PLEASE READ THE FOLLOWING CAREFULLY. THIS SUBSCRIPTION AGREEMENT ("SUBSCRIPTION AGREEMENT"), ProPush’S PRIVACY POLICY, SUPPLEMENTAL TERMS AND ALL OTHER APPLICABLE TERMS (COLLECTIVELY, THE "AGREEMENT") GOVERN YOUR USE OF ANY FREE, TRIAL OR PAID ProPush SERVICES OR SOFTWARE WHERE THESE TERMS APPEAR OR ARE LINKED TO. AS USED IN THIS AGREEMENT, "ProPush", "US" OR "WE" REFERS TO MALLET SOLUTIONS LP AND ITS AFFILIATES.
This Subscription Agreement provides that all disputes between you and ProPush will be resolved by Arbitration. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 18 below for the details regarding your agreement to arbitrate any disputes with ProPush. NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.
By clicking on the "Register" button (or any similar button) that is presented to you at the time of sign-up or by using or accessing the Service, you indicate your assent to be bound by this Agreement. ProPush may modify this Agreement from time to time, subject to the terms in Section 15 (Changes to this Agreement) below
If you are entering into this Agreement on behalf of a company, organization or another legal entity (an "Entity"), you are agreeing to this Agreement for that Entity and representing to ProPush that you have the authority to bind such Entity to this Agreement, in which case the terms "you," "your" or a related capitalized term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not use the Service.
GENERAL TERMS AND CONDITIONS
1. Overview
This Agreement governs ProPush’s cloud-based solutions (including this website) ("Cloud Services") and software made available in connection with the Cloud Services ("Software"). Section 3 (Cloud Services) applies specifically to the Cloud Services, and Section 4 (Software) applies specifically to Software (including ProPush’s application programming interfaces ("APIs") and software development kits ("SDKs")). Unless otherwise specified, all other Sections of this Agreement apply to both the Cloud Services and the Software (collectively, the "Service").
1.1 Eligibility and Registration
1.1.1
The Services are not targeted towards, nor intended for use by, anyone under the age of 16. By using the Services, you represent and warrant that you are 16 years of age or older. If you are under the age of 16, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
1.1.2
To sign up for the Services, you must register for an account on the Services (an "Account"). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password secure. You may never use another person's user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You agree to provide accurate information in your registration and not to share your password with third parties. You agree not to impersonate another person or to select or use a username or password of another person. You agree to notify ProPush promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password. Failure to comply with these requirements shall constitute a breach of these Terms of Service and shall constitute grounds for immediate termination of your account and your right to use the Website. ProPush WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO KEEP YOUR ACCOUNT SECURE.
2. Privacy and Data Processing
Use of the Website and the ProPush Service is subject to the terms of our Privacy Policy found here, which is hereby incorporated into and made part of this Subscription Agreement. Please carefully review our Privacy Policy. By using the Website or the ProPush Service, you agree to be bound by the terms of our Privacy Policy.
We process data in accordance with the Privacy Policy and, where applicable, in accordance with the Data Processing Addendum ("DPA") available here.
3. Cloud Services
3.1 Access to Cloud Services
Subject to your compliance with this Agreement (including, without limitation, all payment obligations), ProPush hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Cloud Services ("Cloud License"). If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Cloud Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. "Affiliate" means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
3.2 Restrictions
Unless otherwise expressly permitted in writing by ProPush, you will not and you have no right to:
(a) rent, lease, loan, export or sell access to the Cloud Services to any third party;
(b) interfere with, disrupt, alter, or modify the Cloud Services or any part thereof, or create an undue burden on the Cloud Services or the networks or services connected to the Cloud Services;
(c) utilize any framing techniques to enclose any ProPush trademark, logo, service mark, or other trade dress ("ProPush Marks") or Materials (defined below) or use any meta tags or other "hidden text" utilizing the ProPush Marks or Materials without ProPush’s written consent
(d) introduce software or automated agents or scripts into the Cloud Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Cloud Services;
(e) perform or publish any benchmark tests or analyses relating to the Cloud Services without ProPush’s written consent;
(f) cover or obscure any page or part of the Cloud Services via HTML/CSS, scripting, or any other means;
(g) process or collect personal or business credit card information on any web property that is receiving Free Services (as defined below); or
(h) use the Cloud Service to upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(i) upload, post, email, transmit or otherwise make available any material or non-public information about companies without the authorization to do so;
(j) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights ("Rights") of any party;
(k) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising or promotional materials, which redirects users to spam, Ponzi schemes, malware or harm – physical, emotional, monetary or of any other kind;
(l) upload, post, email, transmit or otherwise make available any material that contains viruses, worms, Trojan horses which may limit the functionality of the end-user system, cause issues with telecommunication equipment;
(m) register an adult website or any website with "Adult Material" or share any Adult content on ProPush. When found, your account will be terminated immediately and there will be no refund given in case of any financial transaction.
