Proximity Platform Terms of Service Owners of Coworking, Flexible, and Conference Spaces
Date of last revision: December 1, 2020
We reserve the right to modify or replace this Agreement at any time and in our sole discretion. Any changes will be effective immediately upon posting on the Site (or such later effective date as may be indicated at the top of the revised Terms). It is your responsibility to check periodically for any changes. Continued access to or use of the Services shall constitute acceptance of any changes. If you do not agree to the changes, you must stop using the Services.
Description of the Services.
As used in this Agreement, “Services” means the web-based services made available by Company through its website, with a homepage at www.proximity.space, and/or other websites and any mobile or other applications designated by Company for use with such service from time to time (collectively, the “Site”), including all features, hardware, code, content, images, application program interfaces, and other tools and services included thereon, and which facilitate the online management and administration of coworking, flexible, and conference space (“Space”), including, without limitation, booking, access, billing, and other related features and integrations.
From time-to-time and in our sole discretion, we may provide access to certain additional products or features in connection with and as part of the Services ("Subscription Products"). Subscription Products may be subject to, and your access to and use of such Subscription Products may require your acceptance of, additional terms and conditions (“Additional Terms”). All Additional Terms are expressly incorporated into this Agreement.
You represent and warrant that:
you have the legal capacity to enter into this Agreement; and if you are agreeing to this Agreement on behalf of an entity rather than an individual, you have the authority to bind the entity;
you, including each individual accessing the Services by or through your account (each, a “User”), are not precluded or restricted in any way from using the Services, either by law or due to previous suspension from the Services;
any use of the Services by you or any User will not violate any applicable law, rule or regulation; and
all information you submit by, through, or in connection with the Services is, and throughout the term of this Agreement shall be, complete, accurate, and truthful.
Grant of Rights.
Subject to and conditioned upon your compliance on a continuing basis with all of the terms and conditions of this Agreement, Company will provide to you, during the term of this Agreement, access to and use of the Services for the sole and exclusive purpose of managing and administering Spaces owned or operated by you, subject to any applicable Additional Terms.
Additionally, and subject to and conditioned upon your compliance on a continuing basis with all of the terms and conditions of this Agreement, Company grants to you, during the term of this Agreement, a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use the words “Powered by Proximity” in your own marketing and branding, subject to any trademark usage or other guidelines or restrictions as may be established by us from time to time. The foregoing license may be terminated and revoked by us at any time, with or without cause, upon notice from us, and (if not sooner revoked and terminated) will terminate automatically upon termination of this Agreement. Upon any termination or revocation of the license, you must promptly (and, in any event, within 24 hours of such termination or revocation) cease all use of and remove from all public display and circulation the words “Powered by Proximity.” You acknowledge that failure to comply with the requirements of the foregoing sentence will constitute irreparable harm to the Company and Company shall be entitled to pursue all remedies available to it at law or in equity, without the need to post bond.
You are responsible for (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your and any User’s use of the Services and compliance with this Agreement, and (iv) all Customer Data (as defined herein). Additionally, you agree to (v) obtain all third-party consents or approvals that may be necessary for the collection, use, transmission, and uploading of Customer Data or other content uploaded or inputted by you or any User to or by means of the Services, and (vi) comply with all applicable laws and regulations with respect to your access to or use of the Services, including without limitation those pertaining to privacy, data security, and publicity.
You will not, and will ensure that any Users do not:
copy, reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services in any manner, and you shall not exploit the Services in any unauthorized way;
remove, alter, reproduce, copy, or obscure any copyright, trademark, service mark of Company, except as otherwise permitted herein;
use the Services for any unlawful activities or in violation of any laws, regulations, or contractual provisions, or induce others to do or engage in the same;
use the Services to promote, describe, incite, or convey violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity;
access another's account without permission of us or that person or impersonate any person or entity;
engage in unauthorized or unsolicited advertising, the spamming of comment sections, or the sending of bulk emails;
use manual or automated software, devices, or other processes to "crawl," "scrape," or "spider" any portion of the Services;
decompile, reverse-engineer, deactivate, bypass, disassemble, or otherwise attempt to obtain or modify the source code of the Services;
solicit passwords or personal identifying information for commercial or unlawful purposes from others or disseminate another person's personal information without that person's permission; or
provide any third parties with access to any of the Services, or use any of the Services for time sharing or similar purposes for the benefit of any third party.
