Last Update: April 11, 2018.
Terms & Service Agreement
THESE TERMS OF SERVICE AGREEMENT (“AGREEMENT” OR “TERMS AND CONDITIONS”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “USER”, “REQUESTER” OR “CUSTOMER”) AND PROXYPICS, INC. A DELAWARE CORPORATION (“PROXYPICS,” “WE,” “US,” “OUR,” ETC.), THE OWNER AND OPERATOR OF THE PROXYPICS MOBILE APPLICATION(S) (THE “MOBILE APPLICATION” OR “APPLICATIONS’) AND THE RELATED WEBSITE, WWW.PROXYPICS.COM (THE “SITE”). THE MOBILE APPLICATIONS AND THE SITE MAY HEREINAFTER BE REFERRED TO COLLECTIVELY AS THE “PLATFORM”. THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE APPLICATIONS, THE SITE, ALL SERVICES, FEATURES, AND RESOURCES AVAILABLE OR ENABLED VIA THE APPLICATIONS AND THE SITE (COLLECTIVELY, WITH THE MOBILE APPLICATIONS, THE “SERVICES”), AND YOUR PURCHASE OF GOODS OR SERVICES OF PROXYPICS.
BY ACCESSING AND USING ANY OF THE SERVICES, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT AND THE STRIPE CONNECTED ACCOUNT AGREEMENT.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SERVICES OR PURCHASE PRODUCTS OR SERVICES FROM PROXYPICS.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN CUSTOMERS AND PROXYPICS ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
Capitalized terms used herein shall have the respective meaning ascribed to them in the sentence or phrase in which such term is first used in this Agreement. For purposes of this Agreement, the term “User”, “You” and “Customer” shall apply to all individuals accessing the Platform for any reason whatsoever, whereas the term “Requester” shall solely apply to those Users that submit, post, publish or list assignment requests (hereinafter “Assignment Requests”) on the Platform but shall not supersede or replace the terms of this Agreement to the extent that any terms referring to a “User” conflict with those terms only applicable to a “Requester”.
1(a). Use of Site. ProxyPics may add to, change or remove any part of the Mobile Applications or the Site, including, without limitation, any content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed through the Services (collectively, the “Content”) therein, at any time without prior notice to you.
1(b). Third-Party Payment Servicer. Payment processing services for Users on the Mobile Application are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms and Conditions or continuing to operate as a User on the Applications, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ProxyPics enabling payment processing services through Stripe, you agree to provide ProxyPics accurate and complete information about you and your business, and you authorize ProxyPics to share it and transaction information related to your use of the payment processing services provided by Stripe.
Use of the Mobile Application and the Services
2(a). Use of Mobile Application and Services. This Section shall apply to the User’s utilization of the ProxyPics Self Service Mobile Application iOS Application or ProxyPics Self Service Android Application. The applicability of the Terms and Conditions stated in this Agreement is contingent on the Users downloading of the Mobile Application or utilization of the Applications, Sites and Services by User and shall apply immediately at time of access. Further, if the User accesses the ProxyPics Services on an Android device the Android terms shall apply and if the User accesses the ProxyPics Services on an Apple device the iOS terms shall apply. For purposes of this section and to the extent applicable in this Agreement, the iOS Application and Android Application will be referred to collectively as “Applications” or “Mobile Applications”.
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms and Conditions, these Terms and Conditions will control, solely to the extent such provisions apply to the Mobile Applications.
2(b)(1). End-User License for Apple Application. Subject to these Terms and Conditions, ProxyPics grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Mobile Applications for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms and Conditions (“Apple User License”). Any use of the iOS Device in any other manner, including, without limitation, resale, transfer, modification or distribution of the iOS Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the iOS Application is prohibited. This Agreement and Apple User License also governs any updates to, or supplements or replacements for, the iOS Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms and Conditions, these Terms and Conditions will control, solely to the extent such provisions apply to the Application.
