Airpush
Advertiser Agreement

 

Last Updated: October 10th, 2013

Airpush, Inc. and its subsidiaries and affiliated companies (collectively, “us”, “we,” or “Airpush”) provides a mobile advertising platform that enables our advertising clients (“you”, “your” or “Advertiser”) to distribute mobile advertising content, including hyperlinks, text, images, banners, videos and other promotional content (“Advertisements”), to mobile device users (“Consumers”).  Advertisers create and manage their advertising campaigns (“Campaigns”) through Airpush’s web interface or through offline insertion orders, and Airpush delivers the Advertisements on behalf of Advertisers to Consumers who have installed mobile applications that contain Airpush’s proprietary software (the “Service”).

Your access and use of the Service is governed by this Advertiser Agreement (“Agreement”) and any applicable terms and conditions on the Airpush website, located at www.airpush.com (the “Site”).  For purposes of this Agreement, the term “Advertiser” includes ad networks, ad agencies and any other party entering into this Agreement as an authorized agent of another advertiser.  If you are entering into this Agreement on behalf of another advertiser, you represent and warrant that you have the authority to enter into this Agreement on behalf of such advertiser, and that such advertiser will be bound by the terms of this Agreement.  You further agree to indemnify Airpush for any violations of this Agreement by such advertiser.

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.

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.

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.

1.      Eligibility, Account and Site

(a)    Eligibility.  You must be at least 18 years old to access or use the Service.  If you are accessing or using the Service on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity’s behalf, and that such entity agrees to indemnify you and Airpush for violations of this Agreement.

(b)   Registration.  In order to access and use the Service, you will need to register for an Advertiser account (“Account”) on the Site and accept this Agreement.  You agree to: (i) provide accurate, truthful, current and complete information when creating an Account; (ii) maintain and promptly update your Account information; (iii) maintain the security of your Account by not sharing your user ID and password with others and restricting access to your Account and your computer; (iv) promptly notify Airpush if you discover or otherwise suspect any security breaches related to the Site, including if your user ID or password have been compromised; and (v) take sole responsibility for all activities that occur under your Account and accept all risks of unauthorized access.  To create an Account you must enter a valid email address and other personal information.  In addition, you must select a password and user ID.  You may not select as your user ID the name of another living person (unless it is also your name), or a name that violates any third party’s trademark rights, copyright, or other intellectual proprietary rights, or which we determine in our sole discretion to be offensive or inappropriate.  Your password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else.  No employee of Airpush will ever ask you for your password in written correspondence or any other form of communication. Any distribution by you of such password and/or user ID may result in termination of your access to the Site or Service.

(c)    Site terms.  The Airpush Site Terms, available at http://www.airpush.com/siteterms/ (“Site Terms”), apply to your access and use of the Site and Services.  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.

2.      Privacy Policy

Please refer to our Site Privacy Policy, available at http://www.airpush.com/privacypolicy/, for information about how Airpush collects, uses and discloses personal information from Advertisers.

3.      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 our provision of the Service, including, without limitation, copying and distributing Advertisements to Consumers.

4.      Advertising Campaign

Airpush delivers Advertisements on behalf of Advertisers to Consumers in accordance with the criteria established through the Advertiser’s 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, Consumer targeting information and cost-per-click bid information.   In creating the Advertisement for the Campaign through the Service, you may submit a title and text for the Advertisement, provide a hyperlink to direct Consumer traffic to or provide a phone number for Consumers to call or send an SMS message.  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.

5.      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 (“Consumer Data”). You shall 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 Direct Marketing Association Guidelines and the Mobile Marketing Association Guidelines). Without limiting the generality of the foregoing, you shall provide all notices and obtain any consents required by applicable laws in connection with your collection of any Consumer Data. You are fully responsible for any collection, use, storage, or disclosure of Consumer Data.

6.      Advertiser Representations and Warranties

You represent and warrant to Airpush that: (a) you have the right and authority to publish and display the Advertisements and to grant the rights granted herein; (b) your performance under this Agreement will not violate any agreement or obligation between you and a third party or any applicable law, ordinance or regulation or cause Airpush to be in violation of any agreement or obligation between Airpush and a third party or any applicable law, ordinance or regulation; (c) your use of Consumer Data will not cause Airpush to violate any provision of Airpush’s privacy policy; and (d) the Advertisements provided by you do not now nor will in the future infringe upon or violate any Intellectual Property Right (as defined below) of a third party, including but not limited to any patent, copyright, trademark, trade secret, trade dress, mask work, moral right, right of attribution or integrity or other intellectual property rights (collectively, “Intellectual Property Rights”) or non-proprietary right of any third party or violate Airpush’s Acceptable Use Policy, available at http://www.airpush.com/acceptable_use_policy/.  Finally, you warrant that you have not suffered any actual, probable or reasonably suspected breach of any safeguards or of any other actual, probable or reasonably suspected unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any information maintained on any of your systems (“Security Breach”), or if any of your systems has suffered one or more Security Breaches, you have fully disclosed each such Security Breach to Airpush.

7.      Payments

(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 the applicable insertion order(s) executed by you and Airpush (“Insertion Order”).  All fees and charges listed on the Site, the 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 or via email.

(b)   Campaign Limits.  Advertisers 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.  Advertiser will not be held responsible for applicable incremental Advertisements served over such capped levels or amounts, but only to the extent such charges are associated with overdelivery by more than 10% above such capped levels or amounts.

(c)    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 an Advertiser, 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.

(d)   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 your 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 ccagreements@Airpush.com.  Airpush reserves the right (without the obligation) to terminate your participation in the Auto Funding Service after at least 6 months of inactivity.

(e)    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.

(f)    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.

(g)    Campaign Charges.  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 shall waive any claim relating to the disputed charge.

(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 has 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.

8.      Submissions

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.

9.      Indemnification

(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; or (iii) 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.

(b)  Procedure.  You will provide Airpush 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.

10.  Disclaimer 

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 SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

11.  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 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 TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 (USD)).

12.  Arbitration

PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY because IT REQUIRES YOU TO ARBITRATE DISPUTES WITH AIRPUSH AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.

You and Airpush agree to arbitrate any dispute arising from this Agreement or relating to the Service, except that you and Airpush are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of Intellectual Property Rights or Consumer Data.  ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FORM HAVING A JURY TRIAL.  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 arbitration; (c) that any arbitration will occur in Palo Alto, California; and (d) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association.  The state or federal courts in Santa Clara County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration.  Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.  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.  WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND AIRPUSH WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

13.  Termination

Notwithstanding any of the terms of this Agreement, Airpush reserves the right, without notice and in its sole discretion, to (a) terminate your right to access or use the Site or Service or (b) block or prevent your future access to, and use of the Site or Service.  Airpush may also discontinue the Service at any time, in which case this Agreement shall terminate automatically without notice.

14.  Miscellaneous

(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 Service following the posting of changes or modifications will confirm your 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 your use of the Service.  If you do not agree to the amended terms, you must stop using the 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 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 13 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 Advertiser 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.

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