54 minutes read
Last updated: January 07, 2020
1. Fees and Payments
1. Fees for Services. You agree to pay to WiPush any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
1.2. Subscriptions. Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
1.3. Taxes. Unless otherwise stated, you are responsible for any taxes (other than WiPush’s income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). You will pay WiPush for the Services without any reduction for Taxes. If WiPush is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide WiPush with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. If you are required by law to withhold any Taxes from your payments to WiPush, you must provide WiPush with an official tax receipt or other appropriate documentation to support such payments.
1.4. Price Changes. WiPush may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. WiPush will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
1.5. Overage Fees. Unless otherwise stated, any overage fees incurred by you will be billed in arrears on a monthly basis. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
Both WiPush and Plugin Creators process Plugin Respondents’ personal information (for example, name, email address, and address) and are therefore considered separate and independent data controllers of buyers’ personal information under EU law. That means that each party is responsible for the personal information it processes in providing the Services. For example, if a Plugin Creator accidentally discloses a Plugin Respondent’s name and email address when fulfilling another Plugin Respondent’s order, the Plugin Creator, not WiPush, will be responsible for that unauthorized disclosure.
2.2. Confidentiality. WiPush will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by WiPush); (b) was lawfully known to WiPush before receiving it from you; (c) is received by WiPush from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by WiPush without reference to your Content.
3. Your Content
3.1. You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. WiPush does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Limited License to Your Content. You grant WiPush a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by WiPush’s privacy policies. This license for such limited purposes continues even after you stop using our Services, though you may have the ability to delete your Content in relation to certain Services such that WiPush no longer has access to it. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide WiPush with feedback about the Services, we may use your feedback without any obligation to you.
3.3. Copyright Claims (DMCA Notices). WiPush Inc. responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify WiPush’s agent for claims of copyright infringement.
3.4. Other IP Claims. WiPush respects the intellectual property rights of others, and we expect our users to do the same. If you believe a WiPush user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.
4. WiPush IP
4.1. WiPush IP. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). Except as permitted by WiPush’s Brand and Trademark Use Policy, these Terms do not grant you any right to use WiPush’s trademarks or other brand elements.
5. User Content
5.1. User Content. The Services display content provided by others that is not owned by WiPush. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. WiPush is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
5.2. Illegal and Inappropriate Content. WiPush does not allow illicit or illegal material, including but not limited to: phishing forms, spam, and unlawful pornographic material. Additionally, WiPush values diversity and respect for others, and we strive to avoid hosting content which includes: hatred; violence; harassment; racism; sexual, religious, or political intolerance, or organizations with such views content that's exploitative or appears to unfairly capitalize at the expense of others Inappropriate or illegal content will be removed and accounts may be frozen. Please refer to “Acceptable Uses” for further clarity on appropriate user content.
5.3. Content Review. You acknowledge that, in order to ensure compliance with legal obligations, WiPush may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, WiPush otherwise has no obligation to monitor or review any content submitted to the Services.
5.4. Third Party Resources. WiPush may publish links in its Services to internet websites maintained by third parties. WiPush does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
6. Account Management
6.1. Keep Your Password Secure. If you have been issued an account by WiPush in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not WiPush, are responsible for any activity occurring in your account (other than activity that WiPush is directly responsible for which is not performed in accordance with the Customer’s instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify WiPush immediately. Accounts may not be shared and may only be used by one individual per account.
6.2. Keep Your Details Accurate. WiPush occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
6.3. Remember to Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, WiPush will not be liable for any failure to store, or for loss or corruption of, your Content.
6.4. Account Inactivity. WiPush may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
7. User Requirements
7.1. Legal Status. If you are an individual, you may only use the Service if you have the power to form a contract with WiPush. None of the Services are intended for use by individuals less than 13 years old. If you are under 13 years old or do not have the power to form a contract with WiPush, you may not use the Services. We recommend that parents and guardians directly supervise any use of the Services by minors. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation and that you have duly authorized your agent to bind you to these Terms.