As between you and Company, you have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, materials, trademarks, logos, tradenames, or information that you or any User uploads or inputs, or authorizes for upload or input, to or in connection with the Services (collectively “Customer Data”). Without limiting the generality of the foregoing, you shall not, nor shall you permit any User to, upload, input or post (or authorize the upload, input or posting of) any Customer Data or other information, materials or content that (i) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) violates any applicable law, (iii) is, or is likely to be considered, immoral, libelous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (iv) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. You acknowledge and agree that Company does not, nor is it obligated to, monitor or police any communications or data, information, materials, or content transmitted through or posted to the Services, and Company will not be responsible for such data, information, materials or content. Notwithstanding the foregoing, however, Company may, at its option and in its sole discretion and without notice to you, remove or delete from the Site or Services any Customer Data or other data, information, materials or content that Company determines violates the terms of this Agreement. For the avoidance of doubt, Customer Data does not include the identity or contact information of, or other data relating to, Users of the Services.
You acknowledge and agree that your access to and use of the Services is dependent upon access to telecommunications and Internet services. You acknowledge that Company is not responsible for acquiring or maintaining any telecommunications or Internet services or other hardware or software that you or any User may need to access and use the Services, or for any costs, fees, expenses, or taxes of any kind related to the foregoing. You are responsible for the security of your own computer systems and the security of your access to and connection with the Services.
You will, and will ensure that all Users do, comply with all restrictions and other terms and conditions of this Agreement that purport to apply. You will promptly notify Company of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Company with respect to Company’s investigation of any suspected or alleged violation and any action by Company to enforce the terms and conditions of this Agreement. Company may suspend or terminate your or any User’s access to the Services or any component thereof if Company reasonably determines that you or any User has violated the terms and conditions of this Agreement. You will be liable to Company for any violation of the terms and conditions of this Agreement by you or any User.
As between you and Company, the Services, Site, and all software and other technologies embodied in or used to provide the same, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Company and/or our licensors or authorizing third-parties. All trademarks, service marks, and logos contained in the Services are owned by or licensed to Company, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. We reserve all rights not expressly granted in and to the Services.
Payments for Services
Monthly Subscription Fee
Except as set forth in subsection (c) below, you will be charged and will pay to Company a monthly subscription fee in consideration of Company’s provision of the Services (the “Monthly Fees”). Monthly Fees will be billed in advance on a per- Active Member (as defined herein) basis, based on the then-current pricing as set forth at: https://www.proximity.space/pricing. Please note that pricing is subject to change without notice. With respect to the first month of your paid subscription to the Services, Monthly Fees for such month will be prorated to reflect the portion of the month your paid subscription to the Services was active and in effect. Monthly Fees are fully earned upon payment and are non-refundable.
For purposes of this Agreement, “Active Member” shall mean any Member (as defined below) that, on the Calculation Date (as defined below), meets at least one of the following criteria: (i) the Member has a recurring membership that is not a Default/Community Member (as defined below); (ii) the Member has been assigned a Proximity key to any of your Spaces, including free Default/Community Members; (iii) the Member has a recurring punch pass allowing access to any of your Spaces, or has redeemed a punch in the calendar month immediately preceding the Calculation Date; (iv) the Member has paid for access to any paid add-on services; or (v) the Member belongs to a shared membership and is not a “billing-only” member. For the avoidance of doubt, an “Active Member” shall not include any individual who, as of the Calculation Date, is: (vi) a Default/Community Member who has no paid add-on services and no directly-assigned Proximity keys; (vii) a guest using a drop-in pass or other non-recurring pass that is not a punch pass; (viii) a non-Member guests who books reservable resources such as conference rooms and may be given temporary key access via their reservation; (ix) a non-Member meeting or event registrant; (x) a Space manager or Space owner; (xi) a “billing-only” member; or (xii) a holder of a secondary membership given for free through the Multi-Space Brand beta feature.
