Website & Mobile Application Terms of Use

Last Modified: March 14, 2019


Acceptance of the Terms of Use

The following terms and conditions (these “Terms of Use”) govern your access to and use of the products and services offered by us, this website (the “Website”) and the Company’s mobile applications, including any content, functionality, and services offered on or through the Website or mobile applications (collectively the “Services”), whether as a guest or as a registered user. These terms of use are entered into by and between you and PushSend Marketing, Inc. (“Company”, “we”, or “us”). If you are agreeing to these Terms of Use on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and affiliates.

By using the Services, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at www.pushsend.com/privacy, incorporated herein by reference. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Services.

THESE TERMS OF USE CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE REVIEW CAREFULLY.

THESE TERMS OF USE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.


Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter.

Your continued use of the Services following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this each time you access the Services so you are aware of any changes, as they are binding on you.


Accessing the Services and Account Security

We reserve the right to withdraw or amend the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to all or parts of the Services, to users, including registered users.

You are responsible for:

  • Making all arrangements necessary for you to have access to the Services.
  • Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Use and comply with them.

To access the Services or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide on the Services is correct, current, and complete.

You agree that all information you provide to register with us or otherwise, including but not limited to through the use of any interactive features on the Services, is governed by our Privacy Policy available at www.pushsend.com/privacy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of them using your user name, password, or other security information. In some instances, we may allow you to authorize additional users (who must first set up their own accounts) (each, an “Authorized User”) to access and use your account. You will be responsible for each Authorized User’s use of your account and each Authorized User’s compliance with these Terms.

You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

You agree that we may provide notices and messages to you within the Services or Website or via the contact information you provided us. You further agree that we may add a link to our Services and a statement such as “Email Marketing by PushSend” or “Powered by PushSend” in the footer or other unobtrusive location of the messages and communications you send using the Services.

We have the right to refuse service, close accounts of any users, change eligibility requirements, disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.


Prices, Payments and Purchase Terms

  1. All prices, fees, discounts, and promotions posted on the Services are subject to change without notice. Posted prices do not include applicable taxes, which will be added to your order at the time of purchase. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
  2. Terms of payment and eligibility to place orders are within our sole discretion, and we reserve the right to restrict or cancel purchases at our sole discretion. We accept most major credit cards for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay the total purchase price and all applicable taxes, if any, at the time your order is accepted.
  3. If you purchase any of our paid Services, you agree to pay us all fees (as posted on the Website) and taxes, including any applicable foreign exchange fees, applicable to the Services you purchase. Your access to certain aspects of the Services will depend on whether you have purchased or subscribed to the Free, Newbie, Pro, or Enterprise package. The number of contacts you may store on the Services, the number of emails that may be distributed by you each month, your ability to create a landing page(s), the number of landing pages you may create, your access to event marketing features, and other services and product capabilities will vary depending on the package you purchase.
  4. If you purchase a subscription, you agree to recurring billing and your payment method will be charged automatically at the start of each subscription period for the fees and taxes applicable to that period. If you go over your plan limits, then you will automatically be charged at the higher level for the applicable period. If your account is terminated before that payment is due, you will still be obligated to pay the additional fees. Prices are subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should terminate your account before the next subscription period. To avoid future charges, you must terminate your account before the renewal date. If we are unable to effect automatic payment, we will attempt to notify you, and your account may be terminated or disabled until payment is received.

Info for Ticket Buyers

PushSend’s SaaS service enables event organizers to sell tickets directly to their audience.

If you have any questions about an event, a ticket purchase, refunds, data privacy or terms and conditions please contact the seller directly. You should find a contact email at the bottom of the confirmation email you receive after your ticket purchase.

PushSend is a self-service platform where ticket sellers manage their own event listings, tickets and customer orders entirely. When you purchase a ticket, you are buying your ticket directly from the ticket seller and your commercial agreement is entirely with them. PushSend does not manage or control any of the listings or events on our website and beyond providing the software services to sell and issue tickets online we do not have any affiliation with the ticket seller, venue or event.

PushSend is not liable for any losses or issues related to purchase of event tickets.

If you wish to report misuse of the system or you suspect a fraudulent event listing please send the details to support@pushsend.com and include a link to the event.

If you wish to sell tickets online for your own event then take a look at our homepage to learn more about all the features we offer.


Excessive Usage Policy

Although certain packages many contain “unlimited” features without quantity restrictions (i.e. “unlimited” emailing and landing pages in an Pro account), your usage of those features may nevertheless be limited where it adversely affects our Services and/or our ability to provide the Services to other customers. You will only be affected by this restriction if you use certain features excessively to the extent that such usage overloads our system.