WiPush is not targeted towards, nor intended for use by, anyone under the age of 16. You must be at least 16 years old to access and use WiPush and use the Services. If you are between 14 and 16 years old, you may only use the Site under the supervision of a parent or legal guardian.
7.2. Embargoes. You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from WiPush.
8. Acceptable Uses
8.1. Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.
8.2. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services: (a) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide. (b) You may not circumvent or attempt to circumvent any limitations that WiPush imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation). (c) Unless authorized by WiPush in writing, you may not probe, scan, or test the vulnerability of any WiPush system or network. (d) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so. (e) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services. (f) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. WiPush will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to WiPush. (g) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity. (h) Unless authorized by WiPush in writing, you may not resell or lease the Services. (i) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless WiPush has agreed with you otherwise. You may not use the Services in a way that would subject WiPush to those industry-specific regulations without obtaining WiPush’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with WiPush that permits you to do so.
8.3. Sensitive Information. WiPush does not permit the collection of unencrypted sensitive information while using the Services. You must not request sensitive information using WiPush services, including WiPush Form Builder. Sensitive information includes, but is not restricted to: (a) Credit or Debit card details outside of payment integrations (b) Social Security numbers (c) Passwords
9. Suspension and Termination of Services
9.1. By You. Refunds are issued for yearly and biennial subscriptions if cancelled within 5 days of initial purchase. Refunds are not available for monthly upgrades. Terminating a subscription mid-billing cycle will not result in a refund, unless you are an annual or biennial subscriber and are cancelling within 5 days after the initial purchase. All users who terminate mid-billing cycle will continue to have full access to their plan features until the end of the cycle when the termination takes into effect. Upgrades purchased through a third-party, such as the Wix App Market, are exempt from this policy. Refunds for upgrades purchased through a third-party cannot be issued by WiPush.
The Terms of Service are displayed in the checkout process, and anyone purchasing an upgrade must agree to the terms before being able to buy a WiPush upgrade.
9.1.1 Monthly upgrades No refunds are available for monthly upgrades. If you're not sure WiPush Starter, Pro, or Business is the best option for you, please contact our support team to request a free trial prior to purchase.
9.1.2 Annual and biennial upgrades Refunds can be issued only within the first 5 days of a yearly or biennial upgrade being purchased.
9.2. By WiPush. WiPush may limit, suspend, or stop providing the Services to you if you fail to comply with these Terms (such as a failure to pay fees when due), or if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services. WiPush may also suspend providing the Services to you if we are investigating suspected misconduct by you. If we suspend or terminate the Services you receive, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where WiPush may decide that we need to take immediate action without notice. WiPush has no obligation to retain your Content upon termination of the applicable Service.
9.3. Further Measures. If WiPush stops providing the Services to you because you repeatedly or egregiously breach these Terms, WiPush may take measures to prevent the further use of the Services by you, including blocking your IP address.
10. Changes and Updates
10.1. Changes to Terms. WiPush may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. Any changes will be posted to the location at which those terms appear. WiPush may also provide notification of changes on its blog or via email. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require WiPush to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
10.2. Changes to Services. WiPush constantly changes and improves the Services. WiPush may add, alter, or remove functionality from a Service at any time without prior notice. WiPush may also limit, suspend, or discontinue a Service at its discretion. If WiPush discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. WiPush may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
11. Disclaimers and Limitations of Liability
11.1. Disclaimers. While it is in WiPush’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND WiPush DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
11.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WiPush, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF WiPush HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF WiPush, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO WiPush FOR USE OF THE SERVICES AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$25.00.
11.4. Consumers. We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
11.5. Businesses. If you are a business, you will indemnify and hold harmless WiPush and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your use of the Services or a breach of these Terms, to the extent that such liabilities, damages and costs were caused by you.
