Campaign Manager Terms of Service
These Terms of Service ("TOS") are incorporated by reference into one or more Agreements
between Proximiti Communications, Inc. ("Proximiti") a Florida Corporation with
its principal place of business at 205 South Hoover Blvd., Suite 300, Tampa, FL 33609
and the Client named on one or more Order Forms between Client and Proximiti.
The Order Form(s) together with the TOS constitute the Agreement between the parties
and apply to each Hosted Program and to all Services provided by Proximiti under
the Agreement. When executed by the parties, an Order Form shall evidence
the Hosted Program Subscription Rights Granted and the Services to be provided.
1.1. "Activation Date" shall be the date on which the Client is delivered an office
key account number, login name, and password from Proximiti to use the Hosted Programs.
1.2. "Client Data" means information entered into the Hosted Programs by Client
in the course of its authorized use of the Hosted Programs and stored on the Host
Server for access by the Hosted Programs and retrieval by the Client.
1.3. "Host Server" shall mean the server provided by Proximiti or its agent through
which Client accesses the Hosted Programs, identified by a URL and one or more accounts
and passwords to be established by Client.
1.4. "Hosted Programs" shall mean the computer software in object code form owned
or provided by Proximiti for which Client has Subscription Rights Granted pursuant
to the Agreement, updates and upgrades to the Hosted Programs, and online documentation.
1.5. "Order Form(s)" shall mean the document(s) by which Client orders Hosted Program
subscriptions and Services, and which are agreed to by the parties.
1.6. "Services" shall mean Hosting Services, Electronic Services, Support Services
or other services specifically identified in an Order Form.
1.7. "Provider" shall mean each employee, contractor or agent of Client.
2. USE OF HOSTED PROGRAMS
2.1. Subscription Rights Granted
A. In consideration of subscription fees set forth in the Order Form(s),
Client shall be entitled to use the Hosted Programs in accordance with the Subscription
Rights Granted in the applicable Order Form and subject to any applicable limitations
defined herein. Except as specifically authorized in the Order Form(s), Client may
not allow third parties to access the Hosted Programs, or use the Hosted Programs
for third-party training, commercial time-sharing, rental or service bureau use;
B. Client agrees not to download the Hosted Programs or cause or permit the reverse
engineering, disassembly or decompilation of the Hosted Programs.
C. Proximiti retains all title, copyright, and other proprietary rights in the Hosted
Programs. Client does not acquire any rights, express or implied, in the Hosted
Programs, other than those specified in the Agreement.
2.2. Verification. Proximiti shall have the right to monitor use of the Hosted Programs
by Client: (i) electronically at any time; or (ii) by on-site audit of Client's
use of the Hosted Programs not more than once per year upon reasonable notice to
Client) and to charge for additional Providers as appropriate under the Agreement.
3.1. Hosting Services. Proximiti will provide Client with access to the online
Hosted Programs selected in the Order Form(s) and will provide for the storage and
retrieval of Client Data in connection with use of the Hosted Programs. Client
is responsible for obtaining access to the Internet using software and hardware
that meet the minimum requirements, including security requirements, set forth in
Proximiti's System Requirements
3.2. Access. Client may designate user account names and passwords for the
number of Providers stated in the Order Form(s) and for additional permitted non-Provider
users associated with authorized Providers. Client is responsible for the
confidentiality and use of account names and passwords. Proximiti will deem
any communication, data transfer, or use of the Hosted Programs received under Client's
account names and passwords to be for Client's benefit and use. Client agrees to
notify Proximiti if account names or passwords are lost, stolen, or being used in
an unauthorized manner.
Client represents and warrants that it has the rights to all Client Data, including
the right to upload Client Data to the Host Server in connection with its authorized
use of the Hosted Programs. Client agrees that the Client Data and its use
do not infringe the rights of any third party and agrees to indemnify and holds
Proximiti harmless from any third-party claims of infringement under the same terms
and conditions set forth below for Proximiti's infringement indemnity.