For purposes of this Agreement, “Calculation Date” means the first day of the calendar month (Mountain Time) for which the Monthly Fee is being calculated. By way of example, the Monthly Fee owed for February of a given year will be based on the number of Active Members as of the end of the day January 31st 11:59pm MT. You may view your Active Member count at the top of the dashboard on your Proximity account. Additionally, “Default/Community Member” shall mean a Member that has registered under a free default or community membership through the Service.
You must, when registering for the Services, provide us with a valid payment method acceptable to Company (“Payment Method”) which we will keep on file. By establishing an account and providing your Payment Method during registration, you are expressly agreeing that we are authorized to charge your Payment Method for fees and other amounts incurred hereunder, including, without limitation, the Monthly Fees, processing fees on refunds, and fees associated with payment disputes (which includes any amount we are unable to deduct from your Stripe account). Monthly Fees for a given calendar month will be processed on or after the 1st day of such month (mountain time). We may also, on such date, process payment for any other previously accrued and outstanding costs and fees.
Company may grant to you a 30-day trial period in which you will be granted access to some or all features of the Services without charge to you. If you have included a Payment Method and Stripe account to your account, your trial use of the Services will automatically be converted to a paying subscription after the end of your trial period, or alternatively, you may activate your account for a paying subscription at any time before the end of the 30-day trial period; provided a Payment Method and Stripe account have been set up. If you do not add these items to your account, your trial will end at the end of 30 days and your account will become inactive. Where you have provided a Payment Method and Stripe account, we will begin billing your Payment Method for Monthly Fees at the time of activation; or unless you cancel prior to the end of the free trial period. You will not receive a notice from us that your free trial period has ended or that the paying portion of your Services subscription has begun.
Per Charge Fees
In addition to the Monthly Fees set forth above, you will pay to Company additional service fees based on the amount of payments made to you through the Services by third parties, including users of your Spaces (“Members”), as more specifically set forth herein (“Charge Fees”). Charge Fees are calculated as follows:
For each Charge paid with a credit or debit card, an amount equal to $.30 plus 2.9% of the total dollar amount of the Charge (including all taxes or other fees imposed on the Charge); and
For each Charge paid with an ACH debit out of a bank account, an amount equal to 1% of the total dollar amount of the Charge (including all taxes or other fees imposed on the Charge).
Fees for Spaces operating outside of the US may vary and can be found at https://www.proximity.space/coworking-software#pricing
For purposes of this Agreement, a “Charge” means any electronic transaction made by means of the Services and with respect to which you are the payee, including without limitation, a person or entity reserving, renting, or otherwise paying for access to or use of your Space through the Services, or paying membership fees. Where a transaction involves reserving a Space over a specific period of time (for example, one week) or otherwise covers multiple items paid for at the same time, such transaction constitutes one Charge for the purpose of calculating Charge Fees. Any transactions paid for by non-electronic means, including by physical check, shall not be considered a “Charge” and will not give rise to a Charge Fee. All Charge Fees will automatically be deducted from the amount payable to you and transferred to your Stripe account with respect to the applicable Charge.
Where any Charge is made with respect to Spaces outside of the United States or otherwise in a currency other than US Dollars, we will, in our sole discretion, either (a) bill the Charge in US Dollars and instruct Stripe to convert the Change amount to US Dollars, at Stripe’s conversion rate at that time, or (b) bill the Charge in the applicable foreign currency. We reserve the right to require payment in US dollars where conversion is not offered by Stripe or is otherwise impractical, as determined in our discretion. You shall be responsible for, and shall reimburse us for, any conversion fees or related costs arising from foreign currency conversion, which you hereby authorize us to transfer from your Stripe account to ours.
Third-Party Payment Services; PSD2 Compliance
We utilize a third-party payment service (currently Stripe) to process Charges and other transactions through our Services. Where Stripe is referenced in this document, it refers to the payment service provider then in use, which is subject to change at our discretion. Prior to your initial use of the Service, you must set up a Stripe account through the Stripe Connect Program. In the event that we elect to change payment service providers, you will promptly set up an account with such new payment service provider, as instructed by us. Any failure by you to secure and maintain a Stripe account (or such other payment service provider account as we may require) may result in a suspension of the Services.
