Airpush
Developer Agreement

Last Updated: April 2nd, 2015

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 or the entity you represent (“you“, “your” or “Developer”) to utilize Airpush technology, such as a software development kit (“SDK”) or JavaScript tags, including source code, software, documentation and any updates or new or alternative versions thereof (collectively, the “Airpush Technology”) to deliver advertisements through your Application (the “Service”).  The Airpush Technology enables Airpush to deliver advertisements on behalf of Advertisers, including icon advertisements, notification advertisements, and any other advertisements or promotions (collectively, “Advertisements”), to Consumers that have installed your Application.

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 TECHNOLOGY 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 TECHNOLOGY OR SERVICE.

You 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 Technology solely in your mobile application(s) or website(s) (“Application”) that will access and use the Service to deliver Advertisements 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 your rights with respect to the Airpush Technology and Service.  Airpush reserves all rights not expressly granted in this Agreement.  Without limiting the foregoing, you will not, and you 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 Technology; (ii) distribute any source code provided as part of the Airpush Technology; (iii) modify, alter or create any derivative works of the Airpush Technology; (iv) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Airpush Technology 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 Technology; (vi) remove, alter or obscure any proprietary rights or other notice on the Airpush Technology; (vii) use the Airpush Technology or the Service other than for its intended purpose; (viii) use the Technology to create (or facilitate the creation of) any product or service that is in competition with the Airpush Technology or Service, including connecting to any other product or service using the Technology or Service; or (ix) combine the Technology so that you restrict or charge for access to the Technology or Service.

Any access or use of the Airpush Technology 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 Technology 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.  You may make and use a reasonable number of copies of any documentation provided with the Airpush Technology licensed hereunder; provided, that such copies will only be used for the purpose described in Section 1(a) and are not republished or redistributed (either in hard copy or electronic form) beyond your premises.

2. Proprietary Rights

(a) Ownership.  The Airpush Technology, 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.  The Airpush Technology, 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 Technology, 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(a), you do not acquire any title or ownership rights in the Airpush Technology, Site and Service and any related Intellectual Property Rights.

(b) Unauthorized Use.  You will promptly notify Airpush of any unauthorized use of the Airpush Technology, Site or Service that comes to your attention.  In the event of any such unauthorized use by you or your employees, agents or representatives, you will use your best efforts to terminate such unauthorized use and to retrieve any copy of the Airpush Technology in the possession or control of the person or entity engaging in such unauthorized use.  You will immediately notify Airpush of any legal proceeding initiated by you in connection with such unauthorized use.  Airpush may, at its option and expense, participate in any such proceeding 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.

3. Eligibility, Account and Site

(a) Eligibility.  You must be at least 18 years old to download, access or use the Airpush Technology and the Service.  If you are downloading, accessing or using the Airpush Technology 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 take responsibility for and indemnify Airpush for your violation of this Agreement.

(b) Registration.  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 taking appropriate measures to restrict access; (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.  You may not select as your user ID any name that violates any third party’s rights, including any Intellectual Property Rights, or which Airpush determines in its sole discretion to be offensive or inappropriate.  You should carefully choose your password and ensure it does not contain any personal or other information that may be easily guessed.  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.

4. Site Privacy Policy

Please refer to Airpush’s Site Privacy Policy, available at www.airpush.com/privacypolicy/ (“Site Privacy Policy”), for information about Airpush collects, uses and discloses personal information from you.

5. Developer Obligations

You agree that the Airpush Technology will enable the Airpush network of third party advertisers (each, an “Advertiser”) and Airpush to collect information from you and from Consumers’ mobile devices that access your Application and deliver Advertisements to such Consumers mobile devices from Advertisers.

(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, you should contact Airpush at [email protected].

(b) Child-Directed SDK.  Airpush makes 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 of 1998 (“COPPA”), and (ii) any representations you make to Airpush regarding whether (or not) your Application is 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.

YOU REPRESENT AND WARRANT THAT YOU WILL ONLY USE THE CHILD-DIRECTED SDK AND NO OTHER VERSION OF THE AIRPUSH TECHNOLOGY IN CONNECTION WITH ANY APPLICATION THAT YOU DETERMINE IS A CHILD-DIRECTED SITE OR SERVICE UNDER COPPA.

PLEASE READ CAREFULLY THE PARAGRAPHS BELOW CAREFULLY.   YOU ARE REQUIRED TO PROPERLY DISCLOSE DATA COLLECTION.