12. Contracting Entity
12.1. Who you are contracting with. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, WiPush Inc.
12.2. WiPush Inc. For any Service provided by WiPush Inc., the following provisions will apply to any terms governing that Service: Contracting Entity. References to “WiPush”, “we”, “us”, and “our” are references to WiPush Inc., located at 177 29th St, San Francisco CA, 94110, United States of America. Governing Law. Those terms are governed by the laws of the State of California (without regard to its conflict of laws provisions). Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California with respect to the subject matter of those terms.
13. Other Terms
Assignment. You may not assign these Terms without WiPush’s prior written consent, which may be withheld in WiPush’s sole discretion. WiPush may assign these Terms at any time without notice to you.
Entire Agreement. These Terms (including the Additional Terms) constitute the entire agreement between you and WiPush, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
Independent Contractors. The relationship between you and WiPush is that of independent contractors, and not legal partners, employees, or agents of each other.
Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
Precedence. To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.
Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
Third Party Beneficiaries. There are no third party beneficiaries to these Terms.
14. Terms for Certain Customers and Countries
14.1. Language. These Terms are prepared and written in English. To the extent that any translated version conflicts with the English version, the English version controls, except where prohibited by applicable law.
14.2. Customer-Specific Terms. The following amendments automatically apply to you upon acceptance of these
14.3. Country-Specific Terms. If you are located in one of the following locations, the terms thereunder apply.
EU1. Right of Withdrawal. In certain European countries, you have a legal right to cancel Subscriptions within a certain period of time.
FR1. Overdue Payments. Overdue payments may result in a penalty at an interest rate equal to 3 times the legal interest rate or the statutory minimum rate, whichever is higher. Additionally, the statutory penalty for collection costs may be payable by you in the event of late payment.
FR2. Right of Withdrawal. If you are a consumer, starting from the date your Subscription first starts, you have 14 days to exercise your right of withdrawal without cause, provided that you have not benefited from or started to use the Services before the end of that 14 day period.
FR3. Media. The limited license you grant to WiPush under Section 3.2 (Limited License to Your Content) allows WiPush to exploit your Content in any form and on any medium, including paper or digital media such as hard disks and flash drives, and by any means or process, including by wired, wireless, or online transmission of digitized or analog data. The duration of such limited license extends only for the legal term of protection of the intellectual property rights attached to your Content.
FR4. Warranties. If you are a consumer, statutory warranties and the warranty of merchantability apply to you despite anything to the contrary in these Terms. Any disclaimer of warranties in these Terms does not derogate from any of your statutory warranty rights listed below:
Article R. 211-4 of the French Consumer Code: "In contracts entered into between professionals, on the one hand, and, on the other hand, non-professionals or consumers, the professionals cannot contractually warrant the item to be delivered or the service to be rendered without clearly stating that, whatever the circumstances, the legal warranty binding the professional seller to cover the purchaser against any consequences of faults or hidden defects in the item being sold or the service being rendered, applies."
Article L. 211-4 of the French Consumer Code: "The seller is required to deliver a product which is conformed to the contract and is held liable for any lack of conformity which exists upon delivery. He is also held liable for any lack of conformity caused by the packaging or the assembly instructions, or the installation if he assumed responsibility therefor or had it carried out under his responsibility."
Article L. 211-5 of the French Consumer Code: "To be in conformity with the contract, the product must: (1) be suitable for the purpose usually associated with such a product and, if applicable: correspond to the description given by the seller and have the features that the seller presented to the buyer in the form of a sample or model; [and] have the features that a buyer might reasonably expect it to have considering the public statements made by the seller, the producer or his representative, including advertising and labeling; or (2) have the features defined by mutual agreement between the parties or be suitable for any special requirement of the buyer which was made known to the seller and which the latter agreed to."
Article L. 211-12 of the French Consumer Code: "Action resulting from lack of conformity lapses two years after delivery of the product."
Article 1641 of the French Civil Code: "A seller is bound to a warranty on account of the latent defects of the product sold which render it unfit for the use for which it was intended, or which so impair that use that the buyer would not have acquired it, or would only have given a lesser price for it, had he known of them."
