Terms and Conditions

Updated: February 2nd, 2018

This UPUSH Terms of Use and End User License Agreement (“Terms of Use” or “EULA”) sets forth the terms under which UPUSH, LLC (“UPUSH”, “Company”) offers to make its website (the “Site”) and features, products and services in connection with the Site (collectively the “Services”) available to you (“You” or “Licensee”). The Services are intended for use within Your applications (“Apps”) and websites (jointly the “Properties”) in order to send, optimize and manage push notifications to users of Your Properties (“Users”),. You signify Your agreement to this EULA by clicking through the acceptance mechanism provided by Company (such as an “I Agree” or “I Accept” or “Sign Up Now” button). Please review these terms carefully, because they will bind You with respect to Your use of the Services.

1. Eligibility to Use the Service

You agree that by using the Services, Your represent either that (A) You are 18 years of age or older and can form a contract with Company under the laws of the United States, the laws of the jurisdiction in which Your use the Site or the Services, or any other applicable jurisdiction; or, that (B) You are under 18 years of age but above 13 years of age and Your parent or legal guardian, having legal authority to enter into these Terms of Use, has consented to Your use of the Service and has read and fully accepted these Terms of Use on Your behalf.

2. License to the Software

Company may make certain software available to You from time to time in connection with the Site or the Services. If You download software from the Site or the Services, the software, including all files and images contained in or generated by the software, and accompanying data, but excluding software obtained under Open Source or freeware licenses that is subject to the terms and conditions of such various applicable Open Source or freeware licenses (collectively, the “Software”), are deemed to be licensed to You by Company, for Your limited, nationwide, term-limited, revocable, non-transferrable, and non-exclusive license. This license granted to You by Company is conditioned upon Your agreement to and full compliance with these Terms of Use. Licensee acknowledges and agrees that the Company may change the form and nature of the Software at any time in the Company’s sole discretion without advance notice to Licensee, and that future versions of the Software may no longer be compatible with any given Property. Company may offer updates of the Software, from time to time, for feature enhancement, security, or other purposes. Company may discontinue some or all of the Software that Company may provide, and Company may terminate Your right to use any such Software at any time and in such event may modify it to make it inoperable. (All references hereafter to the Services include the Software.)

3. Ownership

The Site and the Services belong solely and exclusively to Company. Your use of the Site or any of the Services does not confer any title or ownership interest in the Site, any of the Services, any information and content that You access on or through the Site or the Services, or any intellectual property rights and proprietary rights in any of them (including without limitation any rights based in trademark, copyright, patent or trade secret law). Nothing contained on the Site or the Services should be understood as granting You a license to use any of the trademarks, service marks, or logos owned by Company or any licensor of Company. Company may use the name and logo of Licensee to designate Licensee as a licensee or client, for marketing purposes (e.g., on its website or email marketing materials). Company reserves its right to enforce its rights to the fullest extent of the law in the event of any violation of these Terms of Use. The Site and the Services may contain certain licensed information and content, and Company’s licensors may protect their rights in the event of any violation of these Terms of Use.

4. Restrictions on Use of the Software

Licensee agrees that its license to the Software is subject to the following conditions:

  • Licensee will not use the Software in connection with any website that constitutes or promotes illegal gambling, adult media (i.e., pornography), pirated content or content that violates a party’s intellectual property rights, tobacco products, including e-cigarettes, firearms or ammunition, or any product that is illegal in the jurisdiction in or into which it is sold;
  • Licensee will only use the Software in connection with the Properties that it owns and operates, and shall not sell, sublicense, give, rent, loan, lease, or otherwise make the Software or its components available to any third party without the Company’s prior express written consent;
  • Licensee shall not: (i) sell, lease, lend, redistribute, modify, copy, or reproduce the Software or any part thereof; (ii) alter, hide, or remove any copyright, trademark, or other intellectual property rights notice contained in the Software; (iii) violate or attempt to violate any security features of the Site or the Services, including, without limitation, (1) accessing content or data not intended for You, or logging onto a server or account that You are not authorized to access, (2) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization, or (3) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (iv) reverse engineer, decompile, disassemble, or otherwise translate or derive the source code for the Software, or attempt to do so; (iv) use the Software to create any software or service containing any malicious or harmful code; (v) forge any header or any part of the header information in any email or in any posting using the Service; (vi) use the Software to damage, detrimentally interfere with, surreptitiously intercept, or misappropriate any system or data; or (vii) use the Software in violation of applicable law.
  • Licensee shall not use the Software in conjunction with a Property that is directed to children under the age of 13. Licensee shall not use the Software to knowingly send to Company personal information (as defined under COPPA), including device identifiers or precise location data, that has been received from children under the age of 13.
  • Nothing in this EULA permits Licensee to use any of the Company’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without the Company’s prior express written consent.

