Terms & Conditions
IMPORTANT NOTICE: THESE PushEngage SITES AND SERVICES TERMS AND CONDITIONS (the “TERMS”) CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE PushEngage SITE AND SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms govern access to and use of Push Engage LLC (“PushEngage”, “we”, “our” or “us”) websites, products, and services (collectively, the “Site”) by individuals or entities who are any of the following (collectively, “you” or “your”):
- general website visitors to https://www.pushengage.com/ and/or other URLs owned or operated by PushEngage (each a “Website Visitor”);
- subscribers or licensees to one or more of our products or services (“PushEngage Services”) (each, a “Customer”); and
- users of PushEngage Services, including Authorized Users (as defined below) of Customer Accounts and other PushEngage Service end users (each, a “User”).
By using the Site, you accept these Terms (whether on behalf of yourself or a legal entity you represent).
If you are a Customer and have a service agreement in effect with PushEngage (the “Corporate Terms”), then these Terms apply to the extent your use of the Site, including any of the PushEngage Services referenced in the Service Schedules below, is not already governed by such Corporate Terms. These Terms are intended to govern agreements with business or corporate Customers. These Terms shall not apply to you if you wish to obtain PushEngage Services for personal use as a consumer (as defined by applicable consumer protection laws) and you shall not be entitled to avail yourself to any rights herein.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
1. UPDATES AND COMMUNICATIONS
1.1. We may revise these Terms, including changing, deleting, or supplementing with additional terms and conditions from time to time in our sole discretion, including to reflect changes in applicable law. We will post the revised terms on the Site with a “last updated” date. PLEASE REVIEW THIS WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SITE OR THE PushEngage SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any revision to the Terms.
1.2. You agree to receive all communications, correspondences, and notices that we provide in connection with our Site, including any PushEngage Services , including, but not limited to, marketing and promotional messages related to us or the PushEngage Services, correspondence regarding our delivery of the PushEngage Services, and providing you information related to your purchase of or subscription to the PushEngage Services (“Communications”), via electronic means, including by e-mail, text, in-product notifications, push notifications, or by posting them on or making them otherwise available through the Site. To the fullest extent permitted under applicable laws, you agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to the extent you are a Customer to keep your Account contact information current. At any time, you can opt out of our email marketing and promotional messages sent to you by clicking on the “unsubscribe” link in the email message.
2. OWNERSHIP
2.1. Intellectual Property. The Site contains materials that are proprietary and are protected by copyright, trademarks, service marks, patents, and other intellectual property laws and treaties.
2.1.1. You agree to abide by all applicable copyright and other intellectual property laws, as well as any additional proprietary rights notices or restrictions contained on the Site. You acknowledge that the Site contains valuable intellectual property of PushEngage and its licensors. All present and future rights in and to any and all intellectual property or other proprietary rights of any type, including without limitation information, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to such intellectual property, shall, as between you and PushEngage, at all times be and remain the sole and exclusive property of PushEngage and its licensors. Any rights not expressly granted in these Terms or otherwise in writing between you and PushEngage, are reserved by PushEngage, and any unauthorized use of any intellectual property regarding the Site is strictly prohibited.
2.1.2. The trademarks, logos, taglines, and service marks displayed on the Site (collectively, the “Trademarks”) are registered and/or unregistered Trademarks of PushEngage and its licensors. The Trademarks may not be used in any advertising or publicity, or otherwise to indicate PushEngage’s sponsorship of or affiliation with any product, service, event, or organization without PushEngage’s prior express written permission.
2.1.3. Copyright. PushEngage respects copyright law and expects its users to do the same. If you believe that any content or material on the Site may infringe copyrights you own, please notify us at https://www.pushengage.com/contact-us/.
2.2. License Restrictions. Information, including software that may be available for downloading through the Site or third-party websites or applications (“Software”) is the copyrighted work of PushEngage, its licensors, and/or such other respective third-party providers. Use of the Software is governed by these Terms and such license and/or other terms as may be required directly of you by the third-party providers. Unauthorized reproduction or distribution of the Software is expressly prohibited by law and may result in civil and criminal penalties. Violators may be prosecuted.
2.3. Submissions of User Content.
2.3.1. Submissions. The Site may enable you to submit, post, upload, or otherwise make available (collectively, “Post”) content such as questions, public messages, ideas, product feedback, comments, and other content (collectively, “User Content”) that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws.
2.3.2. Screening & Removal. You acknowledge and agree that we may or may not, at our discretion, pre-screen User Content before its appearance on the Site, but that we have no obligation to do so. You further acknowledge and agree that we reserve the right (but do not assume any obligation) in our sole discretion to reject, move, edit, or remove any User Content that is Posted to the Site. Without limiting the foregoing, we have the right to remove any User Content that violates these Terms or is otherwise objectionable in our sole discretion. You acknowledge and agree that we do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
3. RESTRICTIONS ON USE OF THE SITE
3.1. By using the Site, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
3.1.1. Is illegal, or violates any federal, state, or local law or regulation;
3.1.2. Advocates illegal activity or discusses illegal activities with the intent to commit them;
3.1.3. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
3.1.4. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
3.1.5. Interferes with any other party’s use and enjoyment of the Site;
3.1.6. Attempts to impersonate another person or entity;
3.1.7. Is of a commercial nature in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
3.1.8. Falsely states, misrepresents, or conceals your affiliation with another person or entity;
3.1.9. Accesses or uses a PushEngage Services account of a Customer without such Customer’s permission;
3.1.10. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
3.1.11. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site;
3.1.12. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
3.1.13. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
3.1.14. Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without our consent;
3.1.15. Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site;
3.1.16. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
3.1.17. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Site;
3.1.18. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site, by any means except as provided for in these Terms or with the prior written consent of PushEngage; or
3.1.19. Attempts to do any of the foregoing.
If you believe content on the Site or any activity by an individual or entity violates the above restrictions, please contact us at https://www.pushengage.com/contact-us/.