Article 1648 §1 of the French Civil Code: "The action resulting from redhibitory vices must be brought by the buyer within a period of two years following the discovery of the vice".
FR5. Limitation. Section 11.3 (Limitation of Liability) does not apply to you if you are a consumer.
DE1. Right of Withdrawal. If you are a consumer, you may withdraw your contractual declaration within 14 days without giving reasons in text form (e.g. by mail, fax, email). The time period commences upon your receipt of this information notice in textual form, but not before the conclusion of the contract and also not before we have met our information requirements as set forth under Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 of the Introductory Act to the German Civil Code and our information requirements under § 312 g paragraph 1, first sentence German Civil Code in conjunction with Article 246 § 3 of the Introductory Act to the German Civil Code. Punctual dispatch of the declaration of withdrawal suffices to observe the withdrawal period. The declaration of withdrawal has to be directed to our customer support team by email to support@WiPush.io or through our Help Center.
DE2. Consequences of Withdrawal. In the case of a valid withdrawal, the mutually received deliverables shall be returned and any benefits obtained, if any (e.g. interest), shall be handed over. To the extent that you are unable to return or, where applicable, to deliver up the received deliverable and benefits obtained (e.g. use and enjoyment) in whole or in part, or only in a deteriorated condition, you may have to compensate us accordingly for loss of value, if any. This may possibly lead to the result that you will nevertheless have to fulfill the contractually owed payment obligations for the time period until withdrawal. Any obligation to reimburse payments must be fulfilled within 30 days. The period for the payment of costs will begin, in your case, with the dispatch of your declaration of withdrawal and in our case, upon receipt of same.
DE3. Special Notifications. Your right of withdrawal expires prematurely if the contractual relationship was fully discharged by both sides at your explicit request before you have exercised your right of withdrawal.
DE4. Termination for Breach. A failure to comply with these Terms must be material, repeated, or persistent before WiPush may exercise its right of termination under Section 9.2 (By WiPush).
DE5. Specific Works. WiPush is not obliged to create any specific works for you.
DE6. Liability Provisions. Sections 11.2 (Exclusion of Certain Liability) and 11.3 (Limitation of Liability) do not apply and are replaced with the following: “WiPush’s liability to you for damages caused by slight negligence will, irrespective of its legal ground, be limited as follows: (a) WiPush will be liable up to the amount of foreseeable damages typical for this type of contract for a breach of material contractual obligations; and (b) WiPush shall not be liable for a breach of any non-material contractual obligations nor for the slightly negligent breach of any other applicable duty of care. The foregoing limitations of liability, as well as any other limitations of liability contained in these Terms, will not apply to any mandatory statutory liability, in particular to liability under the German Product Liability Act (Produkthaftungsgesetz), and liability for culpably caused personal injuries. Additionally, such limitations of liability will not apply if and to the extent that WiPush has assumed a specific guarantee. The foregoing shall apply accordingly to WiPush’s liability to you for futile expenses. You are obliged to take adequate measures to avert and reduce damages.”
JP2. Liability. Sections 11.2 (Exclusion of Certain Liability) and 11.3 (Limitation of Liability) shall not apply in relation to the damages caused by the willful misconduct or gross negligence of WiPush, its affiliates, officers, employees, agents, supplier, or licensors.
KR1. Right of Withdrawal. If you are a consumer, you may withdraw your Subscription within 7 days of the date your Subscription first starts (or the date a copy of these Terms are made available to you, if later), provided that you have not benefited from or started to use the Services before the end of that 7 day period. If you withdraw your Subscription under this paragraph, the fees you paid for that Subscription will be refunded within 3 business days of receiving your notice of withdrawal.
KR2. Assignment. Despite anything to the contrary in these Terms, if you are a consumer, we will provide you with advance notice of assignment and an opportunity to terminate these Terms as required by Korean law.
