TERMS OF SERVICE (“TERMS”) FOR PushAd Inc. SOFTWARE-AS-A-SERVICE
1. ACCEPTANCE OF TERMS
1. PushAd Inc. (“PushAd“, “we” or ”our”) provides its Service (as defined below) to you through its web site located at push-ad.com or through an on-premise served web site (the “Site”), subject to these Terms.
2. By accepting these Terms, or by accessing or using the Service or Site, you represent and acknowledge that you have read, understood, and agree to be bound by these Terms, and that the information you provide in registering to the Service is accurate, complete, and is yours or within your right to use. If you are entering into these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “you,” “your” or related terms herein shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
3. You acknowledge that these Terms constitute a contract between you and PushAd, even though it may be electronic and is not necessarily physically signed by you and PushAd, and that these Terms govern your use of the Service.
2. DESCRIPTION OF SERVICE
1. The “Service” includes (a) the Site, (b) the on-demand PushAd system, tools and PushAd API, and (c) the other services provided to you through the Site based on the plan purchased, including the software-as-a-service, data, text, images, sounds, videos, and other content made available through the Site, or developed via the PushAd API (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms.
2. The Service may also include basic or expanded support as detailed in an applicable Service plan.
3. PushAd does its very best to make the Service available, except for: (a) planned downtime (of which You will be notified in advance), or (b) any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond our control.
3. GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
1. Subject to the terms and conditions of these Terms, you agree to access and use the Service only for your internal business purposes as contemplated by these Terms. We believe the objective of running a PushAd is to handle better your clients and to manage your business in perspicuous and friendly way.
2. Subject only to your limited right to access and use the Service through the HTTP(S) Protocol as expressly granted to you here, the ownership, all rights, title and interest in and to the Service and its software and other components, including all related intellectual property rights, will remain with and belong exclusively to PushAd and its third-party vendors.
3. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) modify, adapt or hack the Service to falsely imply any sponsorship or association with PushAd, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (c) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights; (d) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service in bad faith to knowingly send any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Service in violation of these Terms.
4. You are responsible for all information, data, text, messages or other materials that you post or is otherwise transmitted via the Service. You are responsible for maintaining the confidentiality of your login and account, and are responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people. You may create separate logins for as many people as your plan allows.
5. PushAd’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
4. DATA PRIVACY AND SECURITY
1. In providing you the Service we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of your data and the personal data of your employees. These safeguards may include encryption of your data in transmission (using SSL or similar technologies), except for certain external (third party) integrations that do not support encryption, which you may link to the Service at your choice.
5. INTELLECTUAL PROPERTY RIGHTS
1. Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, software, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to you to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith.
2. PushAd shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you.
3. PushAd’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of PushAd (collectively, “Marks”), and you may only use such Marks to identify yourself as a customer and user of the Service; provided you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent PushAd, its services or products.
6. THIRD PARTY SERVICES
1. External Sites. The Service may contain links to, or otherwise may allow you to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with our Service. If You decide to access and use such Other Services, be advised that your use is governed solely by the terms and conditions of such Other Services, and we do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle your data. PushAd is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Other Services, or your reliance on the privacy practices or other policies of such Other Services.
2. Integration. The Service may contain features that enable various Other Services to be directly integrated into your PushAd experience. To take advantage of these features, you may be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Service, you are allowing PushAd to pass your log-in information to these Other Services for this purpose.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
1. The Service is made available either on a pay-as-you-go basis, as a trial/testdrive, or otherwise as agreed upon.
2. Regardless of your billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time if you close your account before the end of your subscription period. No exceptions will be made in order to treat everyone equally and keep our administrative costs low for the ultimate benefit of our customer base. Downgrading your plan level may cause the loss of content, features, or capacity of your account and PushAd does not accept any liability for such loss. If not otherwise agreed upon, PushAd reserves the right to contact you about special pricing if you maintain an exceptionally high number of end-users, an unusually high level of incoming queries/reports or other excessive stress on the Service.
3. Overdue charges. If You fail to pay your fee on time, your entire subscription may be suspended or cancelled.
4. Billing Privacy. PushAd may use a third-party intermediary to manage billing processing and this intermediary is not permitted to store, retain, or use your billing information except to process your credit card information for PushAd.
5. Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against PushAd based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so.
8. YOUR CUSTOMERS’ PRIVACY
1. The Service does not intend to store any personal information about your customers or clients.
2. You are able to link your customers’ information to the PushAd system through a pseudonymised ID, depending on your ability to offer a compatible API (a) which is able to connect such a pseudonymised link and (b) which does only deliver the necessary information.
9. CANCELLATION AND TERMINATION
1. PushAd reserves the right to (a) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (b) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or your use of the Service), and remove and discard any of your content within the Service if we believe that you have violated these Terms. PushAd will use all reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of your use of Service, and may be referred to law enforcement authorities.
2. PushAd shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service.
10. DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PUSHAD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PUSHAD DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM PUSHAD OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION OF LIABILITY
1. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
2. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, PUSHAD’s (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PUSHAD WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, PUSHAD’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
1. Indemnification by PushAd. PushAd will indemnify and hold you harmless, from and against any claim against you by reason of your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). PushAd shall, at its expense, defend such Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by PushAd for such defense, provided that (i) you promptly notify PushAd of the threat or notice of such Claim, (ii) PushAd will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) you fully cooperate with PushAd in connection therewith. If your use of the Service has become, or in PushAd’s opinion is likely to become, the subject of any such Claim, PushAd may at its option and expense (a) procure for you the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay you any unused Service fees. PushAd will have no liability or obligation under this Section 12.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by you; (ii) modification of the Service by anyone other than PushAd; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of PushAd to you and constitute your sole remedy with respect to a Claim brought by reason of your permitted use of the Service.
2. Indemnification by you. You agree to defend, indemnify, and hold harmless PushAd from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from your breach of these Terms, or your access to, use, misuse or illegal use of the Service. PushAd will provide you notice of any such claim, suit, or proceeding. PushAd reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist PushAd’s defense of such matter.
13. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
1. Either party may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these Terms.
2. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties).
3. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify you of such changes and direct you to the latest version.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
15. EXPORT COMPLIANCE AND USE RESTRICTIONS
Certain Content and software components of the Service may be subject to export control and economic sanctions laws. If you are subject to such laws, you agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service.
16. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 9, (Cancellation and Termination), 10 (Disclaimer of Warranties), 11 (Limitation of Liability), 12 (Indemnification), 13 (Assignment; Entire Agreement; Revisions), 14 (Severability), 15 (Export Compliance and Use Restrictions), 16 (Relationship of the Parties) and 18 (Governing Law) will survive any termination of these Terms.
18. GOVERNING LAW
These Terms shall be governed by the laws of the Republic of Poland without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts of the Republic of Poland, City of Warsaw, for the purpose of resolving any dispute relating to your access to or use of the Service.