3.2. You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
3.3. You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, except as otherwise expressly provided herein, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
4. PRIVACY
4.1. PushEngage Privacy Notice. You acknowledge your understanding and hereby provide consent that, except as described in these Terms or applicable Corporate Terms, the information you provide to us or that we collect will be processed and otherwise handled as described in the PushEngage Privacy Notice and the terms set forth in the Data Protection Attachment for PushEngage Services in Schedule 2 below.
4.2. Access & Disclosure. Except as described in these Terms or applicable Corporate Terms: (i) we may access, preserve, or share any of your information when we believe in good faith that such sharing is reasonably necessary to investigate, prevent, or take action regarding possible illegal activities or to comply with legal process (e.g. a subpoena or other legal process); and (ii) we may also share your information in situations involving potential threats to the physical safety of any person, violations of the PushEngage Privacy Notice, the Terms, the Corporate Terms, or any other of our user agreements or terms in effect; or to respond to the claims of violation of the rights of third parties and/or to protect the rights, property and safety of PushEngage, our employees, users, or the public. This may involve the sharing of your information with law enforcement, government agencies, courts, and/or other organizations. Further information on how we process personal data may be found in the PushEngage Privacy Notice.
4.3. Data.
4.3.1. Data Generally. You shall be responsible for data that you provide or use in respect of the Site (including PushEngage Services). You are solely responsible for determining the suitability of use of the Site for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Site.
4.3.2. Personal Data. You warrant that collection and use of any personal information or data you provide while using the Site complies with all applicable data protection laws, rules, and regulations. You acknowledge your understanding and hereby provide your consent that we may process such personal data in accordance with the PushEngage Privacy Notice, except as permitted additionally in these Terms.
4.3.3. Usage Data. PushEngage may collect, generate, store and use diagnostic and usage-related data, and information, or insights generated or derived from the use and operation of the PushEngage Services (“Usage Data”). PushEngage owns all right, title, and interest in Usage Data and may use it for its business purposes, including providing support for PushEngage Services, customer account management, industry analysis, benchmarking, analytics, and developing and improving its products and services. Any Usage Data that PushEngage discloses will be de-identified and aggregated.
4.4. Site Visitor. You hereby represent and warrant to us that: (a) you have all requisite rights and authority to use the Site under these Terms and to grant all applicable rights herein; (b) any information you submit to us (including Posting to the Site) is true, accurate, and correct; and (c) you will not attempt to gain unauthorized access to the Site, computer systems, or networks under the control or responsibility of us through hacking, cracking, password mining, or any other unauthorized means.
5. CONFIDENTIALITY.
5.1. Scope. Our “Confidential Information” means (a) any written information, materials and other documents supplied by us related to the Site which we do not generally disclose publicly, (b) the PushEngage Services themselves, excluding any data you upload to the PushEngage Services for processing; and (c) any other of our information that we may disclose in writing or orally and is designated as confidential or proprietary at the time of disclosure, or that due to the nature of the information a reasonable person would clearly understand it to be confidential information; and (d) any amendment to the terms and conditions of these Terms between you and us. Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of these Terms you; (ii) was rightfully in your possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by you without use of our Confidential Information; or (iv) was rightfully obtained by you from a third party not under a duty of confidentiality and without restriction on use or disclosure.
5.2. Restricted Use and Nondisclosure. During and after the term, with respect to our Confidential Information you will: (a) use our Confidential Information solely for the purpose for which we provided it; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to your affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that you protect your own Confidential Information of a similar nature.
5.3. Required Disclosure. If you are required by law to disclose our Confidential Information, you will give us prompt written notice before making the disclosure, unless prohibited from doing so by the legal or administrative process and assist us to obtain where reasonably available an order protecting our Confidential Information from public disclosure.
5.4. Ownership. Notwithstanding any other provision of these Terms, you acknowledge that, as between you and us, all our Confidential Information you receive from us, including all copies thereof in your possession or control, in any media, is proprietary to and exclusively owned by us. Nothing in these Terms grants you any right, title or interest in or to any of our Confidential Information, except as provided in these Terms. Any incorporation of our Confidential Information into any of your own materials will not render our Confidential Information non-confidential.
6. TERM AND TERMINATION
6.1. Termination. You may terminate your use of the Site at any time by ceasing further use of the Site. PushEngage may terminate your use of the Site as a Website Visitor, including denying you access to the Site at our sole discretion for any reason or no reason, including for violation of these Terms. Termination of Customer’s use of the PushEngage Services is as set out in the Service Schedules below.
