another person to access your account password, profile, or Proximate Services account.
9. USAGE; REFUSAL OR SUSPENSION OF SERVICE
9.1 PROXIMATE RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER'S REGISTRATION WITH PROXIMATE OR USAGE OF THE PROXIMATE SERVICES, INCLUDING ANY USER'S USE OF OR ACCESS TO THE LOCATION INFORMATION AND PROFILES OF OTHER USERS. ACCORDINGLY, PROXIMATE ALSO RESERVES THE RIGHT TO DISABLE ANY USER'S USE OF OR ACCESS TO ALL OR ANY PART OF THE PROXIMATE SERVICES AND ANY INFORMATION ACCESSIBLE TO A USER THROUGH THE PROXIMATE SERVICES, FOR ANY REASON AND WITHOUT ANY NOTICE. PROXIMATE ALSO RESERVES THE RIGHT TO REMOVE ANY CONTENT POSTED BY ANY USER FOR ANY REASON WHATSOEVER.
9.2 You alone are responsible for your involvement with other Users. Proximate reserves the right, but has no obligation, to monitor disagreements between you and other Users.
9.3 Proximate does not control the content of User accounts and profiles and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material that you provide to the Proximate Services.
PLEASE NOTE: PROXIMATE RESERVES THE RIGHT TO REFUSE ACCESS TO ANY USER, FOR ANY REASON AND WITHOUT ANY NOTICE.
10. USER SUBMISSIONS
10.1 The Proximate Services allow the users to make certain submissions such as pictures, commentary, reviews, notes, etc. (collectively, "User Submissions"), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that you: (i) own, or have the necessary licenses, rights, consents, and permissions to use, and authorize Proximate to use, all intellectual property and any other proprietary rights in and to any and all User Submissions that you submit to enable inclusion and use of the User Submissions in the manner contemplated by the Proximate Services and this Agreement; and (ii) have the written consent, release, and/or permission of each and every identifiable individual person or entity in the User Submission to use the name or likeness of each and every such identifiable individual person or entity to enable inclusion and use of the User Submissions in the manner contemplated by the Proximate Services and this Agreement.
10.2 By submitting User Submissions to Proximate, you hereby grant Proximate a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, publicly perform, publicly display, digitally perform, and otherwise exploit, for any purpose whatsoever, without compensation to you or any other provider, User Submissions in connection with the Proximate Services and Proximate's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Proximate Services (and derivative works thereof) in any media formats now known or hereafter developed, and through any media channels. You also hereby grant each user of the Proximate Services a non-exclusive license to access your User Submissions through the Proximate Services, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Proximate Services and under this Agreement.
10.3 You understand that when using the Proximate Services you will be exposed to User Submissions from a variety of sources, and that Proximate is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Proximate with respect thereto.
10.4 Proximate assumes no responsibility whatsoever in connection with or arising from User Submissions. You understand that whether or not such User Submissions are published, Proximate does not guarantee any confidentiality with respect to any User Submissions. Proximate assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time Proximate chooses, in its sole discretion, to monitor User Submissions, Proximate nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, Proximate does not endorse and has no control over the content of User Submissions submitted by other Users. Proximate makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions. Nonetheless, Proximate reserves the right to prevent you from submitting User Submissions and to edit, restrict or remove User Submissions for any reason at any time.
11. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
11.1 The Proximate Services may include links to other web sites or services solely as a convenience to Users. Proximate does not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, Proximate makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
11.2 Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Proximate Services are solely between you and such advertiser. You agree that Proximate shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Proximate Services.
11.3 Parties other than Proximate may provide services or sell products via the Proximate Services. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or the content of their product and service offerings. 3. You understand that we may not always identify paid services and communications as such. Proximate does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other terms and conditions of use.
11.4 In addition, even if Proximate handles the billing, payment processing and/or fulfillment for the third-party service or product, some products and services are provided under direct license from the third-party and therefore the use of such products and services are governed by such third-party license terms. In such case, you will be subject to such license terms and agree that any matters relating to your use of such product or service, including any customer support or maintenance, will be between you and such vendor, and Proximate will have no liability with respect thereto.