5. Financial Transactions

You may have an account without paying to participate in certain features or services of the Site or the Services. However, Company may charge subscription or other fees to access certain Services. You acknowledge and agree that Company is authorized, but not required, to act on payment instructions received from anyone using Your account. You authorize Company to (A) initiate debits or charges against Your financial account or credit or debit card periodically for the amount then due for purchases made; and (B) initiate any other debits or charges authorized by You or anyone using the Company account registered to You. All payments must be made in U.S. dollars from a U.S. bank or via alternative payment methods made available by Company. You acknowledge that transactions may be facilitated by a third-party payment processor (the “Processor”), and agree that Company may share Your information, including information about Your financial accounts, with the Processor for this purpose. You acknowledge that Company is not responsible for the information collection, usage and disclosure practices of any Processor.

6. Use and Ownership of Software Data

Licensee acknowledges and agrees that the Software enables Licensee to collect certain information from Users of the Software’s functionality (collectively, “Software Information”), which generally helps provide developers with functionality to target and personalize the notifications they send to Users. This data collected includes: Users’ mobile advertising identifiers, such as Apple IDFAs and Android Advertising identifiers; Users’ email addresses Users’ IP address, device push token, precise location (e.g., GPS-level) data, network information, language, time zone, product preferences, and privacy preferences. The parties hereto shall jointly own the Software Information, and each party shall be entitled (without further compensation to the other) to use, share, market, license, sell, store, and otherwise exploit the Software Information to the maximum extent permitted by law, which shall include using the Software Information for cross-app, cross-device, and other interest-based advertising, analytics and market research. Without limiting the foregoing, neither party shall use Software Information for any of the following purposes: (a) employment eligibility, (b) credit eligibility, (c) health card eligibility, or (d) insurance eligibility, underwriting, or pricing.

7. Privacy Policy

Company respects Your privacy and permits You to control certain treatment of Your personal information. A complete statement of the current UPUSH privacy policy (the “Privacy Policy”) can be found by visiting UPUSH.com/privacy-policy/. The Privacy Policy is hereby incorporated into these Terms of Use by this reference.

8. Privacy Compliance

The Parties agree to comply with all applicable privacy laws, and each respective party agrees to perform the following obligations:

  • Licensee is responsible for obtaining all applicable consents required to enable UPUSH to collect information from User’s device or browser. Licensee shall publish privacy policies and disclosures for the Properties that comply with applicable law and the terms of this EULA, including, but not limited to, clearly disclosing that the Software Information will be collected and how it may be used.
  • Each Party shall at all times comply with its respective published privacy policies and disclosures, and each party shall at all times post a privacy policy on its website that describes how it collects, uses and shares information, and that provides information about how a User can opt out of interest-based advertising (e.g., online behavioral or mobile cross-app advertising).
  • Where Licensee provides data (such as IDFAs, Android Ad IDs, or location data) in a manner other than through the Software, Licensee shall be responsible for ensuring ensure that any collection and transfer of data is done in compliance with user’s stated preferences, including without limitation devices settings to “Limit Ad Tracking” and “Opt Out of interest-based ads.”
  • Licensee shall notify Company in writing of any further data usage or governance requirements, restrictions or limitations, to the extent they apply, in which case the parties may execute a further, paid subscription plan setting out such limitations and licensing payments to supplement the terms herein.

