1.1 Your use of the Proximity5 LLC service is governed by this agreement (the "Terms"). "Proximity5 LLC" means Proximity5 LLC LLC, located at 16192 Coastal Hwy, Lewes DE, 19958, United States. The "Proximity5 LLC Services" means the services Proximity5 LLC makes available through this website, including this website, the Proximity5 LLC cloud computing platform, the Proximity5 LLC API, the Proximity5 LLC Add-ons, and any other software or services offered by Proximity5 LLC in connection to any of those.
1.2 In order to use the Proximity5 LLC Services, you must first agree to the Terms. You can agree to the Terms by actually using the Proximity5 LLC Services. You understand and agree that Proximity5 LLC will treat your use of the Proximity5 LLC Services as acceptance of the Terms from that point onwards.
1.3 You may not use the Proximity5 LLC Services if you are a person barred from receiving the Proximity5 LLC Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Proximity5 LLC Services. You affirm that you are over the age of 13, as the Proximity5 LLC Services may not be used by children under 13.
1.4 You agree your purchases of Proximity5 LLC Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Proximity5 LLC or any of its affiliates regarding future functionality or features.
2.1 You must provide accurate and complete registration information any time you register to use the Proximity5 LLC Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Proximity5 LLC immediately.
2.2 Your use of the Proximity5 LLC Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Proximity5 LLC Services by any means other than through the interface that is provided by Proximity5 LLC in connection with the Proximity5 LLC Services, unless you have been specifically allowed to do so in a separate agreement with Proximity5 LLC, or (b) engage in any activity that interferes with or disrupts the Proximity5 LLC Services (or the servers and networks which are connected to the Service).
2.4 You may use the Proximity5 LLC Services only to develop and run applications on the Proximity5 LLC infrastructure. You may not access the Proximity5 LLC Services for the purpose of bringing an intellectual property infringement claim against Proximity5 LLC or for the purpose of creating a product or service competitive with the Proximity5 LLC Services.
3.1 You agree to comply with the Proximity5 LLC Acceptable Use Policy available at acceptable use policy (the "Acceptable Use Policy") which is incorporated herein by this reference and which may be updated from time to time.
3.3 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the End Users aware that the information will be available to your application and to Proximity5 LLC.
4.1 Subject to the Terms, the Proximity5 LLC Services are provided to you without charge up to certain limits. Usage over this limit requires your purchase of additional resources or services. The pricing for additional resources and services can be found at http://proximity5.com/pricing (or such URL as Proximity5 LLC may provide).
4.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Proximity5 LLC fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Proximity5 LLC incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Proximity5 LLC's measurements of your use of the Proximity5 LLC Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Proximity5 LLC and only in the form of credit for the Proximity5 LLC Services. Nothing in these Terms obligates Proximity5 LLC to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Proximity5 LLC may be shared by Proximity5 LLC with companies who work on Proximity5 LLC's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Proximity5 LLC and servicing your account. Proximity5 LLC may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Proximity5 LLC shall not be liable for any use or disclosure of such information by such third parties. Proximity5 LLC reserves the right to discontinue the provision of the Proximity5 LLC Services to you for any late payments.
4.3 Proximity5 LLC may change its fees and payment policies for the Proximity5 LLC Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL Proximity5 LLC may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
4.4 You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Proximity5 LLC Services in a manner intended to avoid incurring fees.
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Proximity5 LLC Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the web application that you create using the Proximity5 LLC Services and any source code written by you to be used with the Proximity5 LLC Services (collectively, "Applications").
5.2 Proximity5 LLC reserves the right (but shall have no obligation) to remove any or all Content from the Proximity5 LLC Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Proximity5 LLC. In the event that you elect not to comply with a request from Proximity5 LLC to take down certain Content, Proximity5 LLC reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. Proximity5 LLC reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that Proximity5 LLC has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Proximity5 LLC Services and for the consequences of your actions (including any loss or damage which Proximity5 LLC may suffer) by doing so.
5.5 You agree that Proximity5 LLC has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6.1 You acknowledge and agree that Proximity5 LLC (or Proximity5 LLC's licensors) own all legal right, title and interest in and to the Proximity5 LLC Services, including any intellectual property rights which subsist in the Proximity5 LLC Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2 Except as provided in Section 8, Proximity5 LLC acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Proximity5 LLC Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Proximity5 LLC, you agree that you are responsible for protecting and enforcing those rights and that Proximity5 LLC has no obligation to do so on your behalf.
7.1 Proximity5 LLC grants you a revocable, personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Proximity5 LLC as part of the Proximity5 LLC Services as provided to you by Proximity5 LLC. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Proximity5 LLC Services as provided by Proximity5 LLC, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Proximity5 LLC Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Proximity5 LLC, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Proximity5 LLC Services or any applications running on the Proximity5 LLC Services; or (c) use the Proximity5 LLC Services in any way that may subject the Proximity5 LLC Services to any obligations under any open source software license, including, without limitation any license which imposes any obligation or restriction with respect to Proximity5 LLC’s patent or other intellectual property rights in the Proximity5 LLC Services.
