Home / Home Office Terms of Service
These Terms of Service constitute the agreement ("Agreement") between Proximiti, Inc. ("we," "us" or "Proximiti") and the user ("you," "user" or "Customer") of Proximiti's communications services and any related products or services ("Service").
This Agreement governs the Service and any access devices, hardware or software based, ("Device" or "Equipment") used in conjunction with the Service.
You are deemed to have accepted this Agreement upon any of: (a) your submission of an online order; (b) your accepting the Terms of Service electronically during registration or in the course of installing the Device; (c) your use of the Service; (d) your clicking on "I AGREE WITH TERMS ABOVE" at the appropriate page.
If you do not agree to any of the terms set forth herein, you may not use the Service.
1. SERVICE
1.1 Generate Terms
1.1.1 Term
Service is offered on a monthly basis for a term which begins on the date that Proximiti activates your Service and ends on the day before the same date in the following month.
Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Proximiti notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given.
You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable.
Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.1.2
Proximiti provides free or heavily discounted devices to some subscribers.
If the subscriber terminates service prior to 6 months they will be responsible for paying a one-time fee per device as specified in their pricing plan.
1.2 Usage
1.2.1 Residential Use of Service and Devices
If you have subscribed to Proximiti's Residential services, the Service and any Devices are provided to you as a residential user, for your personal, residential, non-business and non-professional use.
This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, including but not limited to home office, business, sales, tele-commuting, telemarketing (including without limitation charitable or political solicitation or polling), autodialing, continuous or extensive call forwarding, fax broadcast, fax blasting or any other activity that would be inconsistent with normal residential usage patterns.
This also means that you are not to resell or transfer the Service or the Device to any other person for any purpose, or make any charge for the use of the Service, without express written permission from Proximiti in advance.
You agree that your use of the Service and/or Device, or the use of the Service and/or Device provided to you by any other person for any commercial or governmental purpose could obligate you to pay Proximiti's higher rates for commercial service on account of all periods, including past periods, in which you use, or used, the Service for commercial or governmental purposes.
Proximiti reserves the right to immediately terminate or modify the Service, if Proximiti determines, in its sole discretion, that Customer's Service is being used for non-residential or commercial use, is being used for illegal activities, or is in violation of any of the Terms of Service.
1.2.2 Home Office and Small Business Use of Service and Devices - Prohibition on Resale If you have subscribed to Proximiti's Home Office or Business services, the Service and any Devices are provided to you as a small business user.
This means that you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Proximiti in advance.
You agree that the Proximiti Home Office and Small Business Plans do not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting.
Proximiti reserves the right to immediately terminate or modify the Service, if Proximiti determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities, is being used for illegal activities, or is in violation of any of the Terms of Service.
1.2.3 Standalone Communications Assistant Service Use of Service If you have subscribed to Communications Assistant services, you are not to resell or transfer the service or device to any other person for any purpose, without express written permission from Proximiti in advance.
Proximiti reserves the right to immediately terminate or modify the Service, if Proximiti determines, in its sole discretion, that Customer's Service is being used for illegal activities or is in violation of any of the Terms of Service.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses
You agree to use the Service and Devices only for lawful purposes.
This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Proximiti's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.
Proximiti reserves the right to terminate your service immediately and without advance notice if Proximiti, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable.
You are liable for any and all use of the Service and/or Device by yourself and by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Proximiti against any and all liability for any such use.
If Proximiti, in its sole discretion believes that you have violated the above restrictions, Proximiti may forward the objectionable material, as well as your communications with Proximiti and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.
1.3.2 Use of Service and Device by Customers Outside the United States While we encourage use of the Service within the United States to other countries, Proximiti does not presently offer or support the Service to customers located in other countries.
If you remove the Device to a country other than the United States or Canada and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so.
You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Proximiti against any and all liability for any such use.
Should the removal from the United States or Canada of the Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless Proximiti against any and all liability for such violation.