2(c)(1). End-User License for Android Application. Subject to these Terms and Conditions, ProxyPics grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Mobile Applications for personal use only on an Android Device owned or controlled by User as permitted by the Usage Rules contained in the Android Terms and in accordance with these Terms and Conditions (“Android User License”). Any use of the Android Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Android Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Android Application is prohibited. This Agreement and Android User License also governs any updates to, or supplements or replacements for, the Android Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
2(d). User Information. Services and features, such as the Mobile Applications may use, maintain, or transmit User’s personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including Payment Method information), GPS location information, and information for and from third-party social-media accounts (collectively “User Information”). By acknowledging and agreeing to this Agreement, or by using the Mobile Applications, Site, or other Services, User consents to the transmission of User Information to ProxyPics, including its agents and third-party partners, and consents to ProxyPics, including its agents and third-party partners, receiving, collecting, storing, processing, transmitting, and using User Information for Mobile Application functionality and for the purposes disclosed in one or more of the ProxyPics policies identified in this Agreement.
Users are solely responsible for taking precautionary steps to protect User Information stored on the respective Mobile Applications, including without limitation password-protecting the respective Mobile Applications and employing Apple’s or Android’s remote-wipe feature.
Unless attributable to ProxyPics’ negligence or misconduct, Users are also responsible for all payments and losses resulting from transactions and activities undertaken using the Mobile Applications registered in their names and agree to immediately notify ProxyPics of any suspected unauthorized transactions associated with the Services or any other breach of security.
ProxyPics may use location data from your mobile phone, metadata, and any other information contained in the photos or videos you submit.
2(e). Prohibited Uses. Users are prohibited from using the Site, the Mobile Applications, and the related Services in any way that:
- Harasses, abuses, stalks, threatens, defames any person, or otherwise infringes or violates the rights of any person (including but not limited to rights of publicity or other proprietary rights);
- Is unlawful, fraudulent, or deceptive;
- Uses technology or other means to access unauthorized content or non-public spaces;
- Uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public data;
- Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Attempts to damage, disable, overburden, or impair ProxyPics servers or networks;
- Attempts to gain unauthorized access to a ProxyPics computer network;
- Attempts to gain unauthorized access to ProxyPics user accounts;
- Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
- Violates these Terms and Conditions in any manner;
- Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).
ProxyPics reserves the right, in its sole discretion, to terminate any user license, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Mobile Applications or other Services that ProxyPics reasonably believes is or might be in violation of these Terms and Conditions, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms and Conditions.
2(f). User-Generated Content. The User may generate content, written or otherwise, while using the Services (“User-Generated Content”). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by ProxyPics (for example, in product marketing campaigns). User grants ProxyPics and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content.
2(g). Acceptable Use/Content Requirements. Please keep the following in mind when submitting photos and videos through the Application:
- To submit a photo or video, you must be at least 18 years of age;
- You must be the copyright holder or have the permission of the owner to submit the photo or video;
- Only upload photos and/or documents that are related to the assignment, transaction, etc. at issue;
- Do not upload correspondence or time sensitive materials.
- Unless advised to do so by the appropriate party in User’s discretion, do not upload photographs or documents that User knows to be confidential or private in nature;
- Submit photos or videos pertaining to assignments at or as near to the time of capture of such photo or video as possible;
Use of ProxyPics’ Assignment Request Feature
3. No Offer. Nothing on the Platform shall be construed as an offer or promise to make any ProxyPics service or product or the services or products of any third party available to you. By acquiring the self-reported information you enter and allowing the entry of your assignments, neither ProxyPics nor associated third parties are attempting to sell services or products in any jurisdiction in which we or they are not authorized to do so.
4. Right to Refuse Service or Cancel Order. We are not obligated to accept and post any assignments or requests for Services. We reserve the right to refuse service, or to cancel any assignment or request for any reason at any time. If we cancel an assignment or request for any reason other than your breach of this Agreement, we will refund any payment you made.
5(a). Order Fulfillment. We make every reasonable effort to encourage Users to issue Assignment Reports within the estimated timeframe quoted, if any, for your request, and most requests should be completed within that period. However, because each User’s ability to do so is often dependent on a variety of factors such as, for example, order volume in the area, or difficulty in making arrangements to meet with a necessary third-party, we cannot guarantee that the Assignment Report will be completed and available to you within that time frame or within any specific time frame.
