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. DEFINITIONS

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. SERVICES

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 document.

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 industry practices.

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 parties. 

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 herein.

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 for infringement.

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 by Client.

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 specified herein.

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 messages.

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.