6.2. Effect of Termination. If these Terms expire or are terminated for any reason: (a) any and all of your liabilities to us that have accrued before the effective date of the expiration or termination will survive; (b) licenses and use rights granted to you with respect to the Site, including rights to any intellectual property therein or thereto, will immediately terminate in accordance with these Terms; (c) our obligation to provide any further access to the Site to you under these Terms will immediately terminate, except any such rights that are expressly to be provided following expiration or termination of these Terms; and (d) the provisions of Section 2 (Ownership), Section 3 (Restrictions on Use of the Site), Section 4 (Privacy), Section 5 (Confidentiality), Section 6.2 (Effect of Termination), Section 7 (Warranties and Disclaimers), Section 8 (Indemnification Obligations), Section 9 (Limitations of Liability), Section 10 (General), and Section 11 (Supplemental Terms in Certain Countries) will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to these Terms.
7. WARRANTIES AND DISCLAIMERS
7.1. THE SITE AND ANY INFORMATION WE SUPPLY YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOUR USE OF THE SITE AND INFORMATION SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTEND LEGALLY POSSIBLE, PushEngage AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“PushEngage PARTIES”): (a) MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DO NOT WARRANT THAT THE SITE OR INFORMATION ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM YOUR USE OF THE SITE AND/OR INFORMATION.
7.2. THE PushEngage PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SITE OR INFORMATION HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR THEREOF, AND ASSUME NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES RELATED TO THE SITE OR INFORMATION; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR OTHER CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF PushEngage TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
7.3. THE PushEngage PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, AND THE PushEngage PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY ACTIVITIES BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR ACTIVITIES WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
7.4. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 7 or below in Section 9. Accordingly, some of these limitations may not apply to you. If you are a resident of a state that permits the exclusion of these warranties and liabilities, then the limitations in Section 7 and Section 9 specifically do apply to you.
8. INDEMNIFICATION OBLIGATIONS
8.1. You will defend, indemnify, and hold us, our Affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Site (including the PushEngage Services); (b) violation of these Terms by you or; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and substance of all documents, data, or other content uploaded by you to the Site (including the PushEngage Services); or (e) any products or services purchased or obtained by you in connection with the Site (including the PushEngage Services).
8.2. We retain the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
9. LIMITATIONS OF LIABILITY
9.1. Disclaimer of Consequential Damages.
9.1.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, PushEngage WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE USE OF THE SITE OR INFORMATION WE SUPPLY YOU, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
9.1.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PushEngage PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (a) USE OF THE SITE OR INFORMATION WE SUPPLY YOU; (b) ERRORS, MISTAKES, OR INACCURACIES OF THE SITE OR INFORMATION; (c) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (d) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (e) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS; (f) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; (g) ANY LOSS OF YOUR DATA OR USER CONTENT FROM THE SITE; (h) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PushEngage PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (i) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS, OUR PRIVACY NOTICE, OR ANY OTHER COMMUNICATION WE MAKE OR NOTICE WE PROVIDE.
9.1.3. Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 9.1 may not apply to you.
9.2. Cap on Damages. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE OR INFORMATION WE SUPPLY YOU (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED USD $100. THE TOTAL AMOUNT PAID BY YOU TO PushEngage FOR THE PushEngage SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. ADDITIONAL OR DIFFERENT LIABILITY AMOUNTS MAY APPLY AS EXPRESSLY SET FORTH IN THE APPLICABLE SERVICE SCHEDULE BELOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THIS SECTION 9.2 SHALL (I) APPLY ONLY TO THE EXTENT PERMITTED BY PRODUCT LIABILITY LAW; AND (II) SHALL NOT APPLY IN THE EVENT THAT PERSONAL INJURY OR DEATH HAVE BEEN CAUSED INTENTIONALLY BY PushEngage OR BY PushEngage’S GROSS NEGLIGENCE.
9.3. Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
9.4. Jurisdictional Limitations.
9.4.1. Because some states and jurisdictions do not allow limitation of liability or caps on damages in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).
10. GENERAL
10.1. Third Party Content. We may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. PushEngage IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party websites or resources on the Site.
10.2. Relationship. At all times, you and we are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of ours or are otherwise authorized to bind or commit us in any way without our prior written authorization.
10.3. Trade Restrictions. You acknowledge that the Site, any information we supply you, and any other products, services, information, documentation, software, technology, technical data, and any derivatives thereof, that PushEngage makes available pursuant to these Terms (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories currently including, but not limited to, Cuba, the Crimea region of the Ukraine and Sudan, Iran, North Korea and Syria (“Trade Restrictions”). You represent and warrant that you are not: (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009. You are solely responsible for complying with Trade Restrictions for all Excluded Data and any of its content transmitted through the Site. If we determine in our sole discretion that you are actually or likely to be in violation of any representation or warranty set out in this Section, we have the right to terminate your use of and/or access to the Site immediately with or without notice to you.
10.4. Assignability. Unless such restriction is prohibited under applicable law, you may not assign your rights or obligations under these Terms without our prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. We may freely assign our rights, duties, and obligations under these Terms at any time, with or without notice to you.
10.5. Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given will be effective only if it is in writing and sent using: (a) PushEngage Services; (b) certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site for PushEngage, with a copy, in the case of PushEngage, to https://www.pushengage.com/contact-us/. You or we may change our address for receipt of notice by notice to the other party in accordance with this Section 10.5. Notices are deemed given upon receipt if delivered using PushEngage Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
10.6. Force Majeure. Except for any payment obligations, neither you nor we will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
10.7. Mandatory Arbitration, Waiver of Class Actions. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.7.1. You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 10.7 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
10.7.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at https://www.pushengage.com/contact-us/ and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to a PushEngage Services account). Except for intellectual property, you and we agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with us, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
10.7.3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to these Terms as set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of the Site or information we supply shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
10.7.4. Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgement in any court of competent jurisdiction.
