Proximiti GoCONNECT Terms of Service
These Terms of Service (“Terms of Service”) constitute the entire agreement between Proximiti Communications, Inc. (“Proximiti”) and you on behalf of you as an individual and/or the company/corporate/business entity that you represent (the “Customer”). Any Proximiti services or products (collectively, the “Services”) provide by Proximiti to Customer shall be governed by these Terms of Service and the provisions contained herein. BY ORDERING, PURCHASING, INITIALIZING, REGISTERING OR UTILIZING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE, HAVE SUFFICIENT AND APPROPRIATE AUTHORITY TO ENCUMBER THE CUSTOMER, ARE OF LEGAL AGE AND FURTHER AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND PERFORM THE OBLIGATIONS OF THE CUSTOMER THEREUNDER.
PLEASE REVIEW THE ENTIRE TERMS OF SERVICE. THESE TERMS OF SERVICE CONTAIN IMPORTANT PROVISIONS RELATIVE TO 911 AND E911 CAPABILITIES ASSOCIATED WITH SELECT PROXIMITI SERVICES. TO THE EXTENT THAT THE SERVICES INCLUDE “COMMUNICATIONS SERVICES”, IF YOU ARE UNCOMFORTABLE WITH 911 LIMITATIONS ASSOCIATED WITH THE PROXIMITI SERVICES YOU SHOULD CONSIDER UTILIZING AN ALTERNATIVE MEANS OF ACCESS TO TRADITIONAL 911 OR E911 SERVICES.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, DO NOT UTILIZE THE PROXIMITI SERVICES, INSTALL PROXIMITI SOFTWARE, OR LOG INTO PROXIMITI SYSTEMS.
1. Subscription.
1.1 Proximiti Services. Pursuant to these Terms of Service, Proximiti grants you a limited, revocable, non-exclusive, non-assignable, non-transferable, non-resellable license and right to use the Proximiti Services as set forth in Customer’s initial order and any subsequent orders for Customer’s own business purposes. Utilization of the Service may require the download of software, firmware and applications and their activation or initiation. Customer agrees to use and pay, when due, for any ordered Services as set forth in these Terms of Service and to be financially responsible for Customer’s use of Proximiti Services including the authorized or unauthorized use of the Customer’s account. Subject to reasonable limitations on reproduction and distribution as well as other terms and conditions herein, Proximiti grants to Customer a limited, revocable, non-exclusive, non-assignable, non-transferable, non-resellable right to use Proximiti provided documentation associated with the Services and their use. All rights not expressly granted under these Terms of Service are specifically withheld and reserved by Proximiti and no Proximiti intellectual property rights, including but not limited to all patents, source code, copyrights, trademarks, service marks, trade secrets, proprietary processes and all other intellectual property, are granted, transferred, assigned to Customer or any Customer end user. Services may include the ability to make and/or receive telephone calls to or from the public switched telephone network utilizing voice over Internet Protocol (“VoIP”) technology.
1.2 Professional Assistance. In regard to the installation and provision of its subscription Services, Proximiti may offer to provide professional assistance to Customers subject to separate charges. If Proximiti agrees to provide such professional assistance at Customer’s request, fees for such professional assistance may be provided pursuant to Proximiti’s standard time and materials rates as provided in an agreed upon service order or statement of work.
1.3 Equipment. In association with the provision of Services, Proximiti may provide equipment subject to separate charges (the “Equipment”). Customer purchase of Equipment shall be by service order. Shipment of Equipment is offered pursuant to F.O.B origination. Upon delivery of Equipment to the transport carrier, Proximiti’s liability shall cease and title (if applicable) and all risks of loss or damage shall pass to Customer. Proximiti will provide a twelve (12) month limited warranty from the date of purchase. Return of Equipment to Proximiti shall require prior authorization through standard RMA procedures. Equipment returned to Proximiti outside its standard RMA procedures or proper packaging may be refused by Proximiti and returned to Customer at Customer’s expense. Customer releases any and all rights to information stored in Equipment returned through the RMA process. Proximiti shall only provide replacement Equipment where returned equipment is deemed to be defective and under warranty. Proximiti will not provide replacement equipment for lost or stolen equipment or for returned equipment that has been modified by Customer. Proximiti may utilize a third party provider or fulfillment center in regard to the sale and delivery of Equipment in regard to a Customer’s service order.
1.4 Internet Services. In conjunction with its Services, Proximiti does not provide internet access. To the extent required to support the Services, Customer represents and warrants it shall provide properly configured and working internet service or broadband connection and that Customer shall be responsible for any and all internet service fees. Customer represents and warrants that it understands and accepts that Proximiti Services may be subject to the vagaries of the Internet over which Proximiti has no control. Customer acknowledges that use of Services in association with internet connectivity that does not meet appropriate standards may result in Services unavailability, Services interruption and/or underperformance relative to Services functionality. Customer acknowledges and accepts that differences exist between traditional telephone services and VoIP telephone services, including lack of traditional 911 emergency services.
1.5 Service Order(s). The Customer will place an initial order for service with Proximiti through a Proximiti supported ordering mechanism (e.g., web interface, fax, phone). The initial order shall specify the number and type of Services to be purchased. Each service order shall be subject to Proximiti’s acceptance, which shall be deemed given when Proximiti provides written notice of acceptance or in the alternative when Proximiti initiates Services to the Customer, whichever occurs first. Notwithstanding Section 1.13, Proximiti reserves the right, in its sole discretion, to modify, repackage, reprice, replace, alter and/or discontinue any aspect of the Services on a prospective basis without notice. Subject to availability, Customer may at any time, submit additional orders for service that set the number and type of additional Services to be purchased. Subsequent orders will be subject to these same Terms of Service and acceptance by Proximiti through the same mechanisms as initial order acceptance. Unless specified differently on an accepted additional order for service, additional Services shall be provided for a term that is coterminous with the Customer’s initial service order.
1.6 Credit Approval. Each service order will be subject to credit approval by Proximiti. Customer will comply with all of Proximiti's credit approval policies and procedures. Proximiti will have the right to withhold implementation of the Service(s) under these Terms of Service pending satisfactory credit approval, which approval may be conditioned upon specific terms required by Proximiti, including an advance payment, in an amount determined by Proximiti based upon commercially reasonable standards such as credit ratings and history, financial statement analysis, payment history, number of years in business and anticipated usage of the Services.
1.7 Multiple Locations. If Customer has multiple locations, systems and or devices, then such locations/systems/devices may be activated individually upon a schedule agreed to between Customer and Proximiti.
1.8 Service Information. In conjunction with submitted service orders, Customer will provide and affirm true and accurate Services registration information which shall include, but is not limited to, Customer name, designated Customer contact, Customer billing address, Customer shipping address, e-mail address, credit card/payment information, and the E911 address(es) for all devices and Services requiring E911 registration. Customer agrees to provide Proximiti with any additional or supplemental information which Proximiti, in its sole reasonable discretion, determines may be required to activate, reactivate or continue provision of Services. Customer hereby grants to Proximiti permission to use and a limited, revocable, non-exclusive, non-assignable, non-transferable, non-resellable, royalty free, fully paid up license and right to use Customer registration information in connection with the activation, provision, administration, billing, collection, monitoring and support of the Services to the Customer. In the event that Proximiti reasonably suspects that any Customer provided information be false, misleading, inaccurate, not current, incomplete, fraudulent or otherwise suspicious, Proximiti has the right, in its sole discretion, to suspend or terminate provision of Proximiti Services.
1.9 Customer Data. Storage of Customer data in the course of providing Services is offered solely as a convenience to Customer and a compliment to the core functionality of the Services. Customer represents and warrants that it has the rights to all Customer data, including the right to upload Customer data to Proximiti network elements in connection with its authorized use of the Services. Customer grants to Proximiti a non-exclusive royalty-free license to copy, record, store, transmit, display, modify, view, print, reproduce, distribute and use Customer data solely to the extent necessary to activate, provide, administer, monitor, service, bill, collect and tax Services. Customer represents and warrants that the Customer 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. Customer maintains ownership and title to all data and information that it provides in regard to operating the Services. Customer access to Customer data and all stored Communications Services information shall solely be supported through secured access to Proximiti’s Services portal. Customer agrees to hold Proximiti and its vendors harmless from and against any and all liability for any reason in association with storage and utilization of Customer data in the provisioning, administering, monitoring, servicing, billing, collecting and taxing of Services.
1.10 Privacy. To the extent that during the course of utilizing of the Services, Proximiti becomes aware of Customer confidential/proprietary information, Proximiti will treat such information in full accordance with Proximiti’s privacy policies as stated at www.proximiti.com/privacy. Notwithstanding anything to the contrary herein, Proximiti may disclose Customer data to third parties as required by law including but not limited to disclosures pursuant to a court order or subpoena. However, Proximiti will not sell, rent or lease Customer data except to a successor in interest or an assignee.