5(b). Prices, Fees and Billing. Upon registration you will be required to provide ProxyPics with information regarding your credit card or other payment instrument. You represent and warrant to ProxyPics that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay ProxyPics charges incurred in accordance with these Terms and Conditions. You hereby authorize ProxyPics to bill your payment instrument in accordance with these Terms and Conditions until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let ProxyPics know within thirty (30) days after the date services are requested. ProxyPics may change the price charged for a particular service or request. Your continued use of the Mobile Application after the fee change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the use of the Application other than U.S. taxes based on ProxyPics’ net income (e.g., sales tax).
6. Cancellation, Refund Policy. If you cancel your order and notify us via email at email@example.com before a User has accepted an assignment, we will refund the full amount paid. Once a User has accepted an assignment no refunds will be issued, without regard to whether performance has been rendered.
7. No-Shows. If a User arrives at the assignment location and a necessary third-party who has agreed to meet the User is not there or does not have access to the item or property subject to the assignment, you will not be entitled to a refund.
8. Use of subcontractors. We may, without notice, delegate, assign, or subcontract the Assignment Request to any person, entity, agent, independent contractor, or subcontractor. Users are independent contractors or subcontractors of ProxyPics.
9. Authorized Communications. No person other than the person who submits the Assignment Request shall be entitled to issue instructions or in any way communicate with ProxyPics regarding the Assignment Request. In order to minimize the opportunity for miscommunication, communicate between User and Requester shall be through the Mobile Applications to the extent that such limitation does not disable User from effectively completing the Assignment Request.
10. Entry Upon Private Property. If fulfillment of an Assignment Request requires a User to enter upon private property, THE REQUESTER IS SOLELY RESPONSIBLE FOR OBTAINING THE CONSENT AND PERMISSION OF ALL LEGALLY NECESSARY PARTIES (OWNER, TENANT, ETC.) AND PROVIDING CONFIRMATION THEREOF TO THE USER. Requester hereby agrees to indemnify and hold ProxyPics and each effected User harmless for any claims, liabilities, judgments, costs, expenses, or losses of any kind whatsoever we might suffer in connection with entry upon private property at Requester’s request in fulfillment of an Assignment Request. Requester agrees to provide written documentation of ownership or other rights if User or ProxyPics so request.
11. No Warranty. Users agree to use their best efforts to make sure that the information they report to Requesters is accurate and complete. However, neither ProxyPics nor any User warrants the accuracy or completeness of the information in the documentation, materials, photos, videos, oral or written statements (“Assignment Report”) made in response to the Assignment Request. ProxyPics does not guarantee or warrant the condition or operation of any of the subject matter being documented.
12. Not Experts; No Authentication. Each Assignment Report and the information contained therein is based solely upon the lay observations and opinions of the individual User who accepts and completes an Assignment Request. Requestor understands that the Users that perform the Services for you are not experts in any field, and neither possess nor apply any special or specific skill, knowledge, or expertise to their observations and Assignment Report, and further acknowledge that your personal observations and opinions might differ from those contained in your Assignment Report. The photographs contained in your Assignment Report may differ from photographs that would be taken by a professional photographer. We do not determine whether an item is authentic or fake. We do not perform appraisals or issue opinions of any kind, and any such information contained in your Assignment Report should be not be relied upon for any such purpose. As the Requester you may ask a User to demonstrate that the subject matter being document is in basic working order if doing so is reasonably practicable for the User. The User may accept or deny such supplementary request in User’s sole discretion. The User is not an expert, and will not perform any diagnostic tests. User shall have the discretion to demonstrate only the most basic functions of the subject matter that is being documented. Unless otherwise agreed to in writing as a part of your order and approved by ProxyPics, Requester shall not expect a User to demonstrate each function or any specific feature of the subject matter being documented.
13. Scope of Order. Users are under no obligation to report any facts, observations, information or events that are outside of the express scope of the Assignment Request and which are not included in the services offered by ProxyPics as described on this site or otherwise agreed to by ProxyPics in writing.
14. No Endorsement or Recommendation. Nothing contained in an Assignment Report, or what a User might say in verbally or in writing, constitutes a recommendation that the Requester take a particular course of action and shall not be construed as an endorsement or recommendation by ProxyPics or a User of any kind whatsoever.