In the event that we determine that your usage is excessively burdening our system, we will contact you immediately and to help you reduce your usage if possible. If you are unable or unwilling to reduce your usage, we reserve the right to suspend or terminate your account in our sole and absolute discretion.

You agree and accept that any measures applied by us under this excessive usage policy shall not entitle you to any refund.


Termination

You may terminate your account at any time by clicking on the “Cancel Account” button located on the billing information section of your account profile. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR ACCOUNT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR PUSHSEND ACCOUNT AND THIS AGREEMENT.

We may terminate your account or suspend your access to the Services at any time, with or without cause. If we terminate your account without cause, and your account is a pre-paid subscription account, we will refund a prorated portion of your monthly or annual prepayment. We will not refund or reimburse you in any other situation. Once your account is terminated, we will permanently delete your account and all the data associated with it.


Our Intellectual Property

The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Services, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
  • If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this Services.
  • Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Use, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

The Company name, the term PushSend, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.


Use of Services; User Content

You represent and warrant that you either own or have permission to use all of the material, content, data, text, files, images, photos, video, sounds, communications, works of authorship, domain names, or any other materials, data or content and information (including your personal information and the personal information of others, such as the email addresses and phone numbers of your contacts) you upload, post, share, transmit, submit or otherwise make available via the Services (“User Content”). It is your responsibility to verify whether your domain name or any sub-domain provided by us in connection with your creation of a landing page infringes any third party’s rights. We expressly disclaim any liability for any such infringement and reserve the right to block, cancel or rename any domain or sub-domain if we have any concerns about infringement or any legal obligations to do so.

You understand and acknowledge that you are responsible for your own User Content, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

You are solely responsible for User Content, its accuracy, and for the consequences of submitting or posting User Content. We are not responsible for, and we do not endorse, any User Content, and for the avoidance of doubt, we specifically disclaim any liability in connection therewith.

You retain ownership of the User Content that you upload to the Services. We do not claim any ownership rights to User Content. We do, however, require certain licenses from you, as set forth in these Terms of Use, in order to operate and enable the Services. For example, we need to be able to transmit, store and copy User Content in order to display it to you and other Users, to create backups to prevent data loss, and anything else we deem necessary to provide the Services. Your acceptance of the Terms of Use gives us the permission to do so and grants us any rights necessary to provide the Services to you. This permission includes allowing us to use third-party service providers in the operation and administration of the Services, and the rights granted to us are extended to these third parties to the degree necessary.

We will not access, view, or listen to any User Content, except as set forth in the Terms of Use and as reasonably necessary to perform the Services. Although we have no obligation to monitor your User Content or your use of the Services, we may do so. We reserve the right to review, remove, block, or modify any content on the Services, including User Content, without notice or further obligation to you.

WE DO NOT CONTROL OR ENDORSE USER CONTENT AND WE MAKE NO CLAIMS OR REPRESENTATIONS REGARDING ANY CONTENT WE DO NOT CREATE. WE TAKE NO RESPONSIBILITY RELATED TO USER CONTENT OR THIRD PARTY CONTENT OR ANY ACTIONS RESULTING FROM YOUR USE OF ANY PART OF THE SERVICES, AND EXPRESSLY DISCLAIM ANY LIABILITY FOR SUCH USER CONTENT OR THIRD PARTY CONTENT. WE DO NOT CONTROL OR ENDORSE ANY EVENTS, PRODUCTS, OR SERVICES THAT ARE ADVERTISED, MARKETED, PROMOTED OR OTHERWISE CONNECTED WITH OUR SERVICES, AND WE EXPRESSLY DISCLAIM ALL LIABILITY FOR SUCH EVENTS, PRODUCTS OR SERVICES. IF ANY DAMAGE OR LOSS RESULTS FROM YOUR USE OF, RELIANCE ON, OR ANY OTHER CONNECTION BETWEEN YOU AND ANY CONTENT OR DATA THAT ANY THIRD PARTY MAKES AVAILABLE, YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY.

