Last Updated: September 30th, 2016
PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX INDICATING “I ACCEPT THE AIRPUSH ADVERTISER AGREEMENT” OR BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. YOU AND AIRPUSH AGREE TO BINDING ARBITRATION TO RESOLVE ANY DISPUTE ARISING FROM THIS AGREEMENT OR RELATING TO THE AIRPUSH TECHNOLOGY AND SERVICE. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. (SEE SECTION ON ARBITRATION BELOW FOR FURTHER DETAILS).
1. Scope; Services
(a) Services. Airpush, Inc. and its subsidiaries and affiliated companies (collectively, “us”, “we”, or “Airpush”) provides a mobile advertising platform that will enable its advertising clients (including any advertiser on whose behalf of you are providing Advertisements) (“you”, “your”, or “Advertiser”) to upload and distribute mobile advertising content, including graphics, hyperlinks, text, images, banners, videos and other promotional content (“Advertisements“) to mobile device users (“Consumers“) on behalf of Advertiser. You may create and manage advertising campaigns (“Campaigns“) through Airpush’s web interface or through offline insertion orders, and Airpush will deliver the Advertisements on behalf of you to Consumers who have installed mobile applications or visit websites that contain Airpush’s proprietary software, tags, other technology or otherwise are contractually within the Airpush network (the “Service“). Your access and use of the Service is governed by this Agreement and any applicable terms and conditions on the Airpush website, located at www.airpush.com (the “Site“).
(b) Suspension of the Services. Airpush reserves the right to modify or discontinue, temporarily or permanently, the Service, or any features or portions thereof, without prior notice. You agree that Airpush will not be liable for any modification, suspension or discontinuance of the Service, or any part thereof. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Airpush for products, services or otherwise.
2. Account Registration and Site Terms
(a) Registration and Site Terms. You must be at least 18 years old to access or use the Service. In order to access and use the Service, you must: (i) register for an advertiser account (“Account”) on the Site; (ii) accept this Agreement; and (iii) comply with the Site Terms at http://www.airpush.com/siteterms/ (“Site Terms”) and Acceptable Use Policy at www.airpush.com/acceptable_use_policy/ (“Acceptable Use Policy”) and any other relevant terms that Airpush may publish from time to time. You must keep all information updated, accurate, truthful, and complete at all times. You may access your Account using the user name/password credentials (“Credentials”) either provided by Airpush or as registered by you. You must protect your Account Credentials and you are fully responsible for all use and activity of your Account. If you suspect any improper or unauthorized use of your Account, your Credentials, or any other security breaches, you must contact your Airpush account manager immediately. You should carefully chose your password and not include any personal or other information that may be easily guessed by another. Any distribution by you of your Credentials may result in termination of your access to the Site or Service. Airpush has the right to terminate or suspend your access to or use of the Services and the Site, with or without notice, in the event that you violate the Site Terms or any term of this Agreement.
4. License to Advertisements
You hereby grant to Airpush a non-exclusive, worldwide, royalty-free license to reproduce, distribute, display, edit, modify, enhance and otherwise use the Advertisements (including any trademarks therein) in connection with Airpush’s provision of the Service, including, without limitation, copying and distributing Advertisements to Consumers, on applications and websites, and to third party service providers.
(a) Campaigns. Airpush will deliver Advertisements on behalf of you to Consumers in accordance with the criteria established through your Advertiser Campaign. Each Campaign shall specify the information necessary for Airpush to deliver the Advertisements, which information may change from time to time. For instance, Airpush may require a Campaign name, maximum daily or total amount to spend on such Campaign, start and end date for such Campaign, the type of Campaign, fields to collect User Volunteered Data (as defined in Section 8), Consumer targeting information and cost-per-click bid information. Airpush does not control, endorse or adopt any Advertisements. Airpush is not be responsible or liable in any manner for any Advertisements or Campaigns and undertakes no responsibility to update or review any Advertisements or Campaigns.