1.11 Account Administrator. Where Services involve multiple end users, Customer shall designate a contact person to act as the primary interface to Proximiti (the “Account Administrator”). The Account Administrator shall be authorized to make purchase decisions on behalf of the Customer and shall have the right to establish and modify selective Services parameters for all Customer’s end users. Decisions implemented by the Account Administrator may significantly affect utilization of the Services by the Customer and its end users. The Customer acknowledges and accepts that it is responsible for all acts, errors and omissions of the designated Account Administrator.
1.12 Changes in Functionality. Proximiti will make available to Customer all Services features and functions that it makes available to purchasers of the same Services package as Customer. Customer acknowledges and accepts that the Services offered by Proximiti are subject to change as Proximiti solutions and network topology evolve. Proximiti reserves the right to modify feature storage and usage limits relative to use of the Services at any time without notice. In its sole discretion, Proximiti further reserves the right to add, modify or remove Services features and functionalities at any time without notice. Customer further acknowledges and accepts that Proximiti has no obligation to maintain, freeze, retain, enhance or add specific Services features and that Customer will hold harmless and release Proximiti of any and all liability directly or indirectly related to any changes made to the Services and its storage and usage limits as well as changes that impact compatibility with Customer or third party provided equipment. Should Proximiti remove or discontinue material feature functionality during any Term, Customer shall have the right to terminate the Services, without penalty, if they contact Proximiti customer support within thirty (30) days of the change at customercare@proximiti.com. Continued utilization of the Services after said 30 day period shall be deemed Customer acceptance of the change. Proximiti will make available to Customer all Services features and functions that it makes available to general buyers of the same Services package as Customer.
1.13 Term. Customer’s license to utilize Proximiti Services shall begin on the date of Services are provisioned for activation by Proximiti. The initial service term shall be as established in an accepted service order. Where an accepted service order does not contain a stated term or length of service requirement, Services shall be provided on a month-to-month basis. The initial term for all services will renew automatically for successive terms of the same length without action by either party unless a party gives the other party written notice of intent to terminate at least thirty (30) days before the end of the then current term. Collectively, the initial term and any renewal terms are collectively, the “Term”. At the end of any Term, Proximiti reserves the right to discontinue provision of Services upon thirty (30) days prior electronic notice.
1.14 General Limitations on Use. The Services are provided to Customer as a business user. This means that Customer acknowledges and agrees 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. Customer also acknowledges and agrees that Proximiti does not confer the right to use the Services for call center activities, continuous or extensive call forwarding, call relaying, telemarketing, spamming, fax broadcasting or fax blasting, voice mail blasting, alarm or security systems and TTY equipment and that Customer may not use the Services for those purposes.
1.15 High Risk Use Prohibited. Customer acknowledges and accepts that Services are not authorized for use in critical safety applications or situations that require continuous uninterrupted service. Utilization in any application where failure of service could reasonably be expected to result in bodily injury, loss of life or catastrophic damage to property or person is prohibited.
1.16 Technical Support. Proximiti shall provide normal installation and technical support for the Services via telephone and e-mail. Proximiti shall not provide, and shall have no obligation to provide, support for other applications and uses including but not limited to implementation or use of any non-provided software and equipment.
1.17 Intellectual Property. Proximiti retains all intellectual property rights and interest in the Services and any software utilized in association with their provision. Proximiti software is protected by domestic and international copyright law. Where Proximiti provides Services in conjunction with third party software, Proximiti shall undertake reasonable effort to provide appropriate license and right to use rights relative to utilized third party software. Proximiti also retains all intellectual property rights and interest in regard to all materials provided by Proximiti and its vendors in connection with the Services. Customer acknowledges and accepts that provision of the Services and associated material does not convey any ownership or other rights, express or implied, in any Proximiti intellectual property except as expressly provided herein. Customer acknowledges that any breach of Proximiti’s intellectual property rights could cause irreparable harm for which monetary damages may not be sufficient and Customer agrees that Proximiti may in addition to other available remedies may obtain injunctive relief without the necessity of posting a bond, proof of damages or other similar requirement.
2. Charges.
2.1 Invoicing. Issuance of invoices shall be at Proximiti’s sole discretion. Where issued, invoices will be issued in accordance with the terms of the applicable accepted service order. Any applicable installation charge(s), including port in charges if applicable, will be invoiced in advance. Recurring charges, including but not limited to subscription and maintenance fees, will be billed in advance. Usage charges and termination charges, if applicable will be billed in arrears. Issued invoices will include Proximiti specified fees and applicable taxes. Billing for additional Services will begin upon delivery of such new Services.
2.2 Usage. To the extent that Services include Communications Services, charges associated with Customer usage of Services to/from US and Canadian points will be as established in an approved service order and stated in Proximiti’s service confirmation. Dependent upon the Proximiti offering(s) and the specific Services ordered by Customer, usage may be billed on a metered, block or flat rate/unlimited basis. Customer may also be billed for overages where they exceed specified usage limits on applicable features including but not limited to voice seats, conference calls, video calls and recordings. Toll free plans may also incur separate charges. In additional to normal usage, Customer will be billed in arrears in association with specialized services such as, but not limited to, directory assistance, operator assistance and 411 where offered. Each leg of provided Communications Service may be billed independently in regard to usage. Select Services plans may exclude usage involving Proximiti on-network connectivity on all communications legs.
2.3 International Usage. Unless specifically stated otherwise in an accepted service order, calls to telephone numbers outside the United States and Canada in association with applicable Services will be charged at the then published rates on Proximiti’s website. Customer accepts and acknowledges that charges for international calls may apply regardless of whether a call is answered.
2.4 Rounding. Where applicable for billing purposes, VoIP usage will be billed in one (1) minute increments. Where VoIP usage is chargeable, charges will be billed individually and rounded up to the nearest whole cent .
2.5 Responsibility For Usage. Customer is solely responsible for all usage associated with provision of Services to the Customer, its end users or any other user. In no event shall Proximiti be liable for any unauthorized use of Services associated with Customer’s account.
2.6 Block Limitations. Usage for Customers who purchase Services plans that include a set number of domestic minutes of use or texts per month will be aggregated on a monthly basis and counted against the plan’s block of usage. Unless Customer advises Proximiti in writing otherwise, if Customer’s usage exceed the purchased block of usage in any time period, Proximiti will bill Customer’s account for the smallest available bundle of usage necessary to meet the overage for the time period. International usage is charged separately and such usage does not count against Customer’s Services plan. On-network calls and texts to other Proximiti subscribers do not count against most Services usage plan s. In no event shall any Customer usage credit or service plan’s block of usage have any monetary value or be exchangeable for cash. Usage blocks are solely intended for the subscribing Customer and such block cannot be sold, assigned or transferred to any other account or subscriber. Unused blocks of service or other prepaid usage shall expire coincident with the end of the applicable Customer billing cycle and cannot be carried forward to any future period.
2.7 Taxes. In addition to charges for Services, Customer will pay Proximiti for all excise, sales, use, value added, gross receipts or other taxes, fees, assessments or governmental charges applicable to the Services, all of which will be paid by Customer in addition to other amounts owing. Such taxes, fees and charges will be separately stated in the applicable monthly invoice. Taxes are subject to change without notice to the Customer. Certain taxes may be waived by Proximiti upon the presentation by Customer of appropriate tax exemption certification. In any event, taxes associated with payments for Services are not refundable. Taxes passed through to the Customer shall not include any tax imposed on the net income of Proximiti.
2.8 Proximiti Fees. In addition to base Services charges, Proximiti may charge regulatory recovery fees and 911 compliance fees to offset costs incurred in compliance with federal, state and local laws, regulations and mandates. Proximiti fees are not mandated by any jurisdiction but are a recovery method for specific incurred costs and should not be considered taxes. Proximiti fees will be itemized on Customer invoices. Proximiti may change its fees upon thirty day notice to its Customers.
2.9 Fair Use. Where offered on an unlimited or flat-rate basis, Services are subject to fair use limitations (the “Fair Use Limitations”). Customer acknowledges and accepts the following limitations on Services usage in association with unlimited and flat-rate pricing:
a) Usage is limited to normal day-to-day business purposes;
b) Services may not be used for call-in lines, call centers, excessive call forwarding, autodialing, fax blasting, telemarketing, robocalling, junk faxing, junk texting, spamming and/or continuous use calling or messaging.
c) Services may not be used for monitoring services, data transmissions, transmissions of broadcasts or transmission of recorded material;
d) Customer will not employ methods or devices to excessively utilize Services; and,
e) Proximiti shall have sole authority to review and determine abuse in regard to the Fair Use Limitations and take action without notice in abuse situations to suspend or terminate Services or in the alternative to convert any unlimited or flat-rate plan to a metered usage plan.
