BroadProximity, LLC., Mobile Device Marketing, Targeted Direct Mail, Listings Management, Reputation Building,Website Creation Maintenance and Support Services. All Products and management services provided by BroadProximity are governed solely by this Agreement and other document which may be executed at any time.
1. Parties and Contract. These Terms and Conditions are incorporated into, and are a part of, the Advertising Contract. Accordingly, as used herein, the term “this Contract” includes (i) the document titled “Advertising Contract” and (ii) these Terms and Conditions. In the event of a conflict between the document titled “Advertising Contract” andthese Terms and Conditions, these Terms and Conditions shall govern. This Contract also includes the terms of any accompanying addendum. “We,” “our” or “us” means BroadProximity, LLC., a California Limited Liability Corporation doing business as: BroadProximity, LLC., and broadproximity.com. “You” or “your” means the person or other legal entity shown after “Advertiser.” “Advertisement” or “Advertising” means the information and images for your business(s) that will be displayed on or viewed thru any medium for advertising, promotion, informing, educate, entertain or engage consumers purchased by you. This Contract is not binding on us until accepted by our management, which may be conditional.
2. Term and Termination. a. Term. The initial term of all Contracts provided by BroadProximity will be 6 months. This Contract may not be cancelled by you during the initial term unless you go out of business (see paragraph 5(e)).After the initial 6-month term advertising for any/all services provided by BroadProximity will automatically renew for an additional 6 months. Cancellations effective at the end of the initial 6 month term or any automatic renewal term, must be in writing and delivered to the other party at least 45 days prior to the end of the initial term or current term. We must send cancellation notices to either the e-mail or mailing address provided on the Advertising Contract, or any other address subsequently provided by you to us. You must send cancellation notices to either: BroadProximity,LLC., 668 Industrial Park Dr. #4314, Manteca, CA. 95337, or insert email address here. We also reserve the right during any advertising term for all of our services/products upon the same notice required above, to: (i) change these terms and conditions, (ii) make changes to the services provided, and/or (iii) change our pricing. b. Pre-Provisioning Termination for Delinquencies. We may terminate this Contract without liability prior to the website being finalized and published online if there are any delinquent bills outstanding for any prior contracts between you and us. c. We may order a credit report about you, and we may review your credit prior to provisioning any and all services. We reserve the right to request full payment in advance of provisioning or to terminate this Contract if we, in good faith, determine you do not meet our credit criteria. d. Other Termination or Modification by Us. In addition to the above, wemay terminate this Contract and discontinue providing all website creation, maintenance and support services withoutliability at any time if we or our vendor(s) discontinue offering the services for any reason. In such event, you will only be obligated to pay through the month of termination.
3. Advertising Content. 3a. Providing Content. You must provide us with content for your advertising. If we (or a vendor on our behalf) create or supply any artwork, illustrations, photographs, text or other content for your website, we (or the vendor on our behalf) retain ownership of copyrights and all other intellectual property interests in such materials. You may not use any content supplied by us or our vendor for any purpose other than the advertising services for BroadProximity. 3b. Our Right to Reject/Alter Content. We may, at any time, reject or alter any advertising content which we, in our sole discretion, believe to be inappropriate, offensive, or unlawful. 3c. Your Representations and Warranties re: Content. You represent and warrant that any website content you supply (or authorize for use) will not violate any copyrights, trademark, service mark, trade name, or any other rights of any thirdparty, and that your website will contain only matters which are truthful, lawful, and authorized for use, and will contain no matter which is misleading, libelous, or injurious. You also represent and warrant that you and any individuals listed on your website will have all required licenses to provide the goods and services advertised. If we receive allegations that your website violates any law or third party rights, including without limitation copyrights or trademark rights, we may (but are not obligated to) remove the disputed content from the website or discontinue yourwebsite services without liability. In all events, you are responsible for complying with all applicable laws related to the use of your website. 3d. Individual Publicity Rights. If the name, image or likeness of any individuals are identifiable as part of the content you supply for the Advertising, you represent and warrant that you have all necessary permissions from such individuals. e. Privacy. You warrant and represent that you will comply with all applicable privacy laws and will not collect, store, process, disseminate, use, provide, make available, or cause us or our vendor to use any end user’s personally identifiable information, any data governed by the Health Insurance Portability and Accountability Act or any data regarding individuals under the age of thirteen.