3.3 Customer Agrees
You are responsible for maintaining the confidentiality of all usernames and passwords created by or assigned to you ("Credentials"), and are solely responsible for all activities that occur under such Credentials. You agree to notify ProPush promptly of any actual or suspected unauthorized use of any Credentials. ProPush reserves the right to terminate any Credentials that ProPush reasonably determines may have been accessed or used by an unauthorized third party, and will provide immediate notice of such to Customer.
3.4 Subscription Terms, Renewals and Cancellations
All Cloud Services that are provided to you as Paid Services (each a, "Paid Cloud Service") will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process or upgraded from your dashboard ("Subscription Term"). All of your subscriptions to Paid Cloud Services will automatically renew for periods equal to your Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Cloud Services’ account dashboard prior to your next scheduled billing date.
3.5 Your Information
3.5.1
You and your End Users (as such term is defined in the Privacy Policy) will retain all right, title and interest in and to any data, content, images or other materials of any type that you or your End Users transmit to or through the Cloud Services (collectively, "Your Information") in the form provided to ProPush. Subject to the terms of this Agreement, you hereby grant us a non-exclusive, fully sublicenseable, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of your Information, in each case to the extent necessary to provide the Cloud Services to you. You also agree to let ProPush use your organization/website logo in customer list and at other places on its website (including but not limited to propush.net).
3.5.2
You must obtain all necessary rights, releases and permissions to provide Your Information to ProPush, and Your Information and its transfer must not violate any applicable local, state, federal and international laws and regulations ("Laws") (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 7 (Security), we assume no responsibility or liability for Your Information, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Your Information.
3.5.3
Depending on the Cloud Services you select or the features that you enable, ProPush may modify certain components of integration on your website. You will be informed of any such changes to provide the functionality of the Cloud Service and steps to enable/disable these features or functions will be available on your Cloud Services dashboard.
3.5.4
By transmitting Your Information to or through the Cloud Services, you represent and warrant that your Data, does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
3.6 Free & Trial Services
We may offer free or trial versions of the Cloud Services ("Free Services") from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by ProPush in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
3.7 Acceptable Use
By using the Cloud Services you are agreeing, among other things, that you will not use the Cloud Services to (a) falsely imply any sponsorship or association with ProPush; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.
3.8 Data Policy
Customer will provide ProPush with data in a condition that is "server-ready", which requires no manipulation on the part of ProPush. ProPush shall make no effort to validate information being shared for content, correctness or usability. The Customer shall be only and strictly liable for the content, links, data, information they are sharing through the service.
To use ProPush services, a certain level of understanding of web services may be required for which ProPush will not be held accountable. The Customer should familiarize themselves with the working of the service by going through support documents, links before making a payment. ProPush will not be held liable if the Customer is unable to understand the working of the software service on offer or any issues, legal or otherwise which may arise due to this inability.
ProPush does not and will not exercise any control whatsoever over the content of the information passing through the network, provided that it adheres to conditions mentioned throughout this Subscription Agreement.
4. Software
4.1 License Grant
Subject to the terms and conditions of this Agreement, ProPush grants you a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except to Affiliates) license to install and use the Software during your use of the applicable Cloud Services in accordance with this Agreement and any ProPush documentation ("License"). Your License will end upon the earlier of the termination of your use of the Cloud Services requiring such Software or the termination of this Agreement. Some Software may contain open source or third party software, which may have additional terms and restrictions regarding such software’s use.
4.2 Limitations
You will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, you may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of your own or third party software with the Software, and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) you have first requested such information from us and we fail to make such information available (for a fee or otherwise) under reasonable terms and conditions.
4.3 Software Modifications
Subject to the terms and conditions of this Agreement, for any elements of the Software provided to you in source code form you may modify such source code solely to the extent necessary to support your permitted use of the Software (collectively, "Modifications"). Unless expressly stated otherwise, you may not distribute your Modifications to any third party. ProPush has no support, warranty, indemnification or other obligation or liability with respect to your Modifications or their combination, interaction or use with our Cloud Services. You agree to indemnify, defend and hold us harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Modifications.
5. Billing
5.1 Recurring Billing
In order to access those Services for which we require a subscription fee ("Paid Services") you will be required to provide your credit card information ("Payment Method"). However, ProPush does not store your credit card information. They are processed by our payment processors 2Checkout and PayPal ("Payment Processors"). The processing of payments may be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by the Payment Processors. By choosing to use Paid Services you are authorizing our Payment Processors to charge your Payment Method on a monthly or annual basis, or as otherwise applicable for the subscription fees associated with the Paid Services that you sign up for. Any Payment Method that you provide must be valid, and kept current by you during the Subscription Term. By providing a Payment Method, you represent and warrant that you are authorized to use such Payment Method. ProPush will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.
