Version 1.1
Last Updated: October 1, 2018
This Proveedor End User Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of www.proveedor.biz and all its sub-domains (the “Site”) and/or the cloud-based hosting, analytics, and other related cloud services provided by Proximo Consulting Services Inc. (together with the Site, the “Services”) and is an agreement between Proximo Consulting Services Inc. (“Proximo,” “us,” “we”) and you or the entity you represent (“you,” “your,” “user,” “subscriber”). This Agreement: (i) incorporates any terms agreed between you and Proximo or provided to you; and (ii) becomes effective immediately at such time as you create an account on the Site, or, if earlier, when you use any of the Services. IF YOU DO NOT ACCEPT THIS AGREEMENT, WE WILL NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER. IF YOU REGISTER FOR AN ACCOUNT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO PROXIMO THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
1. REGISTRATION ACCURACY.
In consideration of your use of the Services you agree to: (1) provide true, accurate, current and complete information about yourself in responding to and/or completing the Site's registration form (the "Registration Information"); and (2) keep the Registration Information true, accurate, current and complete by maintaining and promptly updating it. If you provide any information that is untrue, inaccurate, not current or incomplete or if Proximo has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Proximo has the right to suspend or terminate your account and refuse any and all current or future use of the Site and/or the Services (or any portion thereof).
2. YOUR ACCOUNT AND SECURITY.
You will be responsible for creating and maintaining the confidentiality of your user name and password. You are responsible for all activity occurring under your account. You agree that you will (i) immediately notify Proximo of any unauthorized use of your user name or password and (ii) ensure that you properly exit any Services and/or the Site at the completion of your session. Proximo shall have no liability for any loss or damage arising from your account or your failure to comply with these requirements.
3. YOUR DATA AND END USER DATA.
3.1. By using the Services, you hereby acknowledge that: (i) you or your End Users (as hereinafter defined) may send, receive, upload, retrieve, and/or otherwise transmit or recover, information, images, text, files, materials, content and other data (collectively, "Subscriber Data") to or from the Services; and (ii) you bear the entire and sole responsibility for the accuracy, reliability, usefulness, completeness, and contents, of any and all such Subscriber Data, including but not limited to any loss, liabilities or damages that arise or result from the Subscriber Data.
3.2. As between you and Proximo, you or your licensors own all right, title, and interest in and to Subscriber Data. You consent to our use of Subscriber Data to provide the Services to any End Users. For purposes of this Agreement, “End User” shall mean any individual or entity that directly or indirectly through another party: (i) accesses or uses Subscriber Data; or (b) otherwise accesses or uses the Services and/or the Site under your account.
3.3. By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that you own or have the necessary rights to, send, upload, transmit, provide or otherwise provide the Subscriber Data to the Site and/or Services and to Proximo, and the provision of the Subscriber Data to, and use of the Subscriber Data by, with, or through the Site and/or Services under this Agreement will not violate or infringe any third party intellectual property rights, or other rights, including but not limited to privacy, copyright, patent, trademark or trade secret rights, nor will it violate the terms of any agreement between you and a third party, including but not limited to any non-disclosure or confidentiality agreement.
3.4. By providing or otherwise making available any Subscriber Data in connection with the Services, you hereby represent and warrant that the Subscriber Data: (i) does not and will contain any viruses, worms, malware, “Trojan horses” or any generally harmful, malicious, or destructive code; and (ii) is not spam, is not generated by any bots or harmful software, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (for example and without limitation, “phishing”) or mislead recipients as to the source of the material (for example and without limitation, “spoofing”).
3.5. By submitting any Subscriber Data to Proximo, you hereby grant Proximo a royalty-free, fully-paid-up, sub-licensable, transferable, non-exclusive, worldwide and perpetual right and license to reproduce, modify, adapt, publish, and distribute the Subscriber Data (i) for the purpose of enabling Proximo to provide you with the Services; (ii) for the purpose of providing, through the Site and Services, Subscriber Data to third party corporations you elect to send it to; (iii) for the use of third party corporations who are looking to possibly purchase from suppliers that provide your products and services; (iv) for the use of customers you have provided services to during the previous twenty-four (24) months; and (v) for benchmarking and analysis, provided that all such Subscriber Data is anonymized and used in the aggregate. Notwithstanding the foregoing, Proximo shall not knowingly sell or license Subscriber Data to any third party for the purpose of engaging in unsolicited marketing or sales activities.