12. END USER LICENSES
12.1 LICENSE GRANT, RESTRICTIONS AND UPGRADES. To use the Proximate Software you must have a mobile device that is compatible with the Proximate Services. Proximate does not warrant that the Proximate Services will be compatible with your mobile device.
a. License Grant. Proximate hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Proximate Software as follows: You may use the Proximate Software for one Proximate Services subscription account (a "Subscription Account" is comprised of the shared resources accessible by a single login ID) on one mobile device owned or leased solely by you, for your personal use.
b. Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Proximate Software; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Proximate Software to any third party or use the Proximate Software to provide time sharing or similar services for any third party; (iii) make any copies of the Proximate Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Proximate Software, features that prevent or restrict use or copying of any content accessible through the Proximate Software, or features that enforce limitations on use of the Proximate Software; or (v) delete the copyright and other proprietary rights notices on the Proximate Software.
c. Software Upgrades. You acknowledge that Proximate may from time to time issue upgraded versions of the Proximate Software, and may automatically electronically upgrade the version of the Proximate Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
d. Open Source. With respect to any open source or third-party code that may be incorporated in the Proximate Software, such open source code is covered by the applicable open source or third-party license agreement, if any, authorizing use of such code.
e. Rights Reserved. The foregoing license grant under this Agreement is not a sale of the Proximate Software or any copy thereof and Proximate or its third party partners or suppliers retain all right, title, and interest in the Proximate Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Proximate reserves all rights not expressly granted under this Agreement.
12.2 EXPORT CONTROL. The Proximate Software originates in the United States, and is subject to United States export laws and regulations. The Proximate Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Proximate Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Proximate Software and the Proximate Services.
13. VIOLATIONS; TERMINATION
You agree that Proximate, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate any account or subscription (or any part thereof) you have with the Proximate Services or use of the Proximate Services and remove and discard all or any part of your account or any User Submission, at any time. You further agree that Proximate may terminate any part of the Proximate Services at any time without prior notice for any reason whatsoever including without limitation if (1) the partner with whom we offered the service to you has terminated its relationship with Proximate or ceased to offer the service to you, (2) in Proximate's opinion, the service is no longer commercially viable, or (3) we are required to do so by law. You agree that any termination of your access to the Proximate Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Proximate will not be liable to you or any third-party for any such termination. Proximate does not permit copyright infringing activities on the Proximate Services, and reserves the right to terminate access to the Proximate Services, and remove all content submitted, by any persons who are found to be infringers in Proximate's reasonable determination. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Proximate Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Proximate may have at law or in equity.
You further agree that in the event of any termination of your access to any of the Proximate Services, you shall destroy all proprietary materials of Proximate and any other third parties (and all copies thereof) that you obtained using the Proximate Services to which you access has been terminated. The provisions of this Agreement concerning security, prohibited activities, copyrights, trademarks, patents, intellectual property, User Submissions, disclaimers, limitations of liability, indemnity, and jurisdictional issues shall survive any such termination.
14. DISCLAIMERS; NO WARRANTIES
THE PROXIMATE SERVICES AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PROXIMATE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. PROXIMATE, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION PROXIMATE'S THIRD-PARTY WIRELESS CARRIER PARTNERS), DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
PROXIMATE AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION PROXIMATE'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROXIMATE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PROXIMATE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PROXIMATE, AND ITS SUPPLIERS AND PARTNERS (INCLUDING WITHOUT LIMITATION PROXIMATE'S THIRD-PARTY WIRELESS CARRIER PARTNERS) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY LOCATION INFORMATION OR THE PROXIMATE SERVICES IN TERMS OF SECURITY, SAFETY, CORRECTNESS, ACCURACY, RELIABILITY, AVAILABILITY, OR OTHERWISE. YOU (AND NOT PROXIMATE OR ITS SUPPLIERS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION RELATED TO THE PROXIMATE SERVICES. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE PROXIMATE SERVICES AT YOUR OWN DISCRETION AND RISK.