WiPush makes available certain tools and services for the operation of businesses online through an Ecommerce platform (“Platform”). This includes any WiPush product or service that allows you to receive payments for a Digital Good, Physical Product, or Service. This Platform is subject to all Terms outlined in this document, as well as the following:
1. Account Creation and Management
General Account Creation. Certain features and functionalities of the Platform may require you to create a WiPush account (the “Account”). In establishing an Account, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see below) and to update such information as necessary to maintain its truth and accuracy.
Registration on Behalf of Principal. In the event you create an Account as an agent acting on behalf of a business, employer or third party because, you represent and warrant that you have the authority to do so (e.g., you are an authorized employee or agent (collectively, the “Agent”) of such business, employer or third party (collectively, the “Principal”). In creating an Account on behalf of a Principal, you (as Agent) agree to provide such Principal’s full legal name and any applicable fictitious business name(s) (including the proper trade names or “doing business as” names). In all such cases where an Agent creates and/or uses an Account for the Principal, the Agent agrees and acknowledges that he/she undertakes all such activities on behalf of the Principal, and that the Principal shall be the party to this Agreement for all purposes, regardless of whether the Agent had the proper authority to create the Account, maintained the Account, and/or transferred the Account to another Agent. Accordingly, only the Principal is entitled to any rights, remedies or benefits under this Agreement and only the Principal may control or direct the Account and all information related thereto; the Agent does not acquire or retain any personal rights with respect to such Account. The Principal is likewise subject to all of the covenants, restrictions, limitations, representations, warranties, waivers and releases included in this Agreement.
Furthermore, you hereby represent and warrant that you (as the Agent): (i) may be held liable by and to WiPush for any misrepresentation made by you in connection with your registration for and use of the Account; (ii) may be held liable by and to the Principal; and (iii) may be held liable by law enforcement, governmental authority or court order. You (as Agent) agree to indemnify, defend, and hold harmless WiPush for any breach of the representations, warranties, and covenants contained in this Section 3 in accordance with Section 15 (Indemnification) of this Agreement.
Account Management. Ultimately, the Principal is responsible for all activities that occur under the Account, including, but not limited to, Account and password management, and neither Principal nor Agent will agree to sell, transfer or assign the Account or any Account related rights without the express written consent of WiPush. You are also responsible for maintaining the privacy and security of your network settings and systems to ensure that all sensitive or confidential information originating from your systems is properly transmitted and handled.
PayPal Payments. Some payment processing services made available through the Platform to certain Users are provided by PayPal and are subject to the PayPal Terms of Service. By agreeing to this Agreement, you also agree, to the extent applicable, to be bound by these Terms (which may be modified from time to time by PayPal). As a condition of WiPush enabling payment processing services through PayPal, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see above) and to update such information as necessary to maintain its truth and accuracy. You also authorize WiPush to share such information and other transaction information related to your use of the payment processing services provided by PayPal.
2. WiPush Services
WiPush may require, and you agree to promptly furnish, additional information from you, including, but not limited to, tax identification number, social security number, identity verification, taxpayer information, or other information as the case may be. Failure to promptly provide such additional information to WiPush may result in Account suspension and/or termination pursuant to Section 8.
All Physical Products and Services, (and Digital Goods to the extent such Digital Goods are deemed to be "goods," as defined in California Commercial Code §2105) are subject to California Commercial Code §2401(2) and Uniform Commercial Code §2401(2) with respect to the transfer of ownership of goods between the Buyer and you, unless the Buyer and you agree otherwise.
3. Fees, Balance Redemption, Taxes, and Conversion
The details of the fees with respect to Digital Goods, Physical Products, and Services are as follows:
Digital Goods. With respect to your Digital Goods, you may upload a digital file (including, but not limited to, .mp3, .pdf, .png, .jpeg, .zip files) to the Platform and Promote the Digital Good at a retail price determined by you, and including any applicable taxes and shipping costs, in your sole and absolute discretion (the “Retail Price”). Upon receiving a Buyer’s offer to purchase the Digital Good, WiPush will immediately undertake technological efforts to digitally duplicate the Digital Good (with the result, the “Digital Duplicate”) and make the Digital Duplicate available to the Buyer at the Retail Price.