4. How the Website Creation, Maintenance and Support Services Work. a. Domain Name Registration and Transfer. Unless you already have a domain name ready for use, we or our vendor will acquire a domain name for use with the website services. We cannot guarantee that the domain name(s) you request will be available for use. A domain name you request must be freely available for the minimum fee and not already owned by someone else. During the performance of this Contract, the domain name will be held in the name of us or our vendor. Upon termination of this Contract, provided you have fulfilled the initial 12-month term and are otherwise current on all payment obligations for this and any other contract with us, we will cooperate in releasing ownership of the domain name (but not the website files) to you. You will be responsible for any fees associated with the release of the domainname. b. Website Design & Ongoing Services. We will need your cooperation to design and publish the website. Youmay initially choose from among our available website templates. After the website is finalized, we will publish and host it online. After initial publication online, you may make changes to the images and text of the website at any time. You will be given access to make changes directly, or you can call or e-mail our customer success team for assistance. You will also be given access to view analytics for your website. These ongoing services, along with hosting, are included in the monthly fee. c. Ownership of website files. The website files will be owned and held by usor our vendor. At no time during or after this Contract will you be permitted to take ownership or possession of the website files or transfer your website files to another vendor for hosting. d. Use of Third Party Vendors. We may perform our obligations through a third party vendor, who may utilize other third party vendors, technologies, and/or platforms.
5. Payment Obligations; Remedies. a. Monthly Payments. You agree to pay us all amounts due according to the monthly payment schedule. Except as otherwise provided in this Contract, your liability to us arises only as time goesby and monthly payments become due. Payment will be made via debit card, ACH, or credit card. You authorize us to 3 initiate a charge or debit to the credit card, debit card, or bank account you provide to us, without further authorization or notice, whenever the next payment is due. In the event the attempted charge or debit fails, you will be contacted and must immediately furnish payment to us. b. Late Fees and Interest. We incur substantial costs and expenses in the performance of this Contract and your failure to make timely payments subjects us to substantial losses. You agree that time is of the essence in your payment, and that you will pay strictly in accordance with the payment schedule. It is also agreed that if you are late with a payment, it would be extremely difficult or impractical tofix actual damages resulting from the late payment; therefore, you agree to pay us a late charge of $20.00 for the cost of administering the late payment for each month you are late. In addition, interest of 1.65% per month (19.8% Annual Percentage Rate) or the highest rate allowed by law will be charged on all past due principal amounts. In addition, a $25.00 service fee will be added for any dishonored check. c. Early Termination Fee. If you breach or repudiate this Contract, including, without limitation, by failing to make any payment when due, then in addition to all other remedies, we may elect to discontinue all services provided by BroadProximity to you without liability and declare the Contract terminated. In such event, in addition to all other past due amounts, you will pay an Early Termination Fee equal to 50% of the remaining payments that you would otherwise owe if the Contract were fully performed through the end of the then-current term. The parties agree that such Early Termination Fee is reasonablein light of our upfront sales, set up, and opportunity costs in connection with this Contract. d. Credit and Collections. In the event you breach any payment obligations, we may also refer you to collection and credit reporting agencies. e. Out-of-Business Debt Forgiveness. Notwithstanding the foregoing, and subject to the requirements stated below, ifyou stop conducting business and your telephone service for all telephone numbers utilized in your business is terminated, you will no longer be obligated for any future monthly amounts that would otherwise become due, beginning with the next month after we are notified and receive all required documentation. In such event, we will also discontinue providing the website services. In order to notify us that you are out of business and be relieved of any such obligations that would otherwise become due, you must notify us in writing and provide us with a copy of your final phone bill and any other documentation we may request. Written notice must be delivered to: Accounts Receivable; BroadProximity, LLC., 668 Industrial Park Dr. #4314, Manteca, CA. 95337 or insert email address here. The sale of your business, however, will not qualify for debt forgiveness under this paragraph. f. Co-op Advertising Disclaimer. Any co-op advertising arrangement is between you and the manufacturer, distributor, etc. A failure to receive any expected co-op reimbursement does not relieve you of your financial obligations to us. 6. No Guarantee of Business. We do not guarantee and you expressly disclaim any reliance on any statements, representations, or estimates not contained in this Contract, including without limitation, the performance of any advertising services provided by BroadProximity, any search engine results or rankings, the number of impressions, click through rate, internet traffic, search ranking, the number of persons who will view or click on your website, targeted direct mail, mobile device ad or any other business benefit related to the advertising services provided by BroadProximity.