2.10 Right to Monitor. Proximiti shall have the right to monitor and/or audit use of the Services by Customer and to charge for additional users as appropriate under these Terms of Service.
2.11 Changes in Fees. Subject to Section 2.1, Section 2.2 and Section 2.3 above, initial fees and charges are as presented in the applicable approved service order. After completion of the term specified in the applicable approved service order, Proximiti may implement changes in service pricing and fees upon thirty (30) days written notice to Customer. Continued utilization of Services after the thirty (30) day rate change notification period shall constitute Customer consent to the pricing change. Notwithstanding the above, no limitations or notice period shall 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.
2.12 Promotional Discounts. From time to time, Proximiti may offer promotional discounts for which Customer may or may not qualify. Customer acknowledges and accepts that Proximiti shall have sole discretion as to determination of eligibility for any promotion and/or discount and that Proximiti may change or terminate the scope and terms of such program(s) without notice. Application of credits for any Proximiti promotion and/or discount program cannot be applied retroactively, shall only be usable in association with current and future billings, may have an expiration date, shall have no monetary value, are not transferable and are not exchangeable for cash. Promotions and/or discounts may not be utilized cumulatively. Promotions may depend upon Customer fulfillment of Services obligations including but not limited to levels of usage and length of service.
2.13 Cancellation and Early Termination Fees. Proximiti reserves the right to charge cancellation, disconnect, termination and transfer fees consistent with these Terms of Service and as outlined on any accepted service order. Any reduction in Services shall be treated as a termination of service under this Section 2.13 and Section 7 below, with respect to those Services. To the extent that Customer terminates Services outside the scope of Section 1.12 above, Customer is responsible for all charges, taxes and fees related to the Services and Equipment provided through the end of the Term and early termination charges as outlined in Schedule 2.13 to this Agreement may also apply. Cancellation, disconnect and early termination charges, if applicable, will be invoiced to Customer as of the notification of termination of service. To the extent that Customer returns any unused Equipment in conjunction with a cancelled service order or termination under this clause, a restocking fee may apply. To the extent that Customer downgrades or modifies their service plan, Customer may be invoiced for reimbursement of any discounts or promotions associated with the original service package or Equipment.
2.14 Product Information. Proximiti makes reasonable commercial efforts to ensure that all published product information correctly details product and service features, functionality and pricing. However, Proximiti does not warrant that any information published concerning the Services is accurate, complete, reliable, current or error free. Published prices may not include taxes and fees whether mandated by law or regulation or not. Published information is not a part of these Terms of Service and these Terms of Service and any applicable approved service order shall take precedence over any published information.
3. Invoices and Payments.
3.1 Bill Cycle. Where required, issuance of Proximiti invoices will be as established in an approved service order and stated in Proximiti’s service confirmation. Dependent upon the Proximiti offering(s) and the specific Services ordered by Customer, invoices may be issued on a monthly or annual basis. In the event of mid-cycle transactions associated with service additions and changes, Proximiti may at that time bill and the Customer shall pay a pro-rated amount for the remainder of the current bill cycle and thereafter will bill Customer with each subsequent cycle. In instances where the Customer exceeds their credit limit during any bill cycle, Proximiti may issue an interim invoice.
3.2 Due Date. All invoices will be issued electronically and shall be due and payable on the date issued. Proximiti requires Customer to provide an active/valid e-mail address. Customer acknowledges and accepts that Customer is responsible for paying all charges relative to a Customer account and that time is of the essence and will pay all invoiced amounts promptly. Customer also acknowledges and accepts responsibility for paying all charges to Customer’s account whether said charges result from Customer’s authorized or unauthorized use. Customer payment shall be deemed made when received by Proximiti unless payment is by the means of a check or ACH that is later dishonored or by a credit card that is subsequently charged back.
3.3 Non-Payment/Late Payment. Proximiti may suspend or terminate the Services for non-payment if charges are not fully paid as due. Suspension or termination of Services shall not relieve Customer of its payment obligation(s). Proximiti may, in addition to any other remedies available to it, impose a late payment fee of the lesser of 1.5% per month or the maximum allowed by law to on any amount not paid by Customer within thirty (30) days of the invoiced due date. Where past due balances are outstanding, Customer authorizes Proximiti to refer outstanding balances to attorneys and collection agencies for further action. Where collection action is taken, Customer agrees to reimburse Proximiti for reasonable attorney’s fees, collection agency fees, filing fees and court cost in association with such action.
3.4 Authorization. All fees and charges for the Services shall be by credit card, ACH transaction or check. If Customer has authorized payment by credit card or ACH transaction, no further notice or consent will be required and Customer authorizes Proximiti to process payments up to thirty (30) days after Customer withdraws the authorization. Proximiti reserves the right to continue processing credit card transaction for all outstanding invoices as of that date. If paying by credit card or ACH transaction, Customer will advise Proximiti of any change in account information (e.g. account number, expiration date, verification code) that is necessary to process Customer’s payment. Customer acknowledges and accepts that Proximiti will charge and Customer will pay a processing charge of the lesser of thirty-five dollars ($35.00) or the maximum allowed by law for any Customer payment returned for non-payment or chargeback. In instances of returned check, denial of payment and/or chargeback, Proximiti shall make reasonable effort to contact Customer and advise them of failed payment and outstanding balance due. Notwithstanding the above, Proximiti reserves the right to disconnect Customer Services and terminate the Customer’s account if Customer’s payment method is returned, declined or fails for any reason. Customers with a past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or providing updated payment information. Until all prior due balances are brought current, Proximiti may limit or suspend access to new Services.
3.5 Card Verification. In the process of verifying and validating credit card transactions, Proximiti may place a temporary $1.00 hold on Customer’s credit card. Release of this hold should occur within 3 – 4 business days but subject to the terms and conditions of Customer’s financial institution.
3.6 Partial Payments. Proximiti’s acceptance of partial and/or late payment(s) shall not waive, limit or prejudice, in any manner, its rights to collect all amounts due from Customer regardless of any mark or designation associated with such partial or late payment such as “paid in full” or “for settlement of account”.
3.7 Disputed Charges. Subject to Section 3.8 and Section 3.9 below, Customer may initiate good faith billing disputes only by submitting such disputes in writing to Proximiti within thirty (30) days of the date of invoice. Customer’s written dispute(s) will specify with reasonable detail a clear and precise description the basis of the Customer’s dispute with Proximiti’s billing. Customer charges not disputed within thirty (30) days of the date of invoice shall be deemed correct and Customer waives any future recourse with respect to said invoice and/or charges. Any Customer chargeback, initiating of ACH decline or stop payment processing of submitted checks without prior submission or a written dispute shall be cause for immediate suspension or termination of Services.
3.8 No Withholding of Payment. In regard to billing disputes, Customer may not withhold payment of any outstanding invoice. Customer stipulates and agrees that such withholding will cause irreparable harm to Proximiti. Payment of fees will not prejudice a party's right to dispute charges so long as they are disputed in the manner and timeframe specified above.
3.9 Settlement of Billing Disputes. Proximiti shall reasonably review billing disputes submitted in compliance with Section 3.7 above. Where Proximiti confirms billing error(s), Proximiti will issue a billing credit to Customer in the amount of the over-billing on the next issued invoice for Services. Billing credits shall be the sole and exclusive remedy with respect to any billing errors by Proximiti. For avoidance of doubt, Proximiti shall not be required to determine, pursue, respond to or defend any claim, allegation or fact relative to any Customer dispute except as required by law or regulation.
3.10 Credit Review. Proximiti Services are offered to Customer subject to credit review and approval. Prior to initializing Services, Customer may also be subject to a preliminary fraud review. Customer agrees and authorizes Proximiti to request standard credit reports from credit reporting agencies and trade references on an initial and ongoing basis. Notwithstanding anything contrary herein, Proximiti may, at its sole discretion, discontinue credit in association with the Services at any time. Customer acknowledges and consents to Proximiti provision of Customer’s payment and credit history to credit reporting agencies and to further provide credit, payment and any other information in Proximiti’s possession to third parties as deemed necessary to collect a debt or as required by law. During the credit review process, Proximiti, at its sole discretion, may establish a credit limit relative to each Customer account.