Proximiti reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States or Canada.
1.4 Loss of Service Due to Power Failure or Internet Service Outage or Termination or Suspension or Termination by Proximiti
1.4.1 VoIP Service You acknowledge and understand that the VoIP Service does not function in the event of power failure.
You also acknowledge and understand that the VoIP Service requires a fully functional broadband connection to the Internet and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider, the VoIP Service will not function, but that you will continue to be billed for the VoIP Service unless and until you or Proximiti terminate the Service in accordance with this Agreement.
Should there be an interruption in the power supply or ISP outage, the VoIP Service will not function until power is restored or the ISP outage is cured.
A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service.
Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911 calling feature.
Should Proximiti suspend or terminate your Service, the VoIP Service will not function until such time as Proximiti restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
1.4.2 Communications Assistant Service You acknowledge and understand that the Communications Assistant Services are subject to outages including, but not limited to, failures in transmission networks, or other service elements.
In the event of an outage or service unavailability, you will continue to be billed for the Communications Assistant Service unless and until you or Proximiti terminate the Service in accordance with this Agreement.
Should Proximiti suspend or terminate your Service, the Communications Assistant Service will not function until such time as Proximiti restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
1.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and Devices and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Devices, and all Services, information, documents and materials on Proximiti's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions.
All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Proximiti are and shall remain the exclusive property of Proximiti and nothing in this Agreement shall grant you the right or license to use any of such marks.
You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Devices, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement.
You expressly agree that the Devices is exclusively for use in connection with the Service and that Proximiti will not provide any passwords, codes or other information or assistance that would enable you to use the Devices for any other purpose.
If you decide to use the Service through an interface device not provided by Proximiti, which Proximiti reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Proximiti against any and all liability arising out of your use of such interface device with the Service.
You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.6 Tampering with the Devices or Service
You agree not to change the electronic serial number or equipment identifier of any Device, or to perform a factory reset of the Device, during the period of service without express permission from Proximiti in each instance which Proximiti may deny in its sole discretion.
Proximiti reserves the right to terminate your Service should you tamper with any Device, leaving you responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable.
You agree not to hack or disrupt the service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
1.7 Theft of Service You agree to notify Proximiti immediately, in writing or by calling the Proximiti customer care line, if a Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used.
When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service.
Failure to do so in a timely manner may result in the termination of your Service and additional charges to you.
Until such time as Proximiti receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.
1.8 Return of Device
All devices provided with the service become the sole property of the end user upon termination of the service.
If service is terminated prior to the limits described elsewhere herein, a termination fee may apply for each device.
1.9 Number Transfer on Service Termination
Upon termination of the Service, Proximiti may, at its sole discretion, release a telephone number that was ported in from a previous service provider to Proximiti by you and used in connection with your Service provisioned by Proximiti to your new service provider, if such new service provider is able to accept such number, and provided that (i) your account has been terminated; (ii) your Proximiti account is completely current including payment for all charges and disconnect fees; and (iii) you request the transfer upon terminating your account.
1.10 Service Distinctions
You acknowledge and understand that the VoIP Services are not a telephone service.
Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the VoIP Services provided by Proximiti.
The Service is subject to different regulatory treatment than telephone service.
This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
1.11 Ownership and Risk of Loss
You shall be deemed the owner of the Devices, and bear all risk of loss of, theft of, casualty to or damage to the Devices, from the time it is shipped to you until the time (if any) when it is returned by you pursuant to Section 1.8 and has been received by Proximiti.
1.12 No 0+ Calling; May Not Support x11 Calling
Proximiti's Service does not support 0+ calling (including without limitation collect, third party billing or calling card calling).
Proximiti's Service may not support 311, 511 and/or other x11 (other than 911, 611 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2. EMERGENCY SERVICES- 911 DIALING
2.1 Definitions
2.1.1 E-911
Enhanced-911 or E-911 enables calls to be routed to Public Safety Answering Points (PSAP) such that both the calling phone number and the address are immediately available to the PSAP operator.