3.6. You hereby understand and agree that at all times Proximo reserves the right (but does not assume the obligation), to be exercised in its sole discretion in the event it deems you to be in violation this Agreement, in Proximo's sole discretion, either to (i) delete or remove any Subscriber Data for any reason; or (ii) terminate or deny access to and use of the Services and/or Site to you or any other party, for any reason.
3.7. You are responsible for End Users’ use of any Subscriber Data and the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to Subscriber Data and the Services.
4. ELIGIBILITY.
You must be 18 years of age or older to enter use the Site and Services. If you are under the age of 18, please discontinue use of the Site and Services. Proximo reserves the right to ask for proof of age and to withhold or terminate your use of the Site and/or Services if you are below the specified age requirement. Registration or use of the Services is void in any jurisdiction where prohibited. You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. You hereby warrant that if you are a corporation or other legal business entity, that such entity is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement. Your use of the Site and Services is governed by the Proximo privacy policy, which is available at http://www.proveedor.biz/privacy (the “Privacy Policy”).
5. CHANGES.
5.1. We may change, discontinue, alter, or modify the Site or any of the Services, or a portion of the Site or Services (including the Services as a whole) or change or remove features or functionality of the Site or Services from time to time. We will notify you of any material change to or discontinuation of the Services with two (2) weeks prior written to you.
6. MONITORING OF YOUR ACTIVITY.
6.1. Because Proximo wants to continue to improve the Services for the benefit of you or any of your End Users, we may (but do not have an obligation to) monitor your activity on the Services.
6.2. By using the Services, you specifically agree to Proximo monitoring you in this manner.
6.3. You understand, however, Proximo cannot and does not make any warranties or guarantees that: (i) the Services, or any component thereof, will be made free from error or inaccuracy as a result of such monitoring or free from unauthorized and/or unacceptable use as a result of such monitoring; (ii) any statements or factual items presented by the Services will be free from error or authenticated; or (iii) Proximo will take any action in the event of any non-compliance with this Agreement.
7. OWNERSHIP AND INTELLECTUAL PROPERTY.
7.1 “Proveedor”, “Proximo Consulting”, and “Proximo” are trademarks of Proximo. All information appearing on or through the Site or Services (inclusive of any websites, applications, and other materials associated therewith), including documents, copy, text, images, logos, design elements, graphics, as well as the arrangement and composition thereof, are the sole property of Proximo or its third party licensors. Any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is expressly prohibited without the express written consent of the applicable copyright owner or licensor. Proximo reserves all rights in the Site and Services that are not expressly granted. You acknowledge and affirm that other third party trademarks, names, and logos on this Site and the Services are the intellectual property of their respective third party owners. Nothing in this Agreement shall be deemed to assign or transfer to you or any End User any rights to any such intellectual property.
7.2 As between you and Proximo, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Site and Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Site and Services solely in accordance with this Agreement. Except as provided in this Section 7.2, you obtain no rights under this Agreement from us or our licensors to the Site or Services, including any related intellectual property rights.
7.3 Proximo will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions or feedback (collectively, "Feedback") provided to Proximo by you, any End User, or your affiliates, and their respective employees, representatives, or other agents, with respect to the Site and Services. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
8. COMPLIANCE WITH LAW.
Any use of the Site and/or Services, including but not limited to posting, distributing, or otherwise making available any Subscriber Data, must be lawful and you expressly agree to avoid any use that is potentially or actually unlawful, harassing, libelous, abusive, threatening, harmful, bigoted, racially offensive, obscene or otherwise objectionable, or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or judicial ruling. You shall not falsely claim to be or represent any third parties including but not limited to Proximo personnel or another user.
