Terms of Service
Acceptance of Terms
Welcome to Prox, owned and operated by Proximity Team, Inc. (collectively, “Prox”). Prox provides an online venue and services that connect users providing information and advice (the “Pros”) with users seeking information and advice (the “Seekers”) (collectively, the “Services”), which Services are accessible at prox.io and any other websites through which Prox makes the Services available (collectively, the “Site”) and as an application for mobile devices (the “Application”). By using the Site and Application, you agree to comply with and be legally bound by the terms and conditions of these Terms of Service (“Terms”), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Site, Application and Services and all Collective Content (as defined below) and constitute a binding legal agreement between you and Prox.
In these Terms, “you” and “your” refer to the individual or entity that uses the Site, Application or Services. “We”, “us”, or “our” refer to Prox. In addition, in these Terms, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice-versa.
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH EXPERTS (aka “PROS”) MAY CREATE LISTINGS (AS DEFINED BELOW) IN ORDER TO OFFER INFORMATION AND ADVICE TO SEEKERS. YOU UNDERSTAND AND AGREE THAT PROX IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN MEMBERS (AS DEFINED BELOW). PROX HAS NO CONTROL OVER THE CONDUCT OF MEMBERS OR OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY INFORMATION PROVIDED IN CONNECTION THERETO, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
“Session” means a scheduled video call coordinated via the Services between Members in connection with and subject to the terms of a Listing.
“Prox Content” means all Content that Prox makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
“Collective Content” means Member Content and Prox Content.
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Pro” means a Member or Expert who offers information and advice to other Members (such as Seekers) and creates a Listing via the Site, Application or Services.
“Listing” means an offer by an Expert to provide the Services via the Site, Application, and Services.
“Member” means a person who completes Prox’s account registration process as described under “User Account Registration” below, and includes, without limitation, Experts and Seekers.
“Member Content” means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services and includes, without limitation, Listings.
“Seeker” means a Member who uses the Site, Application or Services to access information and advice from other Members.
“Tax” or “Taxes” mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) and other similar municipal, provincial, state and federal indirect or other withholding and personal or corporate income taxes.
Certain areas of the Site and Application (and your access to or use of certain aspects of the Services or Collective Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services, or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services, or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Prox reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fee (as defined below), at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application. We will also update the “Last Updated Date” at the top of these Terms. Modifications to these Terms shall automatically be effective upon posting; provided, however, that material changes to the Terms will be effective as to an existing Member thirty (30) days after notice to the Member is provided via email from email@example.com to your email address on file with Prox. You agree to keep your email address on file with Prox up-to-date. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that (i) you agree to be bound by these Terms and (ii) that you are 18 or older and able to form legally binding contracts.
How the Site, Application and Services Work
The Site is a platform for Members to connect and schedule Session(s) in order to exchange information and knowledge with other Members. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to use the Services or post a Listing, you must first register to create a Prox Account (as defined below).
Prox’s role is solely to facilitate the availability of the Site, Application and Services and to provide services related thereto, such as Session(s) scheduling, call queuing, call cycling, payment integration and call facilitation (see www.prox.io for more details). Prox does not provide and is not responsible for Member Content or any information or advice exchanged between Members during Session(s) or otherwise. Prox verifies the credentials of it’s pros and experts. You understand and acknowledge that Experts are not employees or agents of Prox but are independent service providers using the Site, Application and Services to market their expertise to other Members and the public. You acknowledge that Prox will not be liable for any loss or damage caused by your reliance on information provided by Members or information contained in Member Content.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE MEMBER INTERACTION. PROX CANNOT AND DOES NOT CONTROL OR GUARANTEE THE CONTENT CONTAINED IN ANY LISTINGS OR THE INFORMATION EXCHANGED BETWEEN MEMBERS VIA THE SERVICES. YOU UNDERSTAND AND ACKNOWLEDGE THAT PROX IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND INFORMATION PROVIDED UNDER THE SERVICES. ACCORDINGLY, ALL MEMBERS USE THE SITE, APPLICATION AND SERVICES AT THEIR OWN RISK.
User Account Registration
Direct Registration: To access certain features of the Site and Application and to create a Listing, you must register to create an account (“Prox Account”) and become a Member. You may register directly via the Site or Application or as described in this section.
Third Party Registration: You can also register to join by logging into your account with certain third party social networking sites (“SNS”) (including, but not limited to, Facebook, Twitter and Google); each such account, a “Third Party Account”, via our Site or Application, as described below.
As part of the functionality of the Site, Application and Services, you may link your Prox Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to Prox through the Site, Services or Application; or (ii) allowing Prox to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Prox and/or grant Prox access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Prox to pay any fees or making Prox subject to any usage limitations imposed by such third party service providers.
By granting Prox access to any Third Party Accounts, you understand that Prox will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site, Services and Application via your Prox Account and Prox Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personal information that you post to your Third Party Accounts will be available on and through your Prox Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable, or Prox access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Prox Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site and Application.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Prox makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Prox is not responsible for any SNS Content.