3.11 Credit Worthiness. If Customer's account is subject to a credit limit, Proximiti may require payment of any amount in excess of such limit within 24 hours after Proximiti receives notice that the credit limit has been exceeded. If at any time there is a material adverse change in Customer's creditworthiness or financial position as reasonably determined by Proximiti, then in addition to any other remedies available to Proximiti, Proximiti may elect, in its sole discretion, to request reasonable assurance of payment from Customer, including, among other things, an advanced payment for services. A material adverse change in Customer's creditworthiness or financial position will include (i) Customer's default of any material obligation to Proximiti under this or any other agreement with Proximiti that remains uncured after the expiration of any applicable cure period; (ii) failure of Customer to make full payment of undisputed charges due hereunder on or before the due date on 3 or more occasions during any period of 12 months; (iii) acquisition of Customer by an entity which is (a) insolvent or is subject to bankruptcy, (b) owes past due amounts to Proximiti or any Proximiti affiliate that are undisputed or (c) is a materially greater credit risk than Customer; (iii) Customer's being subject to or having filed for bankruptcy or insolvency proceeding; and (iv) the legal insolvency of Customer. If Customer does not provide Proximiti with assurance satisfactory to Proximiti within 3 days of Proximiti's delivery of notice of demand for such assurance, then, in addition to any other remedies available to Proximiti, Proximiti will have the option, in its sole discretion, to exercise one or more of the following remedies: (x) cause the start of any Service described in any previously executed service order to be delayed pending receipt of satisfactory assurance; or (y) decline to accept a service order or other requests from Customer to provide Services; or (z) suspend all or any portion of the Services then being provided after giving Customer 2 days prior written notice. If Customer provides satisfactory assurance during the 2 day notice period, Proximiti will not suspend any of the Services.
4. E911.
4.1 911 Service. Where Proximiti provides Communications Services, it provides access to emergency services dialed via 911 in accordance with applicable law and regulation. However, because of the unique nature of VoIP Communications Services, emergency calls to 911 through Proximiti’s Services may be handled differently than Customer has experienced with traditional wireline and wireless telephones. When Customer places a 911 emergency call in association with a Proximiti Communications Service, the Service will attempt to automatically route the 911 call through a third-party service provider to the Public Safety Answering Point (“PSAP”) corresponding to the address of record for the Customer’s account. However, due to VoIP service limitations, Customer’s 911 call may be routed to a different location than that which would be used for traditional 911 dialing. For example, Customer’s call may be forwarded to a third-party specialized call center that handled emergency calls. This call center is different from the PSAP that would answer a traditional 911 call which has automatically generated your address information, and consequently Customer may be required to provide their name, address and telephone number to call center personnel. Based upon information provided, third party call centers will attempt to connect the caller with emergency responders in the caller’s area of origination. Unless the caller provides name, address and telephone information, the call center may not be able to call the caller back in the event of a disconnect or may not be able to dispatch emergency personnel to the site of the emergency. Customer acknowledges and accepts that differences exist between traditional telephone service and VoIP Communications Services, and that these differences may have an adverse impact upon the ability to dispatch and/or provide emergency services in a timely manner.
4.2 Proximiti Recommendation. Proximiti strongly recommends that Customer maintain, at all times, an alternative mechanism for placing emergency calls. Customer is also advised to review Section 4.9 and Section 12.1 of these Terms of Service with respect to Proximiti’s limitation of liability relative to provision of the Services.
4.3 Wireline Connectivity. In association with calls to 911 initiated through wireline based internet connectivity, the Services will attempt to automatically provide the PSAP dispatcher or emergency service operator with the name, address and telephone number associated with Customer’s account. However, for technical reasons, the dispatcher may not be able to capture, retain or validate the name, address of physical location associated with the Customer account. Therefore, when making a 911 emergency call, user must immediately inform the dispatcher of the caller’s location (or location of the emergency, if different). If user is unable to speak, the dispatcher may not be able to locate the caller if Customer’s location information is not up to date or if the caller is not calling from the Customer’s registered site. In the event of inadvertent disconnect, the end user should immediately call back the 911 center as the emergency personnel may not have the Customer’s telephone number, address or contact information.
4.4 Wireless Connectivity. In association with calls to 911 initiated through wireless based devices, the Services will automatically transfer out-dial capabilities to the native dialer inherent to the wireless device. Calls to 911 transferred to the wireless device’s native dialer should be completed through the wireless provider assigned to the engaged device. In instances where a wireless service signal cannot be obtained, calls to 911 will not be completed. Devices without out-dial capabilities, such as certain tablets, cannot complete calls to 911. The Services cannot complete calls to 911 initiated over Wi-Fi or a general internet connection.
4.5 Text to 911. In some geographical areas, emergency service providers support the ability of end users to communicate with emergency response personnel through the use of SMS text to 911 communications. Where initiated from a wireless device in a geographical area where such communication is supported, Services will support text to 911 capabilities through the wireless device’s native dialer and the wireless provider assigned to the engaged device. Services will not support text to 911 capabilities for wireline initiated SMS messages nor for instances where the communications device does not have wireless out-dial capabilities. Text to 911 will not be supported over Wi-Fi or a general internet connection.
4.6 Correctness of Information. Customer acknowledges that Proximiti’s only mechanism for routing calls to emergency services will be the physical location registered by the Customer in association with provision of the Services. Customer is responsible for providing, maintaining and updating correct contact information (including name, address and telephone number) with their Services. If customer has multiple lines or extensions in association with their Services, Customer is responsible for ensuring that accurate and up-to-date registration information is maintained on each device accessing the Services. Customer updates of registration information may take several hours to take effect. If Customer does not correctly identify the actual location where they are located, or if Customer account information has recently changed or has otherwise not been kept current, Customer acknowledges and accepts that 911 calls may be misdirected to an incorrect emergency response site delaying emergency assistance. Customer accepts and acknowledges that Proximiti may supply customer data in association with Customer initiated calls to emergency services.
4.7 Service Limitations. For technical reasons, the functionality of Proximiti provided 911 emergency calls may cease or be curtailed in various circumstances, including but not limited to:
i) power outages,
ii) internet congestion or outages,
iii) network congestion or outages,
iv) cellular service outages,
v) delays associated with updating registered service locations,
vi) service suspension or termination due to non-payment, and
vii) equipment configuration issues.
Furthermore, it is possible that 911 emergency calls initiated with the Services may take longer to connect or may be more likely to produce a busy signal when compared with traditional 911 calls. In the event of a power outage, Customer may be required to reset or reconfigure Services prior to placing any call including those to 911. Additionally, the Services cannot connect 911 calls initiated over Wi-Fi.
4.8 User Notification. Customer accepts and acknowledges that the Services provided to Customer, its end users and its guests or other third parties are subject to the limitations on access to 911 access as described in this Section 4. Customer is responsible for notifying and Customer agrees to notify any user or potential users of the Services of the nature and limitations of emergency calls placed through VoIP connections as described herein. Customer acknowledges and accepts responsibility for ensuring users of the Services are aware of how registered addresses can be updated and maintained. Where required, Proximiti shall provide and Customer agrees to affix, in a prominent place on each communications device utilized in association with the Services, a Proximiti provided warning sticker informing users that 911 service may be limited or unavailable. If additional labels are required by Customer, Customer may request and Proximiti shall provide labels necessary to meet this requirement. Customer and its end users should always maintain an alternative mechanism for placing calls or sending text messages to emergency services.
4.9 911 Liability Limitations. Customer acknowledges and accepts that Proximiti shall have no liability whatsoever in regard to Customer’s and its end users’ inability to complete any call or text to 911 centers for any reason. In regard to calls and text to 911 centers, Customer further acknowledges and accepts that Proximiti shall have no liability whatsoever relating to or arising from any acts or omissions of any third party including but not limited to any Proximiti service provider, local emergency response center and emergency response personnel. Furthermore, Customer agrees to indemnify Proximiti and its officers, directors, employees, affiliates and agents for third party claims, losses, damages, fines, penalties and expenses arising from i) Customer’s failure to provide correct 911 registration information, ii) Customer’s failure to update registration information as changes are made, iii) Customer’s failure to notify any end user of Services limitation relative to emergency calling, iv) delays or failure associated with connectivity with emergency services centers or personnel, v) any misdirection of emergency services personnel, and vii) inability of any user of the Services to dial or access emergency services.
5. Access and Content.
5.1 Legal Compliance. Customer acknowledges and accepts that it will at all times comply with all law including but not limited to the rules policies and regulation of the Federal Communications Commission, the Federal Trade Commission and all other jurisdictions as it relates to telemarketing, robo-calling, faxing, spamming, phishing, slamming, debt collections and Do-Not Call provisions. Customer further agrees to comply with all applicable import and export laws that may apply in Customer location(s). Any request by Customer to initiate changes to the ownership of any Services account must be accompanied by appropriate legal documentation.
5.2 Account Names and Passwords. Customer is responsible for the confidentiality and use of account names and passwords. Proximiti will deem any communication, data transfer, or use of the Services received under Customer's account names and passwords to be for Customer's benefit and use. Customer agrees to notify Proximiti if account names or passwords are lost, stolen, or being used in an unauthorized manner.