9. Inappropriate Content

Some of the Services may allow You to transmit content or information (“Content”) from time to time. You agree not to submit, post, upload, display, perform, transmit, or otherwise distribute any Content that, as Company may determine in its own discretion: (A) is libelous, defamatory, fraudulent, obscene, pornographic, indecent, hateful, abusive, threatening, vulgar, distasteful, misleading, inappropriate for public use, offensive, or otherwise in violation of any laws or rights of any person or entity, including without limitation rights of publicity, rights of privacy, intellectual property rights or other rights; (B) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (C) advertises or otherwise solicits funds or is a solicitation for goods or services; (D) delivers or causes to be delivered any unsolicited or unauthorized advertising, promotional materials, surveys, “junk mail,” “spam,” “chain letter,” “pyramid scheme,” investment opportunity or other form of solicitation that Company considers to be of such nature; or (E) delivers or causes to be delivered viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software. Company reserves the right to terminate Your receipt, transmission, or other distribution of any such material using the Site or the Services, and, if applicable, to delete any such material from its servers. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or of any applicable laws. If You become aware of any unlawful, offensive or inappropriate Content on the Site or the Services (except for content that infringes copyright, which is addressed below), please contact Company at support@UPUSH.com with Your name and address, a description of the material at issue, and the link to or location of such material.

10. Additional Representations and Warranties

Each party hereto represents that:

  • to the extent it is a business entity, it is duly incorporated and in good standing under the laws of the state of its incorporation;
  • it has the right, power, and authority to enter into this EULA, grant the rights granted by it herein, and perform its obligations without any additional consent or approval;
  • it has not relied and shall not rely upon the other party for legal advice regarding its compliance with applicable law;
  • the execution and performance of this EULA shall not violate or conflict with the terms or conditions of any other agreement to which it is a party or by which it is bound; and
  • it shall, and shall ensure that its employees and contractors, comply at its or their own expense, with applicable law, including, without limitation, applicable law governing privacy and data security.

11. Warranty Disclaimer

The Site and Services are provided to Licensee on an “as-is” and “as available” basis. The Company does not represent or warrant that the Site or Services or the results obtained from their use shall meet the requirements or business needs of Licensee or its customers or that the Site or Services’ operation shall be uninterrupted or error-free. Except as expressly provided herein, the Company makes no representations and warranties under this EULA, and disclaims, all warranties, whether written or oral, express or implied, relating to the Site and Services, including, but not limited to, any warranty of title or non-infringement, any implied warranty of merchantability or fitness for a particular purpose, and any implied warranties arising from course of dealing or course of performance.

12. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE, BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS EULA; OR (B) ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS EULA TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES EXCEEDS THE GREATER OF (X) TOTAL AMOUNT YOU PAID COMPANY TO USE THE SITE OR THE RELEVANT SERVICES DURING THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM OR DISPUTE AROSE, AND (Y) $100. AT COMPANY’S OPTION, IN LIEU OF DAMAGES THE COMPANY MAY ELECT TO PROVIDE YOU WITH ACCESS TO USE THE SITE OR THE RELEVANT SERVICES AGAIN FOR A ONE-MONTH PERIOD. THESE LIMITATIONS SHALL APPLY EVEN IF THEY FAIL THEIR ESSENTIAL PURPOSE. YOU AGREE THAT ANY CLAIM OR DISPUTE ARISING IN CONNECTION WITH YOUR USE OF THE SITE, THE SOFTWARE, OR THE SERVICES MUST BE BROUGHT AND FILED WITHIN ONE YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED, EVEN IF ANY APPLICABLE STATUTE OF LIMITATIONS EXISTS TO THE CONTRARY.

13. Indemnity

You agree to indemnify, defend, and hold Company harmless from any and all third-party claims, losses, liability, damages, suits, judgments, and costs (including reasonable attorney’s fees and costs) arising from Your access to or use of the Site or the Services, Your violation of these Terms of Use, or Your infringement, or infringement by any other user of Your account, of any intellectual property or other right of any person or entity. Company will notify You promptly of any such claim, loss, liability, or demand, and will provide You with reasonable assistance, at Your expense, in defending any such claim, loss, liability, damage, suit, judgment or cost.

