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Terms of Use

Updated: December 17th, 2018
This is a binding agreement; please read it carefully.

This Pushnami Terms of Use and End User License Agreement (“Terms of Use” or “EULA”) sets forth the terms under which Pushnami, LLC (“Pushnami”, “Company”) offers to make its website (the “Site”) and features, products and services in connection with the Site (collectively the “Services”) available to You (“You” or “Licensee”). The Services are intended for use within Your applications (“Apps”) and websites (jointly the “Properties”) in order to send, optimize and manage push notifications to users of Your Properties (“Users”). You signify Your agreement to this EULA by clicking through the acceptance mechanism provided by Company (such as an “I Agree” or “I Accept” or “Sign Up Now” button). Please review these terms carefully, because they will bind You with respect to Your use of the Services.

1. Eligibility to Use the Service

By using our Services, You agree to be bound to these Terms of Use. These terms are legally binding. If You do not agree to be hound by these Terms of Use or our Privacy Policy, do not use the Services. By using the Services, You represent either that (A) You are 18 years of age or older and can form a contract under the laws of the United States, the laws of the jurisdiction in which You use the Site or the Services, or any other applicable jurisdiction; or, that (B) You are under 18 years of age but above 13 years of age and Your parent or legal guardian has read and fully accepted these Terms of Use on Your behalf and has consented to Your use of the Service. If You are under 13 years of age, do not use our Services.

2. License to the Software

Company may make certain software available to You in connection with Your use of the Site or the Services. If You download software from the Site or the Services, Company grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to that software, including all files and images contained in or generated by the software, and accompanying data (collectively, the “Software”), This license granted to You by Company is conditioned upon Your agreement to and full, ongoing compliance with these Terms of Use. Licensee acknowledges and agrees that the Company may change the format and nature of the Software at any time in the Company’s sole discretion without advance notice to Licensee. From time to time, Company may offer updates of the Software, for any purpose. Company may discontinue some or all of the Software that Company may provide, and Company may terminate Your right to use any such Software at any time, for any reason, and in such event may modify it to make it inoperable. (All references hereafter to the Services include the Software.) This section excludes software obtained under Open Source or freeware licenses that may be available on the Site, which are subject to the terms and conditions of the applicable Open Source or freeware licenses.

3. Ownership

Company solely and exclusively owns the Site and the Services. You acknowledge that the Site and Services are protected by copyright, trademark, service mark or other proprietary rights notices incorporating in or accompanying the Services. Your use of the Site or any of the Services does not confer any title or ownership interest in the Site or Services, any information or content that You access on or through the Site or the Services, or any intellectual property rights and proprietary rights in any of them. You hereby grant Company the right to use the name and logo of Licensee to designate Licensee as a licensee or client, for marketing purposes (e.g., on its website or marketing materials). The Site and the Services may contain certain licensed information and content, and Company’s licensors may protect their rights in the event of any violation of these Terms of Use.

4. Restrictions on Use of the Software

Licensee agrees that its license to the Software is subject to the following conditions:

  1. Licensee will not use the Software in connection with any website that constitutes or promotes illegal gambling, adult media (i.e., pornography), pirated content or content that infringes, misappropriates or violates a third party’s intellectual property rights or rights of publicity or privacy, tobacco products, including e-cigarettes, firearms or ammunition, or any product that is illegal in the jurisdiction in or into which it is sold;
  2. Licensee will only use the Software in connection with the Properties that it owns and operates, and shall not sell, sublicense, give, rent, loan, lease, or otherwise make the Software or its components available to any third party without the Company’s prior express written consent;
  3. Licensee shall not:
    1. Use, display, mirror or frame the Services or any individual element within the Services, Company’s name, any Company trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without its express written consent;
    2. Attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures;
    3. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Company or any of its providers to protect the Site or Services;
    4. Attempt to access or search the Services or download software from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the Software and/or search agents provided by Company or other generally available third-party web browsers;
    5. Use any meta tags or other hidden text or metadata utilizing a Company trademark, logo, URL or product name without Company’s express written consent;
    6. Use the Services for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
    7. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
    8. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
    9. Violate any applicable law or regulation; or
    10. Encourage or enable any other individual to do any of the foregoing.
  4. Licensee shall not use the Software in conjunction with a Property that is directed to or knowingly used by children under the age of 13. Licensee shall not use the Software to knowingly send to Company personal information (as defined under the Children’s Online Privacy Protection Act), including device identifiers or precise location data, that has been received from children under the age of 13.

