In these Terms and Conditions, the following capitalized wording shall have the following meaning:
- “Proxyclick”: Proxyclick Inc., a company organized under the laws of New York, with its registered office 1177 Avenue of the Americas, 7th floor, New York NY 10036, United States.
- “Client”: any legal entity that opens an account to receive a Service from Proxyclick.
- "Location": the physical address that is linked to the account opened by the Client, where the Client is entitled to use the Services.
- “User”: any natural person authorized to use a Service on behalf of the Client.
- “Administrator User”: the person or persons appointed by the Client to manage the Client’s account, which have specific administrator functionalities, such as the possibility to create Users, define their rights and modify settings.
- “Service”: any of the web and mobile applications provided by Proxyclick in the form of Software-as-a-Service (SaaS) available online through the Site, and the underlying servers and software used to provide such applications. A detailed description of the Services can be found at proxyclick.com.
- “Trial Period”: as defined in section 3.3.1.
- “Client Subscription”: the plan selected by the Client that includes all or certain of the Services.
- “Business day”: Any day other than Saturdays, Sundays and public holidays in the United States.
- “Intellectual Property Rights”: all copyrights, patents, database rights, confidential information, trademark rights, designs and models rights and/or any other intellectual property rights (whether registered or unregistered), including technical and/or commercial know-how, methods and concepts, whether or not patentable; applications for registration, and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
- “Site”: Proxyclick’s website at https://app.proxyclick.com.
2. Binding agreement
2.1 Acceptance of terms
2.1.1. Proxyclick provides its Services subject to the Client’s acceptance of the Agreement. By opening an account with Proxyclick through the Site, the Client acknowledges that it has read, understood and agreed to be bound by this Agreement. If a person signs this Agreement on behalf of a company or legal entity, this person warrants that he/she has the authority to bind the company or any other legal entity or affiliate he/she represents.
2.1.2. If the Client registers for a Trial Period, this Agreement will also govern the Trial Period.
2.2 Modifications of terms
2.2.1. Proxyclick reserves the right to unilaterally revise or update the Agreement from time to time, at its sole discretion.
2.2.2. The Client understands and agrees that its continued use of a Service following the posting of any changes to the Agreement constitutes acceptance of those changes. Proxyclick will inform the Client of any modifications of the terms of this Agreement by using a notice on the Site, email or any other form of written communication. It is the Client’s responsibility to check the Site regularly for any such notifications that may be published solely on the Site. Changes will apply fourteen (14) business days after they have been published on the Site or otherwise notified, whichever comes first.
If the Client does not agree to the changes, the Client can stop using the Service and cancel its account through the Site without charge within fourteen (14) business days after such changes have been published on the Site or otherwise notified, whichever comes first, in which case the Client will be entitled to a pro rata refund of the monthly or annual fee that would already have been paid. There is no possibility to continue to use a Service under the old conditions.
3. Provision of the services
3.1 Use of the services
3.1.1. During the term of this Agreement, Proxyclick hereby grants the Client and the Users, a limited, revocable, non-exclusive, non-transferrable license to access and use the Services included in the applicable Client Subscription in accordance with this Agreement. From and after the date of any such purchase and for the remaining duration of the term of this Agreement, Proxyclick hereby also grants the Client and the Users a limited, revocable, non-exclusive, non-transferrable license to access and use, in accordance with this Agreement, any additional Services that are purchased by the Client, for an additional cost, during the term of this Agreement.
3.1.2. Client is responsible for ensuring that its use of the Services is in accordance with this Agreement.
3.1.3. The license described in Section 3.1.1 is granted subject to the restrictions in terms of the number of Users, functionalities and/or transactions attaching to the applicable Client Subscription, as described on the Site. The license described in Section 3.1.1 is granted for the sole purpose of enabling the Client and Users to access and use the Services for the Client’s own lawful internal business purposes. Unless otherwise stated in writing, the license cannot be transferred or sublicensed to any third party, in whole or in part, without the written prior approval of Proxyclick.
