Terms of Service
Pushd is the developer of Aura (the "Application"), a connected digital picture frame that automatically sends pictures from your phone to your frame.
PLEASE NOTE THAT The Terms are subject to change by pushd in its sole discretion at any time. When changes are made, pushd will make a new copy of the Terms available at the Site and within the Application. We will also update the "Last Updated" date at the bottom of the Terms. If we make any material changes, and you have registered with us to create an Account to use the Services, we will also send an email to you at the last email address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Site, the Application and/or Services and will be effective thirty (30) days after posting of notice of such changes on the Site for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting of notice of such changes on the Site or thirty (30) days after dispatch of an email notice of such changes to Registered Users. Pushd may require you to provide consent to the updated Terms in a specified manner before further use of the Site, the Application and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site, the Application, and/or the Services. Otherwise, your continued use of the Site, the Application, and/or Services constitutes your acceptance of such change(s).
Use of the Services and pushd Properties: The Application, the Site, the Services, and the information and content available on the Site and in the Application and the Services, (as these terms are defined below) (collectively, the"pushd Properties") are protected by copyright laws throughout the world. Subject to the Terms, pushd grants you a limited license to reproduce portions of the pushd Properties for the sole purpose of using the Services for your personal purposes. Unless otherwise specified by pushd in a separate license, your right to use any pushd Properties is subject to the Terms.
Application License: Subject to your compliance with the Terms, pushd grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application on an Apple-branded product that runs Apple iOS; and as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
- Updates: You understand that the pushd Properties are evolving. As a result, pushd may require you to accept updates to the pushd Properties that you have installed on your mobile device. You acknowledge and agree that pushd may update the pushd Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Services or use the pushd Properties.
- Certain Restrictions: The rights granted to you in the Terms are subject to the following restrictions: you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the pushd Properties or any portion of the pushd Properties, including the Site, you shall not frame or utilize framing techniques to enclose any trademark, logo, or other pushd Properties (including images, text, page layout or form) of pushd; you shall not use any metatags or other "hidden text" using pushd's name or trademarks; you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the pushd Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); access the pushd Properties in order to build a similar or competitive website, application or service; except as expressly stated herein, no part of the pushd Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the pushd Properties. Any future release, update or other addition to the pushd Properties shall be subject to the Terms. Pushd, on behalf of itself and its service providers, reserves all rights not granted in the Terms. Any unauthorized use of the pushd Properties terminates the licenses granted by pushd pursuant to the Terms.
- Registering your Account: In order to access certain features of the pushd Properties you may be required to become a Registered User. For purposes of the Terms, a "Registered User" is a User who has registered an account through the Application ("Account").
- Registration Data: In registering for the Services, you agree to: provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data"); and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are of legal age to form a binding contract; and not a person barred from using the pushd Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the pushd Properties by minors. You agree to notify pushd immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or pushd has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, pushd has the right to suspend or terminate your Account and refuse any and all current or future use of the pushd Properties (or any portion thereof). You agree not to create an Account using a false identity or information. You agree not to create an Account or use the pushd Properties if you have been previously removed by pushd, or if you have been previously banned from any of the pushd Properties.
Responsibility for Content
- Types of Content: You acknowledge that all Content, including the pushd Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not pushd, are entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available ("Make Available") through the pushd Properties ("Your Content"), and other Users of the pushd Properties, and not pushd, are similarly responsible for all Content they Make Available through the pushd Properties ("User Content").
- No Obligation to Pre-Screen Content: You acknowledge that pushd has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although pushd reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that pushd pre-screens, refuses or removes any Content, you acknowledge that pushd will do so for pushd's benefit, not yours. Without limiting the foregoing, pushd shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
- pushd Properties: Except with respect to Your Content and User Content, you agree that the pushd owns all rights, title and interest in the pushd Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the pushd Properties.
- Trademarks: Graphics, logos, service marks and trade names used on or in connection with the pushd Properties are the trademarks of pushd and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks, and trade names that may appear on or in the pushd Properties are the property of their respective owners.
- Other Content: Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the pushd Properties.