(b) Editorial Adjacencies. Your sole remedy for the placement of an Advertisement on a Publisher site that violates any editorial adjacencies agreed to in writing by Airpush will be for you to submit a written complaint to Airpush. Airpush, in its sole discretion, will review such complaints and determine if the content is objectionable or in violation of such editorial adjacencies.
6. Consumer Data
Whenever Consumers receive, scroll over, view, click on or otherwise interact with an Advertisement, or a web page accessible to such Consumers after clicking on an Advertisement, you may be able to collect personal information directly from such Consumers, including User Volunteered Data (“Consumer Data”).
You must collect, use and disclose Consumer Data solely in accordance with all applicable federal, state and local laws, rules, judicial and administrative decisions and industry guidelines (including, without limitation, the CAN-SPAM Act of 2003, the Digital Advertising Alliance self-regulatory guidelines, Direct Marketing Association Guidelines and the Mobile Marketing Association Guidelines). You are fully responsible for all collection, use, storage, or disclosure of Consumer Data by or on behalf of you and received by you.
7. Ad Tags
8. Campaigns Collecting User Volunteered Data
9. Representations and Warranties
(a) General. You will pay Airpush the fees and other compensation set forth in the applicable Campaign(s) established through Airpush’s Site or through an applicable insertion order(s) executed by you and Airpush (each, an “Insertion Order”). All fees and charges listed on the Site, an Insertion Order or this Agreement are in United States Dollars (“USD”). Airpush may modify its fee structure including then-current minimum bid levels at any time upon notice to you, which notice shall be communicated either through a posting on the Airpush website, revised Insertion Order, or via email.
(b) Campaign Charges; Payment; Click Disputes. All Campaign charges will be calculated solely based upon Airpush’s records. No other measurements or statistics of any kind shall be accepted by Airpush or have any effect under this Agreement. If you dispute any charge made in connection with a Campaign, you must notify Airpush in writing within fifteen (15) days of any such disputed charge (“Notice“). Airpush will review and resolve such disputes in its sole discretion. If you fail to provide Notice, you waive any claim relating to the disputed charge.
(c) Campaign Limits. You may set Campaign limits through the Services, including a cap on the amount of money available for a Campaign. Once the capped levels or amounts stated in the Campaign have been reached, Airpush will use commercially reasonable efforts to suspend delivery of Advertisements.
(d) Pre-payment. You must maintain a positive cash balance in your Account in order to initiate and maintain a Campaign. Your Account may be funded via credit card, check, wire transfer or Automated Clearing House (“ACH”). Airpush reserves the right to restrict access of any aforementioned payment method to you, or place limits on the use of a particular payment method. The minimum starting balance for an Account is $500 (USD). Charges in connection with the Service will be deducted from your Account balance until the balance is exhausted. If your Account balance is exhausted, your participation, including the continuation of any ongoing Campaign, will be paused or terminated without notice. You may at any time replenish or add to your Account balance in pre-payment blocks of at least $100 (USD). You may check your Account balance at any time via the Site. Campaign charges are generally posted to Accounts within 24 hours following the delivery of an Advertisement, but may sometimes take longer depending on the circumstances.
(e) Auto Funding Service. Airpush offers a service that enables you to fund your Account when it reaches a certain minimum balance (the “Auto Funding Service”) as a convenience to prevent you from running out of funds and to maintain continuity in its advertising Campaigns. To be approved for the Auto Funding Service, you must provide Airpush with a signed Auto Funding Service authorization in the form provided by Airpush. Airpush’s Auto Funding Service authorization form is available on the Site and may be returned to Airpush via email to email@example.com. Airpush reserves the right (without the obligation) to terminate your participation in the Auto Funding Service after at least 6 months of inactivity.
(f) Dormant or Inactive Accounts. Subject to applicable law, if there have been no transactions with your Account for at least 6 months (or, if greater, the minimum period allowed by applicable law), then Airpush reserves the right to deduct a monthly administrative fee of up to $20 (or the maximum amount allowed by applicable law) to keep your Account open. If, after the period set forth under applicable law, there have been no transactions with your Account and Airpush cannot reach you at your email address on file, Airpush may terminate your Account and report and remit the remaining funds as unclaimed property.