10.7.5. Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS; and (c) send one copy of the Demand for Arbitration to us at: https://www.pushengage.com/contact-us/.
10.7.6. Fees & Costs. If your claim(s) total is less than US $5,000.00, then: (a) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) PushEngage will reimburse your filing fees up to a maximum of US $1,500.00 unless the arbitrator determines that your claims are frivolous; and (c) PushEngage will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
10.7.7. No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
10.7.8. Venue. Arbitration shall be initiated and take place in West Palm Beach, Florida, United States, and you and PushEngage agree to submit to the personal jurisdiction of any federal or state court in West Palm Beach, Florida in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
10.7.9. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PushEngage AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
10.7.10. Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state, or federal court or other governing body or authority with lawful jurisdiction for such disputes, or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
10.7.11. Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site or information we supply.
10.8. Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, are the final, complete, and exclusive expression of the agreement between you and PushEngage regarding the PushEngage Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Site (including the PushEngage Services) under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. PushEngage hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by you and conditions assent solely based on these Terms and conditions of these Terms as offered by PushEngage.
10.9. Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Florida, U.S.A, without reference to its choice of law rules to the contrary. For purposes of determining the governing law, you and PushEngage agree that PushEngage is the proponent of these Terms. Notwithstanding your and PushEngage’s agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in West Palm Beach, Florida, as necessary to protect the party’s rights or property pending the completion of arbitration. You and PushEngage submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in West Palm Beach, Florida, U.S.A.
10.10. Language and Translations. PushEngage may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
10.11. Waiver. The waiver by either you or PushEngage of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
10.12. Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
10.13. How to Contact Us. If you have any questions about the Site or Terms, pricing, complaints, or other inquiries, please contact PushEngage at https://www.pushengage.com/contact-us/ or 561-408-1057.
10.14. Phone Number. By sharing your phone number with us, you consent to receive billing-related text messages (e.g., payment reminders). Consent is not a condition of purchase. Message & data rates may apply. Unsubscribe at any time by replying STOP or contacting our support team.
11. SUPPLEMENTAL TERM IN CERTAIN COUNTRIES. If you reside in one of the following countries or regions, the below provisions also apply to you. To the extent there is a conflict between the provisions below and the provisions in the main portion of the Terms above, the below provisions control to the extent of that conflict.
11.1. California. If you are a California resident, you hereby 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
11.2. New Jersey. If you are a New Jersey resident, the limitations in Section 9 specifically do apply to you.
11.3. Austria. If you are domiciled in Austria, PushEngage shall be fully liable for intentional and gross negligence, as well as for any damages arising from injury to life, body or health caused by PushEngage. In the case of liability for slight negligence, PushEngage shall be liable only for breach of a material obligation (“Cardinal Duty”) and any such liability shall be limited to typical, foreseeable damages and shall not include liability for lack of economic results, loss of profit, or indirect damages. A Cardinal Duty in the meaning of this Section 11.3 is an obligation, the fulfillment of which is essential to the performance of these Terms and on the fulfillment of which the contracting party may therefore rely. If you are a consumer, nothing in these Terms affects your rights under mandatory Austrian law and these Terms will be interpreted, construed, and enforced in all respects in compliance with mandatory consumer protection laws of Austria. Notwithstanding Section 10.7 and Section 10.9 above, if you are a consumer, you may submit a claim to enforce your rights under these Terms to the competent courts in Austria. The offering of PushEngage Services is limited to businesses only. If you are a consumer in the sense of the Consumer Protection Act (“KSchG”), you must not enter an agreement with PushEngage for the PushEngage Services.
11.4. Belgium. If you are domiciled in Belgium, except in cases of intentional or gross negligence (including by its employees or agents), or of breach of essential obligations under the contract in the absence of force majeure, PushEngage shall not be liable to you for any damages arising out of or related to any transactions or uses of the Services contemplated under these Terms. Notwithstanding Section 10.4, you will have the right to assign your rights or obligations under these Terms subject to you providing 30-day prior written notice to PushEngage.
11.5. Germany. If you are domiciled in Germany, PushEngage shall be fully liable for intentional and gross negligence, as well as for any damages arising from injury to life, body or health caused by PushEngage. In the case of liability for slight negligence, PushEngage shall be liable only for breach of a material obligation (“Cardinal Duty”) and any such liability shall be limited to typical, foreseeable damages and shall not include liability for lack of economic results, loss of profit, or indirect damages. A Cardinal Duty in the meaning of this Section 11.5 is an obligation, the fulfilment of which is essential to the performance of these Terms and on the fulfilment of which the contracting party may therefore rely. If you are a consumer, nothing in these Terms affects your rights under mandatory German law and these Terms will be interpreted, construed, and enforced in all respects in compliance with mandatory consumer protection laws of Germany. Notwithstanding Section 10.7 and Section 10.9 above, if you are a consumer, you may submit a claim to enforce your rights under these Terms to the competent courts in Germany.
12. Third Party Account Information. By using PushEngage Services on the Site, Customer authorizes PushEngage and its agents to access third party sites, including that of banks and other payment gateways, designated by them or on their behalf for retrieving requested information.
