Terms of Service
1. Acceptance of Terms
Welcome to Click Prox, LLC (“Click Prox,” “we,” “us,” or “our”). These Terms of Service (the “Agreement”) govern your use of our services, including but not limited to our website and any related features or content (collectively, the “Services”). By accessing or using our Services, you agree to comply with and be bound by these Terms of Service. If you do not agree to these Terms of Service, please do not use our Services.
2. User Eligibility
You must be at least 18 years of age to use our Services. By using our Services, you represent and warrant that you are at least 18 years old. If you are under 18, please do not use our Services, and please have a parent or legal guardian use the Services on your behalf.
3. Operation of the Services
Click Prox reserves complete and sole discretion with respect to the operation of the Services. Click Prox may, among other things: (A) make available to third parties information relating to the Services and their users, subject to the Privacy Policy; and (B) withdraw, suspend, or discontinue any functionality or feature of the Services. You acknowledge and agree that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Click Prox may undertake from time to time; or (iii) causes beyond the control of Click Prox or which are not reasonably foreseeable by Click Prox.
4. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED BY CLICK PROX ON AN “AS IS” BASIS. CLICK PROX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SERVICES, INCLUDING THE ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY CONTENT ON THE SERVICES. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, CLICK PROX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THAT ACCESS TO OR USE OF THE SERVICES WILL BE SECURE, ACCESSIBLE CONTINUOUSLY, UNINTERRUPTED OR ERROR-FREE. CLICK PROX MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, LOSSES (INCLUDING LOSS OF DATA), OR THAT FILES AVAILABLE FOR DOWNLOAD FROM THE SERVICES WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND, WHERE APPLICABLE, TERMINATE YOUR PREMIUM ACCOUNT. TO THE EXTENT THAT YOU MIGHT OTHERWISE BELIEVE THAT ANY WARRANTIES, GUARANTEES OR REPRESENTATIONS HAVE BEEN MADE TO YOU, YOU HEREBY AGREE THAT SUCH STATEMENTS, WHETHER MADE ORALLY OR IN WRITING, ARE TO BE CONSTRUED AS MERELY NONBINDING EXPRESSIONS OF POLICY RATHER THAN AFFIRMATIVE REPRESENTATIONS, OBLIGATIONS, GUARANTEES OR WARRANTIES. IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION 4 AND OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION SHALL BE CONSTRUED TO TAKE PRECEDENCE.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL CLICK PROX, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, OR ITS AGENTS BE LIABLE UNDER ANY THEORY OF LAW FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE SERVICES, OR RESULTING FROM USE OF OR RELIANCE ON THE CONTENT, EVEN IF CLICK PROX MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLICK PROX, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES, AND ITS AGENTS’ ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATED TO THIS AGREEMENT WHICH ARE MADE AGAINST THEM, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF CHARGES PAID BY YOU RELATIVE TO THE PERIOD OF OCCURRENCE OF THE EVENTS WHICH ARE THE BASIS OF THE CLAIMS, BUT SHALL UNDER NO CIRCUMSTANCES EXCEED THE AMOUNT EQUAL TO THE PAYMENTS MADE BY YOU OVER THE PRIOR TWELVE MONTHS.
6. Services Location
The Services are controlled and offered by Click Prox from its facilities in the United States of America. Click Prox makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
7. Indemnification
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS CLICK PROX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT BY YOU OR ANY USER SUBMISSION POSTED OR SUBMITTED BY YOU (INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF THIRD PARTIES’ WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT).
8. Waiver and Release
YOU AGREE THAT NEITHER CLICK PROX NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE CLICK PROX SERVICES. YOU SPECIFICALLY ACKNOWLEDGE THAT CLICK PROX SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST CLICK PROX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF CLICK PROX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SERVICES.
9. Modifications / Termination
9.1. In General. Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (A) by obtaining our written consent in a notarized agreement signed by an officer of Click Prox; or (B) as set forth below in Section 13.2.
9.2. Periodic Revisions. You agree that we may modify the terms of this Agreement from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. Any modifications made will be effective on the date published on the website. We will notify you of any material revisions or modifications to this Agreement by: (1) posting a notice on the clickprox.com website for thirty (30) days following any revisions or modifications to this Agreement and/or by posting a notice on clickprox.com the first time that you visit clickprox.com following such revisions or modifications; or (2) through a direct communication to you by email, if you have provided an email address to us. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after having been notified of such revisions or modifications by email or, if you have not been notified by email, after the passage of thirty (30) days from the time the revised terms and conditions are first posted on clickprox.com (whichever is sooner). If you do not provide us with a valid email address to send you information concerning revisions or modifications to this Agreement, then you agree that you will not receive notice by email. If you change email accounts, it will be your responsibility to notify us of a new valid email address in order to receive email notice. We assume no responsibility for your failure to actually receive notice. It is your responsibility to review this page for possible modifications. If you do not agree with the revisions, you may choose to discontinue use of the Services.
