THE PROXYMESH TERMS OF SERVICE between ProxyMesh LLC ("we" or "ProxyMesh") and the customer who orders ProxyMesh® services ("you" or "Customer").
THE AGREEMENT. Your use of ProxyMesh services is governed by these Terms of Service, the ProxyMesh Acceptable Use Policy, and the terms of your Order. When we use the term "Agreement" in any of the Order, Terms of Service, or Acceptable Use Policy, we are referring collectively to all of them. If the individual who submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and ProxyMesh regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
1. Defined Terms
2. ProxyMesh's Obligations
3. Your Obligations
4. Access to the Services
7. Fee Increases
9. Termination for Convenience
10. Termination for Breach
11. Unauthorized Access to Your Data or Use of the Services
13. Confidential Information
14. Limitation on Damages
16. Who May Use the Service
17. Changes to the Acceptable Use Policy
19. Ownership of Intellectual Property
21. Force Majeure
22. Governing Law, Lawsuits
23. Some Agreement Mechanics
1. DEFINED TERMS. Some words used in the Agreement have particular meanings:
"Acceptable Use Policy" or "AUP" means the ProxyMesh Acceptable Use Policy posted at http://proxymesh.com/aup/ as of the date you sign the Order, as it may be amended pursuant to Section 17 below.
"Business Day" means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States pacific time, excluding federal public holidays in the United States.
"Confidential Information" means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, the ProxyMesh system, (ii) for ProxyMesh, unpublished prices and other terms of service, audit and security reports, product development plans, server configuration designs, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other's Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be "Confidential Information" of the other party.
"Junk Mail" means email that is captured by our mail filter and other email that is reported by you to ProxyMesh as undesirable.
"Order" means either: (i) the online order that you submit to ProxyMesh via the ProxyMesh website, or (ii) any other written order (either in electronic or paper form) provided to you by ProxyMesh for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
"Services" means those services described in the Order.
2. PROXYMESH'S OBLIGATIONS. Contingent on ProxyMesh's acceptance of your Order, and subject to these Terms of Service, ProxyMesh agrees to provide the Services.
3. YOUR OBLIGATIONS. You agree to do each of the following: (i) comply with applicable law and the ProxyMesh Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with ProxyMesh's reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (v) keep your billing contact and other account information up to date; and (vi) immediately notify ProxyMesh of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, ProxyMesh's reasonable determination shall control.
4. ACCESS TO THE SERVICES. You may access the Services via the ProxyMesh website, or via the ProxyMesh proxy servers. ProxyMesh may modify its website or proxy servers at any time.
5. TERM. The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow ProxyMesh's non-renewal process accessible from the ProxyMesh website to give an effective notice of non-renewal.
6. FEES. ProxyMesh will charge you the fees stated in your Order. Unless you have made other arrangements, ProxyMesh will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as bandwidth fees) on or around the first day of the billing cycle that follows the date incurred. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that ProxyMesh first makes the Services available to you. ProxyMesh may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. ProxyMesh may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and ProxyMesh brings a legal action to collect, or engages a collection agency, you must also pay ProxyMesh's reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any "credit" that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide ProxyMesh with accurate factual information to help ProxyMesh determine if any tax is due with respect to the provision of the Services, and if ProxyMesh is required by law to collect taxes on the provision of the Services, you must pay ProxyMesh the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize ProxyMesh to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you will be applied to unpaid fees for services or refunded to you, at our option.
7. FEE INCREASES. We may increase fees at any time on forty-five (45) days advance written notice.
8. SUSPENSION. We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don't cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect ProxyMesh or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
9. TERMINATION FOR CONVENIENCE. You may terminate the Agreement for convenience at any time. If you terminate the agreement within 30 days of signing up, you are eligable for a refund of your initial payment, providing you send a refund request to firstname.lastname@example.org. If you terminate the Agreement for convenience after 30 days of signing up, you will not receive a pro-rated refund, and you must pay any non-recurring fees that have accumulated during the current term. Once you have terminated the Agreement, you will no longer have access to the Services.
10. TERMINATION FOR BREACH. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11. UNAUTHORIZED ACCESS TO YOUR DATA OR USE OF THE SERVICES. ProxyMesh is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from ProxyMesh's failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
12. DISCLAIMERS. We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. ProxyMesh has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. The Services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
13. CONFIDENTIAL INFORMATION. Each of us agrees not to use the other's Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other's Confidential Information to any third person except as follows:
- to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in these General Terms and Conditions.
- to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other's conduct may violate applicable criminal law as required by law; or
- in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
14. LIMITATION ON DAMAGES. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party's use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from ProxyMesh's negligence, the maximum aggregate monetary liability of ProxyMesh and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Two Hundred Dollars ($200.00).
15. INDEMNIFICATION. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the "ProxyMesh Indemnitees") are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the ProxyMesh Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
16. WHO MAY USE THE SERVICE. You may resell the Services, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Unless otherwise agreed, ProxyMesh will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
17. CHANGES TO THE ACCEPTABLE USE POLICY. We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
18. NOTICES. Your routine communications regarding the Services should be sent to the ProxyMesh account team using the ProxyMesh website. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class United States mail to:
3773 Howard Hughes Parkway, South Tower, Suite 500
Las Vegas, NV 89169
ProxyMesh's routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that ProxyMesh may give notice of an amendment to the AUP by posting the notice on the ProxyMesh website. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the ProxyMesh website after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
19. OWNERSHIP OF INTELLECTUAL PROPERTY Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by ProxyMesh during the performance of the Services shall belong to ProxyMesh unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
20. ASSIGNMENT/SUBCONTRACTORS You may not assign the Agreement without ProxyMesh's prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. ProxyMesh may use third party service providers to perform all or any part of the Services, but ProxyMesh remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if ProxyMesh performed the Services itself.
21. FORCE MAJEURE Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
22. GOVERNING LAW, LAWSUITS The Agreement is governed by the laws of the State of Nevada, exclusive of any Nevada choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Clark County, Nevada, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against ProxyMesh or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
23. SOME AGREEMENT MECHANICS These Terms of Service may have been incorporated in your Order by reference to the page on the ProxyMesh website. Although we may from time to time revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. ProxyMesh may accept or reject any Order you submit in its sole discretion. ProxyMesh's provisioning of the Services described in an Order shall be ProxyMesh's acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word "including" in the Agreement shall be read to mean "including without limitation." All provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.