(c) Developer Privacy Policy and Consumer Notice.  Either: (i) prior to allowing Consumers to install the Application (in the Application description); (ii) at the time data is first collected from a Consumer; or (iii) when your Application is opened for the first time, you represent and warrant that you will: (A) provide Consumers with clear, meaningful, and prominent notice of a legally sufficient privacy policy that describes how you collect, use and disclose information that is collected from Consumers’ mobile devices through the Application (“Consumer Data”); (B) disclose that the Application is ad-supported; and (C) disclose your relationship with Airpush and include an active hyperlink to the Airpush Technology Privacy Statement, available at www.airpush.com/technology_privacy/ (“Airpush Technology Privacy Statement”), for information on how Airpush collects, uses and discloses Consumer Data via your Application.

You further represent and warrant that as part of your Application privacy policy, You will disclose: (i) that Consumers may opt-out of Airpush’s delivery of push or icon ad-units or targeted advertising by visiting http://www.airpush.com/technology_privacy/#choices; (ii) (B) and (C) above; (iii) the use of third-party technology, including but not limited to the use of Airpush Technology, beacons, tags, and cookies for advertising and analytics purposes; and (iv) make available any additional opt-out links related to the collection, use, or disclosure of Consumer Data.

(d) Mobile Web Notice.  You further represent and warrant that you will provide adequate notice for the use of cookies and other similar technology prior to use of such technology and related data collection as required under applicable law.

(e) Airpush Provided Notice.  Airpush may provide a special notice for Consumers embedded in the SDK or other Airpush Technology.  In the event you utilize a SDK or other Airpush Technology that provides such a notice, in the form of a just-in-time notice or otherwise, about Airpush’s data collection, use or disclosure, opt-in notice or containing other information, you agree not to remove, obscure, interfere with, or otherwise hinder such notice in any manner.

(f) Compliance with Laws and Industry Standards.  You represent and warrant that you comply with all applicable laws, regulations, and industry standards (including, but not limited to, any applicable privacy and security laws, regulations, and mobile and advertising industry standards associated with your Application and any collection, use and disclosure of Consumer Data by you or any third party via your Application.  Such laws and standards include, but are not limited to, COPPA, Digital Advertising Alliance Self-Regulatory Guidelines for mobile, the Federal Trade Commission guidelines, and the EU Data Protection Directive).  You are solely responsible for ensuring that your Application is in compliance with all applicable laws and regulations.

(g) Compliance with Airpush Policies.  You agree to comply with all applicable Airpush policies on the Airpush website (www.airpush.com/), including but not limited to the Acceptable Use Policy, available at www.airpush.com/acceptable_use_policy/ (“Acceptable Use Policy”).

(h) Compliance with Third Party Terms.

Some versions of the Airpush SDK include software that is licensed pursuant to the License Agreement for the Android Software Development Kit (http://developer.android.com/sdk/index.html) (the “Android License”) and may only be used in applications designed for mobile devices using Google, Inc.’s Android operating system.

You agree to comply with any applicable third party terms, policies, guidelines, or other applicable terms that apply to your Application, distribution, data handling and business practices, including, but not limited to developer policies for Android/Google Play, the Android Software Development Kit, and iOS/Apple App Store policies (“Third Party Terms”).  Except as otherwise agreed upon by the parties in writing, the warranties, obligations and liabilities of Airpush and the remedies of you 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.

6. Advertisements

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 ad units that are delivered to Consumers’ mobile devices.  You agree not to remove, obscure, hinder, reverse engineer, or otherwise interfere with any Advertisement for an Application in any manner.

7. Payments

(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 you 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) Payment Schedule.  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 are 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.

(d) Disputes.  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.

(e) Documentation.  If you are located in the United States, you will submit to Airpush a W-9 IRS tax document (via a digital copy uploaded to Airpush portal account).  If you are located outside the United States, you will submit to Airpush an original W-8 IRS tax document or other IRS certificate acceptable to Airpush.  You will determine which IRS document is appropriate for your needs, and Airpush will not be liable for your failure to submit the appropriate documentation.  You will submit additional documentation if and as directed by Airpush when required to process payment or required under law.  In the event that you do not provide Airpush with appropriate tax, bank, or other information required by Airpush, then Airpush may withhold payment until it receives such information.

8. Submissions

Any questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information submitted about Airpush, its Airpush Technology, Site or Service (collectively, “Submissions“), whether provided to Airpush by email or otherwise, are non-confidential and will become the sole and exclusive property of Airpush, including all related intellectual property rights without acknowledgment or compensation to you.