5.2 Upgrades and Downgrades
ProPush is a subscription based service with plans based on number of subscribers ("Total Subscribers") on your account. In case your account crosses the subscriber threshold ("Subscriber Threshold") for the plan ("Subscribed Plan") you are currently billed on, the account will be temporarily suspended till you upgrade to a higher plan. You will be notified of the required upgrade for your account on your ProPush dashboard or via email. The front-end subscription process will remain active on your website that is registered with ProPush. Downgrades are processed through ProPush Support and you can reach out to [email protected] or create a support ticket at support.PROPUSH.NET for the same. Downgrade/Upgrade will not be allowed if the plan you want to change to has less subscriber threshold than your current Subscribed Plan.
5.3 Price Changes
We reserve the right to change the subscription fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
5.4 Billing Updates
YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE TO [email protected]. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
5.5 No Refunds
SUBSCRIPTION FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit ("Credits") to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
5.6 Arrearages
Payments not made within ten (10) days of invoicing will be deemed in arrears. For accounts in arrears, if any amount is more than ten (10) days overdue, without the requirement of providing notice of such arrears, ProPush may suspend service to such account and bring legal action to collect the full amount due, including any attorneys' fees and costs.
5.7 Suspension for Non Payment
If a Subscriber is past due on their balance, ProPush may send up to five (5) email notifications within a fifteen (15) day period before suspending the Subscriber's account. ProPush will temporarily suspend Services during this period. ProPush reserves the right to delete the Subscriber's account and related data after the final termination notice.
6. Beta Services
From time to time, we may make early stage or non-production Cloud Services and Software ("Beta Services") available to you at no charge. You may access these Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. ProPush may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Notwithstanding Section 13, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
7. Security
We implement security procedures to help protect your Data from security threats. However, you understand that your use of the Service necessarily involves transmission of Your Information over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Information that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
8. Trade Sanctions and Export Control
You may not use the Service for any reason if you or any party that owns or controls you, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Kingdom, U.S. Government, the European Union or its Member States, or other applicable government authority. You may not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.
9. Termination of Use; Discontinuation and Modification of the Service
You will lose your license to use the Service if you violate any provision of this Agreement. ProPush’s policy is to investigate violations of this Agreement and terminate repeat infringers. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.
10. Ownership; Proprietary Rights
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the "Materials") provided by ProPush are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of ProPush or our third-party licensors. Except as expressly authorized by ProPush you may not make use of the Materials. ProPush reserves all rights to the Materials not granted expressly in this Agreement.
11. Indemnity
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless ProPush and its officers, directors, employees, consultants, Affiliates, subsidiaries and agents (collectively, the "ProPush Entities") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
12. Disclaimers; No Warranties
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE ProPush ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE ProPush ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE ProPush ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE ProPush ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
IN NO EVENT WILL THE ProPush ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE ProPush ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE ProPush ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO ProPush TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. Governing Law
This Agreement will be governed by the laws of United Kingdom under the jurisdiction of the courts of London in the United Kingdom. To the extent that any lawsuit or court proceeding is permitted hereunder, you and ProPush agree to submit to the personal and exclusive jurisdiction of the district and state courts located within London, United Kingdom for the purpose of litigating all such disputes.
15. Changes to this Agreement
ProPush reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
16. Versions
The self-signed version of ProPush’s Subscription Agreement will be shared on request. While translations of the Subscription Agreement may be provided in multiple languages for your convenience, the English language version hosted here is binding for all users of the Service.
17. General
This Agreement constitutes the entire and exclusive understanding and agreement between you and ProPush regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Subscription Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 3.5.1 and Sections 10 through 20.
18. Dispute Resolution and Arbitration
18.1 Generally
In the interest of resolving disputes between you and ProPush in the most expedient and cost effective manner, you and ProPush agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ProPush ARE EACH WAIVING THE RIGHT TO A TRIAL BY A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions
Notwithstanding Subsection 18.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in district courts, (ii) pursue enforcement actions through applicable national, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
18.3 Arbitrator
Any arbitration between you and ProPush will be governed by the Arbitration and Conciliation the Arbitration and Conciliation (Amendment) of United Kingdom, as modified by this Agreement.
18.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or ProPush may commence an arbitration proceeding.
18.5 Fees
Any arbitration hearings will take place at a location to be agreed upon in London provided that if the claim is for $1,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the Arbitration and Conciliation and the Arbitration and Conciliation (Amendment) of United Kingdom. In such case, you agree to reimburse ProPush for all monies previously disbursed by it that are otherwise your obligation to pay under the Arbitration and Conciliation and the Arbitration and Conciliation (Amendment) of United Kingdom. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.6 No Class Actions
YOU AND ProPush AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ProPush agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.7 Modifications
In the event that ProPush makes any future change to this arbitration provision (other than a change to ProPush's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to ProPush's address for Notice, in which case your account with ProPush will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
18.8 Enforceability
If Subsection 18.1 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 14 will govern any action arising out of or related to this Agreement.
19. Consent to Electronic Communications
By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
20. Third Party Disclaimer
All third party logos, product names or company names are are trademarks™ or registered® trademarks of their respective holders. Use of them does not imply any affiliation with or endorsement by them.