If you are located in the EU and/or use personal data from persons in the EU you represent and warrant to us that:

  • You will provide the data subjects from which you collect personal information with a privacy notice pursuant to the requirements of Art. 13, 14 of the EU General Data Protection Regulation at the time when the personal information that you pass on to us is obtained. Within your privacy policy, you will inform about our Services and include a link to our Privacy Policy.
  • You will get and maintain all necessary permissions and valid consents or fulfil other legal requirements to lawfully transfer data to us to enable such data to be lawfully processed by us for the purposes of providing the Service or as otherwise directed by you.
  • You will provide sufficient information (e.g. in the form of cookie banners) and obtain all necessary consents required to enable us to deploy cookies and similar tracking technologies such as tracking pixels lawfully.
  • You will obtain the express consent of individuals to collect personal information of a sensitive nature, as defined under applicable law, including data that reveals: racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, and/or data concerning a natural person’s sex life and/or sexual orientation. However, you will not import or upload any of the following information about third parties, including your contacts, onto the Services: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or health information.
  • You will limit the collection and processing of personal information to that which is required to carry out the intended purposes of such collection and processing.
  • You will conclude our Data Processing Agreement, which sets out your and our obligations in accordance with Art. 28 (3) of the GDPR.
  • If we receive any requests from individuals whose personal information you passed on to us, we may direct any such requests to you so that you can respond to the request accordingly.

Disclaimers

You understand that not all communications, messages, landing pages, event marketing materials, or other products sent through or created with the Services will be received by or will be capable of being viewed by their intended recipients or will be viewable by their recipients in the same way they appear to you. You further understand that technical requirements and limitations may cause your email correspondence and landing pages to be reformatted or edited. You agree that we may establish general practices and limits concerning use of the Services, including without limitation the number and size of emails that may be distributed by you, the maximum size of any messages that may be transmitted by means of the Services, the number of contacts you may store, the templates that are available to you, or the format and content of a landing page. We reserve the right to modify, revise, suspend or discontinue any of the Services in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Services in any manner.

Due to maintenance, security or capacity issues, and also to some events over which we may not influence (force majeure, equipment malfunction, power failures, hostile attacks, etc.), the Services may be temporarily suspended or affected. We shall use our best commercially reasonable efforts to correct any errors and minimize any disruption, inaccessibility and/or inoperability of the Services, whether scheduled or not. Where feasible, we will endeavor to provide forty-eight (48) hours advance notice to you in the event of any scheduled downtime.


Prohibited Uses

You may use the Services only for lawful purposes and in accordance with these Terms of Use. You further agree not to:

  • Use the Services in any way that violates any applicable federal, state, local, or international law or regulation including, without limitation, any laws regarding (i) the export of data, software, products and services to and from the US or other countries; (ii) advertising, sales or promotional efforts or practices, redemption, refunds and the provision of your products or services; (iii) unfair and deceptive practices, discriminatory activities, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards, lotteries, sweepstakes, contests, promotions, donations and charitable giving; or (iv) any particular regulation that might apply to you, including without limitation, the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, and European data privacy laws.
  • Use the Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • Use the Services to send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms of Use.
  • Use the Services to transmit, or procure the sending of “junk mail”, “chain letters”, “spam”, or any other similar solicitation.
  • Use the Services in order to deceptively obtain information, including without limitation credit card information, social security numbers, user login credentials, or other sensitive personal information (i.e., “phishing”).
  • Use the Services to scam, attract, lure, or illegally obtain payment of any sort from others.
  • Use the Services to impersonate or attempt to impersonate the Company, a Company employee or affiliate, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
  • Use the Services to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm the Company or users of the Services or expose them to liability.
  • Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
  • Communicate with any minor without the required parental or guardian consent required under the applicable laws of the jurisdiction where the minor resides.
  • Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
  • Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
  • Use any device, software, or routine that interferes with the proper working of the Services.
  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.
  • Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
  • Attempt to interfere with the proper working of the Services.
  • Use the Services to promulgate material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
  • Use the Services to promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
  • Use the Services to infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
  • Use the Services to violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.
  • Use the Services to deceive any person.
  • Use the Services to promote or sell any illegal activity or products, or advocates, promotes, or assist any unlawful act.
  • Use the Services to promote or sell pharmaceutical products.
  • Use the Services to cause annoyance, inconvenience, embarrass, alarm, annoy, or cause needless anxiety to any other person.
  • Use the Services to impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Use the Services in a way that gives the impression that your communications are from or are endorsed by us or any other person or entity, if this is not the case.
  • Use the Services to promulgate pornography or sexually explicit or violent content.

Further, you may not import or upload any of the following information about third parties, including your contacts, onto the Services: social security numbers, national insurance numbers, credit cards, passwords, security credentials, health information, or any other sensitive personal data.

We do not allow the following types of businesses or businesses promoting the following types of goods, services, or content to use the Services: work from home, make money online, multi-level and affiliate marketing, lead generation opportunities; gambling services or products; dating/escort services; credit repair and debt relief; list brokers or list rental services; sale of social media “likes” or followers; businesses involved in any way with cryptocurrencies, virtual currencies, or any digital assets related to an Initial Coin Offering.