5. Financial Transactions

You may use and participate in certain features or services of the Site or the Services for free. However, Company may offer premium subscriptions or charge other fees for certain Services. You will be able to make purchases using a variety of payment methods. You acknowledge and agree that Company is authorized, but not required, to act on payment instructions received from anyone using Your account. All payments must be made in U.S. dollars from a U.S. bank or via alternative payment methods made available by Company. When making purchases, You may be required to enter billing information, including name, billing address, credit card or other payment information, and billing email. This information is used and held by the third-party payment providers that Company uses to process payments (the “Processor”). You acknowledge that Company is not responsible for the payment information collection, usage and/or security practices of any Processor.

6. Use and Ownership of Software Data

Licensee acknowledges and agrees that the Software enables Licensee to collect certain information from Users of the Software’s functionality (collectively, “Software Information”), which generally helps provide developers with functionality to target and personalize the notifications they send to Users. This data collected includes: Users’ mobile advertising identifiers, such as Apple IDFAs and Android Advertising identifiers; Users’ email addresses Users’ IP address, device push token, precise location (e.g., GPS-level) data, network information, language, time zone, product preferences, and privacy preferences. The parties hereto shall jointly own the Software Information, and each party shall be entitled (without further compensation to the other) to use, share, market, license, sell, store, and otherwise exploit the Software Information to the maximum extent permitted by law, which shall include using the Software Information for cross-app, cross-device, and other interest-based advertising, analytics and market research. Without limiting the foregoing, neither party shall use Software Information for any of the following purposes: (a) employment eligibility, (b) credit eligibility, (c) health card eligibility, or (d) insurance eligibility, underwriting, or pricing.

7. Privacy Policy

Company knows that You care about how your personal information is used and shared, and we also take privacy seriously. The current Company privacy policy (the “Privacy Policy”) can be found at pushnami.com/privacy-policy/. Our Privacy Policy is hereby incorporated into these Terms of Use by this reference.

8. Privacy Compliance

The Parties agree to comply with all applicable privacy laws, and each respective party agrees to perform the following obligations:

  1. Licensee is responsible for obtaining all applicable consents required to enable Pushnami to collect information from User’s device or browser. Licensee shall publish privacy policies and disclosures for the Properties that comply with applicable law and the terms of this EULA, including, but not limited to, clearly disclosing that the Software Information will be collected and how it may be used.
  2. Each Party shall at all times comply with its respective published privacy policies and disclosures, and each party shall at all times post a privacy policy on its website that describes how it collects, uses and shares information, and that provides information about how a User can opt out of interest-based advertising (e.g., online behavioral or mobile cross-app advertising).
  3. Where Licensee provides data (such as IDFAs, Android Ad IDs, or location data) in a manner other than through the Software, Licensee shall be responsible for ensuring ensure that any collection and transfer of data is done in compliance with User’s stated preferences, including without limitation devices settings to “Limit Ad Tracking” and “Opt Out of interest-based ads.”
  4. Licensee shall notify Company in writing of any further data usage or governance requirements, restrictions or limitations, to the extent they apply, in which case the parties may execute a further, paid subscription plan setting out such limitations and licensing payments to supplement the terms herein.

