Last Updated: August 14, 2013
Airpush, Inc. and its subsidiaries and affiliated companies (collectively, “us“, “we,” or “Airpush“) provides a mobile advertising platform that enables you as a developer of mobile applications (“you“, “your” or “Developer“) to utilize any Airpush software development kit, including source code, software, documentation and any updates or new or alternative versions thereof (collectively, the “Airpush SDK“) to make available various advertisements through your mobile application (the “Service“).
Your download, access and use of the Airpush SDK and use of the Service are governed by this Developer Agreement (“Agreement“) and any applicable terms and conditions on the Airpush website, located at www.airpush.com (the “Site“). Airpush reserves the right to modify or discontinue, temporarily or permanently, the Airpush SDK or 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 Airpush SDK or Service, or any part thereof.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX INDICATING “I AGREE TO THE TERMS OF THE DEVELOPER AGREEMENT” OR BY DOWNLOADING, ACCESSING OR USING THE AIRPUSH SDK OR 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 DOWNLOAD, ACCESS OR USE THE AIRPUSH SDK OR 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. Developer and Airpush agree as follows:
1. Limited License
(a) License Grant. Unless otherwise agreed upon in writing, subject to the terms and conditions of this Agreement Airpush grants you a limited, non-exclusive, non-transferable and non-sublicensable license to (i) install and use the Airpush SDK solely in connection with the development and distribution of your mobile application (“Application“) that will access and use the Service to deliver Advertisements (as defined in Section 6 below) to a mobile device user (“Consumer“) and (ii) access and use the Service in order to enable Airpush to provide Advertisements to Consumers’ mobile devices through your Application. To provide the Service, you authorize Airpush to access, index, store, and cache requests made from your Application to Airpush including, without limitation, through automated means. Further, you authorize Airpush to provide advertisements to Consumers’ mobile devices through your Application.
(b) Limitations. Section 1(a) states the entirety of Developer’s rights with respect to the Airpush SDK and Service. Airpush reserves all rights not expressly granted in this Agreement. Without limiting the foregoing, Developer will not, and Developer will not authorize or permit any third party to do any of the following unless expressly authorized in this Agreement or in writing by Airpush: (i) reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the Airpush SDK; (ii) distribute any source code provided as part of the Airpush SDK; (iii) modify, alter or create any derivative works of the Airpush SDK; (iv) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Airpush SDK except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (v) work around any technical limitations in the Airpush SDK; (vi) remove, alter or obscure any proprietary rights notice on the Airpush SDK; or (vii) use the Airpush SDK or the Service other than for its intended purpose. Any access or use of the Airpush SDK or the Service other than as specifically authorized herein, without the prior written permission of Airpush, is strictly prohibited and will immediately terminate the license granted in this Agreement. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws, and applicable privacy and communications regulations and statutes. Unless stated in this Agreement, nothing in this Agreement will be construed as conferring any right or license to the Airpush SDK or Service and any related Intellectual Property Rights (as defined below), whether by estoppel, implication or otherwise. This license is revocable at any time.
(c) Documentation. Developer may make and use a reasonable number of copies of any documentation provided with the Airpush SDK licensed hereunder; provided, that such copies will only be used for the purpose described in Section 1 and are not republished or redistributed (either in hard copy or electronic form) beyond Developer’s premises.
2. Proprietary Rights
(a) Ownership. The Airpush SDK, Site, and Service (including, without limitation, the Airpush logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof) are valuable property of Airpush protected by copyright and other intellectual property laws and treaties. The Airpush SDK, Site and Service, together with any and all copyrights, patents, trademarks, trade secrets and/or any other intellectual property rights (“Intellectual Property Rights“) related to the Airpush SDK, Site and Service are and will remain the sole property of Airpush or its licensors and are protected by U.S. and international law. Other than the limited license expressly set forth in Section 1, you do not acquire any title or ownership rights in the Airpush SDK, Site and Service and any related Intellectual Property Rights.
(b) Unauthorized Use. Developer will promptly notify Airpush of any unauthorized use of the Airpush SDK, Site or Service that comes to your attention. In the event of any such unauthorized use by Developer or Developer’s employees, agents or representatives, Developer will use best efforts to terminate such unauthorized use and to retrieve any copy of the Airpush SDK in the possession or control of the person or entity engaging in such unauthorized use. Developer will immediately notify Airpush of any legal proceeding initiated by Developer in connection with such unauthorized use. Airpush may, at its option and expense, participate in any such proceeding and, in such event, Developer will provide such authority, information and assistance related to such proceeding as Airpush may reasonably request to protect Airpush’s interests.