Physical Products and Services. With respect to Physical Products and Services, you may upload a listing of a physical good to the Platform and Promote the Physical Product or Service at a Retail Price. In contrast with the fulfillment and delivery of Digital Goods (as described in Section 5.1.1), you are solely responsible for the fulfillment and delivery of Physical Products and Services to the Buyer in a timely manner. WiPush does not ship, handle or take custody of Physical Product or Service at any point.
Taxes. You agree to be solely responsible and liable for the proper administration, imposition, collection, reporting, and remitting of all applicable taxes, including, but not limited to, sales tax and income tax. With respect to sales of applicable Digital Goods made to European Union consumers, you will, collect, report, and remit Value Added Tax governing “telecommunications, broadcasting, and electronic services” in accordance with the applicable European Commission VAT regulations.
WiPush Fees. In addition to any and all processing fees charged by our payment processing partners (e.g. PayPal), WiPush may charge a fixed or percentage fee on any completed transactions on Physical Products, Service, or Digital Goods, including one time and subscription purchases.
4. Use of the Platform.
When you use the Platform, you assent that:
You will not, or attempt to, make any unlicensed or unauthorized use of, or otherwise infringe violate or misappropriate, any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right (collectively, “IP Rights”) of any entity or individual, including, without limitation, incorporating any original, variation or misspellings of any third-party trademarks, service marks, creative assets, or other brand identifiers without proper authorization;
You will not, or attempt to, Promote or Deliver Digital Goods, Physical Products, or Services that: (i) violates, or may violate, the rules or policies of Card Networks or payment partners; (ii) constitutes illegal activity or is illegal; (iii) promotes or encourages discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; or (iv) targets, or intends to distribute to, children under the age of thirteen (13) years old;
You will not, or attempt to, defame or impersonate any entity or person, including, without limitation, copying the “look and feel” of any third-party website or branding, or conveying or implying that you are operating a third-party website or entity;
You will not, or attempt to, probe, exploit, disable, avoid, deactivate, remove, circumvent, crawl, scan, penetrate, or test the integrity and vulnerability of the Platform in any manner, including any client or server machine, or other security or authentication measures and safeguards;
You will not, or attempt to, disassemble, reverse engineer, or decompile any part of the Platform;
You will not, or attempt to, embed, insert, include, or disseminate any viruses or other harmful, or potentially harmful, data or technology into or through the Platform, including, without limitation, for the purposes of disrupting, damaging, or interfering with the Platform and/or other users of the Platform;
You will undertake best efforts to ensure that all communications and/or representations you make in connection with your Digital Good(s), Physical Product(s), and Service(s) will: (i) be accurate and contain all disclosures and disclaimers necessary to prevent such communications and/or representations from being false, deceptive, or misleading; and (ii) otherwise comply with all applicable laws, regulations, advisories, and policies related to consumer protection;
You will promptly: (i) respond to inquiries from WiPush; (ii) notify WiPush of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Digital Good, Physical Product, or Service; and (iii) in connection with (ii) directly above, assist, at your sole cost and expense, in taking any appropriate or necessary actions reasonably requested by WiPush to respond to and/or resolve such complaints; and
You will comply with all applicable laws, regulations, court orders, third party rights, applicable industry requirements (including, but not limited to, any and all applicable provisions of the Visa International Operating Regulations, MasterCard Merchant Rules, and PCI compliance standards), and any WiPush policy or standard that may be issued from time to time.
5. Return and Refund Policy
Requests for returns, refunds, and exchanges of any and all Digital Goods, Physical Products, and Services are the sole responsibility of you, the Buyer, and the payment processing institution. WiPush takes no responsibility to enact or assess any such requests or transactions.
It is the Buyer’s sole responsibility to appropriately handle, remove or destroy any Digital Good or Physical Product or Service that may cause Buyer to: (i) incur additional liability, including, but not limited to, criminal and/or civil liability; or (ii) experience additional adverse effects, including, but not limited to, potential privacy, security, or technical vulnerabilities.