2.1.1.1
2.1.2 Traditional 911
Traditional 911 provides only the phone number to the PSAP operator.
The caller must stay on the line and be able to provide location information in order to receive emergency response services.
2.2 Description of 911-Type Dialing Capabilities - VoIP Services
Proximiti VoIP Services support E-911 (where available) and traditional 911.
You acknowledge and understand that the Service supports traditional 911 or E911 access to emergency services ONLY IF THE SERVICE IS OPERATED FROM THE SERVICE LOCATION OF RECORD, and then only if the user has an active connection to the service, in accordance with these Terms of Service.
2.2.1 Service Outage
2.2.1.1 Power Failure or Disruption
You acknowledge and understand that 911 dialing does not function in the event of a power failure or disruption.
Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored.
A power failure or disruption may require the Customer to reset or reconfigure equipment prior to utilizing the Service or 911 dialing.
2.2.1.2 Broadband Service / ISP Outage or Termination / Suspension or Termination by Proximiti
You acknowledge and understand that service outages or suspension or termination of service by your broadband provider and/or ISP or by Proximiti will prevent ALL Service including 911 dialing.
2.2.1.3 Service Outage Due to Suspension of Your Account
You acknowledge and understand that service outages due to suspension of your account as a result of billing issues may prevent ALL Service, including 911dialing.
2.2.1.4 Other Service Outages
You acknowledge and understand that if there is a service outage for ANY reason, such outage may prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement.
2.2.2 Failure to Designate the Correct Physical Address When Enrolling or Changing You Address
Failure to provide the current and correct physical address and location of your Proximiti equipment during enrollment or change of address will result in any 911 communication you may make being routed to the incorrect local emergency service provider and will likely prevent a timely response to your emergency. This must be the actual physical street address where you are located, not a post office box, mail drop or similar address.
2.2.3 Use of Service From Different Location
You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Proximiti Device to a different street address.
Failure to provide the current and correct physical address and location of your Proximiti equipment will result in any 911 dialing you may make being routed to the incorrect local emergency service provider.
This emergency service provider may not be able to provide emergency services.
2.2.4 Alternative 911 Arrangements
You acknowledge that Proximiti does not offer primary line or lifeline services.
You should always have an alternative means of accessing traditional E911 services.
2.2.5 Softphones
Proximiti 911 dialing cannot be used in conjunction with a Proximiti Soft Phone application, and is only available on Proximiti-certified Devices or Equipment.
2.3 Description of 911-Type Dialing Capabilities - Communications Assistant Services
Proximiti Communications Assistant Services does not support traditional 911 or E-911.
2.4 Alternative 911 Arrangements
You acknowledge that Proximiti does not offer primary line or lifeline services.
You should always have an alternative means of accessing traditional E911 services.
2.5 Limitation of Liability and Indemnification
You acknowledge and understand that Proximiti's liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this document.
You agree to defend, indemnify, and hold harmless Proximiti, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service relating to the absence, failure or outage of the Service, including 911 dialing and/or inability of Customer or any third person or party or user of Customer's Service to be able to dial 911 or to access emergency service personnel.
Neither Proximiti nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing unless it is proven that the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct on the part of Proximiti.
You agree to indemnify and hold harmless Proximiti and its third party provider from any claim or action arising out of misroutes of 911 calls, including but not limited to your failure to follow correct usage procedures for 911 calling or your provision to Proximiti of incorrect information in connection therewith.
3. CHANGES TO THIS AGREEMENT
Proximiti may change the terms and conditions of this Agreement from time to time.
Such changes will become binding on Customer, on the date posted to the Proximiti website and no further notice by Proximiti is required.
This Agreement as posted supersedes all previously agreed to electronic and written terms of service, including without limitation any terms included with the packaging of the Service and/or Devices.