If you have any issues with transactions processed through Stripe or any successor payment service provider, you are responsible for resolving such issues directly between you and Stripe or the applicable payment service provider, except as set forth under the "Disputes from Members" section below. We are not responsible for, and shall have no liability with respect to, payment processing. In keeping with the January 13, 2018, EU Directive on Payment Services ("PSD2") and to the extent that we may assist in the facilitation of Member payments to Space Owners, we are not a licensed provider of regulated payment services and instead use third-party payment services with the requisite licensure(s), if any.
Disputes from Members
Upon receiving notice from a Member or other party of a dispute with respect to a Charge or other payment processed through the Services, we will reverse the transfer of the disputed amount from your Stripe account, which disputed amount may be held by the applicable bank, credit card company or other payment provider (“Payment Provider”). We will notify you of the dispute and outline the process and timing for providing evidence. We will then submit provided evidence to the applicable Payment Provider. If you do not provide timely evidence, you waive your right to do so. The decision of the Payment Provider concerning the validity of the Charge will be final. We will notify you of the result and any actions to be taken by the Payment Provider of which we are notified.
If the dispute is found in favor of the Member, you shall be responsible for, and shall reimburse us for, any dispute fees or related costs imposed on us by Stripe or any applicable Payment Provider, which you hereby authorize us to transfer from your Stripe account to ours.
User Cancellation of Reservations
You are responsible to develop, maintain, and adhere to a cancellation policy with respect to each Space for which you utilize the Services (each, a “cancellation Policy”). Each cancellation Policy should clearly outline, and will govern, when and under what circumstances refunds may be issued to Members for cancellations of Space reservations.
You are solely responsible for determining whether a refund is available to an applicable Member or other third party, and you agree to indemnify Company from and against all liability and expenses relating thereto. If you notify us that you have authorized the issuance of a refund to any Member for any Charge made by means of the Services, we will transfer the refunded amount from your Stripe account back to the applicable Member. This may require us to transfer the amount back to our Stripe account, to be refunded from there, depending upon Stripe’s functionality.
Any refunds made pursuant to this Section shall be made without deduction of any fees. You will remain liable for and shall pay all Charge Fees with respect to the relevant Charge, which Charge Fees shall be based on the original Charge amount without taking account of any refund.
Disclaimers, Waivers, and Indemnification
Relationship with Members
We provide the Services to enhance and facilitate the terms of any membership agreements, coworking agreements, flexible space agreements, or conference space agreements (collectively, "Membership Agreements") between you and Members. We cannot control those occupying those spaces and are not responsible for the acts or omissions of any Member or other third party. We are not party to, and shall have no liability under, any Membership Agreements. You acknowledge and agree that we are and shall not be responsible or liable, whether directly or indirectly, for any disputes, claims, damages, or causes of action arising out of or relating to any Membership Agreement or your relationship with any Member or other users of our Services.
Disclaimer of Warranties
THE SERVICES AND SITE ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. COMPANY HEREBY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES OR SITE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. WE DO NOT MAKE ANY WARRANTY THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE, ERROR FREE, OR MEET YOUR PARTICULAR REQUIREMENTS. IN ADDITION, WE DO NOT MAKE ANY WARRANTY AS TO THE QUALITY OR RELIABILITY OF INTEGRATIONS OF OUR SERVICES INTO ANY THIRD-PARTY PLATFORMS, PRODUCTS, OR SERVICES, INCLUDING THIRD PARTY SERVICES, AND WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR LIABILITY WITH RESPECT TO ANY THIRD PARTY OR THIRD PARTY SERVICE.
Waiver of Liability
You hereby waive any liability of or claims against us for any injuries or damages (including compensatory, punitive, special, or consequential damages) you sustain as a result of or associated with using the Services, regardless of whether we were informed of the possibility of such injuries or damages and regardless of whether they were reasonably foreseeable. You waive any claim or liability stemming from our negligence. Where our Services incorporate or utilize any Third Party Service or other information, software, or content of a third party, you waive any liability or claim against us based upon that Third Party Service or information, software, or content, including based upon the negligence of that third party.