10. Arbitration Clause
10.1. Individual Arbitration as Sole Remedy for Dispute Resolution.
10.1.1. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding individual (not class, representative, nor collective) arbitration in San Diego, California before one arbitrator. The language to be used in the arbitral proceedings will be English. The arbitration shall be administered by the Office of Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. JAMS’s rules governing the arbitration may be obtained from JAMS’s website, which currently is www.jamsadr.com. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
10.1.2. If you are not a resident of the United States, then any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by final and binding individual arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal will consist of one arbitrator. The place of arbitration will be San Diego, California. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
10.2. Negotiation in Advance of Arbitration
10.2.1. Prior to initiating any arbitration, the parties shall meet and negotiate in good faith to informally resolve their disputes. If the parties do not reach an agreement to resolve their disputes informally within a period of sixty (60) days from the date of the initiation of the negotiation, either party may initiate arbitration proceedings as provided in this Agreement. The foregoing provision will not apply to the extent that, on the basis of an Application for Provisional Remedies submitted by you, a court of competent jurisdiction has issued a temporary restraining order, preliminary injunction, or similar temporary relief, with respect to your intellectual property rights or other proprietary rights, or if we initiate an action for injunctive relief in respect of your breach of this Agreement in the courts described in Section 10.3 below.
10.3. Injunctive Relief
10.3.1. Notwithstanding the provisions of Section 10.1 above, either party may bring an action in any court of appropriate jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, and for other equitable or conservatory relief in connection with this Agreement. You agree that the state and federal courts located in the County of San Diego, State of California, United States of America, shall have exclusive jurisdiction of any such actions brought by either party, and the parties hereby consent to the personal jurisdiction of such courts and waive any objection that such courts are an inconvenient forum. You agree that you will not assert in any way any claim or defense that you are not personally subject to the jurisdiction of such courts, that the claim or defense is invalid or is otherwise unenforceable, or that this section is voidable or unenforceable.
11. Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its conflict of law principles. If the arbitration provisions in Section 10 do not apply to you and you are not a resident of the United States, you hereby agree that any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules.
12. Force Majeure
Neither Party is liable for any default, delay, or failure in the performance of any of its obligations under these Terms of Services (other than failure to make payments when due) caused directly or indirectly by circumstances beyond such Party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, acts of war or terrorism, pandemic, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such Party to perform its obligations hereunder.
Initially, the force majeure event or unforeseeable circumstance shall have the effect of suspending performance hereof.
If the force majeure event or unforeseeable circumstance lasts for more than three (3) months and unless the Parties agree otherwise, these Terms of Service shall be terminated automatically, without the need to seek a court ruling, serve formal notice or provide prior notice. In such event, the Parties shall not be held liable for the total or partial non-performance of their obligations hereunder.
13. Severability
If any provision of this Agreement shall be deemed invalid, illegal, or unenforceable, this Agreement shall be construed as though such invalid, illegal, or unenforceable provision was not included. The remainder of this Agreement shall nevertheless remain in full force and effect.
14. Notices
Click Prox may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your Click Prox account or by written communication delivered by first class U.S. mail to your address on record. You may give notice to Click Prox at any time via electronic mail to the following address: support@clickprox.com.
15. Miscellaneous
Click Prox may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. This Agreement is not assignable, transferable or sublicensable by you except with Click Prox’s prior written consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Click Prox in any respect whatsoever. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any provision of this Agreement.
16. Complete Agreement
This Agreement, which incorporates Click Prox’s Privacy Policy, constitutes the entire agreement between you and us relating to your access to and use of the Services and supersedes any prior or contemporaneous written or oral agreements, communications or other understandings relating to the subject matter hereof (with the sole exception of any separate license agreements for Click Prox Advanced Consulting or Click Prox Advanced Consulting Content to which you are a party or beneficiary, which shall remain in full force and effect and which shall supplement the terms of this Agreement). This Agreement shall not be modified, either expressly or by implication, except as set forth above in Section 9. The provisions of this Agreement supersede all contemporaneous oral agreements and all prior oral and written communications and understandings of the Parties with respect to the subject matter of this Agreement.