3.3. Data Security. Client agrees to access the Hosted Programs and to store
and retrieve data using third party programs, including specifically Internet "browser"
programs that support data security protocols compatible with those specified by
Proximiti. Unless otherwise agreed in writing, the parties agree that all
software used to access the Hosted Programs will support the Secure Socket Layer
(SSL) protocol. Proximiti agrees to maintain the security of Client Data using industry-standard
data security protocols, and other methods reasonably deemed to be adequate for
secure business data and to notify Client in the event of a breach of security involving
Client Data. Proximiti agrees to retain Client data on a secure server and
to maintain data recovery and data backup facilities in accordance with accepted
3.4. Ownership of Data and Subscription. Client shall retain ownership of
all Client Data stored or retrieved in connection with use of the Hosted Programs,
which data shall be subject to the confidentiality provisions set forth below.
Client agrees that storage or caching of Client Data is not an infringement of any
intellectual property rights of Client. Client agrees that it will not store
data on the Host Server that is subject to the rights of any third parties without
first obtaining all required authorizations and rights in writing from such third
3.5. Support Services. Proximiti will provide Support Services in accordance
with the Support Policy in effect on the date Support is provided, so long as Client
is currently entitled to use the Hosted Programs and Services.
3.6. Electronic Services. In connection with use of the Hosted Programs, Proximiti
may provide certain Electronic Services to Client, as set forth in the applicable
Order Form(s), in conjunction with one or more third-party partners, and Client
hereby waives any and all liability and claims which Client may have against Proximiti
or the partner in connection with the provision of Electronic Services except to
the extent directly caused by the willful misconduct or gross negligence of Proximiti.
4. TERM AND TERMINATION
4.1. Term. Client's rights to use the Hosted Programs and Services shall remain
in effect for the term set forth in the Order Form(s). Thereafter, the term
shall automatically renew for additional one-year terms unless either party gives
thirty (30) days advance written notice prior to the end of the then-current term
of its intention to terminate the Agreement, or until otherwise terminated as provided
4.2. Termination for Cause. Either party may terminate the Agreement at any time
upon thirty (30) days prior written notice if the other party commits a material
breach that remains uncured after thirty (30) days written notice specifying the
nature of the breach and identifying the measures required to correct the breach.
Notwithstanding the foregoing, Proximiti may terminate the Agreement and access
to the Hosted Programs for non-payment of fees upon ten (10) days prior notice,
at which time fees for the current term shall be due and payable in full.
4.3. Effect of Termination. Termination of the Agreement shall not limit either
party from pursuing other remedies available to it, including injunctive relief,
nor shall such termination relieve Client's obligation to pay all fees that have
accrued or are otherwise owed by Client under any Order Form or under the Agreement.
Upon termination of the Agreement, and so long as Client has paid all fees then
owing under the Agreement, Proximiti shall allow Client limited access to the Hosted
Programs for ninety (90) days to allow Client to retrieve any Client Data stored
on the Host Server, following which access to the Hosted Programs and all Services
shall be terminated. Limited access during this period shall allow Client
only to (i) view and retrieve Client Data; and (ii) complete pending transactions,
but shall not include Support Services for the Hosted Programs or access to their
functionality. Upon termination, other than for breach on the part of Proximiti
under Section 4.2 or 4.3 above, all unpaid fees related to the initial term or any
renewal term shall be due and payable in full immediately.
5. INDEMNITY, WARRANTIES, REMEDIES
5.1. Infringement Indemnity. Proximiti will defend and indemnify Client against
a claim that the Hosted Programs infringe a copyright or patent, provided that:
(a) Client notifies Proximiti in writing within 30 days of the claim; (b) Proximiti
has sole control of the defense and all related settlement negotiations; and (c)
Client provides Proximiti with the assistance, information and authority necessary
to perform Proximiti's obligations under this Section. Reasonable out-of-pocket
expenses incurred by Client in providing such assistance will be reimbursed by Proximiti.
In the event the Hosted Programs are held or are believed by Proximiti to infringe,
Proximiti shall have the option, at its expense, to (a) modify the Hosted Programs
to be non-infringing; (b) obtain for Client a subscription to continue using the
Hosted Programs; or (c) terminate the subscription for the infringing Hosted Programs.