15. Scope of Inspection Services. The type of information you will receive when you request an assignment depends upon the details and instructions contained in your Assignment Request. ProxyPics is under no obligation to provide to Users any additional instruction, data or information in any form, report any facts, observations, or events that are outside of the express scope of the accepted Assignment Requested, or which are not included in the services offered by us as described on the Site.
While it is possible that the User who performs your inspection might happen to be, or once have been, qualified to perform certain inspection services, Requester understands that the User that performs a particular Service may not be so qualified, or ever have been, and may not be an expert in any field, and neither possesses nor applies any special or specific skill, knowledge, or expertise to his or her observations or inspections. The Assignment Reports reflect the User’s personal lay observations and opinions based upon the observations made by the User at the time the inspection was made. The inspection will not be a safety inspection or a substitute for any safety, emissions, or other inspection required by law. The User will not perform any diagnostic tests that should legally be performed by a licensed inspector. ProxyPics does not independently verify or determine whether any representation of subject matter being documented, or any portion thereof, is authentic or fake. Requesters shall not ask User to perform an appraisal or provide advice on the value of any subject matter.
Requester agrees that ProxyPics is not responsible for any errors, omissions, or other problems that might arise in connection with the performance of the assignment and Requester agrees to indemnify and hold ProxyPics harmless from any and all economic claims, actions, damages, losses, liabilities, costs, expenses, including without limitation attorney’s fees and litigation costs and expenses, that may arise in connection with the use of the Services.
ProxyPics encourages all Users to ensure the accuracy and completeness of the Assignment Reports, however, there is no warranty as to the information in the Assignment Report. Factors beyond our control, such as weather conditions, cleanliness, lighting conditions, and others may reduce the accuracy of the inspection and the clarity of photos and videos. In addition, we have no control over substitutions or changes that could possibly occur after the Assignment Report is delivered, and therefore, cannot be responsible for any changes in condition or damage to the subject matter being inspected that occur subsequent to the inspection.
16. Title. PROXYPICS AND ITS USERS DO NOT VERIFY, CHECK, CONFIRM, OR REPRESENT ANY FACT RELATED TO TITLE, OWNERSHIP OR LEGAL POSSESSION OF THE SUBJECT MATTER BEING INSPECTED, AND SIMILARLY, NO CHECKS FOR LIENS OR OTHER ENCUMBRANCES WILL BE PERFORMED.
17. Third Party Links. This Site and related Mobile Applications might contain references or links to other websites owned or operated by third parties. These references and links do not constitute endorsements, advice, referrals, or recommendations by ProxyPics regarding such third party sites, products, or services. We reserve the right to disable any link to the Platform which has not been authorized by us. ProxyPics does not provide any warranty as to the accuracy, completeness, or usefulness of any such content, nor its merchantability or fitness for any particular purpose. You may choose to use or not use them at your sole discretion. You agree that ProxyPics is not responsible, and you shall indemnify and hold us harmless from and against any economic claims, actions, damages, losses, liabilities, costs, or expenses, of whatsoever kind or nature, including, without limitation, attorney’s fees and costs of defense, arising out of your use of any third party website or purchase or use of any third party product or service.
18. Pass-through Expenses. Requester agrees to pay applicable reimbursable direct expenses incurred by Users as part of performing an inspection including but not limited to tolls, postage, access frees and copy fees. Pass-through expenses shall be verified with a copy of a receipt from the User and billed at cost to Requester.
19. Travel Fees. A travel fee may be assessed in remote, hard to reach, or restricted access areas such as but not limited to Indian reservations, military bases, mountainous locations, islands, or locations with limited population densities. Approval for any such fees shall require Requester approval or the Assignment Request can be cancelled.
20. Multiple Trip Fees. A multiple trip fee may be assessed in instances in which, due to onsite contact conflicts or no-shows, a return trip is required.
21. Sales and Other Taxes. You agree to pay all applicable sales, use, excise, or other taxes applicable to your order.
22. User Name and Password. You are solely responsible for your user name and password and maintaining the security thereof, and ProxyPics is not responsible for any economic claims, actions, damages, losses, liabilities, costs, or expenses you suffer by reason of unauthorized use of your password by others.
