Last Updated: [03 October 2012]
PLEASE READ THESE SITE TERMS CAREFULLY. BY ACCESSING OR USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE SITE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THIS WEBSITE.
These Site Terms (“Terms”) apply to your access to, and use of, any website of Airpush, Inc. (“Airpush”), including www.airpush.com (the “Site”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with Airpush, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf, and that such entity agrees to indemnify you and Airpush for violations of these Terms.
Airpush reserves the right to change or modify the terms and conditions contained in these Terms or any policy or guideline of the Site, 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 this Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, you must stop using the Site.
If you have any question regarding the use of the Site, please contact Airpush by emailing [email protected].
2. Eligibility, Registration and Account
By accessing or using the Site, you represent and warrant that you are a resident of the United States and at least 18 years old. If you are not 18 or older, you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms.
In order to access certain areas and features of our Site, you will need to register for an account. You agree to (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (d) promptly notify Airpush if you discover or otherwise suspect any security breaches related to the Site; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
3. Copyright and Limited License
Unless otherwise indicated, the Site and all content and other materials on the Site, 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 (collectively, the “Site Materials”) are the proprietary property of Airpush or its licensors or users and are protected by U.S. and international copyright laws.
You are granted a limited, non-transferable, non-exclusive license to access and use the Site and Site Materials; provided, however, that such license is subject to these Terms and does not include: (a) any resale or commercial use of the Site or the Site Materials therein; (b) the distribution, public performance or public display of any Site Materials; (c) modifying or otherwise making any derivative uses of the Site and the Site Materials, or any portion thereof, unless modification or derivative use is specifically provided for under separate terms; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than page caching) of any portion of the Site, the Site Materials or any information contained therein, except as expressly permitted on the Site; or (f) any use of the Site or the Site Materials other than for its intended purpose. Any use of the Site or the Site Materials other than as specifically authorized herein, without the prior written permission of Airpush, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
4. Repeat Infringer Policy
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Airpush has adopted a policy of terminating, in appropriate circumstances and at Airpush’s sole discretion, users or account holders who are deemed to be repeat infringers. Airpush may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
5. Copyright Complaints
If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement: Jackie McCauley
Full Address of Designated Agent to Which Notification Should be Sent: 10940 S. Parker Rd., Ste 725, Parker CO 80134
Telephone Number of Designated Agent: 303-916-8667
Facsimile Number of Designated Agent: 720-287-2714
E-Mail Address of Designated Agent: [email protected]
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Airpush,” “Mobile Ads Redefined” the Airpush logos and any other Airpush product or service name or slogan contained on the Site are trademarks of Airpush, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Airpush or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Airpush” or any other name, trademark or product or service name of Airpush without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Airpush and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Airpush names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
You are granted a limited, non-transferable, non-exclusive license to create a text hyperlink to the Site for noncommercial purposes, provided that such link does not portray Airpush or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited license may be revoked at any time. You may not use a Airpush logo or other proprietary graphic of Airpush to link to this Site without the express written permission of Airpush. Further, you may not use, frame or utilize framing techniques to enclose any Airpush trademark, logo or other proprietary information, including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page on the Site without Airpush’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of Airpush or any third party.
Airpush makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible via hyperlink or websites linking to the Site. Such sites are not under the control of Airpush and Airpush is not responsible for any embedded content or the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. Airpush may provide these links as a convenience to you, but the inclusion of any link does not imply affiliation, endorsement or adoption by Airpush of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern, and the policies of those third party sites will apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
8. Third Party Content
Airpush may provide third party content on the Site and may provide links to web pages and content of third parties (collectively, the “Third Party Content”) as a service to those interested in this information. Airpush does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Airpush is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
9. Advertisements and Promotions; Third-Party Products and Services
Airpush may run advertisements and promotions from third parties on the Site or may otherwise provide information about or links to third-party products or services on the Site. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. Airpush is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such non-Airpush advertisers or third party information on the Site.
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about Airpush, the Site or our products and services (collectively, “Submissions”). Submissions, whether posted to the Site or provided to Airpush by email or otherwise, are non-confidential and shall become the sole property of Airpush. Airpush shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree to defend, indemnify and hold harmless Airpush, its independent contractors, service providers and consultants, 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) your use of the Site; (b) any Submission you provide; (c) your violation of these Terms; (d) your violation of any rights of another; or (e) your conduct in connection with the Site.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY AIRPUSH, THE SITE AND THE SITE MATERIALS CONTAINED THEREIN 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 SITE AND THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. AIRPUSH DOES NOT REPRESENT OR WARRANT THAT THE SITE OR SITE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE AIRPUSH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, AIRPUSH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
13. Limitation of Liability
IN NO EVENT SHALL AIRPUSH, ITS DIRECTORS, MEMBERS, 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 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, 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 SITE OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO AIRPUSH FOR ACCESS TO OR USE OF THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
14. Modifications to the Site
Airpush reserves the right to modify or discontinue, temporarily or permanently, the Site, 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 Site, or any part thereof.
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 these Terms or relating to the Site and Site Materials, 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 copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FORM HAVING A JURY TRIAL. You and Airpush agree: (i) to notify each other of any dispute within thirty (30) days of when it arises; (ii) to attempt informal resolution prior to any demand for arbitration; (iii) that any arbitration will occur in Palo Alto, California; and (iv) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Airpush also agree that 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 these Terms 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.
Airpush reserves the right, without notice and in its sole discretion, to terminate your license to use the Site, and to block or prevent your future access to, and use of, the Site.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
18. Questions & Contact Information
Questions or comments about the Site or these Terms may be directed to Airpush by emailing [email protected] or calling us at 877.944.2490.