(g) Taxes. You are responsible for all applicable taxes, duties or other charges, including sales or use taxes, imposed by any federal, state, or local governmental entity on the Service furnished by Airpush under this Agreement, except for taxes based on Airpush’s net income, gross revenue, or employment obligations. If Airpush is obligated by applicable law or regulation to collect and remit any taxes relating to the Service, then Airpush may deduct the appropriate amount from your Account.
(h) Pausing or Deleting a Campaign. To avoid future Account charges, you must log on to the Site and follow Account procedures to pause or terminate a Campaign. Until you or Airpush have paused or terminated your Campaigns, you will be responsible for all charges incurred in connection with your Campaigns, including charges incurred during the twenty-four hour period following such pause or termination in order for such action to take effect. You will also be responsible for all reasonable expenses (including attorneys’ fees) incurred by Airpush in collecting delinquent, withheld or rescinded amounts.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Airpush, the Site or the Service (collectively, “Submissions”). Submissions, whether provided to Airpush by email or otherwise, are non-confidential and will become the sole property of Airpush. Airpush will own exclusive rights, including all related intellectual property rights, and will be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
(a) Indemnification. You will defend, indemnify and hold harmless Airpush, its affiliates, independent contractors, service providers and consultants, and its and their respective directors, officers, employees and agents, from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (i) your use of the Site or the Service; (ii) your violation of any terms of this Agreement; (iii) your collection, use or disclosure of Consumer Data, including User Volunteered Data; or (iv) any alleged or actual infringement, violation, or misappropriation of any Intellectual Property Rights or non-proprietary right, by you, your agents or representatives related to any Advertisement or other content provided by you. This provision may not apply to New Jersey residents.
(b) Procedure. Airpush will provide you prompt written notice of any such claim and such information and assistance as you may reasonably request to help you defend such claims; provided that you pay or reimburse all of the costs and expenses reasonably incurred by Airpush in connection with any assistance requested by you under this Section. You will not have any right to settle any such claim without Airpush’s written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Airpush or otherwise requires Airpush to take or refrain from taking any material action (such as the payment of fees). Airpush will have the right to approve the counsel selected by you for defense of any such claim, which approval will not be unreasonably withheld. Airpush may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, you will provide such authority, information and assistance related to such proceeding as Airpush may reasonably request to protect Airpush’s interests. You will maintain such insurance policies (including, without limitation, commercial liability insurance, professional liability and technology errors & omissions liability insurance, internet insurance and statutory workers’ compensation insurance) as may be sufficient to protect you against all applicable risks. You will provide Airpush with certificates of insurance and other supporting materials as Airpush may reasonably request to verify your continuing compliance with the preceding sentence.
i. You and Airpush agree: (a) to notify each other of any dispute within thirty (30) days of when it arises; (b) to attempt informal resolution prior to any demand for binding arbitration for at least sixty (60) days; (c) that any arbitration will occur in Los Angeles County, California; and (d) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association and any Expedited Procedures. The parties will select an arbitrator within seven (7) days of delivery of the Demand for Arbitration; if the parties cannot agree upon an arbitrator, the AAA will appoint the arbitrator in accordance with AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of California and will be from AAA’s roster of arbitrators.
ii. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Airpush submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to AAA Rules and any expedited procedures, the arbitrator will have the ability to manage information exchange by the parties.
iii. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable.
iv. The state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration.
v. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
vi. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
vii. In the event that Airpush changes this section (Arbitration) after the date you first accepted this Agreement (or any subsequent changes to this Agreement), you may reject such change by sending us written notice (including via email to firstname.lastname@example.org; Subject Line: Attn: Arbitration Objection) within thirty (30) days of the changes became effective, as stated in the “Last Updated Date” above or any other notification to you by Airpush of such changes. By rejecting any change, you agree to arbitrate any dispute between you and Airpush in accordance with the provisions of this section (Arbitration) as of the date you first accepted this Agreement (or any subsequent changes to this Agreement).