SCHEDULE 1 ADDITIONAL TERMS FOR PushEngage SERVICES
1. GENERAL. The following terms apply to a respective PushEngage Service as set out below:
e. Data Protection Attachment for PushEngage Services. If you use the PushEngage Services, you accept the terms of the Data Protection Attachment for PushEngage Services Schedule 2 below.
2. DEFINITIONS
a. “AI Output” means the data output generated by AI Services from Customer’s use of such AI Services.
b. “AI Services” means any feature, functionality, product, or service made available by PushEngage (including any PushEngage Service(s)) which utilizes machine learning or artificial intelligence technology, including any of the same labeled or otherwise identified as AI-powered in PushEngage Services or applicable Documentation.
c. “Account” means a unique account established by Customer to enable its Authorized Users to access and use a PushEngage Service.
d. “Analytics Data” means any data, output (including AI Output), insights, or other information comprising, generated or derived from: (i) Customer’s and Authorized Users’ use of the PushEngage Services; and (ii) Customer Data, in each case in de-identified form.
e. “Authorized User” mean an individual natural person, whether an employee, business partner, contractor, or agent of a Customer, who is registered or permitted by Customer to use the PushEngage Services pursuant to these Terms and up to any maximum number of users or uses specified at the time of purchase (where relevant).
f. “Documentation” means any and all written materials, user manuals, and other documentation and materials supplied by us and related to the PushEngage Services, excluding any software code or other information customarily subject to a commercial licence, that is provided by PushEngage regarding the PushEngage Services. Documentation includes without limitation PushEngage’s then-current technical and functional documentation for the PushEngage Services.
3. USAGE AND ACCESS RIGHTS
a. Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms on behalf of your company or business; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Site be located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Trade Restrictions (as defined in section 10.3). You acknowledge that you are not permitted to use the Site if you cannot make these representations. If PushEngage has previously prohibited you from accessing the Site or using the PushEngage Services, you are not permitted to access the Site or use the PushEngage Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, also refer to that organization or entity).
b. Customer Responsibilities. Customers are responsible for all use of the PushEngage Services associated with its Account; (c) Customers are solely responsible for maintaining the confidentiality of their Account names and password(s); (d) Customers agree to immediately notify PushEngage of any unauthorized use of Customer’s Account of which it becomes aware; (e) Customer agrees that PushEngage will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) Customer will use the PushEngage Services for lawful purposes only and subject to these Terms.
c. Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your internal business purposes and only as expressly permitted in these Terms and any applicable paid Customer plan that enables registration of an Account for the use of a PushEngage Service (“Subscription Plan”) when applicable. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of PushEngage, you may not access or use the PushEngage Services without PushEngage’s explicit, advance, written consent, and then only for the purposes authorized in writing. Except as otherwise restricted by these Terms, PushEngage grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Subscription Plan; and (c) do not modify them in any way other than permitted by mandatory law. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access. Any violation by you of the license provisions contained in this Section 3 may result in the immediate termination of your right to use the Site, as well as potential liability for copyright infringement or other claims depending on the circumstances.
d. This Section 3 shall survive expiration or termination of the Terms.
4. RESTRICTIONS ON USE OF THE PushEngage SERVICES
a. In addition, Customers shall not, and shall not permit others to, do the following with respect to the PushEngage Services:
i. Use the PushEngage Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms or any applicable Subscription Plan;
ii. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the PushEngage Services or PushEngage’s then-current Documentation available for access by third parties except as otherwise expressly provided in these Terms; or
iii. Use the PushEngage Services for benchmarking or to compile information for a product or service;
iv. Access or use the PushEngage Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the PushEngage Services; or (ii) allowing access to your Account by a direct competitor of PushEngage.
v. Use PushEngage Services or AI Output, to train, calibrate, or validate, in whole or in part, any other systems, programs or platforms, or for benchmarking, software-development, or other purposes competitive to PushEngage Services.
5. TERMS SPECIFIC TO PushEngage SERVICES
a. Right to Use PushEngage Services. Subject to these Terms, PushEngage will provide the PushEngage Services to Customers in accordance with each Customer’s Subscription Plan, and PushEngage grants to each Customer a limited non-exclusive, non-transferable right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the PushEngage Services; (b) implement, configure, and, through its Account Administrator(s), permit its Authorized Users to access and use the PushEngage Services up to any applicable limits or maximums; and (c) access and use the Documentation.
i. Authorized Users. Authorized Users of Customer must be identified by a unique email address and user name and two or more natural persons may not use the PushEngage Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the PushEngage Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the PushEngage Services solely to support Customer’s internal business purposes.
ii. Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s Account, and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
b. Permission to Use Analytics Data; AI Output.
i. As between the parties, Customer owns AI Output (to the extent protectable under intellectual property law) (i) subject to PushEngage’s underlying ownership of PushEngage Services, AI Services, AI models, training data (excluding Customer Data), Analytics Data, AI training tools, AI Output formats, and other technology used or provided by PushEngage as part of or in connection with AI Services, and all intellectual property rights therein, including but not limited to updates, enhancements and modifications thereto (“PushEngage AI Technology”), which PushEngage solely and exclusively owns; and (ii) provided that Customer may use AI Output solely for its internal business purposes subject to the restriction set forth in Section 4(a)(v). Customer is not authorized to use (and shall not permit any third party to use) AI Services, PushEngage AI Technology, or any portion thereof except as expressly authorized by this Service Schedule and the Terms.