9. Export Restrictions

You are responsible for complying with all trade regulations and laws both foreign and domestic.  Except as authorized by law, you represent and warrant that you will not export or re-export the Airpush Technology to any county, or to any person, entity, or end-user in a manner prohibited by U.S. export controls, restrictions and regulations.  You further represent and warrant that you (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) are not a “Specially Designated National” by the Office of Foreign Assets Control; and (iii) are not placed on the U.S. Department of Commerce’s Denied Persons List; and (iv) will not access or use any Technology if any applicable laws in your country prohibit you from doing so in accordance with this Agreement.  You further represent and warrant that you will not export the Airpush Technology to any person or entity that falls within (i-iv) above and that no U.S. federal agency has suspended, revoked, or denied your export privileges.

10. Indemnification

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 any third party terms or violations of any laws, regulations or industry best practices in the relevant jurisdictions; (b) your use of the Airpush Technology, the Site or the Service; (c) your violation of any representations and warranties or any other term 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, 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 and cyber liability insurance) as may be sufficient to protect you against all applicable risks arising out of your use of the Airpush Technology or Service.  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.

11. Disclaimer

THE AIRPUSH TECHNOLOGY, THE SITE, THE ADVERTISEMENTS, AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  AIRPUSH DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY, ACCURACY, TITLE AND NON-INFRINGEMENT AS TO THE AIRPUSH TECHNOLOGY, THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.  AIRPUSH DOES NOT REPRESENT OR WARRANT THAT THE AIRPUSH TECHNOLOGY, THE ADVERTISEMENTS, THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR HARMFUL COMPONENTS, CURRENT OR ERROR-FREE.  YOUR USE OF THE AIRPUSH TECHNOLOGY, SERVICE OR THE SITE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR YOUR END-USERS’ COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. 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, ADVERTISERS, 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 TECHNOLOGY, THE SERVICE, THE SITE, THE ADVERTISEMENTS, 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, ITS ADVERTISERS, 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 TECHNOLOGY OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 USD).

13. Arbitration

You and Airpush agree to arbitrate any dispute arising from this Agreement or relating to the Airpush Technology 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 A PARTY FROM SUING IN COURT OR FROM 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 San Francisco, 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 San Francisco 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.

14. Termination

(a) Termination by Airpush.  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 Technology (b) block or prevent your future access to, and use of the Airpush Technology.  Your license to use the Airpush Technology may also be terminated without notice and in Airpush’s sole discretion if your right to use the Service or Site is cancelled or terminated or you are otherwise no longer registered to use the Service or Site.  Airpush may discontinue the Airpush Technology at any time, in which case this Agreement shall terminate automatically without notice.

(b) Termination by Developer.  You may terminate this Agreement by ceasing use of the Airpush Technology and deleting all copies of the Airpush Technology, including any part of a SDK, in your possession or control.  In the event of the termination of this Agreement for any reason: (i) the license granted to you in this Agreement will terminate; and (ii) you must immediately cease all use of the Airpush Technology and destroy or erase all copies, full or partial, of the Airpush Technology in your possession or control.

(c) Modification or Discontinuance by Airpush.  Airpush reserves the right to modify or discontinue, temporarily or permanently, the Airpush Technology 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 Technology or Service, or any part thereof.

(d) Enforcement.  In addition to all of Airpush’s rights and remedies available under Airpush terms, at law or equity, if Airpush suspects that your Application violates its Acceptable Use Policy, any other policies by Airpush, or these terms, your Application may be suspended from making ad calls, may be terminated, or may no longer be accepted in the Airpush network.  Airpush may also suspend other Applications by you for further investigation, terminate your account, and decline to accept future Applications from you to participate in the Airpush network.

15. Miscellaneous

(a) 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 Technology following the posting of changes or modifications will confirm your acceptance of such changes or modifications.  Therefore, you should frequently review this Agreement, the Acceptable Use Policy and any other applicable terms or policies from time to time to understand the terms and conditions that apply to your use of the Airpush Technology.  If you do not agree to the amended terms, you must stop using the Airpush Technology.

(b) 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.

(c) 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.

(d) General. 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. 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.  Without notice to you, Airpush may assign or transfer this Agreement, to an affiliate or in connection with a merger, acquisition, divestiture, spin off, change of control, corporate reorganization or similar such transaction or sale of all or substantially all of its assets related to this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.  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.  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 any other terms and conditions, this Agreement shall prevail.  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.

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