Effective Date: March 14, 2022
This Terms of Service (the “TOS”) is entered into between you and Proxima HQ Technologies Inc., and
its subsidiaries and affiliates, (collectively, “Proxima”) and applies to any mobile applications
controlled by Proxima, all Proxima websites, including www.proximahq.io (the “Website”), and
any other services or products on which Proxima chooses to apply this TOS (collectively, the
BY CLICKING “I AGREE” OR SIMILAR CONFIRMATION OR BY USING THE
SERVICE YOU ARE AGREEING TO BE BOUND BY THE TOS.
IF YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION, YOU
REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION
TO THE TOS AND ARE AGREEING TO THE TOS FOR THAT ORGANIZATION.
WHERE YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION,
“YOU” AND “YOUR” REFER TO THE ORGANIZATION.
1. DESCRIPTION OF THE SERVICE
Proxima provide a product for real estate sellers (each, a “Seller”) to use to help create digital environments to aid real estate buyers (each, a “Buyer”) to view homes before construction even begins. Sellers can paint immersive 3D and 2D floor models and interactions and control the detail that they want to express around their properties. Buyers can explore the models and compare floor plans to one another, allowing details of their potential purchases to be consolidated and sent right to their inbox. Sales and marketing firms (each, a “Marketer”) may also use the Service to receive analytics data on what the Buyers are looking at and what pages or floorplans shown on the Service are high performing.
2. SUBSCRIPTIONS AND LICENSES
2.1 Subscription and License. Proxima grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable, subscription to access the Service and to use features associated with an Account. If you download our mobile application, Proxima grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable, license to access the Service through such mobile application and to use features associated with an Account. You acknowledge and agree that we may modify, suspend or remove features of any of our mobile applications, the Website, your Account or any part the Service at any time acting in our sole and absolute discretion.
2.2 User content includes any information that you create, submit, transmit or upload while using the Service, for example, any submissions, comments, questions, testimonials, tutorials, advice, floorplans, models, images, videos, designs, suggestions, ideas or other information you directly or indirectly provide to Proxima through any method existing now or in the future (altogether, “User Content”). By providing User Content you represent and warrant that you have all consents, licenses and rights necessary to provide and license the User Content and you grant Proxima a non-exclusive, irrevocable, fully-paid, royalty-free, perpetual, sub-licensable, transferrable, worldwide license to User Content under all intellectual property and other rights you own or control to use, broadcast, disclose, display, distribute, modify, make derivative works of, publicly perform, publish, record, reproduce, sublicense (on multiple levels), translate, transmit or otherwise exploit for all purposes and in all formats and mediums and with any technology now known or hereafter developed and for all purposes without attribution, notice, permission or payment to you or a third party. Proxima reserves the right to review, edit, delete or block access to User Content without notice.
3. ACCESS, Accounts and FEES
3.1 Age of Access. You must be at least the age of majority in your jurisdiction (whichever is older) in order to use the Service and you represent and warrant that you have the right and authority to enter into and comply with this TOS.
3.2 Account. If you are a Seller or a Marketer, the Service will require you to register a user account with Proxima (each, an “Account”). Buyers may also be required to create an Account to access certain features of the Service, such as to save floorplan layouts. Proxima strongly recommends that you keep any Account login information confidential. You agree to be bound by any use of your Account, including charges and purchases, whether or not authorized. You represent and warrant that you are permitted to use the method of payment associated with your Account and agree to pay for charges and fees incurred by your Account, which are non-refundable.
3.3 Access. Access to the Service may require hardware including but not limited to a compatible computer, a mobile device and an Internet connection, all meeting certain minimum specifications set by Proxima (subject to change as Proxima makes changes to the Service) described on the Website, as updated on one or more occasions.
3.4 Personal Data. Accessing the Service may require you to provide Proxima with
personal data, which is collected, used and disclosed in accordance with Proxima’s Privacy
Policy, if any, and in compliance with legal standards applicable in your jurisdiction. You agree
to provide accurate and complete personal data to Proxima and to update your data if it changes.
3.5 Fees for Sellers and Marketers. As the Service is still being developed, the payment
features of the Service are also in development and being tested. As such, Proxima may charge
each Seller or Marketer (each, a “Business”) on a per ‘seat’ system, charging a fee for each
potential Buyer, or each ‘seat’, that has accessed the Service. In addition, Proxima may charge
each Business on a per transaction basis, with payments made through the Service. Proxima may
charge each Business in connection with each Account on different terms (terms of which shall
be previously disclosed prior to the introduction of any new fee terms) along with the already
above-described fees (each, a “Fee”). In any case, if you are a Business, you shall provide
Proxima with and execute any necessary preauthorized debit forms, preauthorized bill payment
forms or electronic payment information to pay the Fee (“Authorized Payment”). Proxima, or
any third party acting on Proxima’s behalf, is authorized and has the right to automatically
charge the Fee to such Authorized Payment anytime a Fee is due, unless you terminate the
Service as described in this TOS. The current Fee structure may change at any time at Proxima’s
sole discretion, but Proxima shall provide prior written notice of any Fee increase. The Fee is
earned upon payment and is non-refundable.