24. Proprietary Rights. Everything on the Platform, including but not limited to all of its content, data, text, graphics, sounds, videos, and logos is protected by trademark, service mark, copyright, patent, trade secret, or by other law, and is the property of ProxyPics or other parties. Nothing herein shall be construed to create rights of any kind in any third parties. You may use the Platform to learn about, evaluate, or purchase ProxyPics services or products. You may not use the Platform for any other commercial purpose. You shall not reverse engineer ProxyPics’ Site or the Mobile Applications or any portion thereof, or the programming code connected therewith, or assist others in doing so.
25. Prohibited Use of Site. You shall not post or transmit anything on the Platform which violates any applicable law or regulation, or creates any criminal or civil liability of any kind whatsoever including but not limited to any obscene, pornographic, libelous, slanderous, defamatory statements, information, or other illegal materials. You agree to use the Platform only for lawful purposes. We may disclose any content or electronic communication of any kind: (i) to satisfy any law, regulation or government request; (ii) if such disclosure is necessary or appropriate to operate the site; or (iii) to protect the rights or property of any of the ProxyPics, its Users or service providers.
26. Monitored Use. We reserve the right, but do not have the obligation, to monitor your use of the Platform and to restrict or terminate your use of the Site and the Mobile Applications or modify or remove any information found on the Site and the Mobile Applications for any reason whatsoever in our sole discretion.
27. Feedback, Grant of License. If you send feedback to us (comments, questions, documents, suggestions, etc.) you thereby grant us the absolute perpetual and non-revocable right and license, without compensation, royalty, or attribution, to use such feedback in any manner desired by us, including but not limited to modifying, publishing, distributing, exploiting and/or using such feedback in the development, manufacturing, and marketing of new products and services.
WARRANTIES AND DISCLAIMERS
28. WARRANTY DISCLAIMER. THE SITE AND THE MOBILE APPLICATIONS, AND EVERYTHING ON IT OR ACCESSIBLE THROUGH IT, INCLUDING OTHER SITES ACCESSIBLE THROUGH THE SITE AND THE MOBILE APPLICATIONS, AND THE SERVICES PROVIDED BY PROXYPICS, ARE PROVIDED STRICTLY ON AN AS-IS AND AS-AVAILABLE BASIS. PROXYPICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, OF TITLE TO GOODS OR PROPERTY, THE INFORMATION, CONTENT, MATERIALS, SERVICES, OR PRODUCTS AVAILABLE ON OR ACCESSIBLE THROUGH THE SITE AND RELATED MOBILE APPLICATIONS, THAT ACCESS TO OR OPERATION OF THE SITE AND RELATED MOBILE APPLICATIONS WILL BE UNINTERRUPTED OR FREE OR DEFECTS OR ERRORS, OR AS TO THE RELIABILITY, ACCURACY, OR CURRENCY OF ANY INFORMATION ON THE SITE AND THE MOBILE APPLICATIONS OR ANY THIRD PARTY SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PROXYPICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND THE MOBILE APPLICATIONS IS AT YOUR OWN RISK. PROXYPICS IS RESPONSIBLE ONLY FOR WHAT WE DIRECTLY PROVIDE TO YOU, AND ONLY TO THE EXTENT PROVIDED IN THESE TERMS AND CONDITIONS. WE ARE NOT RESPONSIBLE FOR AND DO NOT MAKE REPRESENTATIONS OR PROVIDE WARRANTIES OF ANY KIND FOR ANY GOODS, SERVICES, OR ANYTHING ELSE PROVIDED TO YOU BY OTHERS THAT YOU REACH VIA OUR WEBSITE. THIS PROVISION SHALL BE ENFORCED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW.