14. Copyright Infringement

If you believe that Content transmitted on or through the Service infringes one or more of your copyrights, please send our DMCA Agent by mail, email or fax a notification (“Notification”) providing the information described below. A copy of your Notification will be sent to the person who posted the material addressed in the Notification.

Pursuant to federal law you may be held liable for damages and attorney fees if you make any material misrepresentations in a Notification. Thus, if you are not sure whether content located on or accessible via a link from the Site infringes your copyright, you should contact an attorney.

All Notifications should include the following:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have 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.
  • 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 information reasonably sufficient to permit the service provider to locate the material.
  • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
  • A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the Notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Notifications should be sent to:

    The Law Offices of Kavon Adli, P.C.
    9107 Wilshire Boulevard, Suite 450
    Beverly Hills, California 90210
    Fax: (310) 356-3257
    Email: DMCA@tilg.us

    It is our policy in appropriate circumstances to disable and/or terminate the accounts of Licensees who are repeat infringers.

15. Confidentiality

You may receive or be privy to Company’s Confidential Information. “Confidential Information” shall mean any information, technical data, or know how considered proprietary by the Company including, but not limited to, the Company’s research, products, formulae, software, trade secrets, services, development, inventions, derivations, processes, specifications, designs, drawings, diagrams, engineering, marketing, techniques, documentation, customer information, pricing information, procedures, data, concepts, financial, sales, manufacturing, operational, strategic planning, budgeting and other information disclosed by the Company to You, as well as information and material generated by You that contains, reflects or is derived from Confidential Information of Company. The disclosure may be directly or indirectly in writing, orally, by inspection or by access.

You agree not to use Confidential Information for any purpose other than to perform obligations described herein or as explicitly permitted by Company in writing. You agree not to alter, modify, disassemble, reverse engineer, design around or decompile any of the materials unless permitted in writing by Company.

Confidential Information does not include information, technical data or know how which: (a) is in the Company’s possession at the time of disclosure as shown by Your files and records immediately prior to the time of disclosure; (b) becomes publicly available, not as a result of any action or inaction of You; (c) is approved for release by written authorization of the Company or (d) is independently developed by You without reference to the Confidential Information of the Company.

16. Term, Termination and Investigation

This EULA shall commence as of the Effective Date and shall remain in effect until terminated as provided herein. Either Party terminate this EULA for any reason or for no reason at any time upon thirty (30) days’ prior written notice to the other Party. Notwithstanding the foregoing, the Company may terminate this EULA immediately upon written notice to Licensee in the event the Company believes Licensee has breached the EULA. Upon termination of this EULA, the license granted to the Software pursuant shall immediately terminate and Licensee shall no longer have any rights to use the Software. Licensee understands, however, that the collection of data by the Software through Properties on which it is already integrated, and its use for purposes set forth herein, may continue until Users have (a) removed or disabled the Software (or any application that integrates the Software) from their respective devices, or any application that integrates the Software from Your device, or (b) limited such data collection through applicable device settings in a manner that is communicated to Company. You may use the Site and the Services only as permitted by law, including applicable export and re-export control laws and regulations. Company reserves the right to suspend or terminate Your use of the Site or any of the Services. You agree that Company or its representatives may access Your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site, the Software or the Services. Company does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Company reserves the right to terminate Your account or Your access to the Site, the Software and the Services immediately, with or without notice to Your, and without liability to Your, if Company believes that You have violated any of the Terms of Use, furnished Company with false or misleading information, or interfered with use of the Site, the Software, or the Services by others.

17. Puerto Rico Use Only

The Site is controlled and operated by Green LLC from its offices in the territory of Puerto Rico. Company makes no representation that any of the materials or the services to which You have been given access are available or appropriate for use in other locations. Your use of or access to the Site should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than Puerto Rico.

18. Non-Competition

During the Term of this Agreement and for two (2) years after the last date of Your use of the Services, You will not create, develop, sell, offer or distribute Competing Software. “Competing Software” is defined as software as a service that provides browser based subscriber notification/distribution software systems (also known as “browser notifications” or “push notifications”) for internal and/or third-party use. Violation of this section shall be grounds for immediate termination without liability on the part of Company in addition to injunctive relief to stop the violation as well as damages as provided by law. All remedies shall be cumulative.