3.6 Taxes. The Fee excludes applicable taxes, which Proxima may charge as required by the laws of your jurisdiction.
4. LIMITATIONS ON USE OF THE SERVICE
4.1 Limitations. You agree that you will not use the Service in the following manner:
A. Engage in conduct that Proxima determines, in its sole discretion, to constitute improper use of the Service;
B. Decompile, disassemble or reverse engineer the Service or otherwise attempt to derive the Service source code;
C. Except if expressly permitted by Proxima, reproduce, rearrange, modify, translate, create derivative works from, display perform, publish or distribute the Service;
D. Post any unauthorized commercial communications on the Service, including multi-level marketing or pyramid schemes;
E. Sell, lease or remove/alter advertising for the Service placed by Proxima;
F. Break, attempt or otherwise assist with the disruption of any computer used to support the Service or experience of another user;
G. Upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files or data or other similar services or programs that may damage operation of the Service or the computers of other users;
H. Upload, promote or link any content or images, video or other content associated with illegal activity;
I. Engage in abusive, defamatory, libellous, threatening or any other conduct that is objectionable or offensive;
J. Abuse, bully, harass, harm or publish false or misleading information about users or encourage others to do the same;
K. Use hate speech, hate terms, racist speech, racist terms or any other words or symbols that signify hate towards any person or group of people, including derogatory comments against women or minorities;
L. Infringe or violate the rights of a third party including but not limited to: (i) contractual rights; (ii) copyright, patent, trademark or trade secret rights; (iii) privacy rights; (iv) publicity rights; or (v) confidential information; or
M. Impersonate another person or an employee of Proxima,
as determined by Proxima in its sole discretion. The above limitations also apply to information posted on public forums or through communication tools related to Proxima or controlled by Proxima including, but not limited to, the Proxima Instagram page.
5.0 TERM AND TERMINATION
5.2 Effect of Suspension or Termination. Upon suspension or termination, you acknowledge and agree that Proxima shall cease to provide access to the Service and may delete data associated with your use of the Service. You are not entitled to compensation of any kind as a result of suspension or termination, regardless of whether effected by you or Proxima, and Proxima is not liable to you or any third party for such suspension or termination and any related loss.
6. PROXIMA OWNERSHIP RIGHTS
6.1 Ownership. All right, title and interest in and to the Service including but not limited to copyrights, patents, trademarks, trade secrets, trade names, computer code (source and object), titles, avatars, animation, audio-visual effects, sound effects, musical works, look and feel, methods of operation and items built within the Service by users, are owned by Proxima. Proxima reserves all rights in the Service.
6.2 DMCA. Proxima responds to notices alleging copyright infringement that comply with the United States Digital Millennium Copyright Act (the “DMCA”). If you wish to make a DMCA claim, you must provide the following information in writing in your DMCA notice:
A. Identify the copyrighted work that you claim has been infringed;
B. Identify the material claimed to be infringing and where it is located;
C. Provide reasonably sufficient information to allow Proxima to contact you, such as your address, phone number and e-mail address;
D. Provide a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or law;
E. Provide a statement, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or are authorized to act on behalf of the owner; and
F. Provide an electronic or physical signature of a person authorized to act on behalf of the copyright owner.
Proxima may provide you notice if your communication, post, submission or upload was removed as a result of Proxima receiving a DMCA notice from a copyright owner. If you receive notice from Proxima, you may provide a counter-notification in writing to Proxima’s designated DMCA agent through the means provided below.
DMCA notices can be sent to Proxima by emailing firstname.lastname@example.org or by mail:
Proxima HQ Technologies Inc.
403-134 Abbott Street
Vancouver, BC, V6B 2K4
7. Disclaimer, Limitation of Liability and INDEMNIFICATION
7.1 Disclaimer. THE SERVICE IS STILL UNDER DEVELOPMENT AND MAY
CONTAIN DEFECTS AND COMPATIBILITY ISSUES AND IS PROVIDED BY PROXIMA
“AS IS”. PROXIMA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, ITS “REPRESENTATIVES”)
DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY
RIGHTS, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE
FOREGOING, PROXIMA AND ITS REPRESENTATIVES MAKE NO REPRESENTATIONS
OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR
THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY
AVAILABLE, ERROR FREE, WILL NOT HARM YOUR HARDWARE OR RESULT IN
LOST DATA OR BE SECURE AGAINST UNAUTHORIZED ACCESS. THE SERVICE IS
UNSUPPORTED AND THE TOS DOES NOT CREATE ANY OBLIGATION UPON
PROXIMA TO DEVELOP, MAKE AVAILABLE, OFFER FOR SALE, REPAIR, SUPPORT
OR RELEASE THE SERVICE. NO ORAL ADVICE OR WRITTEN INFORMATION
PROVIDED BY PROXIMA OR ITS REPRESENTATIVES, WILL CREATE ANY
WARRANTY AND YOU SHALL NOT RELY UPON SUCH ADVICE OR INFORMATION.
YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND
QUALITY OF THE SERVICE.