- License to Your Content: Subject to any applicable account settings that you select, you grant pushd a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the pushd Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any "public" area of the pushd Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not pushd, are responsible for all of Your Content that you Make Available on or in the pushd Properties.
- Your Account: Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of pushd.
- Feedback: You agree that submission of any ideas, suggestions, documents, and/or proposals to pushd through its suggestion or similar pages ("Feedback") is at your own risk and that pushd has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to pushd a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the pushd Properties.
User Conduct: As a condition of use, you agree not to use the pushd Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either to take any action or Make Available any Content on or through the pushd Properties that: infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; constitutes unauthorized or unsolicited advertising, junk or bulk email; involves commercial activities and/or sales without pushd's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; impersonates any person or entity, including any employee or representative of pushd; interferes with or attempts to interfere with the proper functioning of the pushd Properties or uses the pushd Properties in any way not expressly permitted by the Terms; or engages in, or attempts to engage in, any potentially harmful acts that are directed against the pushd Properties, including but not limited to violating or attempting to violate any security features of the pushd Properties, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the pushd Properties, introducing viruses, worms, or similar harmful code into the pushd Properties, or interfering or attempting to interfere with use of the pushd Properties by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the pushd Properties.
- Investigations: Although pushd does not generally monitor user activity occurring in connection with the pushd Properties, if pushd becomes aware of any possible violations by you of any provision of the Terms, pushd reserves the right to investigate such violations, and pushd may, at its sole discretion, immediately terminate your license to use the pushd Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users
- User Responsibility: You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that pushd reserves the right, but has no obligation, to intercede in such disputes. You agree that pushd will not be responsible for any liabilities incurred as the result of such interaction.
- Content Provided by Other Users: The pushd Properties may contain User Content provided by other Users. Pushd is not responsible for and does not control User Content. Pushd has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
App Stores: You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple iPhone app store ("App Store"). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the pushd Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the pushd Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Indemnification: You agree to indemnify and hold pushd, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the "pushd Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: Your Content; your use of, or inability to use, the pushd Properties; your violation of the Terms; your violation of any rights of another party, including any User; or your violation of any applicable laws, rules or regulations. Pushd reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with pushd in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the pushd Properties.
Disclaimer of Warranties
- As Is: YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PUSHD PROPERTIES IS AT YOUR SOLE RISK, AND THE PUSHD PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE PUSHD PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- THE PUSHD PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PUSHD PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PUSHD PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE
- ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PUSHD PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PUSHD PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PUSHD MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
- No Liability for Conduct of Third Parties: YOU ACKNOWLEDGE AND AGREE THAT THE PUSHD PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE PUSHD PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- No Liability for Conduct of Other Users: YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PUSHD PROPERTIES. YOU UNDERSTAND THAT PUSHD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OR ACTIONS OF USERS OF THE PUSHD PROPERTIES.
Limitation of Liability
- Disclaimer of Certain Damages: YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE PUSHD PARTIES BE LIABLE FOR ANY ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PUSHD PROPERTIES, WHETHER OR NOT PUSHD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PUSHD PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: THE USE OR INABILITY TO USE THE PUSHD PROPERTIES; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE PUSHD PROPERTIES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE PUSHD PROPERTIES; OR ANY OTHER MATTER RELATED TO THE PUSHD PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
- User Content. THE PUSHD PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PUSHD AND YOU.
Procedure for Making Claims of Copyright Infringement: It is pushd's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to pushd by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the pushd Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; a description of the location on the pushd Properties of the material that you claim is infringing; your address, telephone number and email address; a written 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; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for pushd's Copyright Agent for notice of claims of copyright infringement is as follows:
50 Eldridge St.
New York, NY 10002
Term and Termination
- Term: The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the pushd Properties, unless terminated earlier in accordance with the Terms.
- Prior Use: Notwithstanding the foregoing, if you used the pushd Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the pushd Properties and will remain in full force and effect while you use the pushd Properties, unless earlier terminated in accordance with the Terms.