3.1.4. Except for the rights expressly granted herein, no other rights are granted to the Client or any User. The Client expressly acknowledges that the access or use of a Service does not imply a transfer of any Intellectual Property Right to the Client or any User. All Intellectual Property Rights and all derivative rights related to the Site and the Services continue to be retained by Proxyclick or its licensors.
3.2 Registration process
3.2.1. In order to sign up for a Service, Proxyclick requires the Client to register on the Site. When the Client registers, a client account will be opened and the Client is required to provide its customary billing information such as name and billing address and to select a plan and a payment frequency. Depending on the selected Client Subscription and payment frequency, a credit card number might be required as well. The Client agrees to provide accurate and complete information when registering, and to keep this information up-to-date. Proxyclick has the right to suspend or terminate the Client’s client account and to refuse any and/or all current or future use of the Service (or any part thereof), if any information is untrue, inaccurate, not up-to-date or incomplete.
3.2.2. The Client and its Users are allowed to register and log in, using an email address and a password for authentication (the “Client Login Data”). The Client remains responsible for the confidentiality of the Client Login Data. The Client is fully responsible for all activities that occur using its account.
3.3 Free trial period
3.3.1. The Client has the right to request one trial period free of charge per Location, in order to experience the features and functionalities of the Services prior to making a purchasing decision (the “Trial Period”). If the Client renews its account after the end of a Trial Period, the Client will not be eligible for another free Trial Period for the same Location. If Proxyclick discovers that the Client has registered several times for Trial Periods for a certain Location, Proxyclick reserves the right to restrict or terminate any of the Client’s client accounts in Proxyclick’s sole discretion and/or to refuse all current or future use of the Service (or any part thereof).
3.3.2. During the Trial Period, Proxyclick makes its Services available to the Client with full access to all functionalities (excluding API and LDAP access) and full support. For Services used during the Trial Period, Proxyclick does not make any binding commitments, obligations, representations or warranties in connection with the Services, as the Services are provided “as is” and “as available” during the Trial Period.
3.3.3. The Trial Period starts from the creation of a client account, which is confirmed by an approval sent by Proxyclick to the e-mail address provided by the Client. The Trial Period is valid for thirty (30) days, unless the Client’s use of the Service is terminated earlier in accordance with this Agreement. As soon as the Trial Period expires, the Client’s access will be immediately terminated, except if a paid for Client Subscription is opened.
3.3.4. Notwithstanding the foregoing, Proxyclick has the right to modify the conditions of the Trial Period or to discontinue it entirely at any time, without prior notice, including, but not limited to, when Proxyclick believes that the Client applies for a Trial Period for an unlawful purpose.
4. Representations, Warranties and Covenants
Providing a great quality of service is central to Proxyclick’s Service objectives. Proxyclick represents and warrants to the Client that (i) it has the experience and ability to perform the Services; (ii) it will perform the Services in a professional, competent and timely manner, consistent with industry standards and with the terms as contained herein; (iii) it has and will maintain all licenses, consents, and permissions necessary for the performance of its obligations under this Agreement and otherwise comply with applicable laws in the provision of the Services; (iv) it is authorized to grant the rights and undertake the obligations described herein subject to the terms and conditions contained in this Agreement; and (v) the Services do not infringe the Intellectual Property Rights of any third party.
4.1 Availability and good performance
4.1.1. Proxyclick’s objective is to provide the Client continuous availability of the Services and the Site, and a high level of performance of the same. Proxyclick will use commercially reasonable efforts to correct all material defaults, defects and errors in the operation or the functionality of the Services at Proxyclick’s expense as soon as practicable after Proxyclick is notified by the Client of any of the same. The Client can choose to subscribe on the Proxyclick platform (http://status.proxyclick.com) to receive status updates with respect to the availability and performance of the Services.
4.1.2. Proxyclick will use commercially reasonable efforts, being no less than accepted industry standards, to make its Services available to the Client with a Monthly Uptime Percentage of at least 99.50% during any given monthly billing cycle (the “Service Commitment”).