9. Inappropriate Content

Some of the Services may allow You to transmit content or information (“Content”) from time to time. You agree not to submit, post, upload, display, perform, transmit, or otherwise distribute any Content that, as Company may determine in its own discretion: (A) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (B)) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (C) is fraudulent, false, misleading or deceptive, or that plagiarizes a third party’s work; (D) is defamatory, obscene, pornographic, vulgar or offensive; (E) promotes discrimination, bigotry, racism, hatred, harassment, bullying, or harm against any individual or group; (F) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (G) promotes illegal or harmful activities or substances; (H) transmits unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (I) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services, Company reserves the right to terminate Your receipt, transmission, or other distribution of any such material using the Site or the Services, and, if applicable, to delete any such material from its servers. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or of any applicable laws. If You become aware of any unlawful, offensive or inappropriate Content on the Site or the Services (except for content that infringes copyright, which is addressed below), please contact Company at support@pushnami.com with Your name and address, a description of the material at issue, and the link to or location of such material.

10. Additional Representations and Warranties

Each party hereto represents that:

  1. to the extent it is a business entity, it is duly incorporated and in good standing under the laws of the state of its incorporation;
  2. it has the right, power, and authority to enter into this EULA, grant the rights granted by it herein, and perform its obligations without any additional consent or approval;
  3. it has not relied and shall not rely upon the other party for legal advice regarding its compliance with applicable law;
  4. the execution and performance of this EULA shall not violate or conflict with the terms or conditions of any other agreement to which it is a party or by which it is bound; and
  5. it shall, and shall ensure that its employees and contractors, comply at its or their own expense, with applicable law, including, without limitation, applicable law governing privacy and data security.

11. Warranty Disclaimer

The Site and Services are provided to Licensee on an “as-is” and “as available” basis. The Company does not represent or warrant that the Site or Services or the results obtained from their use shall meet the requirements or business needs of Licensee or its customers or that the Site or Services’ operation shall be uninterrupted or error-free. Except as expressly provided herein, the Company makes no representations and warranties under this EULA, and disclaims, all warranties, whether written or oral, express or implied, relating to the Site and Services, including, but not limited to, any warranty of title or non-infringement, any implied warranty of merchantability or fitness for a particular purpose, and any implied warranties arising from course of dealing or course of performance.

12. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE, BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS EULA; OR (B) ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS EULA TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES EXCEEDS THE GREATER OF THE TOTAL AMOUNT YOU PAID COMPANY TO USE THE SITE OR THE RELEVANT SERVICES DURING THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM OR DISPUTE AROSE, OR ONE HUNDRED DOLLARS U.S. ($100). AT COMPANY’S OPTION, IN LIEU OF DAMAGES THE COMPANY MAY ELECT TO PROVIDE YOU WITH ACCESS TO USE THE SITE OR THE RELEVANT SERVICES AGAIN FOR A ONE-MONTH PERIOD. THESE LIMITATIONS SHALL APPLY EVEN IF THEY FAIL THEIR ESSENTIAL PURPOSE. YOU AGREE THAT ANY CLAIM ARISING IN CONNECTION WITH YOUR USE OF THE SITE, THE SOFTWARE, OR THE SERVICES MUST BE FILED WITHIN ONE YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. REGARDLESS OF ANY APPLICABLE STATUTE OF LIMITATIONS TO THE CONTRARY.

13. Indemnity

If anyone brings a claim against Company arising out of Your access to and/or use of the Site or Services, or arising out of any other user or Your account, You will indemnify and hold harmless Company and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (including reasonable attorney’s fees and costs).

14. Copyright Infringement

Company respects copyright law and expects the same of its users and Licensees. If You believe that Content transmitted on or through the Services infringes one or more of Your copyrights, please send our DMCA Agent by mail, email or fax a notification (“Notification”) providing the information described below. A copy of Your Notification will be sent to the person who posted the material addressed in the Notification.

Under federal law, You may be held liable for damages and attorney’s fees if You make any material misrepresentations in a Notification. If You are uncertain whether content located on or accessible via a link from the Site infringes Your copyright, You should contact an attorney.