29. OUR MAXIMUM LIABILITY; EXCLUSION AND LIMITATION OF LIABILITY. THE MAXIMUM LIABILITY IN THE AGGREGATE OF PROXYPICS, ITS OWNERS, OFFICERS, EMPLOYEES, MEMBERS, STOCKHOLDERS, PARTNERS, DIRECTORS, MANAGERS, AGENTS, SUBCONTRACTORS, AFFILIATES, SUCESSORS, ASSIGNS, THIRD PARTY CONTENT PROVIDERS, MERCHANTS, SPONSORS, LICENSORS, OR THE LIKE (HEREINAFTER, THE “PROXYPICS PARTIES,” WHICH SHALL REFER TO ANY ONE, MORE, AND ALL OF THEM) TO YOU FOR ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LOSSES, LIABILITIES, COSTS, OR EXPENSES, IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE PLATFORM OR ANY SERVICES PROVIDED BY PROXYPICS, INCLUDING THE MOBILE APPLICATIONS, SHALL BE THE AMOUNT OF THE INSPECTION FEE PAID BY YOU TO PROXYPICS OR $100, WHICHEVER IS LESS. NONE OF THE PROXYPICS PARTIES SHALL BE LIABLE UNDER ANY CIRCUMSTANCES TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR OPPORTUNITY COSTS, LOSS OF USE, OR LOSS OF BUSINESS, EVEN IF ANY OR ALL OF THE PROXYPICS PARTIES WERE NOTIFIED OF THE LIKELIHOOD OR POSSIBILITY OF SUCH DAMAGES OCCURRING. THESE EXCLUSIONS AND LIMITATIONS SHALL BE ENFORCED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW.
THE PROVISIONS OF THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, OR TYPE OF CLAIM, ACTION, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE, REGARDLESS OF WHETHER IT BE AN ACTION IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR BASED ON CONTRACT, STATUTE, OR ANYTHING ELSE.
THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE LIMITATION ON RECOVERY OF ECONOMIC DAMAGE OR LOSS, SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY
30. Ownership and Use of Information and Reports; Copyright. You may use the Assignment Report you order only for your own personal non-commercial use. You shall not trade, barter, publish (in any form via any media whatsoever), sell or resell any Assignment Report, data, or information obtained or purchased by you from ProxyPics to any person or entity whatsoever without ProxyPics’ prior written consent. ProxyPics shall not be liable to anyone with whom you share the Assignment Report or the information therein contained, and you shall defend, indemnify, and save harmless the ProxyPics Parties from any and all economic claims, actions, damages, losses, liabilities, costs, expenses, of whatsoever kind or nature, including without limitation attorney’s fees and litigation costs and expenses, incurred by the ProxyPics Parties arising out of or in connection therewith.
ProxyPics may resell, license, or authorize the use of the Assignment Report you ordered and purchased, and any of the data and information contained therein, to others upon any terms and conditions it desires, without notice and without your consent. In such event, we will remove your personally identifiable information from the Assignment Report prior to any such use thereof.
The copyright to and ownership of, without limitation, all pictures, video, text, copy, data, works, inventions, improvements, concepts, ideas, intellectual property, patent rights, trademarks, trade secrets, and all information in any form, made, conceived, gathered, written, taken, created, developed, performed, or discovered by us (including, without limitation, the User) in connection with this Agreement, and the Assignment Report itself (individually and collectively, “ProxyPics Materials”), shall at all times be owned solely and exclusively by ProxyPics. To the extent that the ProxyPics Materials for any reason do not vest solely and exclusively in ProxyPics as provided herein, you hereby transfer and assign, without limitation, the copyright and all of your right, title, and interest in and to the ProxyPics Materials to ProxyPics.
31. Indemnification. You shall defend, indemnify, and hold harmless the ProxyPics Parties from any and all claims, actions, damages, losses, liabilities, costs, expenses, including without limitation attorney’s fees and litigation costs and expenses, incurred by the ProxyPics Parties as a direct or indirect result of any breach by you of these Terms and Conditions, or arising out of or in connection with your willful misconduct, negligent or fraudulent use of the Platform, or any other website you enter via a link from the Site and the Mobile Applications, or out of use of or reliance upon the Assignment Report, to the fullest extent allowed by law. ProxyPics may, in its sole discretion, defend, compromise, or settle any such or claim or action and you shall be bound thereby. Nothing herein shall be deemed or construed to constitute a limitation or waiver of any other rights and remedies available under these Terms and Conditions, or law, or regulation to ProxyPics or the other parties indemnified under this section.