Scope of Waiver
You understand and agree the above waiver is a material inducement to Company in entering into this Agreement and extends to any claim of any nature or kind, known or unknown, suspected or unsuspected, regardless of when the claim first existed. This includes waiver of a claim of the type identified under California Civil Code, Section 1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
The following notice is for California users: Pursuant to California Civil Code Section 1789.3: If you have a question or complaint about us, our products, or our Services please contact us at email@example.com . You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer affairs by telephone at (800) 952-5210 or by mail at the Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834.
Customer will indemnify, defend and hold harmless Company against any costs, damages, liability, claims, demands, suits or proceedings (each, a “Claim”) arising from or related to (i) the Customer Data, (ii) your breach of any representation, warranty or covenant in this Agreement, (iii) your or any User’s use of the Site or Services in violation of this Agreement, (iv) events occurring at your Space, and (v) the operation of your business, including any Membership Agreement. Your indemnity obligations are subject to the following: (i) Company will promptly notify you in writing of the applicable Claim; (ii) you will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that you may not settle any Claim in a manner that would impair any of Company’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) Company will, at your expense, provide all cooperation, information and assistance reasonably requested by you for the defense of such Claim. You agree to indemnify us as soon as we incur the costs, expenses, and fees, whether those are billed by event, or weekly, monthly, or some other interval.
Term and Termination
This Agreement will remain in full force and effect while you use the Services; provided, however, that this Agreement (and your rights to use the Services) may be terminated by Company or by you as set forth more specifically below. Company reserves the right to discontinue any aspect of the Services at any time.
Termination by Company
To protect us and our users, we reserve an unrestricted right to refuse, terminate, block, or cancel your application to, account with, or access to or use of the Services at any time, with or without cause. Without limiting the generality of the foregoing, we may elect to suspend or terminate your access to and use of the Services if:
You or your Members violate any provision of this Agreement or other Company policy;
You hinder or interfere in any way with our providing of the Services;
You cease operating as a going concern, become insolvent, make an assignment for the benefit of creditors, become the subject of proceedings in involuntary or voluntary bankruptcy instituted on behalf or against you (except for involuntary bankruptcies which are dismissed within sixty (60) days), have a receiver or trustee appointed for substantially all of your property, or otherwise cease operating as a provider of coworking or conference spaces;
You fail to adhere to any Membership Agreements;
You make any misrepresentation to us or any Member; or
You violate any applicable law, rule, regulation, or order.
Termination by You
You may terminate this Agreement at any time, in whole or with respect to any individual Space, by providing no less than 3 business days’ advance written notice to us, given via email or via our support chat service. On the effective date of termination, we will terminate your access to the Services and cancel all billing for future services; provided, however, WE WILL NOT REFUND ANY FEES, INCLUDING MONTHLY FEES AND CHARGE FEES, PREVIOUSLY PAID, AND WE WILL NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIALLY USED MONTHLY SUBSCRIPTION TERMS.
Effect of Termination
Upon termination of this Agreement, all rights granted to you in the Services shall cease, and you shall not access or use, or attempt to access or use, the Services in any manner. Promptly following termination, we will bill you for any fees accrued and unpaid by you as of the date of termination, including, but not limited to, refund amounts, currency conversion fees, and dispute fees payable by you hereunder. Unless we otherwise agree in writing, you shall retain the Stripe account associated with your account for the Services for 6 months following the effective date of termination of this Agreement to facilitate resolution of any disputes or related issues. We encourage you to return any Company-issued door hardware to us through our hardware buyback program. We reserve an unrestricted right, however, to replace, suspend, and amend that program and its terms and conditions. The provisions of the following Sections shall survive termination of this Agreement: Section 3 (with respect to the final two sentences); Section 8 (with respect to the final sentence); Section 9; Section 10(e) (with respect to the final sentence); Section 10(f) (with respect to the final paragraph); Section 10(g); Section 10(h); Section 11; Section 12(d)-[(f)]; and Section 13.