All Notifications should include the following:

  1. Identify the copyrighted work that You claim has been infringed, or – if multiple copyrighted works are covered by this Notice – You may provide a representative list of the copyrighted works that You claim have been infringed.
  2. Identify the material that You claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
  3. Provide Your mailing address, telephone number, and, if available, email address.
  4. Include both of the following statements in the body of the Notice:
    • “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
    • “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
  5. Provide Your full legal name and Your electronic or physical signature.

    Notifications should be sent to:

    The Law Offices of Kavon Adli, P.C.
    9107 Wilshire Boulevard, Suite 450
    Beverly Hills, California 90210
    Fax: (310) 356-3257
    Email: DMCA@tilg.us

    It is Company policy to terminate the accounts of Licensees who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

15. Confidentiality

You may receive or be privy to Company’s Confidential Information. “Confidential Information” shall mean any information, technical data, or know how considered proprietary by the Company including, but not limited to, the Company’s research, products, formulae, software, trade secrets, services, development, inventions, derivations, processes, specifications, designs, drawings, diagrams, engineering, marketing, techniques, documentation, customer information, pricing information, procedures, data, concepts, financial, sales, manufacturing, operational, strategic planning, budgeting and other information disclosed by the Company to You, as well as information and material generated by You that contains, reflects or is derived from Confidential Information of Company. The disclosure may be directly or indirectly in writing, orally, by inspection or by access.

You agree not to use Confidential Information for any purpose other than to perform obligations described herein or as explicitly permitted by Company in writing. You agree not to alter, modify, disassemble, reverse engineer, design around or decompile any of the materials unless permitted in writing by Company.

Confidential Information does not include information, technical data or know how which: (a) is in the Company’s possession at the time of disclosure as shown by Your files and records immediately prior to the time of disclosure; (b) becomes publicly available, not as a result of any action or inaction of You; (c) is approved for release by written authorization of the Company or (d) is independently developed by You without reference to the Confidential Information of the Company.

16. Term, Termination and Investigation

This EULA shall commence as of the Effective Date and shall remain in effect until terminated as provided herein. Either Party terminate this EULA for any reason or for no reason at any time upon thirty (30) days’ prior written notice to the other Party. Notwithstanding the foregoing, Company reserves the right to terminate Your account or Your access to the Site, the Software and the Services immediately, with or without notice to You, and without liability to You, if Company believes that You have violated any of the Terms of Use, furnished Company with false or misleading information, or interfered with use of the Site, the Software, or the Services by others. Upon termination, the license granted to the Software pursuant shall immediately terminate and Licensee shall no longer have any rights to use the Site, Services, or Software. Licensee understands, however, that the collection of data by the Software through Properties on which it is already integrated, and its use for purposes set forth herein, may continue until Users have (a) removed or disabled the Software (or any application that integrates the Software) from their respective devices, or any application that integrates the Software from Your device, or (b) limited such data collection through applicable device settings in a manner that is communicated to Company.

You agree that Company or its representatives may access Your account to investigate complaints or allegations of abuse, infringement of third-party rights, or other unauthorized uses of the Site, the Software or the Services. Company does not intend to disclose the existence or occurrence of such an investigation unless required by law.

17. Texas Use Only

The Site is controlled and operated by Company from its offices in the State of Texas. Company makes no representation that any of the materials or the services to which You have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than Texas.

18. Non-Competition

During the Term of this Agreement and for two (2) years after the last date of Your use of the Services, You will not create, develop, sell, offer or distribute Competing Software. “Competing Software” is defined as software as a service that provides browser-based subscriber notification/distribution software systems (also known as “browser notifications” or “push notifications”) for internal and/or third-party use. Violation of this section shall be grounds for immediate termination without liability on the part of Company in addition to injunctive relief to stop the violation as well as damages as provided by law. All remedies shall be cumulative.

19. Injunctive Relief and Other Remedies

You acknowledge and agree that any breach or threatened breach of these Terms of Use by You will cause Company and its licensors irreparable damage, for which recovery of money damages alone would be insufficient. Company and/or its licensors may timely seek and obtain injunctive relief to protect their rights, without bond, other security or proof of damages, in addition to any and all other legal and/or equitable remedies available.