3. Eligibility, Account and Site
(a) Eligibility. You must be at least 18 years old to download, access or use the Airpush SDK and the Service. If you are downloading, accessing or using the Airpush SDK or 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. FURTHER, RESIDENTS OF CUBA, IRAN, MYANMAR, NORTH KOREA, SUDAN AND SYRIA ARE NOT ELIGIBLE TO DOWNLOAD, ACCESS OR USE THE AIRPUSH SDK OR SERVICE.
(b) Registration. In order to download, access and use the Airpush SDK and Service, you will need to register for an account as a mobile application developer on the Site and accept this Agreement. In registering on the Site, you will: (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 Intellectual Property 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 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 the Site, with or without notice, in the event that you violate the Site Terms or any term of this Agreement.
5. Other Developer Obligations
If a Consumer installs your Application, Airpush may collect certain information from the Consumer’s mobile device and may deliver advertisements to the Consumer’s mobile device on behalf of its network of third party mobile advertisers (each, an “Advertiser“).
(a) Application Category. When setting up a new Application through the Service’s “Add App” feature, you must select a category that best describes your Application. If you need assistance in determining what category best describes your Application, please contact Airpush at email@example.com.
(b) Child-Directed SDK. Airpush will make available an alternative version of the Airpush SDK that is designed for use by child-directed sites or services (“Child-Directed SDK”). You are solely responsible for: (i) determining whether your Application is a child-directed site or service, as interpreted under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) any representations you make to Airpush regarding whether your Application is a child-directed site or service under COPPA. You must only use the Child-Directed SDK and no other version of the Airpush SDK in connection with any Application that you would like Airpush to treat as a child-directed site or service under COPPA. You agree not to communicate or otherwise send any information to Airpush regarding whether your Application is a child-directed site or service, unless expressly requested by Airpush.
(f) Compliance with Airpush Policies. You will comply with all applicable Airpush policies, including the Acceptable Use Policy, available at www.airpush.com/acceptable_use_policy/.
(g) Compliance with Third Party Terms. The Airpush SDK includes software that is licensed pursuant to the License Agreement for the Android Software Development Kit, available at http://developer.android.com/sdk/index.html (the “Android License“), and may only be used in applications designed for mobile devices utilizing Google, Inc.’s Android operating system platform. You will comply with the terms and conditions of the Android License and any other third party restrictions and limitations that may apply to the development and distribution of the Application, including, but not limited to, the Android Developer Distribution Agreement, available at https://play.google.com/about/developer-distribution-agreement.html, and the Google Play Developer Program Policies, available at https://play.google.com/about/developer-content-policy.html (collectively, the “Third Party Terms“). Except as otherwise agreed upon by the parties in writing, the warranties, obligations and liabilities of Airpush and the remedies of Developer with respect to any embedded third party software will be limited to whatever recourse may be available against the third party provider of such embedded third party software and are subject to the restrictions and other limitations as may be set forth in the applicable provisions of the Third Party Terms.
The Airpush SDK enables Airpush to deliver advertisements on behalf of Advertisers, including Icon Ads, Notification Ads, and any other advertisements (collectively, “Advertisements“), to Consumers that have installed your Application. Airpush does not control, endorse or adopt any Advertisements and makes no representation or warranties of any kind regarding the content of the Advertisements, including, without limitation, regarding the accuracy, completeness or decency of any Advertisement. Airpush is not responsible or liable in any manner for any Advertisements and undertakes no responsibility to update or review any Advertisements. Within certain limits set by Airpush, you will have the ability to control the frequency and types of Advertisements that are delivered to Consumers’ mobile devices.
