By downloading, installing or using the Proximitii application programming interface(s) (the “API(s)” or “Service”) or any accompanying documentation, You agree to this “Terms of Use” agreement (the “Agreement”). This Agreement establishes the policies under which AreaVibes Inc. and Proximitii (collectively “Proximitii”) operate. As used herein individually Proximitii and You are a “Party”, and collectively Proximitii and You are “Parties” under this Agreement.
By installing or using the APIs You represent, acknowledge and agree that You have read and understand this Terms of Use Agreement and unconditionally agree to be bound by all of its terms. You may not utilize the Proximitii APIs or Services if You do not first so agree. If You agree to these terms on behalf of a business, You represent and warrant that You have authority to bind that business and all of its users to this Agreement, and Your agreement to these terms will be treated as the agreement of the business. In that event, “You” and “Your” refer herein to that business.
You may not use the account, username, or password of another user at any time or disclose your password to any third party or permitting any third party to access your account.
Subject to the terms and conditions of this Agreement, Proximitii grants to You, during the term of this Agreement, the non-exclusive, non-transferable, non-sublicensable, revocable right to use and display the data provided by the APIs on the website linked to the URL provided when you signed up. To use the API for other website(s) or application(s), and to reproduce and display the Proximitii name and logo solely in connection with such display, You need to have an written, explicit consent from Proximitii (the “Licence”).
Proximitii can modify the APIs with or without any prior notice to You. Such modifications may require You to make changes to Your services, which will be assumed at Your own cost.
Your access and use of the APIs may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the APIs or other actions that Proximitii, in its sole discretion, may elect to take, or reasons not foreseeable by You or beyond Your control.
For informational purposes only, the Services we provide are, without limitation, features and functionalities including but not necessarily limited to:
If you choose to subscribe to a Service we will make best efforts to provide that service or product to the best of our ability. However, we make no warranty with regards to your satisfaction with any Service or the APIs in general. Where you have subscribed for a service, the full price of the service will be charged to your credit card, as agreed, periodically, as the case may be. By subscribing for a service you agree that Proximitii may charge your credit card for such services, and that refunds are only offered for subscriptions at our sole, unfettered discretion.
You are only entitled to access the APIs for lawful purposes and it is Your responsibility to ensure that the use of the APIs complies with all applicable laws, including without limitation, competition and privacy laws.
You represent and warrant that You will not:
You are responsible for all content You incorporate with the APIs and all of the results derived the use or non-use of APIs by You. You may not interfere with other users’ use of the APIs, including, without limitation, taking any action that imposes a disproportionate burden on the APIs infrastructure or that negatively affects the availability of the APIs to others.
Furthermore, You agree not to do, or attempt to do, any of the following, subject to applicable law: (a) alter information on or obtained from the Website unless through tools provided on the Website by us; (b) tamper with postings, registration information, profiles, submissions or Content of other users; (c) use any robot, spider, scraper or other automated means or interface not provided by us to access the Website or extract data or gather or use information, such as email addresses, available from the Website or transmit any unsolicited advertising, "junk mail," "spam," or "chain letters"; (d) frame any part of the Website, or link to the Website, or otherwise make it look like you have a relationship to us or that we have endorsed you or your Content for any purpose except as expressly permitted in writing by Proximitii; (e) impersonate or misrepresent your affiliation with any person or entity; (f) bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Website (except as otherwise expressly permitted by law); (g) take any action which might impose a significant burden (as determined by us) on the Website’s infrastructure or performance, or send to or otherwise impact us or the Website (or anything or anyone else) with harmful, illegal, deceptive or disruptive code such as a virus, "spyware," "adware" or other code that could adversely impact the Website or any recipient; (h) willfully enter wrong information; (i) post content created by anybody other than yourself.
The Services have associated fees which may change from time to time. Proximitii may charge Your credit card on an ongoing basis in advance of providing services or as needed for prepayments for Your subscription fee for the Service that you have subscribed for, as well as any applicable sales taxes and any other charges You may incur in connection with Your use of the Services including the APIs. The subscription fee is billed in full on the first day of each billing period, unless and until You cancel Your subscription.
Proximitii is not responsible for any bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Proximitii. Currency exchange settlements will be based on agreements between You and the provider of Your credit card. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law.
In order to access or utilize APIs, You must first request a valid Proximitii API Key (the “Key”). All queries sent to Proximitii requesting data must reference Your valid Key. The License is personal to You, and any affiliates must seek and obtain their own License and Key. You agree that You are responsible for all activities that occur on Your account or through the use of Your Key by yourself or by other persons. If You believe that a third party obtained or guessed Your Key, You shall contact Proximitii immediately by email at support@areavibes.com.
During the term of this Agreement and for a period of five (5) years thereafter, each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement. Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this section. Both parties shall take steps each required to implement and enforce such non-disclosure/non-use obligations.
For purposes of this Agreement “Confidential Information” shall mean information including, without limitation, all data, payment conditions (fees, charges, etc.), prior negotiations to this Agreement, computer programs, code, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), creative works, schematics and other technical, business, financial and product development plans, forecasts, strategies and information shared between the Parties under this Agreement. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to You under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by Proximitii.
Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (iii) is independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; and (v) the receiving party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
The APIs are the sole and exclusive property of Proximitii. The contents of the APIs, including its “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software and other material are protected under the copyright, trade-mark, patent and other laws of Canada, the United States and other countries, or are provided as trade secrets and protected as such. The contents of the APIs belong or are licensed to Proximitii or its software or content suppliers. You may download or print a copy of information provided on or by APIs for internal use only. Any distribution, reprint or electronic reproduction of any content from APIs in whole or in part for any other purpose is expressly prohibited without Proximitii’s prior written consent, which may be unreasonably withheld in Proximitii’s sole discretion.