The “Monthly Uptime Percentage” is calculated by taking the total number of minutes in a calendar month minus the number of minutes of Downtime in the given calendar month, all divided by the total number of minutes in that calendar month. The time that the Services are not available qualifies as “Downtime”, which gives rise to service credits. Downtime does not include (i) scheduled Downtime (for maintenance and upgrades which are notified in advance to Administrator Users), (ii) unavailability of the Services due to force majeure, (iii) lack of access that is due to the Client’s improper use of the Services, and (iv) unavailability of the Service that results from the Client’s acts or omissions or the Client’s third party services, hardware, software, or network, including but not limited to issues resulting from inadequate bandwidth.
Proxyclick will notify the Administrator User in case of scheduled Downtime which may have a substantial impact on Users.
4.1.3. If Proxyclick fails to meet its Service Commitment in a given calendar month, the Client will be eligible to receive Service Credits (for the Client’s Downtime during such calendar month) on future billing cycles. Such Service Credits shall be the Client’s sole and exclusive remedy with respect to such failure to meet the Service Commitment.
4.1.4. The claim for Service Credits submitted to Proxyclick must include (i) a detailed description of the incident; (ii) information regarding the duration of the Downtime; and (iii) descriptions of the Client’s attempts to resolve the incident at the time of occurrence. Proxyclick must receive the claim and all required information within thirty (30) calendar days after the day when the incident occurred. Proxyclick will evaluate all information reasonably available to it and make a good faith judgment on whether Service Credits are owed. If Proxyclick determines that Service Credits are owed to the Client, Proxyclick will issue them on the next billing period. Service credits will neither be paid in cash, nor refunded to credit cards. If Proxyclick determines that Service Credits are not owed to the Client, Proxyclick will communicate the reason for such decision to the Client within a month. Service Credits are calculated as a percentage of the total charges paid by the Client (excluding one-time payments) for the monthly billing cycle in which the Downtime occurred, in accordance with the chart below:
Monthly uptime percentage
Service credit percentage
|Less than 99,50% but equal to or greater than 95%
|Less than 95%
The Service is only fully functional and effective if the Client uses the necessary pre-specified hardware (browser) software and telecommunication facilities. It is the Client’s sole responsibility to take the necessary measures that enable the access to the Services on the Internet. The equipment and software the Client uses to access the Services online must meet the system requirements as clearly communicated here.
4.2.1. Proxyclick represents and warrants that (i) its networks, operating systems, software, routers, databases, and computer systems comply with and are properly configured in accordance with applicable laws and in compliance with industry standards and that it is knowledgeable as to such applicable industry standards; (ii) it utilizes commercially reasonable procedures to back-up any data processed under this Agreement; (iii) it shall implement security policies and procedures to protect to the data processed under this Agreement, which policies and procedures shall be in accordance with applicable laws and in compliance with industry standards. Proxyclick will notify the Client of any known or suspected security breach in accordance with applicable laws and regulations. In order to receive such notifications, the Client commits to subscribe on the Proxyclick platform (http://status.proxyclick.com) to receive status updates. Proxyclick will work with the Client to immediately correct any material security deficiency of which Proxyclick is notified in writing.
4.2.2. The Client understands that Proxyclick cannot and does not guarantee or warrant that files available for downloading from the internet or the Site, or using the Services, will be free of viruses or other destructive code. The Client is responsible for implementing sufficient procedures and checkpoints to satisfy the Client’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, PROXYCLICK WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO THE CLIENT’S DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE CLIENT’S USE OF THE SITE, THE SERVICES AND UNDERLYING APPLICATIONS, ANY OF THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE IS AT THE CLIENT’S OWN RISK. THE SITE, THE SERVICES AND UNDERLYING APPLICATIONS, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NEITHER PROXYCLICK NOR ANY PERSON ASSOCIATED WITH PROXYCLICK MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER PROXYCLICK NOR ANYONE ASSOCIATED WITH PROXYCLICK REPRESENTS OR WARRANTS THAT THE SITE, THE SERVICES AND UNDERLYING APPLICATIONS, ANY OF THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, PROXYCLICK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.3.1. Maintenance and upgrades
18.104.22.168. Proxyclick will perform maintenance activities and updates of the Services on a regular basis. Proxyclick is also keen to innovate and improve its Services. The Client acknowledges and agrees that Proxyclick may, in the future, offer new features through the Services or change the form and nature of the latter in a non-material manner. Such new features or modified Services shall be subject to this Agreement.