(a) Compensation. Advertisers pay Airpush based on certain events, including the display of an Advertisement, a user clicking on an Advertisement, or a user completing some action after viewing or clicking on an Advertisement (“Events“). Airpush pays developers a percentage of the revenue it receives from Advertisers based upon the Events that are attributable to your Application. Airpush will compile and calculate the data necessary to determine your compensation. Airpush’s figures and calculations regarding your compensation will be final and binding. Unless otherwise posted on the Site or otherwise agreed to in writing between Airpush and you, your compensation will only include revenue actually received by Airpush from the Advertisers less: (i) any returns, credits or other similar allowances made by Airpush to a particular Advertiser; and (ii) any applicable taxes, commissions, carrier fees and other similar taxes, fees and expenses. Airpush will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to Airpush, whether in connection with this Agreement (including any breach hereof by you) or otherwise. Airpush may deduct from any present or future compensation due the amount of previously paid compensation for any returns, credits or other similar allowances made by Airpush to a particular Advertiser. Further, Airpush will have no liability whatsoever to provide you with compensation unless Airpush receives full payment by the Advertiser. Airpush will have no duty to compensate you for any revenue received by Airpush for any services provided by Airpush to Advertisers, including consulting, ad lay-out, copy writing or any other similar services. In addition, Airpush may withhold compensation in the event that you are in breach of any term of this Agreement.
(b) Uncollectible Accounts. In the event an Advertiser does not pay Airpush within one hundred twenty (120) days of when the amount is due, then the account will be declared an uncollectible account and no compensation will be due or payable to you in connection therewith.
(c) Disputes. Airpush will pay you the amounts properly due and payable within thirty (30) days following the end of the applicable month in which it is earned; provided that, such amounts exceed fifty dollars (USD) ($50). If the amounts properly due and payable is less than fifty dollars (USD) ($50), then Airpush will pay you the following month; provided that, such amounts exceed fifty dollars (USD) ($50). If you are participating in the “Weekly Pay” program, then Airpush will pay you the amounts properly due and payable within seven (7) days following the end of the applicable week in which it is earned. Any disputes over amounts due and payable by Airpush to you must be made in writing within thirty (30) days after Airpush makes the applicable payment to you. Airpush will consider such disputes in its discretion, but unless Airpush expressly determines otherwise in writing, the amounts due and payable by Airpush to you will be deemed accurate and accepted as such by you.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Airpush, the Airpush SDK, 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. Export Restrictions
The Airpush SDK and Service may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (“EAR”, 50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you will not export or re-export the Airpush SDK to any county, or to any person, entity, or end-user subject to U.S. export controls, including without limitation persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.
You will defend, indemnify and hold harmless Airpush, its affiliates, independent contractors, service providers and consultants, its and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) the Application, including violations of the Android License, Third Party Terms or violations of any laws, regulations or industry best practices in the relevant jurisdictions; (b) your use of the Airpush SDK, the Site or the Service; (c) your violation of this Agreement; or (d) your violation of any rights of a Consumer. 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. 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 may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, Developer 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 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.
THE AIRPUSH SDK, 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 AIRPUSH SDK, THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. AIRPUSH DOES NOT REPRESENT OR WARRANT THAT THE AIRPUSH SDK, THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE AIRPUSH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE AIRPUSH SDK, THE SERVICE AND THE SITE SAFE, AIRPUSH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE AIRPUSH SDK OR 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.
12. 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 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 AIRPUSH SDK, 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 SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AIRPUSH ITS AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, 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 AIRPUSH SDK OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 USD).
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 Airpush SDK and 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 any Intellectual Property Rights. 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.
Notwithstanding any of the terms of this Agreement, Airpush reserves the right, without notice and in its sole discretion, to (a) terminate your license to use the Airpush SDK or (b) block or prevent your future access to, and use of the Airpush SDK. Your license to use the Airpush SDK may also be terminated without notice and in Airpush’s sole discretion if your right to use the Service is cancelled or terminated or you are otherwise no longer registered to use the Service. Airpush may also discontinue the Airpush SDK at any time, in which case this Agreement shall terminate automatically without notice. You may terminate this Agreement by ceasing use of the Airpush SDK and deleting all copies of the Airpush SDK in your possession or control. In the event of the termination of this Agreement for any reason: (y) the license granted to you in this Agreement will terminate; and (z) you must immediately cease all use of the Airpush SDK and destroy or erase all copies, full or partial, of the Airpush SDK in your possession or control.
(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 Airpush SDK 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 Airpush SDK. If you do not agree to the amended terms, you must stop using the Airpush SDK.
(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, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15 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 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.