ii. Due to the nature of machine learning, AI Output may not be unique and AI Services may generate the same or similar output to AI Output for PushEngage, Customer, or a third party. Customer understands and agrees that similar or the same output to AI Output may be delivered to other users, and such output requested by and generated for other users is not considered AI Output or Customer Data. AI Services may in some situations produce output (including AI Output) that is inaccurate, incorrect or otherwise undesirable. Customer shall evaluate the content, nature and accuracy of any AI Output as appropriate for its applicable use case, including by using human review of AI Output.
iii. Notwithstanding anything to the contrary in the Terms, PushEngage may (i) use AI Output to provide PushEngage Services to Customer, and (ii) generate and process Analytics Data to improve PushEngage Services, including for artificial intelligence and machine learning purposes. Customer agrees that PushEngage may collect, store and use Analytics Data (defined below) in providing the PushEngage Services, supporting Customer’s use of the PushEngage Services, improving PushEngage products and services, and as part of PushEngage’s business operations. Customer may use Analytics Data provided or made accessible by PushEngage only for Customer’s internal business purposes in connection with Customer’s use of the PushEngage Services and subject to the usage restrictions set forth in the Terms. “Analytics Data” means any data, output, insights, or other information generated or derived from: (i) Customer’s and Authorized Users’ use of the PushEngage Services; and (ii) Customer Data, in each case derived or aggregated in de-identified form. This Section (Permission to Usefor Analytics Data Use; AI Output) shall survive termination or expiration of the Terms, including any Service Schedules and accompanying attachments and Exhibits to the Terms.
c. Payment Terms.
i. Subscription Plan. The prices, features, and options of the PushEngage Services depend on the Subscription Plan selected as well as any changes instigated by Customer. PushEngage does not represent or warrant that a particular Subscription Plan will be offered indefinitely and, to the fullest extent permitted under applicable laws, reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
ii. No Refunds. Customer will timely pay PushEngage all fees associated with its Subscription Plan, Account, or use of the PushEngage Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR AS OTHERWISE AGREED TO BY THE PARTIES. Charges for pre-paid Subscription Plans will be billed to Customer in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears unless otherwise specified in the Subscription Plan.
iii. Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider (“App Store”). Customer must promptly notify PushEngage of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES PushEngage OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE PushEngage SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (each as defined in Section 5(d)(i), below) until Customer cancels as set forth in Section 5 of these Terms.
iv. Late Fees & Collection Costs. If PushEngage does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by PushEngage to collect any amount that is not paid when due. PushEngage may accept payment in any amount without prejudice to PushEngage’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to PushEngage may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from PushEngage.
v. Invoices. PushEngage will provide billing and usage information in a format we choose, which may change from time to time. PushEngage reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within fifteen (15) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within fifteen (15) days, it agrees to waive its right to dispute such problems or discrepancies.
vi. Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from Customer’s payment card issuer or App Store until submission of the accumulated charge(s).
vii. Benefit Programs. You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, “Benefits”) through a business or government agreement with us (“Business Terms”). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and to the fullest extent permitted under applicable laws, such Benefits may be modified or terminated without notice. If you use the PushEngage Services and a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to Business Terms with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.
viii. Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the PushEngage Services. If PushEngage is required to remit Taxes associated with Customer’s purchase of, payment for, access to, or use of the PushEngage Services, PushEngage will add the amount of those Taxes, itemized where required by law, to the payment due. Taxes may be applied without notice. Taxes shall not be deducted from the payments to PushEngage, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, PushEngage receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that PushEngage can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. If applicable, Customer shall provide to PushEngage its VAT, GST, or similar tax identification number(s) to avoid application of taxes, as applicable. Customer shall use the ordered PushEngage Services for Customer’s business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s). The parties’ obligations under this Section (Tax Responsibility) shall survive the termination or expiration of these Terms.
ix. Intermediary Provider Billing. If your Subscription Plan is based on intermediary provider billing, your intermediary provider will automatically charge your App Store account monthly for the cost of the Subscription Plan and any applicable taxes. If you are not current with your Subscription Plan payments, we reserve the right to terminate your account, suspend your access to your Subscription Plan, or convert your Subscription Plan subscription to a non-subscription account. You will be responsible for paying all past due amounts
x. Termination. If these Terms expire or are terminated for any reason Customer will pay to PushEngage any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs.
d. You may elect to receive authentication and/or notification by text or ringless voicemail (“SMS Messages”) at the mobile number you provide as part of your use of the PushEngage Services. You represent that you are the subscriber of the mobile service at the mobile number provided, or that you are otherwise authorized by the subscriber to receive SMS Messages at such mobile number as part of your use of the PushEngage Services. By electing to receive and send SMS Messages, you acknowledge that message and data rates may apply under your agreement with your provider of mobile communication services (“Mobile Service Provider”). You further understand and acknowledge that your Mobile Service Provider’s network services are outside of PushEngage’s control and we are not responsible or liable for any issues arising therefrom. PushEngage will not be liable for any of the following: a) failure of delivery of any content via SMS Message; b) any delays in transmission of SMS Messages; or c) any service or other changes implemented by your Mobile Service Provider impacting the receipt or sending of SMS Messages as part of your use of the PushEngage Services.
e. SPECIFIC CAP ON DAMAGES. NOTWITHSTANDING SECTION 9.2 OF THE TERMS, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO PushEngage SERVICES PROVIDED UNDER THIS SCHEDULE 1 (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO PushEngage FOR THE PushEngage SERVICE(S) GIVING RISE TO THE CLAIM UNDER THIS SCHEDULE 1 DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER.