20. Force Majeure

Except for payment obligations, neither party hereto shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures. Each party shall promptly notify the other party upon becoming aware that any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this EULA.

21. Changes

We may update the Terms of Use at any time, in our sole discretion; we’ll let You know about the updated Terms either by posting them on the Site or through other communications. If You continue to use the Services after we have posted updated Terms of Use, You are agreeing to be bound by the updated Terms of Use. If You don’t agree to be bound by the updated Terms of Use, then You may not use the Services anymore. Company may change or discontinue all or any part of the Site or Services, at any time and without notice, at our sole discretion.

22. Miscellaneous

  1. Notices. All notices, requests, and approvals required under this EULA shall be in writing addressed/directed to the Company at support@pushnami.com and by mail at Pushnami LLC, 7421 Burnet Road, Suite 184, Austin, Texas 78757, or to Licensee at any contact information provided by Licensee. All such notices, requests, and approvals shall be deemed given upon the earlier of receipt of facsimile or email transmission during the normal business day or actual receipt thereof. In the event of use of email notice by Licensee, the sender shall request a read receipt or also send a hard copy by regular mail to ensure delivery. All such notices, requests, and approvals shall be addressed to the attention of the signatory parties, or such other party that either party has designated in a separate writing as the appropriate notice recipient.
  2. Governing Law and Jurisdiction. All matters relating to the Site, Services and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use, the Site or Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the City of Austin and County of Travis, although we retain the right to bring any suit, action, or proceeding against You for breach of these Terms of Use in Your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
  3. Waiver of Jury Trial and Class Suit. With respect to any dispute with Company, its affiliates, employees, officers, directors or members relating to or arising from Your use of the Site, Services or this Terms of Use that YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY AND YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING SUCH DISPUTE.
  4. Arbitration. At Company’s sole discretion, it may require You to submit any disputes arising from the use of these Terms of Use, the Site or Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Commercial Rules of Arbitration of the American Arbitration Association to be held in Austin, Texas. The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Costs of any arbitration shall be shared equally by the parties to the arbitration.
  5. Assignment. Licensee may not assign or delegate any rights or obligations under this EULA to any third party without the Company’s prior written consent. Notwithstanding the foregoing, either party may assign this EULA along with all rights and obligations under it to any of its corporate affiliates, parents or subsidiaries, or in conjunction with the sale or transfer of all or substantially all of its assets associated with performance under this EULA, provided that the assigning party shall provide timely notice of such assignment.
  6. Amendment. No modification of this EULA or waiver of the terms and conditions hereof shall be binding upon Company unless approved in writing by Company.
  7. Relationship of the Parties. The parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this EULA or in the working relationship being established and developed hereunder shall be deemed, nor shall it cause, the parties to be treated as partners, joint venturers, or otherwise as joint associates for profit.
  8. No Waiver. Except as otherwise provided herein, the failure of Company enforce at any time the provisions of this EULA shall not be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of Company to enforce each and every such provision thereafter.
  9. Severability. If any provision of this EULA is held invalid or unenforceable at law, such provision shall be deemed stricken from this EULA and the remainder of this EULA shall continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
  10. Survival. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, injunctive relief and other remedies, governing law and other miscellaneous terms.
  11. Entire Agreement. This EULA is the entire agreement between the parties and supersede any and all prior understanding, agreements, or representations by or between the parties, written or oral, which may have related to the subject matter hereof. There are no third-party beneficiaries to this EULA.
  12. 23. Copyright and Trademark Notices

    All contents of Site or Service are: Copyright © 2017 Pushnami, LLC. The Pushnami trademarks, logos, service marks, and trade names on the Site and Services are registered and unregistered trademarks or service marks of Pushnami, LLC or, where applicable, its licensors. All other trademarks, logos, service marks, and trade names referenced on the Site and Services are the property of their respective owners. All rights reserved.