BroadProximity, Mobile Device Marketing, products, management services are governed solely by this Agreement and other documents which may be executed at any time.
1. Parties and Contract. These Terms and Conditions are incorporated into, and are a part of, the BroadProximity Service Agreement/Advertising Agreement. Accordingly, as used herein, the term “this Contract” includes (i) the document titled “Service Agreement/Advertising Agreement” and (ii) these Terms and Conditions. In the event of a conflict between the documents titled “Service Agreement/Advertisign Agreement” and these Terms and Conditions, these Terms and Conditions shall govern. This Contract also includes the terms of any accompanying addendum. “We,” “our” or “us” means BroadProximity, a California partnership doing business as: BroadProximity. “You” or “your” or “signer” means the person or other legal entity or authorized person(s) shown after “Advertiser.” “Advertisement” or “Advertising” or “Service/Advertising Agreement” means all items included in this Contract to appear in our digital publication(s). This Contract is not binding on us until accepted by our management, which may be conditional. Acceptance may be evidenced by the appearance of the BroadProximity advertising data, Analytics and Dashboard.
2. Term and Termination. BroadProximity advertising, branding, educating, informing and sending notifications to mobile devices, and desktop for the purpose of but not limited to obtaining a customer, branding of business name, educating, informing, service or product. Contract applies to all BroadProximity services unless otherwise stated on the Service Agreement/Advertising Contract; the issue life of a BroadProximity is generally 6 months. However, the actual life of BroadProximity service(s) may vary, in which case the amounts due will be the monthly charges for the actual BroadProximity service(s) in use by you/signer/authorized person. After the end of the issue life of the BroadProximity service(s) any corresponding advertisingwill be removed unless a new contract is entered into with respect to such advertising.
A. There will be no automatic renewal of BroadProximity advertising. Cancellations effective at the end of the 6 month term, must be in writing and delivered to the other party at least 30 days prior to the end of the 6 month term or current monthly cycle (if month-to-month). You must send cancellation notices to either the e-mail or mailing address provided on the Advertising Contract, or any other address subsequently provided by you to us. You must send cancellation notices to either: firstname.lastname@example.org or by certified mail to: 668 Industrial Park Dr. #4314, Manteca, CA. 95337. We also reserve the right during any month-to-month term, upon the same notice required above, to change these terms and conditions and/or the change the pricing for the BroadProximity service(s).
B. Pre-Broadcast Termination for Credit or Delinquencies. We may terminate this Contract prior to deployment of BroadProximity service(s), provisioning if there are any delinquent bills outstanding for any prior advertisement that was either ordered by you/singer/authorizedperson or that promoted you or any person included in the advertisement which is the subject of this Contract.
C. Other Cancellation or Modification. Except as otherwise provided above, this Contract may only be modified or cancelled by written agreement signed by both parties. Any request for such modification or cancellation by you must be in writing and sent by certified mail to: 668 Industrial Park Dr. #4314, Manteca, CA. Anything received not in a timely manner, weekend, and holiday or beyond our control will not be considered.
3. Proofs, Advertising Content and Placement are the responsibility of Advertiser.
A. Providing Content to Us. You must provide us with advertising content and artwork. If you fail to do so prior to the deadline we set, then we may publish solely your business name, address and telephone number. In such event, your payment obligations will remain the same. If we (or another party on our behalf) create or supply any artwork, illustrations, photographs, text or other content for your Advertising, we retain ownership of copyrights and all other intellectual property interests in such materials.
B. Our Right to Reject/Alter Content. We may, at any time, reject or alter any advertisement which we, in our sole discretion, deem inappropriate for our publication.
C. Your Warranties re: Content. You represent and warrant that any advertising content you supply to us (or authorize us to use) will not violate any copyrights, trademark, service mark,trade name, or any other rights of any third party, and that your Advertising contains only matters which are truthful, lawful, and authorized for use, and contains no matter which is misleading, libelous, or injurious. You also represent and warrant that you and any individuals listed in your Advertising have all required licenses to provide the goods and services advertised. If we receive allegations that your advertising violates any law or third party rights, including without limitation copyrights or trademark rights, we may (but are notobligated to) remove the disputed content immediately from BroadProximity site, service and all BroadProximity service(s).