22.214.171.124. Proxyclick may limit at any time the access or use of the Services to the extent necessary for maintenance or to perform modifications or enhancements to the Services. Proxyclick strives to schedule maintenance and upgrades mostly during weekends. Proxyclick will inform the Client at least 24 hours in advance of a scheduled maintenance which may have a substantial impact on Users. Downtime or other Service interruptions caused by scheduled maintenance will not entitle the Client to reimbursement of fees or other compensation from Proxyclick.
Through its customer support service, Proxyclick will strive to provide clear and conclusive answers to questions or comments of the Client about its experience with the Services or the Site so as to contribute to the solution of a problem that has been identified relating to the Client’s access to or use of the Services or the Site. Questions and comments should be made in writing via email at email@example.com or through the dedicated icon when the Client is logged in.
5. Acceptable use
5.1 Illegal activity
The Client shall use and access the Service only in compliance with the Agreement and with all applicable laws and regulations.
5.2.1. The Client is not authorized to take any action that may jeopardize the safety or security of the Services, the Site or of the network used. This includes, but is not limited to, distributing, downloading, uploading or transmitting any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious program that may infringe the Services or the Site and the interests of both Proxyclick and its Clients, Users and other customers. The Client must refrain from processing any content that may burden or disturb the Services’ infrastructure or their proper functioning.
5.2.2. Upon prior written notice to Proxyclick, the Client shall be authorized to perform regular vulnerability tests (automated scans) following agreed upon instructions and procedures. The results shall be provided to Proxyclick in order to try and address or mitigate possible vulnerabilities identified.
5.2.3. The Client agrees to immediately notify in writing Proxyclick of any breach of security or unauthorized use of the Client’s account or Client Login Data, and commits to take all appropriate measures to prevent unauthorized access or use (e.g. ensuring that the Client exits its account at the end of each session and that the Client Login Data are adequately protected).
5.3 Unsolicited messages
Using the Service to send unsolicited and/or commercial messages between Users, such as junk mail, spamming and chain letters or sending threatening messages and other disturbing messages between Users, is not allowed.
6. Content management
6.1 Inappropriate content
6.1.1. The functionality of one or more of the Services enables the Client to add content to the application(s) underlying such Services. The Client is solely responsible for the content that it and its Users may add. The Client shall not create, transmit, display or make otherwise available any Content that is unlawful, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, or hateful (including viruses, worms and any other destructive codes).
6.1.2. Proxyclick reserves the right, in its sole discretion, to:
- Remove or refuse to post any of the Client’s content for any or no reason in Proxyclick’s sole discretion.
- Take any action with respect to any of the Client’s content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services, the Site or the public, or could create liability for Proxyclick.
- Disclose the Client’s identity or other information about the Client to any third party who claims that material posted by the Client violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services or the Site.
- Terminate or suspend the Client’s access to all or part of the Services or the Site for any or no reason, including without limitation, any violation of this Agreement.
Complaints can be directed at firstname.lastname@example.org.
The Site may contain direct or indirect links to third party websites and/or electronic communication portals, on which Proxyclick cannot exercise any technical, content or other control. User generated content may include such hyperlinks among others. Proxyclick does not guarantee, and does not assume any liability for, the accuracy, legality, completeness or quality (of the content) of (i) external websites linked to on the Site or (ii) any other electronic communications portals that are not under the actual control of Proxyclick. The use of or access thereto are therefore at the Client’s own risk and responsibility. Proxyclick is not liable for any damage that may result therefrom.
All Users, also of other customers of Proxyclick, can upload content to the Service, which can then be accessed or downloaded by other authorized Users, including the Client and its authorized Users. Proxyclick cannot be held accountable for the consequences of downloading content added by other Users, on which it does not exercise any control. The Client understands and agrees that every download of content from the Service is at own risk and that damages resulting from loss of data or damage to the Client’s computer system are the Client’s entire and sole responsibility.
