PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING A PROXIMITI TRAKR SERIES SERVICE.
BY USING THE PROXIMITI "TRAKR" PRODUCT (e.g. WorkTRAKRSM, CellTRAKR), YOU ARE AGREEING TO BE BOUND BY THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT USE THE TRAKR SERVICE.
IF YOU HAVE ANY QUESTIONS OR CONCERNS REGARDING THESE TERMS OF SERVICE, PLEASE CONTACT PROXIMITI AT legalinfo@proximiti.com.
SERVICE AGREEMENT
This Agreement establishes terms and conditions by which Proximiti Communications, Inc. ("Proximiti") will provide, and You (the "Customer") will use TRAKR services (e.g. WorkTRAKR, CellTRAKR) pursuant to this Agreement (the "Services").
1. The Services/Agency Authorization - Subject to the terms and conditions of this Agreement, Proximiti will provide Customer and Customer will purchase the Services as specifically set forth at TRAKR Terms of Service and the description described therein is hereby incorporated by reference as an integral part of this Agreement.
The Services are provided to you as a business user.
You agree not to and may not sell, resell or transfer the Service to any other person for any purpose, or make any charge for the use of the Service, without the prior express written permission from Proximiti.
Any rights not specifically granted herein are reserved by Proximiti.
2. Term - Either Party may terminate TRAKR Services upon 30 days written notice.
3. Service Charges and Payment – TRAKR Service subscriptions may be offered on a monthly or annual basis as delineated in the service establishment process.
Full payment for the subscribed terms must be received prior to Service initiation.
After the initial subscription period, TRAKR Services will be invoiced at least 25 days in advance of the next due date.
Customer understands and accepts that Proximiti will issue all invoices via electronic means and that a paper bill may not be provided.
All charges must be paid as specified in Proximiti's invoice before any stated due date for Services to be continued without interruption.
Charges and credits for unused services will be based upon full calendar months regardless of the number of days the Services are utilized.
In addition to charges for the Services, Customer will pay Proximiti for all excise, sales, use or other taxes, fees or charges applicable to the Services in addition to other amounts owing.
Such taxes, fees and charges will be separately stated in the applicable Proximiti invoice.
4. Termination - Notwithstanding Section 2 above, Proximiti may terminate this Agreement, in whole or in part, or suspend any or all of the Services, without incurring any liability, at any time upon
(a) any failure of Customer to pay any amounts due hereunder;
(b) any material breach by Customer of any provision of this Agreement;
(c) any governmental prohibition concerning the providing of, or any required alteration of the Services or any violation of applicable law, rule or regulation resulting from the Services.
5. Changes in Fees - Proximiti's standard fees and charges for WorkTRAKR and CellTRAKR, respectively, are as presented at www.worktrakr.com and www.celltrakr.com.
Fees for annual subscriptions will be as established at the time of Service enrollment for initial subscription and at the then current rate as noted on Proximiti's web site thirty days in advance of any Service renewal.
Fees for monthly subscriptions will be established for the first 12 months of service at Proximiti's rate at the time of Service enrollment and thereafter may be changed upon 90 days written notice to the Customer.
Charges for international service are as stated on Proximiti’s web site at the time of service delivery.
No limitations apply to changes in excise, sales, use or other governmental taxes, fees or charges applicable to the Services and such changes will be billed to the customer upon their effective date.
6. Service Standards - As noted below, access to Services is provided "AS IS" and is not guaranteed and Services are not guaranteed to be error free.
Proximiti does provide a 30 Day Satisfaction Guaranty related to all TRAKR services which applies from the date of initial implementation of Service.
We will refund any activation fee and the service charge provided the following conditions are met:
- You cancel your Service within the applicable period;
- You immediately cease use of the Service and delete any Proximiti Software; and
- Prior to terminating the Service, you obtain a valid return authorization number from our Customer Care department, which can be reached at BusinessCare@proximiti.com or 1-866-377-0458.
Your service will be canceled immediately after the generation of the authorization.
Federal excise taxes and any other applicable taxes cannot be refunded.
Furthermore, You will be responsible for any third party charges utilized in association with your TRAKR service (e.g., cell phone usage, long distance service).
We reserve the right to terminate or revoke this 30 Day Satisfaction Guarantee at any time, without prior notice.
7. Excusable Delay or Failure - Proximiti will not be in default or otherwise liable for any delay in or failure of its performance hereunder, due to any force majure event (e.g., act of God, adverse weather condition, fire, flood, lightning, earthquake, riot, strike, accident, war, power failure, act of terrorism, governmental requirement or other cause beyond the reasonable control of Proximiti).
8. Proximiti Software.
In the provision of Services to you, Proximiti may supply software products which may be directly and indirectly utilized by equipment provided by You.
Proximiti Software is licensed, not sold, to you by Proximiti Technologies, Inc. for use in conjunction with Proximiti services and in regard to such software, Proximiti Technologies, Inc. reserves all rights not expressly granted to you.
Title and intellectual property rights in and to any content displayed by or accessed through the Proximiti Software belongs to the respective content owner.
Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content.