4. CHARGES / PAYMENTS / DEFAULT / TAXES / TERMINATION
4.1 Billing
You must give us a valid credit card or debit card number (Visa, MasterCard or any other issuer that is accepted by Proximiti) when the Service is activated. Proximiti reserves the right to stop accepting credit cards from one or more issuers.
If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise Proximiti at once.
We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which Proximiti decides to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges.
Proximiti reserves the right to bill at more frequent intervals if the amount due at any time exceeds $50.
Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on Proximiti's website.
4.2 Billing Disputes
You must notify Proximiti in writing within 7 days after receiving your credit card statement if you dispute any Proximiti charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Proximiti
Customer Care and Billing
P.O. Box 1571
Tampa Fl. 33601
or customercare@proximiti.com
4.3 Payment
Proximiti accepts payments only by credit card or debit card as set forth in Section 4.1.
Your initial use of the Service authorizes Proximiti to charge the credit card or debit card account number on file with Proximiti, including any changed information given Proximiti if the card expires or is replaced, or if you substitute a different card, for Proximiti charges as set forth in Section.
4.3.1. This authorization will remain valid until 30 days after Proximiti receives your written notice terminating Proximiti's authority to charge your credit card, whereupon Proximiti will charge you the disconnect fee and any other outstanding charges and terminate the Service.
Proximiti may terminate your Service at any time in its sole discretion, if any charge to your credit card on file with Proximiti is declined or reversed, your credit card expires and you have not provided Proximiti with a valid replacement credit card or in case of any other non-payment of account charges.
Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to Proximiti for ALL CHARGES ACCRUED BEFORE TERMINATION and for all costs incurred by Proximiti in collecting such amounts, such as (but not limited to) collection costs and attorney's fees.
4.4 Termination/Discontinuance of Service Proximiti reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion.
If Proximiti discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges.
If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service or Device (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of Proximiti or of a third party provider to which Proximiti is subject), you will be responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus the disconnect fee set forth in Section 4.6, all of which immediately become due and payable.
4.5 Taxes
You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device.
Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement.
If you are exempt from payment of such taxes, you shall provide Proximiti with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status.
Tax exemption will only apply from and after the date Proximiti receives such certificate.
4.6 Money Back Guarantee; Limitations and Conditions
4.6.1 Proximiti offers a 14-day Money Back Guarantee (30 or 90 days for Retail Customers; see offer details in advertising or online content of the retailer from whom Retail Customer purchased Equipment for the applicable time period) (such 14, 30 or 90 day period, the "Warranty Period"), applicable only to User's first-ordered line per account, not to additional or secondary lines.
Under terms of this Money Back Guarantee, Proximiti refunds the activation fee (if any), first month of service, and shipping charges and waives the disconnect fee, provided the terms described below are satisfied.
Federal excise taxes and any other applicable taxes cannot be refunded.
Proximiti reserves the right to terminate or revoke this Money Back Guarantee at any time, without prior notice.
In order to be entitled to this Money Back Guarantee, User (i) must cancel service within the number of days in the Warranty Period after the account activation; (ii) must return all Devices within 14 days after cancellation; and (iii) must not have exceeded 250 minutes of usage.
User remains responsible for any charges for domestic usage in excess of the amount included within the Plan to which User subscribes, international usage (including the charges described in Section 4.9), payphone calls to Proximiti toll free numbers and directory assistance.
THIS MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS EXCEEDING 250 MINUTES OF USAGE AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY OF THE CHARGES DESCRIBED HEREIN.
In addition to the requirements set forth in Section 1.8, all returned Devices must be in the original packaging with the UPC or bar code intact.
All components, manuals and registration card(s) must be included.
Equipment must be returned with a valid return authorization number obtained from Proximiti customer care.
User is responsible for the cost and risk of return shipping of equipment.