(b) Waiver of Class Action.
WHETHER THE DISPUTE IS HEARD IN ARTBITRATION OR COURT, YOU AND AIRPUSH WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. UNDER THIS AGREEMENT, THE PARTIES ARE ALSO PROHIBITED FROM PARTICIPATING IN A CLASS ACTION (EXISTING OR FUTURE) BROUGHT BY A THIRD PARTY. THE PARTIES AGREE TO RESOLVE DISPUTES ARISING OUT OF THIS AGREEMENT ON AN INDIVIDUAL BASIS
THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. AIRPUSH DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. AIRPUSH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE AIRPUSH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE AND THE SITE SAFE, AIRPUSH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE AND THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD OR USE. THIS PROVISION MAY NOT APPLY TO NEW JERSEY RESIDENTS.
15. Limitation of Liability
IN NO EVENT SHALL AIRPUSH, ITS AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICE, THE SITE, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE OR SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM AIRPUSH, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AIRPUSH’S RECORDS, PROGRAMS OR SERVICE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AIRPUSH, ITS AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE OR THE SITE OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 (USD)). THIS PROVISION MAY NOT APPLY TO NEW JERSEY RESIDENTS.
Confidential Information means any non-public information disclosed by Airpush, whether or not marked (if not so marked, is of a nature or disclosed under circumstances that a reasonable person would recognize such information as confidential), including, without limitation, the terms of this Agreement including any Insertion Orders and Campaign details, the publishers in Airpush’s network, the contents of the Site, individual contact information provided by Airpush, information regarding Airpush’s marketing, plans, products, services, and technical environment. You agree to protect Confidential Information in the same manner as you protect your own (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those with a need to know that information, who have agreed in writing to be bound by terms at least as protective as those contained in this Agreement. The restrictions in this paragraph will not apply to Confidential Information if (i) available to the public other than by a breach of a confidentiality obligation or other wrongful act by you or a third party, (ii) rightfully received from a third party not in breach of a confidentiality obligation and who has otherwise not wrongfully obtained the Confidential Information, (iii) independently developed by you without use of or reference to the Confidential Information of Airpush; (iv) known to the you at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided that Airpush is given reasonable advance notice of the obligation to produce Confidential Information and you use diligent efforts to limit such disclosure and assist Airpush to obtain a protective order or otherwise seek confidential treatment. Airpush shall be entitled to seek injunctive or other equitable relief for breach of the confidentiality obligations herein. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.
Notwithstanding any of the terms of this Agreement, Airpush reserves the right, without notice and in its sole discretion, to (i) terminate your right to access or use the Site or Service or (ii) block or prevent your future access to, and use of the Site or Service. Airpush may also discontinue the Site or Service at any time, in which case this Agreement shall terminate automatically without notice.
(a) Independent Contractors. The Parties and their respective personnel are and shall be independent contractors and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
(b) Amendment. Airpush reserves the right to change or modify any of the terms and conditions contained in this Agreement or applicable policies at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site or Service following the posting of changes or modifications will confirm its acceptance of such changes or modifications. Therefore, you should frequently review this Agreement and applicable policies from time-to-time to understand the terms and conditions that apply to its use of the Site and Service. If you do not agree to the amended terms, you must stop using the Site and Service.
(c) Assignment. You may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Airpush. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
(d) Severability. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
(e) Nonwaiver. Any failure by Airpush to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
(f) Survival. The respective rights and obligations of the Parties under Sections 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, and 18 shall survive any termination or expiration of this Agreement.
(g) Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
(h) Entire Agreement. This Agreement, including any Insertion Orders that may have been executed by and between you and Airpush, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. In case of any discrepancy between this Agreement and the Site Terms, this Agreement shall prevail. In the event of any discrepancy between this Agreement and any Insertion Order, such Insertion Order shall prevail provided that it explicitly seeks to amend a specific term of this Agreement.