6. No Guarantee of Business. We do not guarantee and you expressly disclaim any reliance on any statements, representations, or estimates not contained in this Contract, including without limitation, the performance of any advertising services provided by BroadProximity, any search engine results or rankings, the number of impressions, click through rate, internet traffic, search ranking, the number of persons who will view or click on your website, targeted direct mail, mobile device ad or any other business benefit related to the advertising services provided by BroadProximity.
7. Choice of Law; Venue; Legal Fees. California substantive law governs this Contract without regard to the conflictof law provisions. This Contract will be performed in Fresno County, CA. Venue for any legal disputes will be in San Joaquin County, CA. Both parties waive any rights to participate in any class or representative legal action related to this Contract, and waive any rights to a jury trial. In any legal action to collect amounts owing to us under this Contract, the prevailing party will be entitled to reasonable attorneys' fees, court and/or arbitration costs (including thefees of the arbitrator) and costs of collections, in addition to any other relief awarded.
8. No Waiver. Any waiver of our rights under this Contract must be in writing and will not constitute a waiver of any similar or future rights. Our acceptance of partial or delinquent payments or our failure to exercise any right to late charges will not be considered a waiver of any rights herein. Additionally, we may apply any payment made by you toany past due debt then owed by you to us whether under this Contract or otherwise. You waive the provisions of the Civil and Commercial Codes relating to accord and satisfaction. No acceptance of any payment or any instrument marked with any restricted covenant or other limited or conditional endorsement will be deemed a waiver of our rightsunder this Contract.
9. Indemnification. You agree to indemnify, defend and hold us and any of our shareholders, directors, officers, employees, agents, representatives, vendors, contractors, and assigns harmless from and against all claims, demands, damages, losses, expenses, costs of defense, attorneys' fees, and liabilities arising out of or in any way caused by or connected with this Contract or the creation, maintenance or support of your website. Any legal defenseprovided by you to us under this paragraph shall be performed by counsel satisfactory to us.
10. Assignment. You may not assign or transfer any rights or obligations under this Contract without our express written consent, which may be granted or withheld in our sole discretion. Subject to the foregoing, this Contract is binding upon and shall inure to the benefit of each party’s successors and permitted assigns. We may sell, assign or transfer our rights and obligations under this Contract (or any portion thereof) to any person or entity at any time. 11. Entire Agreement. This Contract is the entire and final agreement between you and us. We are not bound by any agreement, representation or understanding not expressed herein. If any part of this Contract is held to be unenforceable, the enforceability of the remainder of this Contract shall not be impaired.