The following types of businesses or businesses promoting the following types of goods, services, or content are subject to additional scrutiny and may be denied access to the Services at our discretion: online trading, day trading tips, or stock market related content; horoscopes; real estate, loans and mortgages; nutritional products, including herbs, vitamins, and supplements; adult entertainment/novelties; and services that send mail on behalf of third parties without creating or reviewing the content.

Additionally, you agree not use the Services to send messages to any recipient without the recipient’s affirmative consent or in any manner that violates anti-spam laws, including the E-Privacy Directive, CAN-SPAM Act and Canada’s Anti-Spam Legislation. You agree to:

  • Accurately identify the person or business who initiated the message in the “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – in any email correspondence sent through the Services.
  • Not use the Services to send email correspondence to any recipient without the recipient’s affirmative consent to receive correspondence from you.
  • Not use the Services to impersonate any other person, whether actual or fictitious.
  • Not use the Services to send any email correspondence with a subject line containing deceptive or misleading content regarding the overall subject matter of the email message.
  • Accurately and conspicuously identify your email communication as an advertisement if it is one.
  • Include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the United States Postal Service registration requirements, on all email correspondence sent via the Services.
  • Include an “unsubscribe” link on all email correspondence that allows recipients to remove themselves from your mailing list, and you be able to process opt-out requests for at least 30 days after you send your message and honor a recipient’s opt-out request within 10 business days. You may not charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request.
  • Not sell or transfer their email addresses of any recipient who has opted out of receiving communications from you, except that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

Changes to the Services

We may update the content on the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.


Links from the Services

If the Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.


Third-Party Accounts

You may be able to connect your account with third-party accounts, such as Facebook, LinkedIn, Twitter, Instagram, and others. By connecting with the third-party accounts, you consent to the continuous release of information about you to others via the Services (in accordance with your privacy settings on those third-party sites). If you do not want information about you to be shared in this manner, do not use this feature. You can disable the connection between your account and any third-party account by accessing the “Settings” section of the Website.

Your relationships with third-party providers are governed solely by your agreements with those providers. If your third-party account becomes unavailable or if our access is terminated by a third-party service provider, then the content and information accessed via that third-party account will no longer be available on or through the Website.

We are not responsible or liable for: (i) the availability or accuracy of any third-party websites or resources (including without limitation social media platforms); or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply our endorsement of them. You assume all risk arising from your use of any such websites or resources (including without limitation social media platforms).

By connecting with your social media accounts on third party websites or resources, you consent to the continuous release of information about you to others via the Website (in accordance with your privacy settings on those third-party sites). If you do not want information about you to be shared in this manner, do not use this feature.

We may disable all or any social media features and any links at any time without notice in our discretion.


Copyright Infringement.

Written Notification. We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information (to be effective, the notification must be in writing and provided to our Copyright Agent):

  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  2. a description of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and a description of where the material that you claim is infringing is located;
  4. your address, telephone number, and, if available, email address;
  5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
  6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

DMCA Agent. Our agent for notice of claims of copyright or other intellectual property infringement can be reached via email at or via regular mail at the following address: 325 North End Ave., New York, NY 10282, Attention: Copyright Agent, Craig Diamond.


Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Services for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICE OR ITEM OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES.

YOUR USE OF THE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.


Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO IT, ANY CONTENT ON THE SERVICES OR SUCH OTHER WEBSITES OR MOBILE APPLICATIONS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE SERVICES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.


Indemnification

You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use, your use of the Services, including, but not limited to, your User Content (including the contacts you upload onto the Services or connect or contact in any way in connection with the Services); the events, products, and services you advertise, promote, market or that are otherwise connected with or through the Services in any way; any use of the Services other than as expressly authorized in these Terms of Use; your violation of any laws or regulations; any misrepresentations made by you; or a breach of any representations or warranties you’ve made to us.


Governing Law and Jurisdiction

All matters relating to the Services and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).


Dispute Resolution and Binding Arbitration

  1. YOU AND THE COMPANY ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
  2. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
  3. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
  4. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
  5. You agree to an arbitration on an individual basis. In any dispute, YOU WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.


Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.


Notice to U.S. Government End Users

The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users: only as Commercial Items, with the same rights as all other end users, and according to the Terms.

Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is PushSend Marketing, Inc.


Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.


Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and the Company regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services. Notwithstanding the foregoing, if you are accessing the Services as a service provider who has entered into a separate contract with us, that contract shall govern your use of the Services to the extent it conflicts with these Terms of Use.

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