f. Free Trial and Special Offers for PushEngage Services.
i. If you register for a free trial, promotional offer, or other type of limited offer for use of PushEngage Services (“Free Trial”), you may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding. This Section (Free Trial and Special Offers for PushEngage Services) supersedes and applies notwithstanding any conflicting provisions with regard to access and use of a Free Trial.
ii. To the fullest extent permitted under applicable laws, PushEngage reserves the right to reduce the term of a trial period or end it altogether without prior notice.
iii. The version of the PushEngage Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT A CUSTOMER ENTERS INTO THE PushEngage SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE CUSTOMER: (a) PURCHASES A SUBSCRIPTION PLAN TO PushEngage SERVICES THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
iv. Notwithstanding any other provision of these Terms, including without limitation the warranties described in Section 7 of the General Terms (Warranties and Disclaimers) or any service-specific terms and conditions applicable to a particular PushEngage Service, including exhibits and attachments accompanying such schedule (“Service Schedule”), during a Free Trial the PushEngage Services are provided “AS IS” and “as available” without any warranty that may be set forth in these Terms, and PushEngage DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND PushEngage’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE FREE TRIAL IS $100. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
g. Material Products. Customer will provide PushEngage with material and data in a condition that is “server-ready”, which is in a form requiring no additional manipulation on the part of PushEngage. PushEngage shall make no effort to validate this information for content, correctness or usability. Use of PushEngageServices requires a certain level of knowledge in the use of Internet languages, protocols, and software depending on the anticipated use and desired content of Customer.
h. Fair Usage Policy. Unless otherwise agreed to in writing, all plans are subject to the following fair usage limits for monthly push notifications sent:
Standard Plans
Free – 30 campaigns for lifetime.
Business – 40x the number of total allotted subscribers in the plan
Premium – 50x the number of total allotted subscribers in the plan
Growth – 75x the number of total allotted subscribers in the plan
Custom Plans
Custom plans consist of accounts that are on our Enterprise plan or have more than 500,000 subscribers. All Custom plans are quoted with custom subscribers and send limits.
Overage Policy
Usage in excess of these limits will be subject to a subscription plan upgrade. We will automatically upgrade your account to the least expensive plan that matches your usage needs.
i. Service Level. If PushEngage fails to provide PushEngage Services in accordance with the applicable service levels, except for force majeure events, then PushEngage may provide to customer monetary credits. The value of such monetary credits shall be determined by PushEngage in its sole discretion.
6. Your Confidential Information.
a. Scope. “Confidential Information” for you as a Customer and your Affiliates (defined below) means (a) data uploaded by you or your Affiliates to the PushEngage Services (“Customer Data”); (b) any other information of you, including your Affiliates, that you disclose to us in writing or orally and is designated as confidential or proprietary at the time of disclosure to us; and (c) any amendment to the terms and conditions of these Terms between you and us. Your Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Section by us; (ii) was rightfully in our possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by our without use of your Confidential Information; or (iv) was rightfully obtained by us from a third party not under a duty of confidentiality and without restriction on use or disclosure.
b. Restricted Use and Nondisclosure. During and after the term, we will: (a) use your Confidential Information solely for the purpose for which it is provided to us; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to our Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that we protect our own Confidential Information of a similar nature.
c. Required Disclosure. If we are required by law to disclose your Confidential Information, we will use reasonable efforts to give you prompt written notice before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist you to obtain where reasonably available an order protecting your Confidential Information from public disclosure.
d. Ownership. Notwithstanding any other provision of these Terms, we acknowledge that, as between you and us, all your Confidential Information we receive from you, including your Customer Data, is owned by you. Nothing in these Terms grants us any right, title or interest in or to any of your Confidential Information except as provided in these Terms. All other data regarding the PushEngage Services, as between you and us, at all times are and will remain our sole and exclusive property.
7. Term and Termination – Customers.
a. Suspension of Access to PushEngage Services. In accordance with these Terms, PushEngage may suspend any use of the PushEngage Services, remove any content or disable or terminate any Account or Authorized User that PushEngage reasonably and in good faith believes violates these Terms. PushEngage will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless PushEngage reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the PushEngage Services or a third party. Under circumstances where notice is delayed, PushEngage will provide the notice if and when the related restrictions in the previous sentence no longer apply.
b. Term. The period of effectiveness of these Terms, with respect to PushEngage Services, begins on the date the Customer accepts these Terms and continues until the Customer’s Subscription Plan expires or its use of the PushEngage Services ceases (including as a result of termination in accordance with this Section 6), whichever is later (“Term”).
c. Subscription Term and Automatic Renewals.
i. PushEngage’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to PushEngage Services (c) PushEngage declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
ii. Promotional codes may only be used for your first Subscription Term. If you purchased your Subscription Plan with a promotional code, each time your Subscription Plan renews you will be charged the full annual billing amount. If your Subscription Plan is ever terminated for any reason, and you purchase another Subscription Plan, you shall not be eligible to use a promotional code.