7. Fees and payment
7.1. All fees for each possible Client Subscription are indicated on the Site. The fees are stated [in US dollars][NTD: Query whether any other currency will apply for Central and South American clients] and are exclusive of any applicable taxes, duties, levies and currency exchange settlements, unless stated otherwise. The Client agrees to pay the applicable fees and any applicable tax or fee that may accrue in relation to all use of the Services accessed through the Client’s account, including all fees resulting from unauthorized use.
7.2. The Client understands that each Client Subscription offers a maximum limit on the usage of the Services in terms of number of Users and number of visits per month, and undertakes to use the Services in accordance with these limits. The Client understands that an additional service fee will be due in case the number of Users or visits per month exceeds the limits of the Client Subscription. Proxyclick reserves the right to conduct an audit of the Client’s use of the Services every month, at Proxyclick’s own cost, to determine whether the Client’s use is in accordance with the limits of the Client Subscription. If an audit reveals that the Client has exceeded the applicable limits, the Client may be required to immediately pay an additional fee for such use.
7.3. Notwithstanding Clause 12, a Client Subscription lasts for an initial term of 1, 12 or 24 months. Regardless of the Client Subscription, the Client can choose to receive invoices every month at the end of the month, or can opt for prepayment for a 12 or 24 months’ period.
If the Client opts for a monthly payment, Proxyclick invoices the Client at the end of the month for the Services provided during that month. If the Client opts for a 12 or 24 months’ payment, Proxyclick invoices the Client for the Client Subscription in advance, from the date the Client purchased the Client Subscription at then applicable rates.
7.4. If the Client pays its one or two year subscription in advance, a 12-months’ subscription allows the Client to save 10% off the monthly subscription fees, whereas a 24-months’ subscription allows the Client to save 25% off the monthly subscription fees.
If the Client prepays for one or two years and the Client’s asks for additional option(s) or wants to upgrade his subscription plan, (i) Proxyclick will make an appropriate adjustment of the fees on a pro-rated basis (either credit the Client’s account or invoice the Client for the difference) for the period until the next anniversary date of the Agreement, and (ii) thereafter fees will be due that take into account the additional option(s) and/or plan upgrade.
7.5. Proxyclick reserves the right to adapt the fees published on its Site. Any price change will not affect existing subscriptions, but will only apply to new subscriptions. If such change would result in lower prices or otherwise works towards the Client’s advantage (but not in case the lower prices result from higher government levies or taxes), the Client may request its fees due to be adapted as from the date of the Client’s request by sending an e-mail to email@example.com. Such request will not lead to any reimbursement of part of already paid fees for a Client Subscription. It might however lead to the extension of the Client Subscription.
7.6. Provision of the Services is conditional upon the payment by the Client of all fees and charges associated with the Services in accordance with this Agreement. Failure to transfer a due payment will automatically lead to a suspension of the account. Any dispute regarding an invoice must be lodged with Proxyclick in writing within fifteen (15) days of the invoice being received.
Checks are not accepted. Payments are made via credit card or wire transfer depending on the terms of the Client Subscription, according to the following table:
||Credit card requested in case of overage
||Only by credit card
||Only by credit card
||Credit card or wire transfer
|Payment every 2 years
||Credit card or wire transfer
Invoices that the Client is entitled to pay via wire transfer, are due for payment within thirty (30) days from invoice date. Any amount that has been left unpaid at the due date of payment will be increased automatically and without prior notice of default, with a conventional interest of 10% per year, calculated on a daily basis as from the due date up to the full payment completion date. The Client will moreover in addition be liable to pay a fixed indemnity for loss and administrative costs on a flat rate basis of 10%, with a fixed minimum of [$50 per invoice][NTD: To confirm]. Proxyclick may also charge the Client for the expenses Proxyclick reasonably incurs in connection with any debt collection or enforcement efforts, in accordance with the applicable law.