Arbitration Agreement and Dispute Resolution
Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with ProxyPics and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
32. Informal Resolution. Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at firstname.lastname@example.org. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the following terms govern dispute resolution between us.
33. Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by ProxyPics that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and ProxyPics, and to any of ProxyPics’ licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
33(a). Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Arbitration Agreement (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
33(b). Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and ProxyPics, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms and Conditions. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and ProxyPics.
33(c). Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and ProxyPics in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PROXYPICS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
33(d). Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Chicago, Illinois.
33(e). 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Litwin Law, LLC, 332 S. Michigan Ave. Ste 1100, Chicago, IL 60604, within 30 days of purchasing. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to the Terms and Conditions, to the extent applicable. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
33(f). Severability. If any part or parts of this Arbitration Agreement are found to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
33(g). Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with ProxyPics.
33(h). Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if ProxyPics makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the ProxyPics.
33(i). Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Chicago, Illinois for such purpose.
35. Assignment; No Third Party Rights. You may not assign any rights or obligations under these Terms and Conditions or arising out of your use of the Platform without the prior written consent of ProxyPics. Our obligations to you under this Agreement shall be to you and you only, and nothing herein shall be construed to create rights of any kind in any third parties. ProxyPics may freely assign or delegate its rights and obligations to any party without notice or consent.
36. Copyright Infringement. If you desire to make a claim of copyright infringement, please provide written notification thereof to Litwin Law, LLC, 332 S. Michigan Ave. Ste 1100, Chicago, IL 60604.
38. Entire Agreement. This Agreement is a final expression of the intent of the parties, constitutes the entire agreement and understanding between the parties, and supersedes all prior and contemporaneous oral or written agreements or understandings concerning the settlement described herein. This Agreement may be modified only by a duly executed written instrument signed by the party against whom enforcement of the modification is sought. In the event of a conflict between the ProxyPics order form and this Agreement, this Agreement shall prevail.
39. Severability. In the event that any one or more of the provisions of this Agreement shall be held invalid, illegal, or unenforceable in any respect, such provisions shall be adjusted rather than voided, if possible, in order to achieve the express intent of the parties to this Agreement; and in any event, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
40. Force Majeure. If we are delayed or prevented from performance of our obligations under this Agreement by any act of God, weather conditions, fire or other casualty, computer or telecommunication problems, laws or regulations, war, or any other circumstance beyond our reasonable control, ProxyPics will be excused from performance of those obligations. In such event, our only obligation to you will be to refund the inspection fee in full.
41. Headings and Captions. The headings and contained in these Terms and Conditions are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
42. Forbearance, Waiver. Any failure of ProxyPics to pursue any legal or equitable remedy or right available to it shall not constitute a waiver of such right, nor shall any such forbearance, failure, or actual waiver imply or constitute waiver of subsequent default or breach. No waiver of a breach of any provision of this Agreement by ProxyPics shall be construed to be a waiver of any breach of any other provision of this Agreement or of any succeeding breach of the same provision. No delay by ProxyPics in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such provision by ProxyPics.
43. Notices. Any notice given by you in connection with this Agreement shall be given in writing and delivered to ProxyPics as follows (all methods are required): (a) certified mail, return receipt requested to Litwin Law, LLC, ATTN: Mark Swiderski, 332 S. Michigan Ave. Ste 1100, Chicago, IL 60604 and you must retain the return receipt and provide a copy to us; and (b) fax to (312) 275-7835 and you must retain the confirmation report indicating that it was received by ProxyPics and provide a copy to us; and (c) e-mails to both: email@example.com and firstname.lastname@example.org. Your notice address shall be any mailing or email address provided by you on the order form you submitted for the inspection.
44. Changes to the Site and the Mobile Applications. We reserve the right to make changes at our discretion and without prior notice to any portion of the Site and the Mobile Applications including but not limited to, the Content, Terms and Conditions and any other policies. Your continued use of the Site or Services, including the Mobile Applications will constitute your acceptance of and agreement to any such changes.
Last Update: April 11, 2018.