5.3 Proximiti Procedures. Proximiti agrees to maintain the security of Customer data using industry-standard data security protocols and other methods reasonably deemed to be adequate for secure business data and to notify Customer in the event of a breach of security involving Customer data. Proximiti agrees to retain Customer data on a secure server. Proximiti may restrict access to Services features and Customer account information based upon the rights and permissions granted any specific end user. Customer may be required to answer a security question prior to being provided support and/or access to account information.
5.4 Customer Permission. You agree that Proximiti and its subsidiaries may collect and use non-identifying technical and related information that is gathered periodically to facilitate the provision of the Proximiti Services. Information utilized by Proximiti may include but is not limited to technical information about your telecommunications equipment, computer system(s), application software, and peripherals. Proximiti may use this information, as long as it is in a form that does not personally identify Customer, to improve our products or to provide services or technologies. Proximiti utilization of Customer data will comply, where relevant, with federal and state rules related to the protection of customer proprietary network information (“CPNI”). Furthermore in association with services supporting medical professionals, provided that Proximiti implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Customer specifically acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that Proximiti may use such de-identified information for any lawful purpose.
5.5 Disclosure Under Obligation. Proximiti reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation or legal process. Such disclosure may include but is not limited to information in association with E-911 offerings. Proximiti will comply with valid requests of law enforcement agencies without Customer notification in accordance with federal and state law.
5.6 HIPAA Compliance. If Services are provided in association with the practice of medicine by the Customer, the HIPPA Business Associate Agreement attached hereto as Schedule ___ is incorporated into these Terms of Service by this reference. However, Customer acknowledges and accepts that Services are not intended to act as means to store protected health information (“PHI”) and Customer represents and warrants that Services will not be utilized for that purpose.
5.7 Use of Communications Services. The Services may allow or support access to communications mediums and facilities including but not limited to bulletin board services, chat areas, news groups, forums, communities, personal web pages, telecommunications services (including text and facsimile), broadband services, e-mail, recorded messaging and calendars. These capabilities are designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). By use of these services you expressly agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
a) Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
b) Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, slanderous, infringing, obscene, vulgar, indecent, criminal or unlawful topic, name, material or information;
c) Upload or transmit files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents;
d) Upload or transmit files that contain viruses, malware, spyware, corrupted files, or any other similar software or programs that may interrupt, destroy or limit the functionality of any computer hardware, computer software or telecommunications equipment;
e) Use any automated device or program(s) such as robots or data mining to identify, download, harvest, collect, catalog, store or otherwise reproduce or distribute information;
f) Advertise or offer to sell or buy or trade any goods or services for any business purpose, unless such Communication Service specifically allows such messages;
g) Conduct or forward junk e-mail, spam, surveys, contests, pyramid schemes or chain letters;
h) Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner;
i) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
j) Restrict or inhibit any other user from using and enjoying the Communication Services;
k) Utilize the Communications Services in a manner that compromises Proximiti’s network integrity;
l) Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service;
m) Impersonate any person or entity or otherwise misrepresent yourself;
n) Violate any applicable laws or regulations; or,
o) Otherwise utilize the Communications Services in a manner that is fraudulent, malicious, deceptive, dishonest, tortious, libelous, improper or in violation of any law.
5.8 Right to Terminate. Relative to the provision of Communications Services, Customer acknowledges and accepts that Proximiti acts as a provider of enabling technology and applications. Proximiti specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Proximiti further disclaims any liability with regard to any other subscriber’s utilization of any Communications Service. Proximiti reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever. Proximiti further reserves the right to decline to transmit any Communications Service or content involving Customer which it, in its sole reasonable discretion, believes to violate Section 5.7. Proximiti retains the right, at its sole discretion, to investigate any suspected violation(s) of these Terms of Service, including without limitation claims of third parties and other customers, and to take appropriate action up to and including reporting of suspected violations to law enforcement authorities.
5.9 Offensive Material and Security Breaches. Customer assumes total responsibility and risk for its use of the Services. Customer acknowledges and agrees that in connection with the Services (a) materials that may be offensive to some people may be transmitted or displayed and (b) 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. PROXIMITI DOES NOT WARRANT THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES OR THAT ACTIONS OF THIRD PARTIES MAY NOT IMPACT THE PROVISION OF AND UTILIZATION OF THE SERVICES.
5.10 Text Message Limitations. Where provided in association with Services features, out-bound SMS text messaging will be limited to destinations within the United States and Canada. Customer acknowledges and agrees to use the Services in accordance with the Mobile Marketing Association guidelines for text services. In instances where Customer’s outbound text messages involve third party networks and facilities, Proximiti shall make reasonable attempts to deliver said messages to the third party network provider. Proximiti may truncate or segment any text message that that does not follow commercial network standards in regard to length. Furthermore, Proximiti cannot guarantee delivery of outbound SMS text messaging.
5.11 Data Storage Disclaimer. Customer acknowledges and accepts that Proximiti shall have no obligation to store, retain, back-up or ensure the availability of Customer account information or any stored or recorded Communications Services. Customer is responsible for ensuring proper retention, storage and retrieval of such information and data through mechanisms outside Proximiti’s provision of Services. Proximiti may purge and delete any and all Customer account and stored Communications Services materials at any time without notice. Purged and deleted data may be permanently removed from Proximiti systems without back up and may not be recoverable even in disaster situations. From time-to-time, Proximiti may adopt and publish via it public website reasonable standards relative to account and Services related storage as to size and duration.
5.12 Copyright Infringement. To the extent that Proximiti receives good faith notice from an aggrieved party that Customer is in violation of the Digital Millennium Copyright Act of 1998 (the “DMCA”), Proximiti will forward to Customer the notice of infringement. Customer may remove or block access to the potentially offending material or exert rights under the DMCA to submit a counter-notice to the notice of infringement. All claims and counter claims relative to infringement of copyrighted material must include all information and attestations required pursuant to the DMCA. Customer acknowledges and accepts that DMCA requirements may in certain instances result in suspension of the Services while claims of infringement are resolved.
5.13 Directory Listings and Caller ID. Customer grants Proximiti a non-exclusive, royalty free, fully paid, irrevocable license to use, disclose, transmit, publish and distribute any information provided by Customer, its Account Administrator and its end users in regard to Proximiti’s directory listing and Caller ID features. Customer represents and warrants that all information provided by Customer, Account Administrator and its end users in regard to Proximiti’s directory listing and Caller ID features shall be true, accurate and up-to-date. Customer agrees that identifying information provided in association with the Services may be made publicly available and that such information may be used by third parties to initiate calls, texts and other communications to the Customer. Customer acknowledges and accepts that Proximiti’s directory listing and Caller ID features involves the utilization of third party providers over which Proximiti has no control and that Proximiti may have limited ability to have such information or listing displayed, removed, altered, updated or corrected. Proximiti has no obligation to disclose, display or transmit any identifying information in association with the provision of the Services. Customer hereby releases and holds harmless Proximiti from and against any liability for any error, omission or third party utilization in connection with Proximiti’s directory listing and Caller ID features.
5.14 Call Recording. Customer acknowledges and agrees that there are federal and state statues that govern the electronic recording of telephone conversations. In certain instances, the recording of a telephone conversation may require notice to and consent of all parties to the conversation prior to initiating the recording. Where the Services provide access to call recording capability, Customer agrees to carefully review the legal requirements that may apply to any call recording invoked thorough utilization of the Services prior to initiating that Services feature. Customer represent and warrants that it and its end users will utilize any call recording capability of the Services at all times in full compliance with all applicable law and regulation including, but not limited to that relating to the recording, storage, access, use, disclosure and transmittal of recorded calls, texts and related Communications Services information. Proximiti disclaims all liability for any illegal use of the Services call recording capabilities.
5.15 Text Conversions. To the extent that Services contain voice-to-text conversions or text-to-voice conversions, such conversions are provided solely as a convenience to the Customer. Customer acknowledges and accepts that any transcription provided by Proximiti in association with the Services may not accurately and articulately reflect original messaging. Customer further acknowledges and accepts full responsibility for reviewing all full content as necessary to ensure Customer and the users of the Services incur no cost, loss, damage or liability as the result of any Proximiti transcription error or omission.
5.16 Softphone Capability. In association with mobile smartphones and personal computers, the Services may provide access to softphone capabilities which will enable connectivity to the public switched telephone network for voice and SMS text messages over fixed and mobile broadband connections. Utilization of softphone capabilities provided via the Services may impact data charges from cellular and broadband providers. Disabling softphone capabilities on mobile phones in association with utilization of the Services by Customer could result in calls being forwarded via the public switched telephone network and resultant charges from Customer’s mobile service provider.