4. Payment Obligations.
A. Monthly Payments. You agree to pay us or our agent all monthly amounts due according to the payment schedule on this Contract. Except as otherwise provided in this Contract, your liability to us arises only as time goes by and monthly payments become due.
B. Late Fees & Interest. We incur substantial costs and expenses prior to implementation and your failure to make timely payments subjects us to substantial losses. You agree that time is of the essence in your payment, and that you will pay strictly in accordance with the paymentschedule. It is also agreed that if you are late with a payment, it would be extremely difficult or impractical to fix actual damages resulting from the late payment; therefore, you agree to pay us a late charge of $20.00 for the cost of administering the late payment for each month you are late. In addition, interest of 1.65% per month (19.8% Annual Percentage Rate) or thehighest rate allowed by law will be charged on all past due principal amounts.
5. Prohibited Use. By using the site or services you agree not to upload any material that: infringes on copyrightor other intellectual property right of any other person or entity: is illegal, defamatory, libelous, deceptive, fraudulent, obscene or offensive: would be considered spam, unsolicited advertising or low quality data uploaded for the purpose of harming services: contains software virus or other code designed to disrupt computing services, as uploaded violates a valid third party agreement, not to take any action that interferes or may interfere, based on our sole discretion, with operation of the site or services, including but not limited to: placing an unreasonable load on BroadProximity service(s) infrastructure, circumventing security features used to prevent or restrict access to or use of the site or services, creating user accounts by automated means, impersonating any person or entity, using the site or services for any illegal purpose, using any embeddable or syndicatable features of the site or services in a way that alters or circumvents how BroadProximity service(s) designed such feature to be used, using of any embeddable or syndicatable features of the site or services for the primary purpose of gaining advertising or subscription revenue, selling reselling, redistribution, or sublicensing the services or otherwise charging third parties for access to the site or services. For the avoidance of doubt, these commercial restrictions do not generally apply to data and content accessed via the service, but rather to the use of the services themselves – except in certain circumstances noted (your contribution and use of data and content).
6. Relationship of Parties. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these terms of service, and these terms of service are solely between you and BroadProximity and are not intended to be for the benefit of any third party. If there is a dispute between participants on the site, or between users and any third party, you understand and agree that BroadProximity is under no obligation to become involved. In the event that you have a dispute with one or more users or third parties, you herby release BroadProximity service(s), its officers, employees, agents and successors in rights from claims, demand and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or services.
7. Property Rights and Trademark. The visual interfaces, graphics, designs, compilation, code, products, services and all other proprietary elements of the site and services provided by BroadProximity service(s) (the materials) are protected by the United States copyright, trade dress, patent and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. The parties agree that the information generated by BroadProximity service(s) and site is owned by BroadProximity and may be used by BroadProximity. Results can be viewed by advertiser on a monthly basis while under agreement. Advertiser acknowledges that BroadProximity may use the information obtainedthrough and gathered by BroadProximity services and site for testimonials, advertising, selling and other promotional and marketing programs. Advertiser authorizes BroadProximity to use Advertisers name in conjunction with the use of this information in BroadProximity’s promotional, advertising and marketing programs. Except as otherwise designated here and on the site or services, all materials contained on the site or services are the property of BroadProximity or its subsidiaries or affiliated companies and/or third part licensors and may be used to. Except as expressly authorized by BroadProximity, you agree not to sell, sell access to, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivate works from, or otherwise make unauthorized use of the proprietary elements of the site and services.
8. Additional Remedies for Breach. If you breach this Contract, in addition to the other remedies expressed herein, we may declare all amounts that may become due under this Contract immediately due and payable without notice to you. We may also refer you to collection and credit reporting agencies.