12. Limitation of Liability. Our liability for any cause of action arising out of or related to this Contract, including for errors or omissions by us, will be limited to a pro rata adjustment of the charges in the same proportion that the effectiveness of your website advertising has been reduced. If the effectiveness of your website advertising has not been reduced, then we will not be liable for any such cause of action. In no event will we be liable for any loss of yourbusiness, revenues or profits, your cost of other forms of advertising, or special, consequential, indirect or punitive damages of any nature. No refund by us to you will exceed the price of the website and services stated on this Contract. The foregoing provisions apply to the fullest extent permitted by law, regardless of whether your claim is based on contract, tort, statute, regulation, or otherwise. The recovery allowed herein constitutes our sole liability to you and your exclusive remedy against us in the event of such error, omission, or other breach of duty to you. However, if you do not desire to waive such claim for loss or damages, you may negotiate to pay additional charges upon contract signing, with our President's written approval, so that our liability will not be limited as stated herein. These additional charges will be based on the type of business, the installment bill, and other factors of risk. If you are interested in obtaining additional information about this option, you must call our customer service manager at 800-509-1480. Whether or not additional charges are paid, all claims based on any errors or omissions in connection with the Mobile Device Marketing, Targeted Direct Mail, Listings Management, Reputation Building, Website CreationMaintenance and Support Services and All Products and management services provided by BroadProximity 6 month period following the date the error or omission was or should have been discovered (whichever is earlier). All claims not made within this time period are waived and may not be asserted in any lawsuit or arbitration proceeding. For the purposes of this paragraph, “we,” “our,” and “us” also includes our employees, officers, directors, vendors, contractors and agents.
13. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, but not limited to, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 7 days following Notice given by it, the other party may thereafter terminate this Agreement upon Notice.
14. Binding Arbitration. You and we agree to binding arbitration of all disputes, claims or controversies between you and us, except as set forth in this paragraph. For purposes of this paragraph, “we,” “our,” and “us” also includes our employees, officers, directors, vendors, contractors, and agents. For purposes of this paragraph, “you” or “your” also includes your employees, officers, directors, agents, partners, shareholders, members, heirs, executors and assigns. This arbitration agreement includes any dispute, claim or controversy arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, regulation, fraud, misrepresentation or any other legal theory, including but not limited to, any provision of this Contract or the performance or breach of this Contract, and including but not limited to, all disputes, claims or controversies that arose before this Contract or any prior agreement, or which may hereafter arise, and claims that may arise after the termination of this Contract. This arbitration agreement shall survive the termination of this Contract. Either you or we may initiate arbitration by sending to the other, by certified mail, a written demand for arbitration (the “Demand”). If you initiate arbitration, the Demand must be sent to BroadProximity, LLC., 668 Industrial Park Dr. #4314, Manteca, CA. 95337, Attention: Legal Department. If we initiate arbitration, the Demand must be sent to you at the address listed for Advertiser in the Advertising Contract. The Demand must describe the nature and basis of the dispute, claim or controversy and set forth the relief sought. Any dispute, claim or controversy shall be resolved by binding arbitration before a single arbitrator administered by the American Arbitration Association (“AAA”) pursuant to its Commercial Arbitration Rules then in effect, as modified by this Contract. The AAA Rules are available at www.adr.org or by telephoning (800) 778-7879. The arbitration shall take place in San Joaquin, California. If the claim is for Ten Thousand Dollars ($10,000) orless, you may choose whether the arbitration shall be conducted solely based on documents submitted to the arbitrator, through a telephonic or videoconference hearing, or by an in-person hearing. Each party shall initially bear its own filing, administrative and arbitrator fees and costs, subject to any later reimbursement the party may be entitled to pursuant to this Contract or applicable law. The decision of the arbitrator shall be binding and conclusive on all parties, and there shall be no right of appeal therefrom, and judgment may be entered upon the decision of the arbitrator by any court of competent jurisdiction. You recognize that, in agreeing to arbitration, among other differences, there is no judge or jury in arbitration, discovery is more limited than in court, and court review of an arbitration decision is limited. You and we agree that any dispute, claim or controversy may be conducted only on an individual basis and not on a class, consolidated or representative basis; neither you nor we shall be a member in a class, consolidated or representative proceeding; and the arbitrator is only authorized to award relief on an individual basis. You may choose to pursue your dispute, claim or controversy in court and not by arbitration if you opt out of this arbitration agreement within the “Opt-Out Deadline”. The Opt-Out Deadline is thirty (30) days from the date on which you sign the Advertising Contract. You may opt out within the Opt-Out Deadline by sending a written notice by certified mail to BroadProximity, LLC., 668 Industrial Park Dr. #4314, Manteca, CA. 95337, Attention: Legal Department indicating that you wish to opt out of arbitration.
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