5.17 Telephone Numbers. Where incorporated into provided Services, Proximiti may assign telephone numbers at any point in time after acceptance of a service order. Customer acknowledges and accepts that such telephone numbers may be erroneous and subject to change and removal from an account up until the date the Services are activated and functioning. Relative to pre-assigned telephone numbers, Customer should not publish or invest in any media promoting any telephone number until after such number is active and functioning as desired. Proximiti further reserves the right to change, cancel or move telephone numbers in its reasonable discretion to meet the needs of its business and requirements of the North American Numbering Plan.
5.18 Porting. Relative to the porting in and porting out of telephone numbers, Proximiti adheres to the Federal Communications Commission’s number porting requirements. Not all Services support the porting of telephone numbers. Documentation noting the steps necessary for completion of a port in request will be provided at the time of submission of a service order involving port in of a telephone number. Ports of more than 25 telephone or facsimile numbers may require special coordination. In order to effect a port in, Customer must supply all information required of the porting carriers including but not limited to account numbers, passwords and/or authorization codes. Information necessary to execute a port out request should be provided by the carrier receiving the port. Customer represents and warrants that all information supplied in association with a porting request shall be true, accurate and complete and that any porting request initiated by Customer or its agents will not violate any applicable law nor be deceptive or fraudulent in nature. Customer acknowledges and accepts that the porting of telephone numbers, both in and out, requires the cooperation of third party providers and a number of factors outside of Proximiti’s control. Customer further acknowledges and accepts that where Proximiti acts on an unauthorized port out request due to act or omission of third parties, it may not be feasible for Proximiti to recover ported telephone numbers and Proximiti shall bear no responsibility or liability in such instances.
5.19 Changes to these Terms of Service. Proximiti reserves the right to make changes to the terms and conditions of these Terms of Service upon posting updated Terms of Service on the Proximiti website or providing electronic notice to the Customer at the Customer’s registered electronic address. Subject to applicable law, the modified terms shall replace all prior versions of these Terms of Service and shall be binding upon the parties and shall then govern the provision of Services. Any changes in these Terms of Service that would not reasonably be expected to be materially adverse to the Customer shall be effective as of the earlier of the date of posting to Proximiti’s website or delivery of notice to the Customer. For changes that may reasonably be determined to adversely impact the Customer in a material manner, Customer may send written notice within 30 days after the date of notification of change of their intent to terminate Services. Discontinuance of Services due to a change in these Terms of Service shall not relieve the Customer of payment obligations hereunder. Continued of utilization of Services constitutes Customer acceptance of changes to these Terms of Service.
6. Service Standards.
6.1 Standard of Service. Proximiti strives to provide Services that meet or exceed reasonable commercial standards and the general standards of service that the underlying service providers used by Proximiti provide in general release to their own retail or wholesale customers. Customer acknowledges and accepts that the Services will not be available 100% of the time. Neither Proximiti or its vendors will be responsible in any manner for any service issues, delays or interruptions resulting from Customer’s equipment or Communications Services not under Proximiti’s control.
6.2 VoIP Limitations. VoIP based service may be limited in comparison to service provided through traditional telecommunications technology. Customer acknowledges that the Services may not function in the absence of electrical power. Customer further acknowledges that Services may not function if there is an interruption or significant degradation relative to the Customer’s or end users broadband or internet access. Neither Proximiti or its vendors will be responsible in any manner for any service issues, delays or interruptions associated with Customer’s internet and broadband connectivity. Services may also be limited due to other operational issues including but not limited to network capacity limitations, network maintenance and modification, vendor restrictions and fraud control.
6.3 Interruption of Service. In the event of any failure, mistake, interruption, omission, delay, error, deterioration or defect in the Services caused by the failure of Proximiti's facilities, equipment or personnel (an "Outage") lasting more than seventy-two (72) hours, Customer will be entitled to a credit against the applicable invoice per Proximiti's standard business practices. An Outage will be deemed to occur only if the Services are unusable to the Customer for a seventy-two hour (72) or more period as a result of failure of Proximiti's facilities, equipment or personnel to provide the Services, and only where the mistake, interruption, omission, delay, error or defect is not the result of: (a) the fault or negligence of the Customer; (b) the failure of interconnecting facilities or equipment not within the control of Proximiti; (c) the unavailability, interruption or under performance of Customers broadband connectivity; (e) any planned interruption or routine maintenance; or (e) other circumstances beyond the control of Proximiti, including but not limited to any excusable delay or failure contemplated by Section 6.4 hereof. Credit allowance for an Outage commences upon the earlier of (x) Proximiti's receipt of written notice from the Customer of an Outage, or (y) Proximiti's actual knowledge of the Outage, and credit allowance ceases when the Services have been restored. Credits will be given only when Customer notifies Proximiti that such credit is due. Only that portion of the Services which is interrupted due to the Outage will be credited. In no event will Proximiti's liability for an Outage exceed an amount equivalent to the proportionate charge for the period during which the Outage occurs. The foregoing represents Customer's sole remedy for damages arising from mistakes, interruptions, omissions, delays, errors or defects which may occur in connection with the Services. PROXIMITI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE INTERRUPTION, FAILURE OR DEGREDATION SHALL BE NON-REFUNDABLE SERVICES CREDITS TO BE DETERMINED AT THE SOLE DISCRETION OF PROXIMITI.
6.4 Excusable Delay or Failure. Neither party will be in default or otherwise liable for any delay in or failure of its performance hereunder, except for a failure to pay, due to any act of God, adverse weather condition, fire, flood, lightning, earthquake, riot, strike, accident, war, power failure, act of terrorism, governmental requirement, inability to secure materials, labor or transportation, cable cut or other cause beyond the reasonable control of the affected party. Neither party will be liable for any delay or failure to the extent it results from the requirements of law or the acts, delays or failures to act of any regulatory authority, or any provider with which Proximiti has an interconnection agreement. Any such delay or failure may suspend the Services or any service order until the delay or failure ceases, and the period of the service order will be extended accordingly.
6.5 Equipment Warranties. Certain Equipment may be subject to separate third party warranties. Proximiti will comply with all reasonable requirements necessary to effect the pass-through of the warranty to you.
6.6 Third Party Equipment. Proximiti does not restrict or otherwise lock down provision of Services to Proximiti provided Equipment. However, Proximiti does not guarantee or make any representations or warranties relative to Services compatibility with any IP telephone, mobile telephone or other device other than that Equipment provided in association with accepted service orders. Except in regard to Equipment under warranty, Customer is responsible for all lost, stolen or broken equipment and interface devices. Proximiti will not provide technical support for equipment provided by other entities.
6.7 Thirty (30) Day Guarantee. Notwithstanding the limitations contained herein, in association with selected Services, Proximiti may provide a 30 Day Satisfaction Guaranty related to certain Service(s) as outlined in Schedule 6.7. Provision of the 30 Day Satisfaction Guaranty relative to any Service is solely at the discretion of Proximiti. Where Proximiti provides a 30 Day Satisfaction Guaranty, it will be clearly indicated in the service order documentation.
6.8 Support Limitations. In no event shall Proximiti be required to provide any assistance, cooperation or information beyond that related to Proximiti’s fulfillment of these Terms of Service and any accepted service order. Proximiti shall have no obligation to provide on-site support nor shall it have any obligation to troubleshoot or take action relative to integration with other parties, implementation of any third party hardware or software and configuration of devices. Customer acknowledges and accepts that Proximiti shall have no obligation to gather, investigate, review, verify, correct, alter or produce any Customer account or Services records, documents or evidence nor to substantiate or disprove any party’s compliance with any law or legal process. Customer agrees that Proximiti shall not be required to respond to any Customer request to conduct any surveillance or identify any party. Customer will not allow any party other than Proximiti and its associated vendors to take any action, including but not limited to the execution or uploading of software to maintain, repair or upgrade the Services or its underlying infrastructure.
6.9 Mutual Respect. Customer and Proximiti agree that both parties derive value from the provision of Services offered under these Terms of Service and that due to this business relationship both parties enjoy a mutual and reciprocal respect. To that end, the parties agree that any dispute or grievance arising from the provision or billing of Services shall be resolved through the dispute resolution provisions of these Terms of Service. Customer and Proximiti agree not to, directly or indirectly, make or cause any public communication that would malign, slander, smear, undermine or disparage the other party or the Services.
7.0 Termination
7.1 Proximiti Termination. Notwithstanding Section 1.13 above, Proximiti may terminate in whole or in part, or suspend any or all of the Services, without incurring any liability, at any time upon written notice of (a) any failure of Customer to pay any amounts due hereunder; (b) any material breach by Customer of any provision of these Terms of Service; (c) any Customer or end user violation of Proximiti intellectual property rights; (d) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to Customer; (e) any suspected fraud or misrepresentation; (e) any misuse of the Services; (f) any instance where Customer has harassed, verbally abused or verbally insulted any Proximiti employee or representative; (g) any attempt by Customer or its agent to bring legal action against Proximiti or to participate in any class action proceeding against Proximiti; (h) any governmental prohibition concerning the providing of, or any required alteration of, the Services; (i) any violation of applicable law, rule or regulation on the part of the Customer; or (j) as otherwise contemplated in these Terms of Service. No such termination will relieve Customer of its obligations under these Terms of Service, including the obligation to make payments for the Services provided prior to termination or minimum service commitments.
