TERMS OF SERVICE
THIS CONSTITUTES A LEGAL AGREEMENT BETWEEN [THE CUSTOMER] (“YOU”) AND ZENPUSH (AS DEFINED BELOW) WITH RESPECT TO THE TERMS AND CONDITIONS HEREOF. READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK THE “[I ACCEPT]” BUTTON. BY CLICKING ON THE “[I ACCEPT]” BUTTON, YOU ACKNOWLEDGE THAT (1) YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT FOR AND ON BEHALF OF YOURSELF OR YOUR COMPANY, AND ARE DOING SO, AND (2) YOU HAVE READ, UNDERSTAND AND AGREE THAT YOU SHALL BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “[RETURN]” BUTTON AND ACCESS WILL TERMINATE. IF YOU ARE NOT AUTHORIZED TO ENTER INTO AND BIND YOURSELF OR YOUR INSTITUTION TO THIS AGREEMENT, YOU MUST CLICK ON THE “[RETURN]” BUTTON.
1. Your Agreement with Zenpush
1.1 Your use of the Zenpush service is governed by this agreement (the “Terms”). “Zenpush” means Zenpush LLC, and its subsidiaries or affiliates involved in providing the Zenpush Services. The “Zenpush Services” means the services Zenpush makes available through its website, including this website, the Zenpush cloud computing platform, the Zenpush API, the Zenpush Add-ons, and any other software or services offered by Zenpush in connection to any of the foregoing.
1.2 In order to use the Zenpush Services, you must first agree to the Terms.
1.3 You may not use the Zenpush Services if you are a person barred from receiving the Zenpush Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Zenpush Services. You affirm that you are over the age of 18, as the Zenpush Services are not intended for individuals under the age of 18.
1.4 You agree your purchases of Zenpush Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Zenpush or any of its affiliates regarding future functionality or features.
2. Your Account and Use of the Zenpush Services
2.1 You must provide accurate and complete registration information any time you register to use the Zenpush Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Zenpush immediately.
2.2 Your use of the Zenpush Services must comply with all applicable laws, regulations and ordinances.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Zenpush Services by any means other than through the interface that is provided by Zenpush in connection with the Zenpush Services, unless you have been specifically allowed to do so in a separate agreement in writing signed by a duly authorized representative of Zenpush, or (b) engage in any activity that interferes with or disrupts the Zenpush Services (or the servers and networks which are connected to the Zenpush Services).
3. Service Policies and Privacy
3.1 You agree to comply with the Zenpush Acceptable Use Policy (the “Acceptable Use Policy”), which is incorporated herein by this reference and which may be updated from time to time. The Acceptable Use Policy is available from Zenpush upon your request.
3.2 The Zenpush Services shall be subject to the privacy policy for the Zenpush Services (the “Privacy Policy”) which is incorporated herein by this reference and which may be updated from time to time. The Privacy Policy is available from Zenpush upon your request. You agree to the use of your data in accordance with the Privacy Policy.
4. Fees for Use of the Zenpush Services
4.1 The pricing for services shall be mutually agreed to in writing between you and Zenpush.
4.2 For all purchased resources and services, we will charge your credit card on a monthly basis or at the interval indicated in Zenpush fees and payment policies, if different. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Zenpush incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at the discretion of Zenpush and only in the form of credit for the Zenpush Services. Nothing in these Terms obligates Zenpush to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Zenpush may be shared by Zenpush with companies who work on Zenpush’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Zenpush and servicing your account. Zenpush may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Zenpush shall not be liable for any use or disclosure of such information by such third parties. Zenpush reserves the right to discontinue the provision of the Zenpush Services to you for any late payments.
4.3 Zenpush may change its fees and payment policies for the Zenpush Services by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the Zenpush website (or such other URL Zenpush may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.
5. Content on the Zenpush Services and Take Down Obligations
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Zenpush Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content.”
5.2 Zenpush reserves the right (but shall have no obligation) to remove any or all Content from the Zenpush Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take down request from Zenpush. In the event that you elect not to comply with a request from Zenpush to take down certain Content, Zenpush reserves the right to directly take down such Content.
5.3 You agree that you are solely responsible for, and that Zenpush has no responsibility to you or to any third party for any Content that you create, transmit or display while using the Zenpush Services and for the consequences of your actions (including any loss or damage which Zenpush may suffer) by doing so.
5.4 You agree that Zenpush has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service.
6. Proprietary Rights
6.1 You acknowledge and agree that Zenpush (or Zenpush’s licensors) own all legal right, title and interest in and to the Zenpush Services, including any intellectual property rights which subsist in the Zenpush Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
7. License from Zenpush and Restrictions
7.1 Zenpush gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Zenpush as part of the Zenpush Services as provided to you by Zenpush. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Zenpush Services as provided by Zenpush, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Zenpush Services or any part thereof unless you have been specifically told that you may do so by Zenpush, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Zenpush Services.
7.3 Open source software licenses for components of the Zenpush Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Zenpush for the use of the components of the Zenpush Services released under an open source license.
8. License from You
8.1 Zenpush claims no ownership or control over any Content. You retain copyright and any other rights you already hold in the Content, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Zenpush Services you give Zenpush a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Zenpush to provide you with the Zenpush Services.