- Termination of Services by pushd: If you have materially breached any provision of the Terms, or if pushd is required to do so by law (e.g., where the provision of the Site, the Application, or the Services is, or becomes, unlawful), pushd has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in pushd's sole discretion and that pushd shall not be liable to you or any third-party for any termination of your Account.
- Termination of Services by You: If you want to terminate the Services provided by pushd, you may do so by: notifying pushd at any time and closing your Account for all of the Services that you use. Your notice should be sent, in writing, to pushd's address set forth below.
- Effect of Termination: Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Pushd will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- Violations: If pushd becomes aware of any possible violations by you of the Terms, pushd reserves the right to investigate such violations. If, as a result of the investigation, pushd believes that criminal activity has occurred, pushd reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Pushd is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the pushd Properties, including Your Content, in pushd's possession in connection with your use of the pushd Properties, to comply with applicable laws, legal process or governmental request; enforce the Terms; respond to any claims that Your Content violates the rights of third parties; respond to your requests for customer service; or protect the rights, property or personal safety of pushd, its Users or the public, and all enforcement or other government officials, as pushd in its sole discretion believes to be necessary or appropriate.
- Breach: In the event that pushd determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the pushd Properties, pushd reserves the right to:
- Warn you via email (to any email address you have provided to pushd) that you have violated the Terms.
- Delete any of Your Content provided by you or your agent(s) to the pushd Properties.
- Discontinue your registration(s) with any of the pushd Properties, including the Services.
- Discontinue your subscription to any Services.
- Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action.
- Pursue any other action which pushd deems to be appropriate.
No Subsequent Registration: If your registration(s) with or ability to access the pushd Properties is discontinued by pushd due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the pushd Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, pushd reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
International Users: This Site can be accessed from countries around the world and may contain references to pushd Properties and Content that are not available in your country. These references do not imply that pushd intends to announce such pushd Properties or Content in your country. The pushd Properties are controlled and offered by pushd from its facilities in the United States of America. Pushd makes no representations that the pushd Properties are appropriate or available for use in other locations. Those who access or use the pushd Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Electronic Communications: The communications between you and pushd use electronic means, whether you visit the pushd Properties or send pushd emails, or whether pushd posts notices on the pushd Properties or communicates with you via email. For contractual purposes, you consent to receive communications from pushd in an electronic form; and agree that all terms and conditions, agreements, notices, disclosures, and other communications that pushd provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Release: You hereby release the pushd Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Site Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the pushd Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
- Assignment: The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without pushd's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure: Pushd shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Compliance: If you believe that pushd has not adhered to the Terms, please contact pushd by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
- Governing Law: The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any principles that provide for the application of the law of another jurisdiction.
- Notice: Where pushd requires that you provide an email address, you are responsible for providing pushd with your most current email address. In the event that the last email address you provided to pushd is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, pushd's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to pushd at the following address: 50 Eldridge St., Suite 5D, New York, NY 10002. Such notice shall be deemed given when received by pushd by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver: Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability: If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Export Control: You may not use, export, import, or transfer the pushd Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the pushd Properties, and any other applicable laws. In particular, but without limitation, the pushd Properties may not be exported or re-exported into any United States embargoed countries; or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the pushd Properties, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the pushd Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by pushd are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the pushd products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Accessing and Download the Application from iTunes: The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
- You acknowledge and agree that the Terms are concluded between you and pushd only, and not Apple, and pushd, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between pushd and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of pushd.
- You and pushd acknowledge that, as between pushd and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: product liability claims; any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and claims arising under consumer protection or similar legislation.
- You and pushd acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third-party's intellectual property rights, as between pushd and Apple, pushd, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and pushd acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Questions, Complaints, and Claims: If you have any questions, complaints, or claims, or you believe that pushd has not adhered to the Terms, please contact pushd by emailing us at email@example.com.
- Consumer Complaints: In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Dispute Resolution: Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, the Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Company Properties.
- Any other dispute (including whether the claims asserted are arbitral) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
- You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- You and the Company must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR THE COMPANY MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, the Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) the Company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
- The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 11 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.
Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor the Company shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the Company Properties in any manner, you agree to the above arbitration provision.
- For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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Last Updated: October 4, 2016