7.2 Customer Termination. Customer may request cancellation of Services at any time by making a termination request online, in writing or by e-mail to customercare@proximiti.com. Issuance of a port-out request involving telephone numbers utilized in the provision of Services to Customer shall not be considered notice of termination under this clause and Customer acknowledges and accepts that charges will continue to be incurred on accounts associated with ported telephone numbers where adequate written notice of termination by Customer has not been submitted to Proximiti. Accounts will be cancelled by Proximiti after receipt of Customer’s written termination notice in a timely fashion. Termination of Services does not relieve Customer of responsibility to pay all amounts due including all accrued but not yet invoiced Services charges, fees and taxes.
7.3 Effect of Termination. Upon termination for any reason, Services provided to Customer will immediately cease and Customer rights to access and use Services shall be ended. Customer shall have no right and Proximiti shall have no obligation thereafter to allow access to any Communications Service or prior/post termination messages. Customer shall not be entitled to any refund or proration of any portion of invoiced charges for Services provided in the period subject to termination and all Services and unused usage credits shall expire in their entirety as of the date of termination. Further, upon termination Proximiti shall issue an invoice for any outstanding charges, remaining Equipment charges, termination charges, fees and taxes, if due, and Customer shall promptly pay said invoice. Upon termination of services for any reason, Customer’s license and right to use the Services and any associated Proximiti software shall immediately cease. Customer acknowledges and accepts full responsibility for porting out telephone numbers prior to termination of Services. Except in instances where numbers have been ported to another carrier, termination of Services will result in the full release without recourse by Customer of all related telephone numbers. Customer accepts and acknowledges that Proximiti shall incur no liability for any reason in association with suspension or termination of Services.
9. Customer Responsibilities.
9.1 Customer Acknowledgement. Customer acknowledges and agrees that:
a) Customer may not resell, transfer or distribute the Services or provide Communications Services to anyone else using the Services or features of the Services without the prior written consent of Proximiti;
b) Customer is solely responsible for any and all activities that occur in association with their utilization of the Services;
c) Customer is the creator of any and all Communications Services content ant that it is the sole determiner of message destination(s) and recipient(s) made in conjunction with the Services;
d) Customer will utilize the Services in a manner consistent with their intended, lawful, proper and appropriate purposes and will fully comply at all times with all provisions of the Federal Telephone Consumer Protection Act of 1991 (also known as the “TCPA”) and the Junk Fax Prevention Act of 2005;
e) Customer will not transmit misleading or inaccurate Caller ID and/or text header information nor utilize the Services in any manner to defraud or mislead others;
f) Customer will not distribute unsolicited marketing materials in the form of text, voice mail, facsimile or electronic facsimile capability/features of the Services;
g) Customer will utilize Proximiti intellectual property solely as required to make use of the Services during the Term and will not improperly disclose Proximiti intellectual property to third parties without Proximiti authorization;
h) Customer will not undertake, direct, carry-out, permit or authorize the modification, creation of derivative works, reverse engineering, decompiling, disassembling or hacking of the Services or any software or applications utilized in conjunction with the Services;
i) Customer will train end users and guests on proper utilization of the Services, limitations on access to 911, and security controls necessary to protect the Services against fraud and misuse;
j) Customer will immediately notify Proximiti of any unauthorized use of the Services or any other breach of security related to their account or the Service and will cooperate with Proximiti in fraud investigations and fraud prevention activities;
k) Customer will maintain adequate data recovery and back-up systems and, in the event of Services interruption or errors in data transmissions, Customer will immediately report any service issues to Proximiti and take reasonable action to mitigate any and all losses and damages;
l) Customer will not gain access to or utilize any device, system, network, account or plan in any unauthorized manner or take any action to obfuscate their behavior in regard to utilization of the Services;
m) Customer may not take any action or attempt to take action to avoid, exploit or otherwise circumvent Customer’s obligations with regard to the Services and these Terms of Service;
n) Customer will at all times utilize the Services in a lawful manner to conduct lawful business;
o) Customer will not request that Proximiti act as an arbiter or intermediary with respect to any claim of ownership relative to the Customer’s account or control of the Services including but not limited to rights to telephone number(s);
p) Customer’s misuse of Services may violate intellectual property rights of Proximiti and other third parties; and,
q) Customer will not display mark, trademark or logo of Proximiti or any third party without the express prior written consent of the owner.
9.2 Security. Customer acknowledges and accepts that the Account Administrator and all other parties with access to Proximiti systems and components shall utilize, at a minimum, a reasonable degree of care and diligence relative to the protection of Customer’s account information and Proximiti’s intellectual property. Customer agrees to ensure that all Services settings are effectively managed to prevent any unauthorized access/utilization and that Customer and its end users will not defeat, disable or circumvent any security mechanism of the Services Relative to passwords, Customer specifically acknowledges and agrees to utilize industry “best practices” to secure account and end user services. Customer agrees to continually keep user lists up-to-date and to delete any end users who are no longer authorized to access and utilize the Services. Customer agrees to effectively utilize those Services features designed to protect Proximiti, Customer and end user systems and equipment and to maintain an effective and up-to-date firewall for all points of access to the Services. Customer further agrees to promptly download software updates provided by Proximiti and to regularly check the Proximiti web site to ensure that it is operating on Proximiti’s latest software release.
9.3 Customer Consent. Customer acknowledges and consents to the monitoring and recording of calls involving Proximiti service personnel relative to the provision and support of the Services. Customer consents to the placement of outbound calls, texting and e-mails to Customer relative to the provision and support of the Services. In the event that during communications between the Customer and Proximiti, the Customer provides any feedback, answers, ideas, input, survey response, suggestions, comments or other information, Customer hereby grants Proximiti a perpetual, non-revocable, royalty free, fully paid up, worldwide right and license to utilize the provided information.
9.4 Post Termination Taxes. Should Proximiti be required to pay any taxes and/or governmental fees as described in Section 2.7 above on behalf of Customer after the date of termination of the Services, Customer agrees that they are liable for and agree to pay Proximiti for said post termination taxes and/or fees.
10. Indemnification
10.1 Indemnification by Customer. Customer will indemnify and hold harmless Proximiti and its employees, directors, officers, shareholders, affiliates, agents, resellers, vendors and other representatives from and against any and all claims, damages, losses (including loss of profits, revenue and goodwill), liabilities, penalties and expenses, including reasonable attorneys' fees and dispute resolution expense, arising out of or in connection with the use of Services provided hereunder, including (i) claims arising out of Customer’s violation of law, code, regulation or ordinance including but not limited to violation of the TCPA, Truth in Caller ID Act and the Junk Protection Act of 2005, (ii) claims for defamation libel, slander, or invasion of privacy, (iii) claims for infringement of copyright arising from any communication, (iv) claims arising from any failure, mistake, interruption, omission, delay, error, deterioration or defect of the Services, (v) claims of patent infringement arising from combining or using the Service in connection with services or equipment furnished by others (vi) claims involving rights of privacy including but not limited to those for improper notice and/or illegal utilization of call recording features and the recording of calls, (vii) claims resulting from Customer’s breach of these Terms of Service and (viii) claims of fraud in association with utilization of Services by employees and customers of Customer.
10.2 Mutual Indemnification. Each party will indemnify and hold the other harmless from and against bodily injury (including death) or damage to tangible property caused by the negligence or willful misconduct of the indemnifying party or its employees, agents or invitees in connection with the Services and these Terms of Service.
11. Warranty Disclaimer
11.1 Warranties.
a) EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT 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. PROXIMITI AND THE CUSTOMER 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 GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS. THE CUSTOMER 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 SERVICES.
b) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN THE CUSTOMER’S JURISDICTION, SERVICES ARE 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 SERVICES, CONTINUED AVAILABILITY OF ANY SERVICES, OR THAT ANY MESSAGES, CONTENT OR INFORMATION SENT BY OR TO CUSTOMER WILL BE ACCURATE, TRANSMITTED IN UNCORRUPTED FORM, UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WITHIN A REASONABLE PERIOD OF TIME.
c) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW IN THE CUSTOMER’S JURISDICTION, ALL THIRD PARTY CONTENT, THIRD PARTY SOFTWARE, THIRD PARTY SERVICES, AIRTIME SERVICES AND ACCESS TO LINKED SITES AND 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 LINKED SITES, 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, LINKED SITES 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 SERVICES. CUSTOMER SPECIFICALLY AGREES 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. CUSTOMER’S 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.