We will create your Prox Account and your Prox Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Prox Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Prox reserves the right to suspend or terminate your Prox Account and your access to the Site, Application and Services if you create more than one (1) Prox Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Prox Account, whether or not you have authorized such activities or actions. You will immediately notify Prox of any unauthorized use of your Prox Account.
You (as an Expert, aka Pro) may create Listings to offer your services to other Members. To this end, you may need to provide information regarding the expertise you offer as well as pricing and other financial terms applicable to your offering. Listings will be made publicly available via the Site, Application and Services.
Seekers will be able to schedule a Session(s) with you via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once a Seeker requests a Session(s), the price quoted under your Listing may not be altered.
You acknowledge and agree that you are solely responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the agreements you enter into with Seekers (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) comply with all applicable laws, Tax requirements, and rules and regulations that may apply to you and (b) not conflict with the rights of third parties. Please note that Prox assumes no responsibility for the content of Listings or for any Member’s compliance with any applicable laws, rules and regulations. Prox is not party to any agreements entered into between Members.
Prox reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Prox, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services. You acknowledge and agree that, as an Expert, you are responsible for your own acts and omissions.
Although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity or credentials. You are responsible for determining the identity and suitability of others who you contact via the Site, Application and Services.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Prox with respect to such actions or omissions.
Session(s) and Financial Terms
Session(s) and Financial Terms for Experts:
If you (as an Expert) have received an Session(s) request from a Member, you will be required to either confirm or reject the request within 24 hours of when the request is made (as determined by Prox in its sole discretion). When an Session(s) is requested with you via the Site, Application and Services, we will share with you the first and last name of the Seeker who has requested the Session(s). When you confirm an Session(s) request, Prox will send you an email, text message or message via the Application confirming such booking, depending on the selections you make via the Site, Application and Services.
The amount due and payable by a Seeker relating to Session(s) time with you is referred to as an “Session(s) Fee”. Session(s) Fees are quoted in each Listing, in U.S. dollars and in a price per hour format (the “Session(s) Fee Rate”). Please note that it is Experts, and not Prox, which set all Session(s) Fee Rates.
In consideration of the Services, Prox charges you a fee (the “Service Fee”) based on a percentage of Session(s) Fees collected on your behalf. The current applicable percentage is ten percent (10%). The Service Fee is deducted from the Session(s) Fee payable to you in respect of an Session(s). At the conclusion of each Session(s), Prox calculates the appropriate Session(s) Fee payable by the Seeker to you based on the duration of the Session(s) and the applicable Session(s) Fee Rate. After deducting the applicable Service Fee, Prox remits the balance of the Session(s) Fee to you via its third party provider www.stripe.com or such other payment methods as may be listed on the Site or via the Application, in U.S. dollars.
Please note that Prox does not currently charge fees for the creation of Listings. However, you acknowledge and agree that Prox reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Prox will provide notice of any Listing fee collection via the Site, Application and Services, in accordance with these Terms, prior to implementing such a Listing fee feature.
Session(s) and Financial Terms for Seekers
You (as a Seeker), not Prox, are solely responsible for honoring any confirmed Session(s). If you choose to enter into a transaction with an Expert by scheduling an Session(s) via the Site or Application, these Terms and other terms, conditions, rules and restrictions associated with such Session(s) as set out in the Listing may apply. You acknowledge and agree that you, and not Prox, will be responsible for performing the obligations of any such agreements, and Prox is not a party to such agreements and disclaims all liability arising from or related to any such agreements.
You agree to pay Prox all Session(s) Fees due in connection with any Session(s). In order to initiate a Session(s), you understand and agree that Prox reserves the right, in its sole discretion, to obtain a pre-authorization of your credit card or charge your credit card a nominal amount, not to exceed one U.S. dollar ($1), in order to verify your credit card. At the end of each Session(s), Prox will process and collect the Session(s) Fees payable upon booking in accordance with these Terms and the terms of the Listing. Please note that Prox cannot control any fees that may be charged to a Member by his or her bank related to Prox’s collection of the Session(s) Fees, and Prox disclaims all liability in this regard.
General Financial Terms
You (as a Seeker) may cancel an Session(s) without penalty 48 hours prior to session time; provided, however, that you have not already initiated the call with the Expert via the Services. You (as an Expert) may cancel a scheduled Session(s) without penalty at any time. If you have been improperly charged for an Session(s) that was cancelled and require a refund, please contact Prox at firstname.lastname@example.org.