This Section 5.1 states Proximiti's entire liability and Client's exclusive remedy
5.2. Warranties and Disclaimers
A. Hosted Program Warranty. Proximiti warrants that the Hosted Programs will
materially perform in accordance with the documentation so long as (i) the Client
has a current, paid-up right to use the Hosted Programs; and (ii) Client's access
to the Host Server will meet the minimum criteria set forth in Proximiti's System Requirements document
B. Services Warranty. Proximiti warrants that its Hosted Program Services,
Support Services, Electronic Services, and other Services described in an applicable
Order Form will be performed consistent with generally accepted industry standards.
C. Disclaimers. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. Proximiti does not warrant that the Hosted
Programs will operate in the combinations that Client may select for use, that the
operation of the Hosted Programs will be uninterrupted or error-free, or that all
Hosted Program errors will be corrected.
5.3. Exclusive Remedies. For any breach of the warranties contained in Section
5.2, Client's exclusive remedy, and Proximiti's entire liability, shall be:
A. For Hosted Program Services and Electronic Services: The correction of Hosted
Program errors that cause breach of the warranty. Any error not reported to Proximiti
by Client within thirty (30) days of its discovery will be deemed waived and accepted
B. For all other Services: The reperformance of the Services, provided that
Client notifies Proximiti in writing of any defects in the Services within thirty
(30) days of their performance.
6. PAYMENT PROVISIONS
6.1. Invoicing and Payment. Invoices for payment of Application Subscription
and all Service Fees shall be in accordance with the applicable Order Form(s). In
the absence of specific provisions in the applicable Order Form(s), fees that are
fixed, such as Application Subscription and Service Fees shall be payable
in advance and due in full upon the first day of each billing period and all other
Services that are variable and dependent on actual usage are billed in arrears and
due upon receipt. An administrative late charge of $35.00 per invoice per month
will be charged for any invoice not paid by the due date and which remains unpaid
each 30 days thereafter, including any electronic transaction that is declined and
any returned checks. Additionally, any amounts payable by Client hereunder
which remain unpaid after the due date shall be subject to a finance charge equal
to the lesser of 1.5% per month or the maximum amount permitted under applicable
law, from the due date until such amount is paid.
6.2. Taxes. The fees listed in the Agreement do not include taxes; if Proximiti
is required to pay sales, use, property, value-added, withholding, excise or other
taxes, duties, or governmental charges based on the Subscription Rights Granted
or Services provided under the Agreement or on Client's use of Hosted Programs or
Services, then such taxes, duties, or governmental charges shall be billed to and
paid by Client. If Proximiti is found to be responsible for the withholding and
payment of taxes on behalf of Client, Client agrees to indemnify Proximiti with
respect to the full amount of taxes due together with applicable interest and penalties.
If Client is required to withhold any tax from any payment, then the amount of the
payment will be automatically increased to totally offset such tax so that the amount
remitted to Proximiti, net of all taxes, equals the amount invoiced or otherwise
due. This Section shall not apply to taxes based on Proximiti's net income.
7. GENERAL TERMS
7.1. Nondisclosure. By virtue of the Agreement, the parties may have access
to information that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Programs, the terms and pricing
under the Agreement, and all information clearly identified as confidential.
A party's Confidential Information shall not include information that: (a) is or
becomes a part of the public domain through no act or omission of the other party;
(b) was in the other party's lawful possession prior to the disclosure and had not
been obtained by the other party either directly or indirectly from the disclosing
party; (c) is lawfully disclosed to the other party by a third party without restriction
on disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other's Confidential Information in confidence during
the term of the Agreement and for a period of two years after termination of the
Agreement. In the event that either party is requested or required for the purposes
of legal, administrative, or arbitration to disclose any Confidential Information,
the party receiving such disclosure request will provide the other party with immediate
written notice of any such request or requirement so that such party may seek an
appropriate protective order or other relief.
7.2. Governing Law and Dispute Resolution. The Agreement, and all matters arising
out of or relating to the Agreement, shall be governed by the laws of the State of Florida,
without giving effect to principles regarding conflicts of laws. Any controversy
or claim arising out of or relating to the Agreement, or breach thereof, shall be
submitted to the following procedure: (a) direct negotiation in a settlement conference
to be scheduled as soon as possible after the dispute arises; (b) if no resolution
is reached within sixty (60) days of the settlement conference, the parties will
submit the dispute to non-binding mediation in Hillsborough County, Florida under the
mediation rules of the American Arbitration Association; (c) if no settlement is
reached within sixty (60) days of the start of mediation, either party may seek
legal redress in a forum of competent jurisdiction.