This License does not grant you any rights to use such content.
The full terms of the applicable license and limitations on use of Proximiti Software are available for your review at Software License Agreement.
9. Third Party Software/Services.
As part of the capability provided by Proximiti, You may have access or links to third party content, third party software and/or third party services.
You acknowledge and agree that, notwithstanding that Proximiti may provide links to databases and may make available third party applications to You.
The third party software and services are not under the control of Proximiti.
Proximiti cannot guarantee access to any particular third party service or software and any access is provided by Proximiti "AS IS" with no express or implied conditions, endorsement, guarantees, representations or warranties.
You must separately acquire any utilized third party software directly from its suppliers and are solely responsible for compliance with the license agreement or additional terms and conditions applicable to it.
In no event shall such separate license agreements or additional terms and conditions between You and the supplier be binding on Proximiti or impose any additional obligations, or obligations inconsistent with the terms of this Agreement, upon Proximiti whatsoever.
10. Data Collection.
You agree that Proximiti and its subsidiaries may collect and use non-identifying technical and related information that is gathered periodically in the course of providing Services to facilitate the provision of software updates, product support and services to You (if any) related to TRAKR Service.
Proximiti may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
You maintain ownership and title to all data and information that You provide in regard to operating the Proximiti Services.
To the extent that during the course of utilizing of a TRAKR service we become aware of Your confidential/proprietary information, Proximiti will treat such information in full accordance Proximiti's privacy policies as stated at www.proximiti.com/privacy.
11. Risk of Use - Customer assumes total responsibility and risk for its use of the Services.
Customer acknowledges and agrees that in connection with the Services, Customer's facilities, equipment and networks may be accessible by persons who may attempt to breach the security of such facilities, equipment and networks.
Customer agrees that Proximiti has no control over and no liability or responsibility for such materials or actions.
12. Warranties -
(a) EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NONINFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED.
THE PARTIES ALSO AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT ("UCITA") AS ENACTED IN ANY STATE SHALL NOT APPLY TO THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW UCITA IS HEREBY EXCLUDED IN ITS ENTIRETY FROM APPLICATION TO THIS AGREEMENT.
THE LIMITED WARRANTIES SET OUT IN THIS AGREEMENT GIVE YOU SPECIFIC LEGAL RIGHTS.
YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE OR PROVINCE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES AND CONDITIONS.
TO THE EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTIES OR CONDITIONS RELATING TO THE SOFTWARE TO THE EXTENT THEY CANNOT BE EXCLUDED AS SET OUT ABOVE, BUT CAN BE LIMITED, ARE HEREBY LIMITED TO NINETY (90) DAYS FROM THE DATE YOU UTILIZED PROXIMITI SERVICE(S).
(b) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, EACH SERVICE IS PROVIDED OR MADE ACCESSIBLE "AS IS" AND "AS AVAILABLE", WITHOUT CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND BY PROXIMITI.
PROXIMITI DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF ANY SERVICE, CONTINUED AVAILABILITY OF ANY SERVICE, OR THAT ANY MESSAGES, CONTENT OR INFORMATION SENT BY OR TO YOU WILL BE ACCURATE, TRANSMITTED IN UNCORRUPTED FORM, UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WITHIN A REASONABLE PERIOD OF TIME.
PROXIMITI DOES NOT WARRANT THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
(c) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION, ALL THIRD PARTY CONTENT, THIRD PARTY SOFTWARE, THIRD PARTY SERVICES, AIRTIME SERVICES AND ACCESS TO OTHER SITES ARE PROVIDED OR MADE ACCESSIBLE BY PROXIMITI "AS IS" AND "AS AVAILABLE" AND PROXIMITI SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMING BY OR THROUGH YOU, FOR ANY ISSUE RELATING TO THE OTHER SITES, THIRD PARTY CONTENT, THIRD PARTY SERVICES, AIRTIME SERVICES OR THIRD PARTY SOFTWARE, INCLUDING, WITHOUT LIMITATION:
(i) THE ACCURACY, TRANSMISSION, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY SERVICES, AIRTIME SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY CONTENT, OR OTHER SITES;
(ii) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY SOFTWARE, THIRD PARTY SERVICES OR AIRTIME SERVICES;
OR (iii) THE INTEROPERABILITY OF THE THIRD PARTY SOFTWARE, THE THIRD PARTY SERVICES OR AIRTIME SERVICES WITH ALL OR A PORTION OF YOUR PROXIMITI SERVICE(S).
YOU SPECIFICALLY AGREE THAT PROXIMITI IS NOT RESPONSIBLE OR LIABLE FOR ANY VIRUSES, OR ANY THREATENING, DEFAMATORY, OBSCENE, TORTIOUS, OFFENSIVE OR ILLEGAL THIRD PARTY CONTENT OR FOR CONTENT THAT INFRINGES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR THE TRANSMISSION THEREOF.
YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY SOFTWARE, THIRD PARTY SERVICE, AIRTIME SERVICES OR THIRD PARTY CONTENT, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
(d) Without expanding on the specific remedies set out in Section 13 below entitled "Limitation of Liability"
(i) in no event shall the aggregate liability of Proximiti arising from or related to this Agreement or the Proximiti Service(s) exceed the amount paid by You for that portion of Your Proximiti Service(s) that gave rise to the claim;
and (ii) in respect of claims arising from or related to Your Proximiti Service(s), Proximiti shall only be liable during the period of any failure, delay or non-performance of Your Proximiti Service(s).
13. Limitation of liability -
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THE SECTION IN THIS AGREEMENT ENTITLED "LIMITED WARRANTIES" ABOVE, IN NO EVENT SHALL PROXIMITI BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH YOUR PROXIMITI SERVICE(S), DOWNTIME COSTS, LOSS OF THE USE OF YOUR PROXIMITI SERVICE(S) OR ANY PORTION THEREOF OR OF ANY AIRTIME SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY SERVICES OR THIRD PARTY CONTENT, OR ANY THIRD PARTY PRODUCTS, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND YOUR PROXIMITI SERVICE(S) INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NONPERFORMANCE OF YOUR PROXIMITI SERVICE(S), WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF PROXIMITI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PROXIMITI SHALL BE LIABLE TO YOU ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT, OR OTHERWISE TO YOU OR YOUR AUTHORIZED USERS INCLUDING ANY LIABILITY FOR NEGLIGENCE OR STRICT LIABILITY.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY:
(i) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY YOU INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN;
AND (ii) TO PROXIMITI AND ITS AFFILIATED COMPANIES, THEIR SUCCESSORS, ASSIGNS, AGENTS, SUPPLIERS (INCLUDING AIRTIME SERVICE PROVIDERS), AUTHORIZED PROXIMITI DISTRIBUTORS (ALSO INCLUDING AIRTIME SERVICE PROVIDERS) AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND INDEPENDENT CONTRACTORS.
YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS:
(y) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT;
AND (x) PROXIMITI'S ABILITY TO OFFER AND YOUR ABILITY TO PURCHASE YOUR PROXIMITI SERVICE(S) OR ANY PORTION THEREOF UNDER THIS AGREEMENT WOULD BE IMPACTED.
IN ADDITION TO THE LIMITATIONS AND EXCLUSIONS SET OUT ABOVE, IN NO EVENT SHALL ANY DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, INDEPENDENT CONTRACTOR OF PROXIMITI OR ANY AFFILIATES OF PROXIMITI HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
PROXIMITI'S ENTIRE LIABILITY FOR ANY CLAIM, LOSS, EXPENSE OR DAMAGE UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED SUMS ACTUALLY PAID BY CUSTOMER TO PROXIMITI FOR THE SERVICE WHICH GIVES RISE TO THE CLAIM.
14. Indemnification - Customer will indemnify and hold harmless Proximiti and its employees, directors, officers, affiliates, agents and other representatives from any and all claims, damages and expenses, including reasonable attorneys' fees, arising out of or in connection with the use of Services provided hereunder, including
(a) claims for defamation libel, slander, or invasion of privacy,
(b) claims for infringement of copyright arising from any communication,
(c) claims arising from any failure, mistake, interruption, omission, delay, error, deterioration or defect of the Services,
(d) claims of patent infringement arising from combining or using the Service in connection with services or equipment furnished by others and
(e) claims of fraud in association with utilization of Services by employees of Customer.
15. General:
(A) Legal Matters - This Agreement is deemed to be made in and governed by the laws of the State of Florida without regard to choice of law provisions.
Venue for the purposes of any litigation in connection with this Agreement will lie solely in the Circuit Court in and for Hillsborough County, Florida or the United States District Court in and for the Middle District of Florida.
Customer hereby consents to the jurisdiction of the federal and state courts located in Florida, and hereby consents to service of process by certified U.S. mail, return receipt requested, at the address provided for notices under this Agreement.
Customer hereby irrevocably waives all rights to demand a jury trial.
The costs of any litigation, whether incurred at the trial or appellate level (including attorneys' fees, court costs and the costs of experts and of paralegal, accounting, financial and other legal and investigative support personnel), will be borne by the ultimate non-prevailing party.
A party awarded less than 60% of its claimed damages will be deemed a non-prevailing party.
(B) Severability - Each provision of this Agreement is severable from the whole.
If one provision is declared invalid, the other provisions will remain in effect.
(C) Waiver - Failure by a party to enforce any provision of this Agreement, or the waiver thereof in any instance will not be construed as a general waiver of rights.
(D) Title to Equipment - This Agreement will not convey to Customer title of any kind to any of the equipment or transmission facilities used to provide the Services.
(E) Entire Agreement - The terms of this Agreement and any Service order executed hereunder constitute the entire agreement between the parties concerning the subject matter hereof, and this Agreement may be modified only in a writing signed by both parties.
By its utilization of Services Customer acknowledges that it has read and accepts the foregoing terms and conditions.
(F) Survival - The terms, conditions and warranties contained in the Agreement that by their sense and context are intended to survive the performance hereof by either or both Parties shall so survive the completion of performance, cancellation or termination of this Agreement.
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