9. Choice of Law; Venue; Legal Fees. California substantive law governs this Contract without regard to the conflict of law provisions. This Contract will be performed in San Joaquin County; CA. Venue for any legaldisputes will be in San Joaquin County, CA. Both parties waive any rights to participate in any class or representative legal action related to this Contract, and waives any rights to a jury trial. In any legal action to collect amounts owing to us under this Contract, the prevailing party will be entitled to reasonable attorneys' fees, court and/or arbitration costs (including the fees of the arbitrator) and costs of collections, in addition to any other relief awarded.
10. No Waiver. Any waiver of our rights under this Contract must be in writing and will not constitute a waiver of any similar or future rights. Our acceptance of partial or delinquent payments or our failure to exercise any right to late charges will not be considered a waiver of any rights herein. Additionally, we may apply any payment made by you to any past due debt then owed by you to us whether under this Contract or otherwise. You waive the provisions of theCivil and Commercial Codes relating to accord and satisfaction. No acceptance of any payment or any instrument marked with any restricted covenant or other limited or conditional endorsement will be deemed a waiver of our rights under this Contract.
11. Indemnification. You agree to indemnify, defend and hold us and any of our shareholders, directors, officers, employees, agents, representatives and assigns harmless from and against all claims, demands, damages, losses, expenses, costs of defense, attorneys' fees, and liabilities arising out of or in any way caused by or connected with this Contract or the publication of your Advertising. Any legal defense provided by you to us under this paragraph shall be performed by counsel satisfactory to us.
12. No Warranties of Usage or Results. We do not warrant and you expressly disclaim any reliance on any statements or representations, including estimates, not contained in this Contract, including without limitation, the number or percentage of businesses or residents that will receive the message or the number of responses to your Advertising, the number of persons who will view your Advertising, or any other business benefit. We are not responsible for any inaccuracies in any materials or data accessed vie the site or services regardless of the cause: whether attributable to users or to BroadProximity service(s). We are not responsible for the conduct,whether online or offline, of any user of site or services. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction of unauthorized access to or alteration of any communication with other users. We are not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the internet or at the site or combination thereof, inducing any injury or damage to users or to any person’s computer related to or resulting from participation or downloading materials in connection with site or services. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of site or services for any content posted on the site or transmitted to users, or any interactions between users of site or services, whether online or offline. Site or service are provided as-is and as available. We expressly declaim any warranties and conditions of any kind, whether express or implied including the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy or non-infringement. We make no warranty that (A) the Page 4 of 6 services will meet your requirements (B) the services will be available on an uninterrupted, timely, secure or error-free basis or (C) the results that may be obtained from the use of the services will be accurate or reliable.
13. Assignment. You may not assign or transfer any rights or obligations under this Contract without our express written consent, which may be granted or withheld in our sole discretion. Subject to the foregoing, this Contract is binding upon and shall inure to the benefit of each party’s successors and permitted assigns. We may sell, assign or transfer our rights and obligations under this Contract (or any portion thereof) to any person or entity at any time.
14. Entire Agreement. This Contract is the entire and final agreement between you and us. We are not bound by anyagreement, representation or understanding not expressed herein. If any part of this Contract is held to be unenforceable, the enforceability of the remainder of this Contract shall not be impaired.
15. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, but not limited to, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 7 days following Notice given by it, the other party may thereafter terminate this Agreement upon Notice.