7.3 Open source software licenses for components of the Proximity5 LLC Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Proximity5 LLC for the use of the components of the Proximity5 LLC Services released under an open source license.
8.1 Proximity5 LLC claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Proximity5 LLC Services you give Proximity5 LLC a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Proximity5 LLC to provide you with the Proximity5 LLC Services. Furthermore, by creating an Application through use of the Proximity5 LLC Services, you give Proximity5 LLC a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Proximity5 LLC to provide you with the Proximity5 LLC Services.
8.2 By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Proximity5 LLC Services functionality or features for the sole purpose of collaborating on development of the Application(s).
8.3 You may choose to or we may invite you to submit comments or ideas about the Proximity5 LLC Services, including without limitation about how to improve the Proximity5 LLC Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Proximity5 LLC under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
8.4 You agree that Proximity5 LLC, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Proximity5 LLC Services.
9.1 Proximity5 LLC is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Proximity5 LLC Services which Proximity5 LLC provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Proximity5 LLC Services will be effective with respect to all versions of the Proximity5 LLC Services; examples of changes to the form and nature of the Proximity5 LLC Services include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.
9.2 You may terminate these Terms at any time by canceling your account on the Proximity5 LLC Services. You will not receive any refunds if you cancel your account.
9.3 You agree that Proximity5 LLC, in its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Proximity5 LLC Services may be without prior notice, and you agree that Proximity5 LLC will not be liable to you or any third party for such termination.
9.4 You are solely responsible for exporting your Content and Application(s) from the Proximity5 LLC Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
9.5 Upon any termination of the Proximity5 LLC Services or your account these Terms will also terminate, but Sections 6.1, 9, 10, 11, 12, and 16 shall continue to be effective after these Terms are terminated.
10.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 10 AND 13, SHALL EXCLUDE OR LIMIT PARSE'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE PARSE SERVICE IS AT YOUR SOLE RISK AND THAT THE PARSE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
10.3 PARSE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE PARSE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PARSE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE PARSE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE PARSE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE PARSE SERVICES WILL BE ACCURATE.
11.1 SUBJECT TO SECTION 10.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT PARSE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
11.2 THE LIMITATIONS ON PARSE'S LIABILITY TO YOU IN PARAGRAPH 11.1 ABOVE SHALL APPLY WHETHER OR NOT PARSE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
12.1 You agree to hold harmless, defend and indemnify Proximity5 LLC, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively "Proximity5 LLC and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Proximity5 LLC Services, (c) your violation of applicable laws, rules or regulations in connection with the Proximity5 LLC Services, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Proximity5 LLC will provide you with written notice of such claim, suit or action.
13.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Proximity5 LLC's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to http://proximity5.com/policies.
14.1 The Proximity5 LLC Services may include hyperlinks to other web sites or content or resources or email content. Proximity5 LLC may have no control over any web sites or resources which are provided by companies or persons other than Proximity5 LLC.
14.2 You acknowledge and agree that Proximity5 LLC is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3 You acknowledge and agree that Proximity5 LLC is not liable for any loss or damage which may be incurred by you or your End Users as a result of the content or availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15.1 Proximity5 LLC may make changes to the Terms from time to time. If we change the Terms in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
15.2 You understand and agree that if you use the Proximity5 LLC Services after the date on which the Terms have changed, Proximity5 LLC will treat your use as acceptance of the updated Terms.
16.1 Except to the extent you and Proximity5 LLC have entered into a separate written agreement that is expressly intended to supersede these Terms either in whole or in part, the Terms constitute the whole legal agreement between you and Proximity5 LLC and govern your use of the Proximity5 LLC Services (but excluding any services which Proximity5 LLC may provide to you under a separate written agreement), and completely replace any prior agreements between you and Proximity5 LLC in relation to the Proximity5 LLC Services.
16.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
16.3 If Proximity5 LLC provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
16.4 You agree that Proximity5 LLC may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Proximity5 LLC Services. By providing Proximity5 LLC your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
16.5 You agree that if Proximity5 LLC does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Proximity5 LLC has the benefit of under any applicable law), this will not be taken to be a formal waiver of Proximity5 LLC's rights and that those rights or remedies will still be available to Proximity5 LLC.
16.6 Proximity5 LLC shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
16.7 The Terms, and your relationship with Proximity5 LLC under the Terms, shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. You and Proximity5 LLC agree to submit to the exclusive jurisdiction of the courts located within the county of Lewes, Delaware to resolve any legal matter arising from the Terms.
16.8 You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of Proximity5 LLC (not to be unreasonably withheld).