You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. Prox cannot and does not offer Tax-related advice to any Members of the Site, Application and Services.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Content. In connection with your use of our Site, Application and Services, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
- use manual or automated software, devices, scripts robots, other means or processes to access, “scrape”, “crawl” or “spider” any web pages or other services contained in the Site, Application, Services or Content;
- use the Site, Application or Services for any commercial or other purposes that are not expressly permitted by these Terms; copy, store or otherwise access any information contained on the Site, Application, Services or Content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our Site, Application or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our Site, Application or Services in connection with the distribution of unsolicited commercial email (“spam”) or advertisements unrelated to lodging in a private residence;
- “stalk” or harass any other user of our Site, Application, or Services or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Prox Member;
- register for more than one Prox Account or register for a Prox Account on behalf of an individual other than yourself;
- contact an Expert for any purpose other than asking a question related to the Services,
- contact a Seeker for any purpose other than asking a question related to the Services;
- recruit or otherwise solicit any other Member to join third party services or websites that are competitive to Prox, without Prox’s prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information or otherwise interact with the Site, Application or Services;
- use the Site, Application and Services to find an Expert and then complete a transaction independent of the Site, Application or Services in order to circumvent the obligation to pay any fees related to Prox’s provision of the Services;
- as an Expert, submit any Listing with a false or misleading information, or submit any Listing with a price that you do not intend to honor;
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site or Application, or any individual element within the Site, Services, or Application, Prox’s name, any Prox trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Prox’s express written consent;
- access, tamper with, or use non-public areas of the Site or Application, Prox’s computer systems, or the technical delivery systems of Prox’s providers;
- attempt to probe, scan, or test the vulnerability of any Prox system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Prox or any of Prox’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
- forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
Prox will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Prox may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Prox has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Site, Application and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Prox reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Prox, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights is the exclusive property of Prox and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Subject to your compliance with these Terms, Prox grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Prox reserves all rights in the Application not expressly granted to you by these Terms.
Prox Content and Member Content License
Subject to your compliance with the terms and conditions of these Terms, Prox grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Prox Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Prox or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Prox a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Site, Application and Services. Prox does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Prox the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Prox’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Prox is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Prox of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Prox used herein are trademarks or registered trademarks of Prox. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Prox respects copyright law and expects its users to do the same. It is Prox’s policy to terminate in appropriate circumstances the Prox Accounts of Members who infringe or are believed to be infringing the rights of copyright holders.
Termination and Prox Account Deactivation
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our Site, Application and Services, and (b) deactivate or cancel your Prox Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event Prox terminates these Terms, or your access to our Site, Application and Services or deactivates or cancels your Prox Account you will remain liable for all amounts due hereunder. You may cancel your Prox Account at any time by contacting Prox. Please note that if your Prox Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION AND SERVICES, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT PROX DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, SEEKERS AND EXPERTS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PROX EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PROX MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY INFORMATION PROVIDED VIA APPOINTMENTS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. PROX MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION OR THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROX OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES. YOU UNDERSTAND THAT PROX DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES. PROX MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, EXPERTS, REGARDLESS OF WHETHER SUCH COMMUNICATIONS OR INTERACTIONS ARE ORGANIZED BY PROX.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, LISTINGS OR APPOINTMENTS VIA THE SITE, APPLICATION AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF PROX WHETHER IN PERSON, BY PHONE, ONLINE OR OTHER MEANS REMAINS WITH YOU. NEITHER PROX NOR ANY OTHER party involved in creating, producing, or delivering the Site, APPLICATION, Services OR COLLECTIVE CONTENT will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS arising ouT of or in connection with thESE TERMS, from the use OF or inability to use the SITE, APPLICATION, ServiceS OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not PROX has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE.
IN no event will Prox’s aggregate liability arising out of or in connection with THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY appointment VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED the AMOUNTS YOU HAVE PAID OR OWE FOR appointments made VIA THE SITE, APPLICATION AND SERVICES AS A member IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY or ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN prox AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, indemnify, and hold Prox’s and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content and (c) your (i) interaction with any Member, (ii) reliance on any information exchanged via the Site, Application or Services, or (iii) creation of a Listing. Prox shall have the right to control all defense and settlement activities.
Export Control and Restricted Countries
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Prox does not permit Listings associated with certain countries due to U.S. embargo restrictions.
Feedback and Reporting Misconduct
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at email@example.com. You acknowledge and agree that all Feedback will be the sole and exclusive property of Prox and you hereby irrevocably assign to Prox and agree to irrevocably assign to Prox all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Prox’s request and expense, you will execute documents and take such further acts as Prox may reasonably request to assist Prox to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
In addition, If you feel any user is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of fraud, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and to Prox.
You may not assign or transfer these Terms, by operation of law or otherwise, without Prox’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Prox may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Prox (i) via email (in each case to the email address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in San Francisco, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
These Terms are intended to govern the agreement between Prox and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
You and Prox agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, “Disputes”) will be settled by binding arbitration , except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Prox are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Prox otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Prox otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Prox submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Prox will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Prox amends this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Prox’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Prox in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Prox and you regarding the Site, Application, Services, Collective Content and any Session(s) or Listings made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Prox and you regarding the same.
The failure of Prox to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Prox. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms, please contact Prox at:
|Mail:||Proximity Team Inc.|
65 Enterprise, 3rd Floor
Aliso Viejo, CA 92656, USA