15. INDEMNIFICATION; HOLD HARMLESS
You agree to indemnify, defend, and hold Proximate, its directors, officers, employees, agents and contractors, and its suppliers and partners (including, without limitation, Proximate's wireless carrier partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, arising out of or related to (a) your use or misuse of any location information or the Proximate Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use of the Proximate Services to meet another User in-person or to locate and attend any offline place or event. Proximate reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with and provide any necessary information for our defense of these claims.
16. LIMITATION OF LIABILITY AND DAMAGES
YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL PROXIMATE OR ITS DIRECTOS, OFFICERS, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS (INCLUDING, WITHOUT LIMITATION, PROXIMATE'S WIRELESS CARRIER PARTNERS) OR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATED TO OR RESULTING FROM: (A) THE USE, DISCLOSURE, DISPLAY, OR MAINTENANCE OF YOUR LOCATION INFORMATION; (B) YOUR USE OR INABILITY TO USE THE PROXIMATE SERVICES; (C) THE PROXIMATE SERVICES GENERALLY OR THE PROXIMATE SOFTWARE OR SYSTEMS THAT MAKE THE PROXIMATE SERVICES AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH PROXIMATE OR ANY OTHER USER OF THE PROXIMATE SERVICES, EVEN IF PROXIMATE OR A PROXIMATE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL PROXIMATE'S (OR ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR THIRD-PARTY PARTNERS INCLUDING, WITHOUT LIMITATION, PROXIMATE'S WIRELESS CARRIER PARTNERS') TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE PROXIMATE SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, OR OTHERWISE EXCEED THE AMOUNTS PAID BY YOU FOR ACCESSING THE PROXIMATE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN PROXIMATE AND RECEIVED THROUGH OR ADVERTISED ON THE PROXIMATE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE PROXIMATE SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT PROXIMATE'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE ยง1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
17. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
Digital Millennium Copyright Act Compliance. It is Proximate's policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, Proximate will promptly terminate without notice the accounts of Users that are determined by Proximate to be "repeat infringers." A repeat infringer is a User who has been notified by Proximate of infringing activity violations more than twice and/or who has had a User Submission removed from the Proximate Services more than twice.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on any Proximate Services infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Proximate's Designated Copyright Agent with the following information in writing:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the applicable Proximate Services are covered by a single notification, a representative list of such works on the applicable Proximate Services;
iii. 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 Proximate to locate the material;
iv. Information reasonably sufficient to permit Proximate to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
v. 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 (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
vi. 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 (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is allegedly infringed by the aforementioned content.").
Proximate's Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Attention: Copyright Agent at support@proximate-global.com . For clarity, only DMCA notices should go to the Proximate Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Proximate customer service through support@proximate-global.com . You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
18. MISCELLANEOUS
18.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law.
18.2 Jurisdiction. All claims, legal proceedings or litigation arising in connection with the Proximate Services or this Agreement will be brought solely in New Castle County, Delaware, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. If you are accepting this Agreement on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you but instead this Agreement and any action related thereto will be will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Delaware (excluding choice of law).
18.3 Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
18.4 Notices. You agree that Proximate may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Proximate Services. Notice will be deemed given twenty-four hours after email is sent, unless Proximate is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Proximate Services. In such case, notice will be deemed given three days after the date of mailing. Notices posted on the Proximate Services are deemed given and binding 30 days following the initial posting.
18.5 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by Proximate without restriction.
18.6 Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification and, specifically, Sections 1, 4, 8, 9, 10, and 14 through 18 and the Exhibits of this Agreement hereby survive any termination of this Agreement or any termination of your use of or subscription to the Proximate Services.
18.7 Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by Proximate as set forth in Section 3 above.
18.8 Claims. YOU AND PROXIMATE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PROXIMATE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.9 Disclosures. The services hereunder are offered by Proximate, Inc. located at 228 Park Avenue South, Suite # 33540, New York, NY 10003.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