7.3. Notice. Client agrees to notify Proximiti of any changes to Client's business
address, business contact, and support contact within ten (10) days of any change
thereto. All notices required or permitted hereunder shall be given in writing or
as specifically set forth in the applicable section of the Agreement. To expedite
order processing, Client agrees that Proximiti may treat documents emailed or faxed
by Client to Proximiti as original documents; nevertheless, either party may require
the other to exchange original signed documents to evidence an order for Hosted
Programs or for Services.
7.4. Limitation of Liability. In no event shall either party be liable for any indirect,
incidental, special or consequential damages, or damages for loss of profits, revenue,
data or use, incurred by either party or any third party, whether in an action in
contract or tort, even if the other party has been advised of the possibility of
such damages. Proximiti's liability for damages hereunder shall in no event exceed
the amount of fees paid by Client under the Agreement for the most recent three
(3) month period. The provisions of the Agreement allocate the risks between Proximiti
and Client. The parties agree that Proximiti's pricing and other terms and conditions
of the Agreement reflect the allocation of risk and the limitation of liability
7.5. U.S. Government. The Hosted Programs and accompanying documentation are commercial
computer software and documentation developed exclusively at private expense and
in all respects are proprietary data belonging to Proximiti.
7.6 Compliance with Laws. Use of the Services is subject to all applicable local,
state, national and international laws and regulations (including without limitation
those governing account collection, export control, consumer protection, unfair
competition, anti-discrimination, privacy or false advertising). Each user agrees:
A. Not to use the Services for illegal purposes;
B. Not to use the Services to infringe any third party's copyright, patent, trademark,
trade secret or other proprietary rights or rights of publicity or privacy;
C. Not to transmit through the application any unlawful, harassing, libelous, defamatory,
abusive, threatening, harmful, vulgar, obscene, profane or otherwise objectionable
material of any kind or nature or disseminate any material or information that incites
discrimination, hate or violence towards one person or a group because of race,
religion or nationality;
D. Not to transmit any material that encourages conduct that could constitute a
criminal offense, give rise to civil liability or otherwise violate any applicable
local, state, national or international law or regulation;
E. Not to use the Services for spamming or any use of distribution lists to any
person who has not given specific permission to be included in such a process, and
further agree not to attempt to gain unauthorized access to other computer systems.
Proximiti will immediately terminate any account which it believes, in its sole
discretion, is transmitting or is otherwise connected with any spam or other unsolicited
F. Not to interfere with another customer's use and enjoyment of the application.
7.7. Other Terms. In the event any provision of the Agreement is held to be
invalid or unenforceable, the remaining provisions of the Agreement will remain
in full force. The waiver by either party of any default or breach of the Agreement
shall not constitute a waiver of any other or subsequent default or breach. Except
for actions for nonpayment or breach of Proximiti's proprietary rights in the Hosted
Programs, no action, regardless of form, arising out of the Agreement may be brought
by either party more than one year after the cause of action has accrued. The Agreement
constitutes the complete agreement between the parties and supersedes all prior
or contemporaneous agreements or representations, written or oral, concerning the
subject matter of the Agreement. Client may not assign the Agreement or any rights
or obligations hereunder without prior written consent of Proximiti, which consent
shall not be unreasonably withheld or delayed; any such assignment without prior
consent shall be void. Proximiti may modify the terms of the Agreement between the
parties, including these Terms of Service and any incorporated Order Form(s) upon
written notice, e-mail or otherwise, to Client. Client may notify Proximiti
in writing within thirty (30) days of receipt of a modification notification that
Client does not wish to accept the new terms. In the absence of such written
non-acceptance notification with the thirty (30) day period, Client confirms acceptance
of the new terms by continuing to use the Hosted Programs and/or Services.
If Client does not accept the new terms by notifying Proximiti within the thirty
(30) day period, then Client may continue to use Proximiti under Client's existing
terms until the end of Client's then current term, at which time Client's Agreement
will not automatically renew, but will instead terminate. It is expressly agreed
that the terms of the Agreement and any Order Form shall supersede the terms in
any Client purchase order or other ordering document.