7.7. Payments are processed through the secured facilitator Ingenico Payment Services. Online payments are executed via a closed security system (SSL), through which the Client’s bank details are always encrypted when they are sent via the Internet.
8. Confidential information
8.1. In respect of any Confidential Information disclosed, furnished or made accessible by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, the Receiving Party undertakes to the Disclosing Party:
8.1.1. to keep confidential the Confidential Information;
8.1.2. to keep the Confidential Information in a safe and secure place using such reasonable technical and organizational security measures to prevent unauthorized access, destruction or loss and to treat the Confidential Information with at least the same degree of care that is used for its own Confidential Information;
8.1.3. not to disclose without the prior written consent of the Disclosing Party the Confidential Information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in performing its obligations under this Agreement, and only in so far as necessary for the performance of this Agreement; and
8.1.4. to use the Confidential Information solely in connection with exercising its rights or performing its obligations under this Agreement.
8.2. For the purpose of this section 8, “Confidential Information” means all information whether of a technical, financial or commercial nature or otherwise relating in any manner to the business or affairs of the Disclosing Party which information is not publicly available and which becomes known solely through the exercise of rights and obligations under this Agreement.
8.3. Each Party hereby undertakes to the other to make all its relevant employees, Users, agents and sub-contractors aware of the confidential nature of the Confidential Information of the Disclosing Party and, without limitation to this section 8, to take all such steps as may be deemed necessary in the Receiving Party’s sole discretion from time to time so as to ensure compliance by its employees, Users, agents and sub-contractors with the provisions of this section 8.
8.4. The provisions of sections 8.1 to 8.3 shall not apply to any information which:
8.4.1. is or becomes public knowledge other than by breach of this section 8; or
8.4.2 is in the possession of the Receiving Party without restrictions in relation to disclosure before the date of receipt from the Disclosing Party; or
8.4.3. is received from a third party that lawfully acquired it and that is under no obligation restricting disclosure; or
8.4.4. is independently developed without access to any Confidential Information belonging to the Disclosing Party.
8.5. This section 8 shall remain in full force and effect notwithstanding any termination of this Agreement. All Confidential Information including the copies made thereof is the sole property of the Disclosing Party and shall be promptly returned to the Disclosing Party or destroyed upon written request by the Disclosing Party.
9. Intellectual property
9.1. Except as otherwise expressly set forth herein, the Services, the Site and each of their entire contents, features, and functionalities (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Proxyclick, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The access or use of the Site or the Services does not imply a transfer of the Intellectual Property Rights to the Client or any User.
9.2. The Client agrees not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, commercially exploit, communicate, circulate, or in any way transfer or assign the applications underlying any Service, any Service or any portion of the Site, or any part thereof, to any third party, without the express prior written consent of Proxyclick. The Client further agrees that it will not disassemble, decompile, reverse engineer, create derivative works from or otherwise modify the applications underlying any Service, any Service or any portion of the Site, except to the extent permitted by applicable law and in accordance with this Agreement.
9.3 The Client represents and warrants that:
9.3.1 The Client owns or controls all rights in and to the content added to an application using the Services and has the right to grant the license granted above to Proxyclick and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
9.3.2 All of the Client’s content does and will comply with this Agreement.
9.3.3 The Client understands and acknowledges that the Client is responsible for any content that it or its Users submit or contribute, and the Client, not Proxyclick, has full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. Proxyclick is not responsible or liable to any third party for the content or accuracy of any such content.
10. Client data ownership
10.1. The Client shall retain ownership of its personal data and user information (including any such information collected using cookies or otherwise) provided in the context of using the Services (“Client Data”).
10.2. Notwithstanding any other provision in this Agreement, Proxyclick reserves the right to compile and use aggregated usage Client Data and statistics, and to disclose these aggregated statistics, as long as these do not describe or identify any individual User or Client.
11.1. The Client agrees to defend, indemnify, and hold harmless Proxyclick, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to such Client’s or any of its Users’ violation of these General Terms and Conditions or your use of the Services or the Site, including, but not limited to, content added by the Client or any of its Users to any application underlying the Services, any use of the Site’s content, services, and products other than as expressly authorized in these General Terms and Conditions or the Client’s or any of its Users’ use of any information obtained from the Site.