6. Availability of Services, Suspension and Termination
Subject to the terms and conditions of this Agreement and WiPush's policies and procedures, WiPush shall use commercially reasonable efforts to provide the Platform in a manner that will not disrupt your business. You acknowledge and agree that from time-to-time, the Platform may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the reasonable control of WiPush or that are reasonably unforeseeable by WiPush, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that WiPush is not liable for interruptions to the availability of the Platform and further acknowledge that WiPush does not guarantee access to the Platform on a continuous and uninterrupted basis.
WiPush may decline, remove or halt sales of any Digital Good or Physical Product or Service, suspend or terminate an Account, and/or suspend or terminate the Platform at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
WiPush, in its sole discretion, may suspend or terminate your Account(s), if WiPush suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of this Agreement. In addition to the foregoing, and all other rights and remedies available to WiPush at law or in equity and notwithstanding anything in the Agreement to the contrary, in the event you breach any term of this Agreement, or your Account becomes dormant, WiPush will have the right to immediately suspend or terminate your Account and your rights to access, use and/or otherwise participate in the Platform. Upon such termination, you agree to immediately cease all use of the Platform. Without limiting the foregoing, WiPush shall have the right to immediately terminate your access and use of the Platform, or any portion thereof, in the event of any conduct that WiPush, in its sole discretion, considers unacceptable. Following suspension or termination of an Account, WiPush will review your Account in a manner determined by WiPush in its sole discretion. You agree to cooperate with this review if asked.
7. Marketing Restrictions
CAN-SPAM Act. If you send emails, directly or indirectly, in connection with any Digital Good or Physical Product or Service, then you agree, acknowledge, represent and warrant that all such emails, and procurement of email addresses thereto, shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act and the Children's Online Privacy Protection Act.
Telephone Consumer Protection Act. If you send, initiate or procure a “call” (as that term is defined by the Telephone Consumer Protection Act), directly or indirectly, in connection with any Digital Good or Physical Product or Service, you agree, acknowledge, represent and warrant that you have obtained all necessary consents and authorizations under, and will be in full compliance with, applicable laws and regulations, including without limitation regulations issued by the Federal Trade Commission, Federal Communications Commission, and state laws related to anti-spam, text messages and Do-Not-Call Registries.
8. Confidentiality and Non-disclosure Obligations
In connection with this Agreement, WiPush may disclose to you and/or you may otherwise receive or have access to sensitive, confidential, and/or proprietary information of WiPush (collectively, “Confidential Information”). Except as required to perform your obligations under and in accordance with the terms of this Agreement, you shall not disclose or use the Confidential Information, without the express prior written consent of WiPush. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, Users to subscribe to any other services or promote the sale of any products that compete, either directly or indirectly, with WiPush or the functionality and services offered by the Platform. You agree and acknowledge that WiPush may be required to provide to governmental agencies or other third parties information in its possession regarding you or the business you conduct with WiPush or via the Platform.
9. Export Control
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other U.S. Laws. You hereby represent and warrant that any Digital Good or Physical Product or Service Promoted or Delivered is approved for export from the United States without additional authorization or licensing from the U.S. government. Should the export authorization status of your Digital Good or Physical Product or Service change, you must immediately notify WiPush in writing. Information on U.S. export control regulations can be found on the websites of the U.S Department of Commerce, U.S. Department of State and the U.S. Department of the Treasury.
10. Required Permits
It is your sole responsibility to obtain and maintain all applicable consents, licenses and permits required for the operation of your business.