9. TERMINATION.
You understand and agree that Proximo may, in its sole discretion and at any time, terminate your password, your account, or any Subscriber Data, for any reason. Proximo may also, in its sole discretion and at any time, discontinue any service or limit or restrict any user's access thereto, for any reason. You understand and agree that Proximo may take any one or more of these actions without prior notice to you, in the event it deems you to be in violation this Agreement, and shall provide you two (2) weeks prior written notice in the event Proximo does not deem you in violation of this Agreement. Should Proximo take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your account, including your Registration Information and Subscriber Data. You understand and agree that Proximo shall not have any liability to you or any other person for any termination of your access to any service and/or the removal of information concerning your account. You agree not to use or attempt to use the Site or Services for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, subscribers, facilities, or to any person. Improper uses include, but are not limited to:
ALL SERVICES ARE PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. PROXIMO DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR THE SERVICES FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROXIMO DOES NOT GUARANTEE THAT ANY PROXIMO MATERIALS, INFORMATION, SITE, OR SERVICES WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. ANY MATERIAL, ANALYSIS, REPORT, AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM DOWNLOADING SUCH MATERIAL, ANALYSIS, REPORT, AND/OR DATA.
PROXIMO EXPRESSLY DISCLAIMS ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL PROXIMO BE LIABLE FOR SUCH DAMAGES RESULTING FROM THE ACTIONS OR CONDUCT OF ANY PROXIMO USER.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PROXIMO'S LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO PROXIMO'S ACTUAL OR ALLEGED NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT A SUBSCRIBER OR USER PAID FOR THE USE OF THE SERVICES, BUT IN NO CASE WILL OUR LIABILITY TO YOU EXCEED $500. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO US FOR THE USE OF THE SITE AND/OR SERVICES, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM US, REGARDLESS OF THE CAUSE OF ACTION.
ALL USERS WHO ARE CALIFORNIA RESIDENTS, HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES IN RELEVANT PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE ABSOLUTELY NECESSARY FOR PROXIMO TO OFFER THE SERVICES AND/OR OPERATE THE SITE, AND ACCORDINGLY SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL BE OF FULL EFFECT AND FORCE, EVEN IF THEY CAUSE ANY USER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE.
11. HOLD HARMLESS AND INDEMNIFICATION.
By using the Site and/or Services, you agree to defend, indemnify, and hold harmless Proximo, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) your or any End Users’ use of the Site and/or Services; (ii) breach of this Agreement, breach of any agreement with a third party, or violation of applicable law by you or any End User; (iii) any Subscriber Data or the combination of any Subscriber Data with other applications, content or processes, including any claim involving unauthorized disclosure or alleged infringement or misappropriation of third-party rights by any Subscriber Data or by the use, development, design, production, licensing, sale, advertising or marketing of any Subscriber Data; or (iv) a dispute between you and any End User or other user of the Site or Services. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process.
12. GOVERNING LAW.
If there is any dispute arising out of the Site or Services, by using the Site and/or Services, you expressly agree that any such dispute shall be governed by the laws of the State of New York, U.S.A. and the federal laws of the United States of America, without regard to its conflict of law provisions and excluding that body of law known as conflicts of law and the United Nations Convention on Contracts for the Sale of Goods. You expressly agree to submit to the exclusive jurisdiction of the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 12. Proximo’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge Proximo’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Site or Services or information provided to or gathered by Proximo with respect to such use.
13. SEVERABILITY.
If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
14. NO PARTNERSHIP.
In no event shall your use of the Site or Services create a partnership, joint venture, broker relationship, employee-employer, agency, or franchiser-franchisee relationship. Proximo’s relationship with you is that of an independent contractor.
15. ENTIRE AGREEMENT.
It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter.
16. NO THIRD PARTY BENEFICIARIES.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
17. CLASS ACTION/JURY TRIAL WAIVER.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE OR SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND PROXIMO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.