The APIs may permit You to link to other websites or resources on the Internet, and other websites or resources may contain links to our website. These other websites are not under Proximitii’s control, and You acknowledge that Proximitii is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Proximitii or any association with its operators. You further acknowledge and agree that Proximitii shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
Proximitii reserves the right, in its sole discretion and upon two (2) weeks prior written notice to You, to change, suspend or discontinue APIs and/or suspend or terminate Your rights under this Agreement to access, use and/or display (as applicable) APIs. The two (2) weeks prior written notice is not applicable if You are in breach of this Agreement. Any termination of this Agreement shall also immediately terminate the licenses granted to You hereunder. Upon any termination of this Agreement, You shall promptly delete and remove all calls to the APIs from all web pages, scripts, widgets, applications, and other software in Your possession or under Your control.
THE WEBSITE MAY CONTAIN ADVICE, OPINIONS, INFORMATION, INSTRUCTIONS AND STATEMENTS FROM PROXIMITII , ITS USERS AND OTHER CONTENT AND INFORMATION PROVIDERS. YOU USE THE WEBSITE AND CONTENT AT YOUR OWN RISK. THE WEBSITE IS PROVIDED BY PROXIMITII ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROXIMITII MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE OR THE INFORMATION OR CONTENT INCLUDED ON THE WEBSITE. PROXIMITII MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, SECURE, OR TIMELY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROXIMITII EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, TRADE, USAGE OR PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, AND THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU AGREE TO USE THE APIs WITH ALL DUE CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY OF YOUR DATA, HARDWARE, SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER PROXIMITII , NOR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS AND SUPPLIERS, NOR EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF PRIVACY, LOSS OF GOODWILL OR ANY OTHER LOSSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY TO YOU OF PROXIMITII AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AND SUPPLIERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS EXCEED, IN TOTAL, THE AMOUNTS PAID BY YOU TO US.
As a condition of your access to and use of the Website, you agree to hold Proximitii , and its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, and suppliers, and each of their respective successors and assigns, harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including but not limited to attorneys' fees and expenses, relating to any claim arising out of or related to: (i) your access to and use of the Website and the content therein; (ii) your violation of these Terms (including terms incorporated into them, e.g., the Privacy Policy), and any applicable law or the rights of another person or party; (iii) any dispute you have or claim to have with one or more users of the Website; (iv) Proximitii ’s resolution (if any) of any dispute you have or claim to have with one or more users of the Website; (v) your improper authorization for Proximitii to collect, use or disclose any data or Content provided by you; and (vi) any disclosures made with your permission (including, without limitation, your consent that Proximitii disclose your personal information and other information collected as set forth in our Privacy Policy).
This Agreement may be modified with the prior written consent of You and Proximitii.
If there is any dispute between You and Proximitii, You agree that the dispute shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts of the province of Ontario in respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement, APIs, or Service howsoever arising, provided always that Proximitii may seek and obtain injunctive relief in any jurisdiction in relation to this Agreement.
You further agree that irreparable harm will be suffered by Proximitii in the event of Your breaching or threatened breach of any of its obligations under this Agreement, and that Proximitii will be entitled to seek, in addition to any other rights and remedies that it may have at law or equity, a provisional, interlocutory or permanent injunction restraining You from engaging in or continuing any such breach hereof. Any claims asserted by You against Proximitii shall not constitute a defense in any injunction action, application or motion brought against You by Proximitii.
a. Severance. If any part of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the invalid or unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect, provided that the allocation of risks described herein is given effect to the fullest extent possible.
b. No Assignment. These Terms (including terms incorporated into them, e.g., the Privacy Policy) are personal to you and you may not transfer, assign or delegate them to anyone without the express written permission of Proximitii. Any attempt by you to assign, transfer or delegate these Terms without the express written permission of Proximitii will be null and void. Proximitii shall have the right to transfer, assign and/or delegate these Terms to one or more third parties without your permission.
c. Disputes; Choice of Law; Export Limitations. The Website is controlled by us from our offices within Canada, and some aspects and portion of the Website are hosted at third-party servers within Canada and the United States of America. If you choose to access this Website from locations outside Canada, you do so at your own risk and you are responsible for compliance with applicable local laws. You may not use or export anything from the Website in violation of Canadian or U.S. import and/or export laws and regulations or the Terms. By visiting the Website, you agree that these Terms and all performances and claims of every nature (including without limitation, contract, tort and strict liability) relating in any way to any aspect of the Website will be resolved by arbitration. Any dispute or claim relating in any way to your visit to the Website or to products or services sold or distributed by Proximitii or through the Website will be resolved by binding arbitration, rather than in court, except that we and you may assert claims in small claims court if the claims qualify.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
d. Limitations on Actions. Any action concerning any dispute you may have with respect to the Website must be commenced within one year after the cause of the dispute arises, or the cause of action is barred.
e. Paragraph Headings. The paragraph headings in these Terms are included to help make these Terms easier to read and have no binding effect.
f. Entire Agreement. These Terms (including terms incorporated into them, e.g., the Privacy Policy, and any other terms of the Website, such as the “Contest Terms”) comprise the entire agreement (the "Entire Agreement") between you and Proximitii with respect to the use of the Website and supersedes all contemporaneous and prior agreements between the parties regarding the subject matter contained herein, and neither party has relied on any representations made by the other that are not expressly set forth in the Entire Agreement.
g. No Waiver. The failure of Proximitii to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or provision or Proximitii right to act with respect to subsequent or similar breaches. We suggest that you print out a copy of these Terms for your records.