19. Injunctive Relief and Other Remedies

You acknowledge and agree that any breach or threatened breach of these Terms of Use by You will cause Company and its licensors irreparable damage for which recovery of money damage would be inadequate and that Company and its licensors may obtain timely injunctive relief to protect their rights, without bond, other security or proof of damages, in addition to any and all other remedies available at law or in equity.

20. Force Majeure

Except for payment obligations, neither party hereto shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures. Each party shall promptly notify the other party upon becoming aware that any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under this EULA.

21. Changes

Company may, in its sole discretion and without prior notice, (A) revise these Terms of Use; (B) modify the Site or the Services, or any combination of them; and (C) discontinue the Site or the Services at any time. Company shall post to the Site any revision to these Terms of Use, and the revision shall be effective immediately on such posting. You agree to review these Terms of Use and the Privacy Policy posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, You shall abide by any such revision.

22. Miscellaneous

  • Notices. All notices, requests, and approvals required under this EULA shall be in writing addressed/directed to the Company at support@UPUSH.com and by mail at UPUSH LLC, 954 Ponce de Leon #203-A San Juan, PR 00907, or to Licensee at any contact information provided by Licensee. All such notices, requests, and approvals shall be deemed given upon the earlier of receipt of facsimile or email transmission during the normal business day or actual receipt thereof. In the event of use of email notice by Licensee, the sender shall request a read receipt or also send a hard copy by regular mail to ensure delivery. All such notices, requests, and approvals shall be addressed to the attention of the signatory parties, or such other party that either party has designated in a separate writing as the appropriate notice recipient.
  • Governing Law and Jurisdiction. All matters relating to the Site, Services and these Terms of Use 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 Puerto Rico without giving effect to any choice or conflict of law provision or rule (whether of the State of Puerto Rico or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use, the Site or Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Puerto Rico in each case located in the City of San Juan and County of Travis, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over You by such courts and to venue in such courts.
  • Waiver of Jury Trial and Class Suit. With respect to any dispute with Company, its affiliates, employees, officers, directors or members relating to or arising from your use of the Site, Services or this Terms of Use that YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY AND YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING SUCH DISPUTE.
  • Arbitration. At Company’s sole discretion, it may require You to submit any disputes arising from the use of these Terms of Use, the Site or Services, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Commercial Rules of Arbitration of the American Arbitration Association to be held in San Juan, Puerto Rico. The parties agree to arbitrate solely on an individual basis, and that this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Costs of any arbitration shall be shared equally by the parties to the arbitration.
  • Assignment. Licensee may not assign or delegate any rights or obligations under this EULA to any third party without the Company’s prior written consent. Notwithstanding the foregoing, either party may assign this EULA along with all rights and obligations under it to any of its corporate affiliates, parents or subsidiaries, or in conjunction with the sale or transfer of all or substantially all of its assets associated with performance under this EULA, provided that the assigning party shall provide timely notice of such assignment.
  • Amendment. No modification of this EULA or waiver of the terms and conditions hereof shall be binding upon Company unless approved in writing by Company.
  • Relationship of the Parties. The parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this EULA or in the working relationship being established and developed hereunder shall be deemed, nor shall it cause, the parties to be treated as partners, joint venturers, or otherwise as joint associates for profit.
  • No Waiver. Except as otherwise provided herein, the failure of Company enforce at any time the provisions of this EULA shall not be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of Company to enforce each and every such provision thereafter.
  • Severability. If any provision of this EULA is held invalid or unenforceable at law, such provision shall be deemed stricken from this EULA and the remainder of this EULA shall continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
  • Survival. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, injunctive relief and other remedies, governing law and other miscellaneous terms.
  • Entire Agreement. This EULA is the entire agreement between the parties and supersede any and all prior understanding, agreements, or representations by or between the parties, written or oral, which may have related to the subject matter hereof. There are no third-party beneficiaries to this EULA.