Rights to Contact
If any Space is permanently closing or no longer operating as a coworking or conference space, we may, in our sole discretion, email individuals who had been your Members with respect to that Space to invite them to other Proximity spaces. Additionally, we reserve the right to continue allowing your Members or former Members to continue to access and use the Proximity Platform, and you acknowledge and agree that we may continue to provide services to and correspond with such individuals.
Data Use Rights
In addition to the other uses of the Customer Data permitted under the Agreement, and notwithstanding anything herein to the contrary, Company shall have the right to collect, examine, extract, model, manipulate, aggregate, collate, analyze, create analysis using, reproduce and otherwise use, on a de-identified basis, any Customer Data or other information which Company learns, acquires or obtains in connection with this Agreement, within the scope of its regular business operations, including, without limitation, (i) developing, operating, and ensuring the integrity of data sets, algorithms or other analytical tools, (ii) testing, implementing, benchmarking, integrating, developing, optimizing or improving Company software and other products and services, and (iii) marketing, distributing, or otherwise making Company products and services available to its customers.
If you believe that any content posted on the Site or available through the Service infringes on your copyright, you may request removal by contacting the following address: firstname.lastname@example.org. We will respond to all requests promptly and to the best of our ability.
Feedback and Unsolicited Idea Submission Policy
We encourage feedback and ideas for improvements to our Services. You agree that, to the extent you provide to us any feedback, suggestions, questions, requests, input, or other feedback ("Feedback"), you hereby assign and agree to assign to Company all right, title and interest in and to such Feedback, including any associated intellectual property rights, and agree that we will be free to use such Feedback in any manner, including by implementing such Feedback in the Services or Company’s other technologies, products or services, without compensation or obligation to you.
Successors and Assigns
We may assign this Agreement to an affiliate or in connection with a merger or sale of all or substantially all of our corresponding assets. You may not assign this Agreement without our prior written consent. Any attempted assignment in violation of this Section shall be void and of no effect. You agree that any waiver or protections afforded to us are also provided to our affiliates, directors, officers, principals, employees, agents, and successors in their roles and relationship with us. You also acknowledge that all waivers and agreements bind not only you, but any successors, heirs, agents, and other representatives.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Service shall be binding arbitration administered by the American Arbitration Association or such other arbitration body as shall be agreed to by the parties. Notwithstanding the foregoing, each party shall have the right, without the need to post bond, to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator. You may not, and agree that you shall not, under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding. YOU LIKEWISE HEREBY WAIVE YOUR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR OUR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER WE WERE INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THEY WERE REASONABLY FORESEEABLE. IN NO EVENT SHALL OUR LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF MONTHLY FEES AND CHARGE FEES ACTUALLY PAID TO US BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE DAMAGES.
Governing Law and Venue
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. The venue for any disputes including mediation, arbitration, or litigation shall be Denver, Colorado. You agree to waive the following defenses to any action brought in Colorado: forum non conveniens and lack of personal jurisdiction.
If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.
If any provision of this Agreement is invalid or unenforceable, whether by the decision of an arbitrator or court, by passage of a new law, or otherwise, the remainder of this Agreement will remain in effect and be construed and enforced consistent with the purpose of this Agreement, to the fullest extent permitted by law. Furthermore, if a provision is deemed invalid or unenforceable, you agree that the provision should be enforced to the fullest extent permitted under the law, consistent with its purpose.
Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by such export laws and regulations.
If Customer is the U.S. government or any agency or other division thereof, Company’s services are furnished under this Agreement as a "commercial item," as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
Understanding of Agreement
You agree and acknowledge that this Agreement constitutes a binding agreement between you and Company, and that you have been given the opportunity to discuss this Agreement with a lawyer at your own expense prior to entering into this Agreement, and have either done so or chosen not to do so in entering this Agreement. Regardless of your choice, you intend to be fully bound by this Agreement.
The headings in this Agreement are for convenience or reference only and do not limit or otherwise affect the meaning hereof.
This Agreement constitutes the entire agreement between us, and supersedes all prior agreements, representations, and understandings, oral or written, between us.