12. Limitation of Liability.
12.1 Proximiti Limitation Of Liability
a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THE SECTION IN THESE TERMS OF SERVICE ENTITLED “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 THE PROXIMITI SERVICES, DOWNTIME COSTS, LOSS OF THE USE OF CUSTOMER’S SERVICES 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 THESE TERMS OF SERVICE AND THE PROXIMITI SERVICES INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NONPERFORMANCE OF THE PROXIMITI SERVICES, 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 CUSTOMER ONLY AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE 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 THESE TERMS OF SERVICE 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 THESE TERMS OF SERVICE 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.
b) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS OF SERVICE ARE REASONABLE AND CONSTITUTE AN ESSENTIAL ELEMENT OF THE TERMS OF SERVICES BETWEEN PROXIMITI AND THE CUSTOMER AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (x) THE FEES AND OTHER TERMS IN THESE TERMS OF SERVICE WOULD BE SUBSTANTIALLY DIFFERENT; AND (y) PROXIMITI’S ABILITY TO OFFER AND CUSTOMER’S ABILITY TO PURCHASE THE PROXIMITI SERVICES OR ANY PORTION THEREOF WOULD BE IMPACTED.
c) 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 THE PROXITMITI SERVICES AND THESE TERMS OF SERVICE. NOTHING IN THESE TERMS OF SERVICE ARE INTENDED TO SUPERSEDE ANY EXPRESS WRITTEN AGREEMENTS OR WARRANTIES PROVIDED BY PROXIMITI.
d) TO THE EXTENT ALLOWED BY LAW, PROXIMITI’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM, LOSS, EXPENSE OR DAMAGE WILL IN NO EVENT EXCEED THE LESSER OF (a) SUMS ACTUALLY PAID BY CUSTOMER TO PROXIMITI FOR THE SERVICES WHICH GIVE RISE TO THE CLAIM DURING THE NINETY (90) DAYS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY OR (b) US $500.00.
12.2 CUSTOMER LIABILITY. LIMIATATIONS OF LIABILITY SET FORTH IN SECTION 12.1 ABOVE, SPECIFICALLY DO NOT APPLY TO CUSTOMER’S LIABILITY RELATED TO (i) CUSTOMER’S GROSS NEGLEGENCE OR WILLFULL MISCONDUCT, (ii) CUSTOMER’S INFRINGEMENT OF PROXIMITI INTELLECTUAL PROPERTY, (iii) CUSTOMBER’S OBLIGATION TO PAY ANY AND ALL AMOUNTS DUE PROXIMITI, AND (iv) CUSTOMERS BREACH OF SECTION 4, SECTION 5 OR SECTION 9 OF THESE TERMS OF SERVICE.
13. General.
13.1 Relationship. The relationship between Proximiti and Customer relative to the provision of Services and these Terms of Services is that of independent contractors. Nothing in these Terms of Service or in the provision of Services shall constitute or create any employment, partnership, association, agency or fiduciary relationship between these parties. Each party represents and warrants that the persons signing any service order or otherwise contracting on their behalf hereunder are their authorized representatives. Nothing in these Terms of Service shall confer upon any person or entity other than the parties themselves any right, benefit, claim or remedy as a third party beneficiary.
13.2 Assignment. Customer may not assign this Agreement without the prior written consent of Proximiti, which consent may be conditioned upon such articles as assurances of performance and ability to pay. Proximiti may assign, without notice, these Terms of Service and the right and obligation to provide Services to a successor, affiliate or other third party at any time without notice to you, provided, that any such receiving party shall be obliged to honor these Terms of Service. Any transfer or assignment in violation of this Section shall be null and void. Subject to the foregoing, the Terms of Service shall be binding upon the heirs, representatives, successors and permitted assigns of Proximiti and the Customer.
13.3 Disputes. Proximiti and Customer will use reasonable efforts to resolve any dispute, claim, question or disagreement through negotiated settlement. As part of the settlement negotiation process, the initiating party will provide the other party with written notice, in a timely manner and in reasonable detail, outlining the basis of such dispute, claim, question or disagreement. Neither party shall pursue any legal filing with any court, arbitrator or other adjudicative body prior to engaging in good faith negotiation and consultation toward resolution of all outstanding matters. Except in regard to bankruptcy, Proximiti and Customer expressly waive any right to bring, undertake, enter or join any class or collective action lawsuit or proceeding. The costs of any litigation or arbitration, whether incurred at the trial or appellate level (including attorneys' fees, court or arbitration 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.
13.4 Governing Law. 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. The United Nations Convention on Contracts for International Sale of Goods shall not apply to these Terms of Service nor do they apply to Customer’s use of Services. In addition to the provisions in these Terms of Service, the Services are subject to any applicable Proximiti tariffs filed with the Federal Communications Commission, state public utility commissions or other regulatory authority, and any provision in such tariffs will take precedence over any conflicting or inconsistent provision in these Terms of Service. Regardless of any statute or law to the contrary, Customer agrees that any suit or litigation arising from Proximiti’s provision of Services to the Customer and these Terms of Service must be filed within the earlier of one (1) year from (i) the date the cause of action arose or (ii) the date Services to Customer were terminated.
13.5 Venue. Venue for the purposes of any litigation in connection with the Services and these Terms of Service 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, irrevocably waives any right to assert that such venue is not convenient or lacks jurisdiction, and agrees not to bring any disputes in any other court or adjudicative body. Customer and Proximiti hereby irrevocably waive all rights to demand a jury trial. Relative to litigation, Customer hereby consents to service of process by certified U.S. mail, return receipt requested, at the address provided in the Customer service order.
13.6 Severability. Each provision of these Terms of Service is severable from the whole. If one provision is declared invalid, unlawful, illegal, void or unenforceable, that portion will be construed to reflect the parties’ original intent and all other provisions will remain in full force and effect.
13.6 No Waiver. Failure by a party to enforce any provision of these Terms of Service, or the waiver thereof in any instance will not be construed as a general waiver of rights.
13.7 Title to Facilities. Proximiti will not convey to Customer title of any kind to any of the equipment or transmission facilities used to provide the Services.
13.8 Force Majeure. Excluding obligations to pay, neither party shall be liable for any failure or delay in performance of its obligations hereunder that are directly or indirectly caused by any event or circumstance that is beyond that party’s reasonable control including, without limitation, acts of God, national emergency, riot, act of terrorism, fire, flood, hurricane, earthquake or other natural disaster, government actions or intervention, strike or labor disturbance, late or failed delivery of goods and/or services by any supplier, cable or fiber cuts, power outages or internet outages (each a “Force Majeure”). In the event that a Force Majeure prevents a party’s performance for more than thirty (30) consecutive days, either party may terminate Services without penalty.
13.9 Notice. Any notice to Customer given or made pursuant to these Terms of Service may be made at Proximiti’s discretion via electronic delivery to Customer’s specified e-mail address or in writing via postage prepaid United States mail or commercial delivery service. Effective delivery date for notices sent by Proximiti shall be on the date sent for electronic notice, three days after postmark for notices sent via US mail and on the date of confirmed delivery for notices sent via commercial delivery service. Customer shall be responsible for ensuring that e-mail and address information is current and correct in Proximiti systems. Notices to Proximiti must be in writing and addressed and delivered to Attention of Legal at the address of Proximiti Communications, Inc. 5410 Mariner Street, Suite 175, Tampa, Florida, 33609. Effective delivery date for notices sent to Proximiti shall be on the date received.
13.10 Construction. Wherever from the context it appears appropriate, each term stated in either the singular or the plural will include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender will include the other genders. The words "Terms of Service", "hereof," "herein" and "hereunder" and words of similar import referring to this agreement refer to this agreement as a whole, including documents incorporated by reference, and not to any particular provision of these Terms of Service. Whenever the word "include," "includes" or "including" is used in these Terms of Service, it will be deemed to be followed by the words "without limitation." The various headings contained in these Terms of Service are inserted solely for convenience of reference and in no way define, limit or extend the scope or intent of any of the provisions of these Terms of Service.
13.11 Survival. The terms, conditions and warranties contained in these Terms of Service that by their sense and context are intended to survive the performance hereof by either or both Proximiti and Customer shall so survive the completion of performance, cancellation or termination of the Services.
13.12 Entire Agreement. These Terms of Service and any terms contained in an applicable accepted service order constitute the entire agreement in regard to the Services and expressly supersedes and replaces any prior or contemporaneous understandings, written or oral, relating to the Services. Except as set forth in Section 5.19, no modification of these Terms of Service shall not be binding upon Proximiti unless agreed to in writing by a Proximiti officer.