11.2. Proxyclick shall not have any liability or be considered to be in breach or default of its obligations under the Agreement, to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to force majeure. Force majeure shall be taken to mean any circumstance beyond its control that entirely or partially prevents compliance with its obligations in respect of the Client.
11.3. Proxyclick shall not be liable for damages caused by the Client or actions or omissions of third parties. The Client will hold harmless and indemnify Proxyclick and its employees, managers and directors from any claims and damages that may arise from actions or omissions of the Client.
11.4. In any case, Proxyclick’s liability for damages arising under this Agreement, whether in contract, tort or otherwise, will be limited to actual, proven, direct damages and will not exceed the net amount actually paid to Proxyclick by the Client for the Services under this Agreement during the twelve (12) months immediately preceding the cause of the action. In no event will Proxyclick be liable for indirect, incidental, consequential, punitive, or exemplary damages or financial losses, including the loss of revenue, even if it knew these were possible.
11.6. The limits of liability in this section apply to the fullest extent permitted by applicable law.
12. Terms and termination
12.1 Term and duration
12.1.1. The Agreement takes effect as from the date of completion of the registration process for an account with Proxyclick by the Client, for the initial term selected by the Client.
12.1.2. At the end of the initial term and at the end of each renewal, the Agreement is automatically extended for successive renewal terms, with the same duration as the initial term, except if one of the parties has notified the other party of its decision not to renew the Agreement before the end of the then current term.
12.1.3. Fifteen (15) days prior to the expiry of each term, Proxyclick shall send the Client an email reminding the Client that the term is due to expire. If no response is received from the Client prior to the expiry of the then current term, or if the client has by then not notified its decision to terminate, the subscription will be automatically renewed.
12.2 Suspension and termination
12.2.1. Without limiting the right to termination under clause 12.2.3, Proxyclick has the right to suspend the Client’s access to the Service in case of a material breach of this Agreement by the Client. Proxyclick will inform the Client of Proxyclick’s reasons for the suspension as soon as possible. Following a suspension, the parties agree to negotiate in good faith to resolve the material breach in a timely manner, if possible. Fees may continue to accrue during a suspension, and Proxyclick may charge the Client a reinstatement fee following any suspension of the Client’s Service. Any reinstatement fee must be paid before the Services can be restored.
12.2.2. Notwithstanding anything to the contrary in this Agreement, either party can suspend or terminate the Agreement at any time, even in the absence of a cause. If Proxyclick wishes to invoke this right, it should make its intention known by means of a notice as determined in section 2.9, at least thirty (30) calendar days prior to the month in which it wants to suspend or terminate the Agreement. In such case, the Client only pays for the last running month. If the Client wishes to invoke this right, the Client can cancel the subscription at any time from the Administrator User interface. No amount (including any prepaid amounts) will be refunded to the Client following a cancellation.
12.2.3. Each party may terminate this Agreement by giving written notice if:
- The other party fails to rectify a material breach of this Agreement, within thirty (30) days of receiving written notice describing the nature of the breach and specifying the intention to terminate this Agreement if the breach is not rectified;
- The other party commits a material breach of this Agreement which cannot be remediated;
- It has reasonable suspicion of fraudulent, unauthorized, improper or illegal use being made by the other party of the Services;
- Any event of force majeure continues for more than ninety (90) days.
Either party may terminate this Agreement with immediate effect if the other party is subject to liquidation, insolvency or bankruptcy procedures, or makes any arrangement or composition with, or assignment for the benefit of its creditors, or if any of the other party’s assets are the subject of any form of seizure, or if such other party goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over such other party’s assets, to the extent such termination is allowed by applicable law.
12.2.4. No refunds or partial refunds will be given in respect of any fees paid to Proxyclick in advance, unless Proxyclick is in material breach of the Agreement. In that case, the Client will be entitled to receive a refund of any part of the fees paid to Proxyclick in respect of the period following the date of termination, calculated pro-rata on a daily basis.