In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever (each, a “Claim”) in connection with your use of the Platform, including without limitation your activities to Promote and/or Deliver Digital Goods or Physical Products or Services, you shall defend, indemnify and hold harmless WiPush, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (each, a “WiPush Party”; and collectively, the “WiPush Parties”), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, litigation, and reasonable attorneys' fees and costs) (“Losses”) incurred by any WiPush Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
Upon receiving notice of a Claim for which WiPush is entitled to indemnification by you, WiPush shall provide you with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by WiPush will require WiPush's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve you of your indemnification obligations; and (iii) WiPush may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at WiPush's own expense, unless you fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case you shall pay all expenses related to WiPush's use of such counsel.
12. Limitation of Liability
In no event shall any WiPush party, or its heirs, successors and assigns, be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, resulting from, or in connection with this agreement and/or any (a) use of or inability to use the platform, (b) personal injury, property damage, or losses of any kind, resulting from your access to and/or use of the platform, (c) unauthorized access to or use of any and all personal information and/or financial information stored therein, (d) interruption or cessation of transmission to or from the platform, and/or (e) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the platform, whether or not WiPush is advised of the possibility of such damages. Notwithstanding anything herein to the contrary, the maximum cumulative and aggregate liability of WiPush for all costs, losses or damages from claims arising under or related in any way to this agreement, whether in contract, tort or otherwise, shall not exceed an amount equal to the total amounts due and payable by WiPush to you under this agreement for the month immediately preceding the date upon which such damages accrue. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The platform, and any services or information offered through or in association with the platform, would not be provided without such limitations and you agree that the limitations of liability and disclaimers specified herein will survive and apply even if found to have failed of their essential purpose. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, you agree that the liability of WiPush shall be limited to the fullest extent permitted by such jurisdiction.
13. No Guarantee of Validity
WiPush does not endorse, approve, or certify any information provided on or through the Platform, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Platform may or may not be current as of the date of your access, and WiPush has no duty to update and maintain such information. Additionally, the information provided on or through the Platform may be changed periodically without prior notice. All content provided on or through the Platform is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness. If you have a dispute with one or more users, including any users that has purchased items from you as a Buyer or any user from whom you have purchased a Digital Good or Physical Product or Services, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU UNDERSTAND THAT WiPush DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM.
If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
WiPush MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE OBTAINED THROUGH THE PLATFORM 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 PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
15. Legal Disputes
If a dispute arises between you and WiPush, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and WiPush agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly by email at support@WiPush.io to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against WiPush must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost- effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) 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; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction
All claims you bring against WiPush must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to the Legal Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Legal Disputes Section, WiPush may recover attorneys' fees and costs up to $1,000, provided that WiPush has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
16. Digital Millennium Copyright Act Notice
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on or through the Platform, please notify WiPush’s at SUPPORT@WiPush.io, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit WiPush to locate the material;
Information reasonably sufficient to permit WiPush to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party must be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The above information must be submitted to the following address:
Only DMCA notices mailed to the address above or emailed to support@WiPush.io will be accepted. All other inquiries or requests will be discarded. Upon receiving a complaint related to copyright infringement, WiPush may remove the content identified as being infringing. In addition, WiPush may, but is under no obligation to, terminate the Account of the party that appears to be the infringer.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
18. No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
19. Consumer Services
In accordance with Cal. Civ. 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.
You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using WiPush's name or referencing the Platform; or (iii) suggesting or implying any endorsement by WiPush of you and/or any Digital Goods or Physical Products or Services without the prior written approval of WiPush, which WiPush may withhold in its sole discretion.
21. Equitable Actions
You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to WiPush which would not be adequately compensated by monetary damages and that WiPush may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of California or any other court of competent jurisdiction anywhere in the world (at WiPush's sole discretion), and, you hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
22. Force Majeure
Neither you nor WiPush shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (a) actual receipt, irrespective of the method of delivery; (b) the time of transmission from WiPush if sent via email, as date stamped by WiPush's systems; (c) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (d) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Any graphics or annotations provided in connection with this Agreement are for illustration purposes only and do not constitute part of the Agreement and changing a graphic does not qualify as a change to this Agreement. The list of Prohibited Products and Activities is separately maintained, and modifications thereto will not qualify as a change to this Agreement.