THE MONEY BACK GUARANTEE WILL NOT BE HONORED IF USER FAILS TO MEET ALL SUCH REQUIREMENTS.
To obtain a return authorization number, User must contact billing@proximiti.com or (866) 338-9116.
4.7 Payphone Charges If you make use of Proximiti's Travelcard or any toll free feature that may be offered by Proximiti in the future, you acknowledge and agree that Proximiti is entitled to recover from you any charges imposed on Proximiti by payphone owners or operators, either directly or indirectly through Proximiti's suppliers in connection with toll free calls made to your number, or any charges imposed on Proximiti by its suppliers to recover such costs.
Proximiti may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as Proximiti deems appropriate for the recovery of these costs.
4.8 Charges for Directory Calls
Proximiti will charge no more than $1.00 for each call made to Proximiti directory assistance, and up to 9.9 cents/minute for calls made through call completion from directory assistance.
5. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability
Proximiti shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
1.) act or omission of an underlying carrier, service provider, vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure caused by the loss of power to Customer;
8) outage of Customer's ISP or broadband service provider;
9) act or omission of Customer or any person using the Service or Device provided to Customer; or
10) any other cause that is beyond Proximiti's control, including without limitation a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 911 dialing) to be connected or completed, or degradation of voice quality.
Proximiti's aggregate liability for (i) any failure or mistake; (ii) any claim with respect to Proximiti's performance or nonperformance hereunder or (iii) any Proximiti act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages
IN NO EVENT SHALL PROXIMITI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE.
THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT PROXIMITI WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification
Customer agrees to defend, indemnify, and hold harmless Proximiti, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer's Service, relating to this Agreement, the Services, including 911dialing, or the Device.
This paragraph shall survive termination of this Agreement.
5.4 No Warranties on Service PROXIMITI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS.
WITHOUT LIMITING THE FOREGOING, PROXIMITI DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION.
NEITHER PROXIMITI NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO PROXIMITI'S OR CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PROXIMITI'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE.
STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY PROXIMITI OR PROXIMITI'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Warranties, or Limited Warranties, for Devices
If Customer received the Device new from Proximiti and the Device included a limited warranty at the time of receipt, Customer must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties.
Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
If Customer's Device did not include a limited warranty from Proximiti at the time of receipt, Customer agrees that it accepts its Device "as is" and that Customer is not entitled to replacement or refund in the event of any defect.
OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, Proximiti MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE, DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS.
THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.
5.6 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
5.7 Content
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services.
You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use.
Proximiti reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if Proximiti determines that such use or content doer not conform with the requirements set forth in this Agreement or interferes with Proximiti's ability to provide Services to you or others or receives notice from anyone that your or Users' use or Content may violate any laws or regulations.
Proximiti's actions or inaction under this Section shall not constitute review or approval of your or Users' use or Content.
You will indemnify and hold Proximiti against any and all liability arising from the content transmitted by or to you or to Users using the Services.
A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
6. GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration
Any dispute or claim between Customer and Proximiti arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.
The arbitration shall take place in Tampa, Florida and shall be conducted in English.
The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding.
Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages.
Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration.
CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law
The Agreement and the relationship between you and Proximiti shall be governed by the laws of the State of Florida.
To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 6.1, you and Proximiti agree to submit to the personal and exclusive jurisdiction of the courts located within the state of Florida and waive any objection as to venue or inconvenient forum.
The failure of Proximiti to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Entire Agreement
This Agreement and the rates for Services found on Proximiti's website constitute the entire agreement between you and Proximiti and govern your use of the Service, superseding any prior agreements between you and Proximiti and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
No amendment to this Agreement shall be binding upon Proximiti unless and until posted in accordance with Section 3 hereof.
6.4 Severability
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable.
Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
7. PRIVACY
Proximiti Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications.
Proximiti is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy applicable to you at http://www.proximiti.com/ for additional information.
Last Updated: July 19, 2005