12.3 Termination consequences
The Client’s account will be deactivated upon termination or suspension of this Agreement. Deactivation means that the Service will be unavailable in whole or in part and that the Client therefore may not have access to the content that it has added to an application using the Services. Deactivation does not mean that the account, and the associated content, will be immediately and irrevocably removed. Proxyclick guarantees to keep such content available for at least sixty (60) calendar days following the day of deactivation.
Proxyclick (as processor) will process personal data on behalf of the Client (in its capacity of controller). The Client shall be responsible to obtain the appropriate legitimate basis to perform the processing activities with respect to their employees, contractors, visitors and Users under this Agreement.
14. Final provisions
14.1. This Agreement is exclusively governed by the laws of the State of New York, United States.
14.2. The parties hereto agree that any legal action or proceeding brought to enforce an arbitration award rendered pursuant to the terms of this Agreement shall be instituted in the courts of the State of New York, County of New York, or in the United States District Court located in the Southern District of New York. The parties hereto irrevocably consent to the jurisdiction of such courts. The parties hereto waive, to the fullest extent permitted by law, any objection that either of them may now or hereafter have to the laying of venue in any such action or proceeding in any such court, as well as any right that Proxyclick or the Client may now or hereafter have to remove any such action or proceeding, once commenced, to another court on the grounds of forum non conveniens or otherwise.
14.3. Any disputes arising from this Agreement shall be submitted to final and binding arbitration by JAMS pursuant to (a) the JAMS Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, if the Client is located in the US, or (b) the JAMS International Arbitration Rules, if the Client is located outside the US. In such case, the tribunal will consist of one arbitrator. The seat of arbitration will be New York, New York. The language to be used in the arbitral proceedings will be English. The arbitrator shall be an attorney or retired judge with at least ten (10) years’ relevant experience and shall be mutually agreed upon by Proxyclick and the Client. If Proxyclick and the Client are unable to agree on an arbitrator, the arbitrator shall be selected through a process whereby each party shall select and concurrently exchange the names of ten (10) preferred arbitrators on each side from the list of the JAMS arbitrators in New York, NY, with a listing of preferences 1 through 10 for such arbitrators. The highest preference arbitrator name appearing on both lists shall be the arbitrator in the applicable proceeding. In the event that this initial process does not result in the selection of an arbitrator, then each party will select one arbitrator from the JAMS list of arbitrators and in turn, those selected arbitrators will make a final decision on the arbitrator to be used in the proceeding.
Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the reasonable costs for legal representation incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under the circumstances where the prevailing party won on some but not all of its claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the reasonable costs for legal representation incurred by the prevailing party in connection with the arbitration.
14.4. This Agreement constitutes the entire agreement between the Client and Proxyclick relating to the Client’s use of Services, superseding any prior oral or written agreements between the Client and Proxyclick regarding the subject matter herein. The Parties explicitly exclude the application of any standard terms and conditions of purchase or other conditions of the Client, even if these would have been communicated to Proxyclick at a later date and Proxyclick would not have protested those.
14.5. If any provision of this Agreement is held to be unlawful, invalid or otherwise unenforceable for any reason whatsoever, it shall be deemed severed from the Agreement and shall not affect the validity, legality and enforceability of the remaining provisions of this Agreement.
To the maximum extent permitted by applicable law, the unlawful, invalid or unenforceable provision shall be amended to achieve as closely as possible the common intentions of the parties as expressed in the original term.
14.6. The Client may not assign or transfer in any other manner any of its rights or obligations under this Agreement, either in whole or in part, to a third party.
14.7. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.8. This Agreement does not create an agency, partnership, or joint venture.
14.9. There are no third-party beneficiaries to this Agreement.
14.10. Any notice to be served under this Agreement is to be delivered or sent by registered post or email:
- to the Client at the address or email address provided in the subscription process,
- to Proxyclick at 1177 Avenue of the Americas, 7th floor, New York NY 10036, United States or firstname.lastname@example.org.