7.2 Limitation of Liability. PROXIMA AND ITS REPRESENTATIVES,
SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND
ARISING OUT OF OR RELATING TO THE SERVICE INCLUDING WITHOUT
LIMITATION DIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES,
EVEN IF PROXIMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM,
LOSS OR DAMAGE. TO THE EXTENT THAT THE ABOVE LIMITATION OF LIABILITY
IS NOT APPLICABLE IN YOUR JURISDICTION, ANY CLAIM THAT YOU MAY HAVE
AGAINST PROXIMA AND ITS REPRESENTATIVES MUST BE COMMENCED NO
LATER THAN 6 MONTHS AFTER THE DAY ON WHICH THE CLAIM IS DISCOVERED
OR OUGHT TO HAVE BEEN DISCOVERED BY YOU. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, YOU AGREE TO WAIVE ANY RIGHT TO BRING A CLASS
ACTION AGAINST PROXIMA AND ITS REPRESENTATIVES, AND ANY LEGAL
MATTER YOU RAISE AGAINST THEM SHALL BE HANDLED ON AN INDIVIDUAL
7.3 PROXIMA’S AGGREGATE LIABILITY. PLEASE NOTE THAT SOME
JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TERMS OR
WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES AND, IF
ANY DISCLAIMER OR LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE,
VOID OR DOES NOT FULLY SHIELD PROXIMA AND ITS REPRESENTATIVES FROM
LIABILITY, YOU AGREE THAT YOUR SOLE REMEDY, AND PROXIMA AND ITS
REPRESENTATIVES’S AGGREGATE LIABILITY, IS FOR YOU TO TERMINATE USE OF
THE SERVICE AND MAXIMUM LIABILTY OF THE AMOUNT YOU PAID TO PROXIMA
IN THE PRECEEDING 6 MONTH PERIOD PRIOR TO ANY CLAIM.
7.4 Indemnity. You shall defend and indemnify Proxima against any claim, demand, suit or
proceeding (each, a “Claim”) made or brought against Proxima in connection with your use of
the Service, including Claims that through the use of the Service you (i) infringe or
misappropriate a third party’s intellectual property rights, (ii) violate any applicable laws, (iii)
breach the terms of this TOS, or (iv) commit an act of gross negligence or intentional
Proxima agrees to notify you of an update to the TOS by a posting on the Website. You are
deemed to accept an update by continuing to use the Service. Unless Proxima states otherwise,
updates are automatically effective 30 days after posting.
9. CONFIDENTIALITY AND NON-SOLICITATION
9.1 Confidential Information. Proxima may receive confidential information not known or
available outside of your Business (except when known outside you and under a duty of
confidentiality) including but not limited to: business plans, product or service plans, analyses,
forecasts, predictions or projections, intellectual property, trade secrets, software, code,
hardware, prototypes, technology, technical information, business models, real estate models,
designs, pricing and pricing strategies, marketing ideas, data (including sales data), sales
projections, customer lists, employee lists, financing plans, valuations, capitalization, budgets
and other non-public information (collectively, “Confidential Information”). Notwithstanding
the above, Confidential Information excludes: (a) any information generally available to the
public (otherwise than through any act or omission of Proxima); (b) any information obligated to
be disclosed by law; and (c) any information known by Proxima prior to the Effective Date or
obtained from a third party who is not under a confidentiality obligation to you and who has not
received such Confidential Information from another in breach of a duty of confidentiality to you
(such knowledge must be proven with the burden on Proxima).
9.2 Non-Disclosure. For Businesses, Proxima shall not disclose or use Confidential
Information for any purpose other than to provide the Service to you and to undertake work
requested by you that requires use of Confidential Information. For Businesses, Proxima shall
not disclose any Confidential Information of yours except to Proxima employees, contractors or
agents on a need-to-know basis and only if such employees, contractors or agents agreed to
similar confidentiality terms. Proxima acknowledges and agrees that no rights or licenses to
Confidential Information are granted or implied by this TOS except as already explicitly stated.
9.3 Non-Solicitation. During the Term and for a period of 12 months immediately following
the end of the Term, you shall not, directly or indirectly, on its own or on behalf of a third party,
hire, retain or solicit any client, employee or independent contractor of Proxima about whom you
became aware of, or with whom you had contact, over the course the Term.
10.1 Governing law. The TOS is governed by and construed under the laws of British Columbia. If a dispute arises, you agree that such dispute be resolved by courts located in Vancouver, British Columbia and hereby submit to the personal jurisdiction of such courts.
10.2 Severability. To the extent any section, clause, provision or sentence or part thereof of the TOS is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction, then that portion shall be severed, and the remainder of the TOS given full force and effect.
10.3 No Waiver. Proxima’s failure to assert or enforce any right contained in the TOS shall not constitute a waiver of that right.
10.4 Survival. Sections 3.3, 4.1, 5.2 and 6 though 10 survive termination of the TOS.
10.5 Entire Agreement. The TOS constitutes the entire agreement between you and Proxima with respect to the subject matter hereof and supersedes any prior oral or written agreements, communications, representations or undertakings provided.
10.6 Contact. You may contact Proxima regarding this TOS by emailing email@example.com.