16. Limitation of Liability. Our liability for any cause of action arising out of or related to this Contract, including for errors or omissions by us, will be limited to a pro rata adjustment of advertising charges in the same proportion that the effectiveness of your Advertisement has been reduced. If the effectiveness of your Advertisement has not been reduced, then we will not be liable for any such cause of action. In no event will we be liable for any loss of your business, revenues or profits, your cost of other forms of advertising, or special, consequential, indirect or punitive damages of any nature. No refund by us to you will exceed the price of the Advertisement stated on this Contract. The foregoing provisions apply to the full extent permitted by law, regardless of whether your claim is based on contract, tort, statute, regulation, or otherwise. The recovery allowed herein constitutes our sole liability to you and your exclusive remedy against us in the event of such error, omission, or other breach of duty to you. However, if you do not desire to waive such claim for loss or damages, you may negotiate to pay additional charges upon contract signing, with our President's written approval, so that our liability will not be limited as stated herein. These additional charges will be based on the type of business, the monthly bill, and other factors of risk. If you are interested in obtaining additional information about this option, you must call our customer service manager at (800) 509-1480. Whether or not additional charges are paid, all claims based on any errors oromissions to Advertising must be made during the 6 month period following initial notifications (or provision) of the BroadProximity service(s) which the Advertisement appears or was to have appeared. If more than one BroadProximity service(s) or area or campaign is involved, the claim period shall be calculated separately for each campaign/area.All claims not made within this time period are waived and may not be asserted in any lawsuit or arbitration proceeding. For the purposes of this paragraph 13, “we,” “our,” and “us” also includes our employees, officers, directors and agents.
17. Binding Arbitration. You and we agree to binding arbitration of all disputes, claims or controversies between you and us, except as set forth in this paragraph 16. For purposes of this paragraph 16, “we,” “our,” and “us” also includes our employees, officers, directors and agents. For purposes of this paragraph 16, “you” or “your” also includes your employees, officers, directors, agents, partners, shareholders, members, heirs, executors and assigns. This arbitration agreement includes any dispute, claim or controversy arising out of or relating to any aspect of the relationship between you and we, whether based in contract, tort, statute, regulation, fraud, misrepresentation or any other legal theory, including but not limited to, any provision of thisContract or the performance or breach of this Contract, and including but not limited to, all disputes, claims or controversies that arose before this Contract or any prior agreement, or which may hereafter arise, and claims that may arise after the termination of this Contract. This arbitration agreement shall survive the termination of this Contract. Either you or we may initiate arbitration by sending to the other, by certified mail, a written demand for arbitration (the “Demand”).
If you initiate arbitration, the Demand must be sent by certified mail to: BroadProximity 668 Industrial Park Dr. #4314, Manteca, CA. 95337. If we initiate arbitration, the Demand must be sent to you at the address listed for Advertising in the Advertising Contract. Demand must describe the nature and basis of the dispute, claim or controversy and set forth the relief sought. Any dispute, claim or controversy shall be resolved by binding arbitration before a single arbitrator administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules then in effect, as modified by this Contract. The AAA Rules are available at www.adr.org or by telephoning (800) 778-7879. The arbitration shall take place in San Joaquin County, California. If the claim is for Ten Thousand Dollars ($10,000) or less, you may choose whether the arbitration shall be conducted solely based on documents submitted to the arbitrator, through a telephonic or videoconference hearing, or by an in-person hearing. Eachparty shall bear its own filing, administrative and arbitrator fees and costs.
The decision of the arbitrator shall be binding and conclusive on all parties, and there shall be no right of appeal therefrom, and judgment may be entered upon the decision of the arbitrator by any court of competent jurisdiction. The arbitrator must follow this Contract. You recognize that,in agreeing to arbitration, among other differences, there is no judge or jury in arbitration, discovery is more limited than in court, and court review of an arbitration decision is limited.You and we agree that any dispute, claim or controversy may be conducted only on an individual basis and not on a class, consolidated or representative basis; neither you nor we shall be a member in a class, consolidated or representative proceeding; and the arbitrator is only authorized to award relief on an individual basis. We do not consent to class, consolidated or representative arbitration.
You may choose to pursue your dispute, claim or controversy in court and not by arbitration if you opt out of this arbitration agreement within the “Opt-Out Deadline”. The Opt-Out Deadline is thirty (30) days from the date on which theearlier of the following occurs or has occurred: (I) the date on which you sign the Advertising Contract or (ii the date on which you signed any agreement with us containing a substantially identical arbitration agreement.
You may opt out by, within the Opt-Out Deadline, by sending a written notice by certified mail to: BroadProximity 668 Industrial Park Dr. #4314, Manteca, CA. 95337, Attention: Legal Department indicating that you wish to opt out of arbitration. This arbitration agreement shall be specifically enforceable by the parties.
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