8.2 You may choose to or we may invite you to submit comments or ideas about the Zenpush Services, including without limitation about how to improve the Zenpush Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Zenpush under any fiduciary or other obligation, and that we are free to use the Idea without any compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
8.3 You agree that Zenpush, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Zenpush Services.
9. Modification and Termination of the Zenpush Services
9.1 Zenpush is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Zenpush Services which Zenpush provides may change from time to time without prior notice to you, subject to the terms in Section 4.3. Changes to the form and nature of the Zenpush Services will be effective with respect to all versions of the Zenpush Services; examples of changes to the form and nature of the Zenpush Services include, without limitation, changes to fee and payment policies, security patches, added functionality, and other enhancements.
9.2 You may terminate these Terms at any time by canceling your account on the Zenpush Services. You will not receive any refunds if you cancel your account.
9.3 You agree that Zenpush, in its sole discretion and for any or no reason, may terminate your account or any part thereof upon at least thirty (30) days prior written notice to you. You agree that Zenpush will not be liable to you or any third party for such termination.
9.4 You are solely responsible for exporting your Content from the Zenpush Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content.
9.5 Upon any termination of the Zenpush Services, Sections 6.1, 9, 10, 11, 12, and 16 shall continue to be effective.
10. EXCLUSION OF WARRANTIES
10.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 10 AND 13, SHALL EXCLUDE OR LIMIT ZENPUSH’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
10.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE ZENPUSH SERVICE IS AT YOUR SOLE RISK AND THAT THE ZENPUSH SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
10.3 ZENPUSH, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE ZENPUSH SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ZENPUSH, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE ZENPUSH SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE ZENPUSH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE ZENPUSH SERVICES WILL BE ACCURATE.
11. LIMITATION OF LIABILITY
11.1 SUBJECT TO SECTION 10.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZENPUSH, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE ZENPUSH SERVICES. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
11.2 ZENPUSH’S AGGREGATE LIABILITY TO YOU WITH RESPECT TO CLAIMS RELATING TO THIS AGREEMENT, WHETHER IN BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.3 THE LIMITATIONS ON ZENPUSH’S LIABILITY TO YOU IN PARAGRAPHS 11.1 AND 11.2 ABOVE SHALL APPLY WHETHER OR NOT ZENPUSH HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
12. Indemnification
12.1 To the fullest extent permitted by applicable law, you agree to and shall defend, indemnify and hold Zenpush and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners harmless from and against any claims, suits, proceedings, accidents, losses, damages (actual and consequential), judgments, liabilities, costs and expenses (including reasonable attorneys’ fees), injury or damage of any kind and nature to any person or property (collectively, “Claims”) arising from or relating in any way to (a) your breach of the Terms, (b) your use of the Zenpush Services, (c) your violation of applicable laws, rules or regulations in connection with the Zenpush Services, or (d) your Content, except to the extent such Claim is directly and proximately caused by Zenpush’s gross negligence or willful misconduct. Zenpush will provide you with written notice of such claim, suit or action. You shall maintain liability insurance adequate to fund the foregoing indemnity obligation.
13. Copyright Policy
13.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is Zenpush’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. For more information, please contact Zenpush.
14. Other Content
14.1 The Zenpush Services may include hyperlinks to other web sites or content or resources or email content. Zenpush may have no control over any web sites or resources which are provided by companies or persons other than Zenpush.
14.2 You acknowledge and agree that Zenpush is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
14.3 You acknowledge and agree that Zenpush is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
15. Changes to the Terms
15.1 Zenpush may make changes to the Terms from time to time. If we change the Terms in any substantive way, you will have (30) days before the changes take effect, during which period of time you may reject the changes by terminating your account.
15.2 You understand and agree that if you use the Zenpush Services after the date on which the Terms have changed, Zenpush will treat your use as acceptance of the updated Terms.
16. General Legal Terms
16.1 The Terms and the agreements referenced herein constitute the whole legal agreement between you and Zenpush and govern your use of the Zenpush Services (but excluding any services which Zenpush may provide to you under a separate written agreement), and completely replace any prior agreements between you and Zenpush in relation to the Zenpush Services.
16.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
16.3 If Zenpush provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
16.4 You agree that Zenpush may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Zenpush website. By providing Zenpush your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
16.5 You agree that if Zenpush does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Zenpush has the benefit of under any applicable law), this will not be taken to be a formal waiver of Zenpush’s rights and that those rights or remedies will still be available to Zenpush.
16.6 Zenpush shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
16.7 The Terms, and your relationship with Zenpush under the Terms, shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. You and Zenpush agree to submit to the exclusive jurisdiction of the courts located within the county of Saratoga, NY to resolve any legal matter arising from the Terms.
16.8 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Zenpush Services upon written notice to the assigning party.
16.9 You agree that for all claims, counterclaims, disputes, and other matters arising out of or relating to this agreement, you must request consent to arbitrate from Zenpush within 90 days from the date you know or should have known the facts giving rise to the claim, dispute or question. Within 60 days from the date a request for arbitration is received, Zenpush shall inform you whether it agrees to arbitrate. If Zenpush does not consent, you may proceed with an action in the appropriate court. The costs of any arbitration shall be split and borne equally between the parties and such costs are not subject to shifting by the arbitrator. The remedy for failure to comply with this provision is dismissal of the action.
16.10 In the event that any provision contained herein shall be determined to be contrary to a provision of state or federal law or to be unenforceable for any reason, then, to the extent necessary and possible to render the remainder of this Agreement enforceable, such provision may be modified or severed so as to, as nearly as possible, carry out the intention of the parties hereto, considering the purpose of the entire Agreement in relation to such provision. The invalidation of one or more terms of this contract shall not affect the validity of the remaining terms.