iii. We reserve the right to modify, terminate, or otherwise amend the fees and features associated with your Subscription Plan to the fullest extent permitted under applicable laws. We may also recommend that you purchase a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, unless prohibited by applicable laws, your continued use of the PushEngage Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may terminate your Subscription Plan as described in Section 6. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
d. Termination by Customer. You may terminate your Account at any time upon ten (10) days’ advance written notice to PushEngage. If you wish to terminate, you must cancel your Account in the dashboard. If you purchased your Subscription Plan through an external service, such as an App Store, you must use the tools made available by those services to manage and/or terminate your Subscription Plan. Section 4(b)(ii) notwithstanding, if a Customer terminates its annual Subscription Plan within the first fourteen (14) days of the initial Subscription Term, it may submit a written request to PushEngage for a refund of the fees paid to PushEngage for the initial Subscription Term, which PushEngage will consider, without obligation, in good faith. PushEngage has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first fourteen (14) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate substantial productive use took place during that period.
e. Default; Termination by PushEngage. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the PushEngage Services; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the PushEngage Services by the Customer (or its Authorized Users) creates legal risk for PushEngage or presents a threat to the security of the PushEngage Services or PushEngage’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the PushEngage Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A PushEngage “Affiliate” means any legal entity that PushEngage, Inc. owns, that owns PushEngage, Inc. or that is under common control with PushEngage, Inc. A Customer “Affiliate” means any legal entity that Customer owns, that owns Customer or that is under common control with Customer. “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.
f. Effect of Termination. If these Terms expire or are terminated for any reason: (a) any and all of your liabilities to us that have accrued before the effective date of the expiration or termination will survive; (b) licenses and use rights granted to you with respect to the Site, including rights to any intellectual property therein or thereto, will immediately terminate in accordance with these Terms; (c) our obligation to provide any further access to the Site to you under these Terms will immediately terminate, except any such rights that are expressly to be provided following expiration or termination of these Terms; and (d) the provisions of Section 4(b)(ii) (No Refunds), Section 4(b)(vii) (Benefit Programs), Section 4(b)(xiii) (Tax Responsibility), and Section 4(d) (Free Trial and Special Offers for PushEngage Services) of this Schedule 1 (Additional Terms for PushEngage Services), as well as provisions designated to survive under the Terms, any Service Schedules and accompanying attachments and Exhibits to the Terms.
SCHEDULE 2
DATA PROTECTION ATTACHMENT FOR PushEngage SERVICES
This Data Protection Attachment for PushEngage Services (“DPA”) is incorporated into and made part of the Terms. Unless otherwise defined in this DPA, capitalized terms will have the meaning given to them in the Terms.
1. DEFINITIONS. For purposes of this DPA:
a. “Processor Policy” means PushEngage’s Processor Policy for Processors, the most current version of which is available on PushEngage’s website here.
b. “Controller,” “Business,” “Processor,” and “Service Provider” (or equivalent terms) have the meanings set forth under Data Protection Laws.
c. “Data Protection Laws” means all applicable laws, regulations, and other legally binding requirements in any jurisdiction relating to privacy, data protection, data security, breach notification, that apply to PushEngage’s Processing of Personal Data, including, without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. and any associated regulations and amendments, including, when effective, the California Privacy Rights Act amendments (“CCPA”); the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”); the Swiss Federal Act on Data Protection (“FADP”); the United Kingdom Data Protection Act of 2018 (“UK GDPR”); the Australian Privacy Act (No. 119, 1988) (as amended) (“the Privacy Act”); the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); Law No. 13.709 of 14 August 2018, General Personal Data Protection Law (as amended by Law No. 13.853 of 8 July 2019) (”LGPD”); and the Singapore Personal Data Protection Act 2012 (No. 26 of 2012) (“PDPA”).
d. “Data Breach” means any accidental or unlawful acquisition, destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data managed by PushEngage.
e. “Data Subject” means an identified or identifiable natural person about whom Personal Data relates (or equivalent term under Data Protection Laws).
f. “Personal Data” includes “personal data,” “personal information,” “personally identifiable information,” or equivalent terms that is Processed by PushEngage in connection with providing PushEngage Services under the Terms, and such terms shall have the same meaning as defined by Data Protection Laws.
g. “Process” and “Processing” has the meaning set forth under Data Protection Laws, and includes any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2. SCOPE AND PURPOSES OF PROCESSING.
a. Depending on Data Protection Laws, Customer is a Controller or Business and PushEngage is a Processor or Service Provider with respect to PushEngage’s Processing of Personal Data to provide the PushEngage Services under the Terms. This DPA applies to PushEngage’s Processing of Personal Data on Customer’s or Customer Affiliate’s behalf (as applicable) for the provision of the PushEngage Services as specified in the Terms. Each Party is responsible for compliance with its own respective obligations under Data Protection Laws. For the avoidance of doubt, PushEngage is not responsible for complying with Data Protection Laws applicable to Customer or Customer’s industry such as those not generally applicable to online service providers.
b. PushEngage will Process Personal Data solely: (i) to fulfill its obligations to Customer under the Terms, including this DPA; (ii) on Customer’s behalf pursuant to Customer’s instructions; and (iii) in compliance with Data Protection Laws. PushEngage will follow such Customer’s instructions at no additional cost to Customer if PushEngage does not expect to incur additional charges or fees not reasonably covered by the fees for the PushEngage Services payable under the Terms, including, without limitation, additional license or third-party contractor fees. If additional charges or fees are expected, PushEngage will promptly inform Customer upon receiving Customer’s instructions and the Parties will negotiate in good faith with respect to any such charges or fees. Customer acknowledges and agrees that PushEngage is not responsible for performing legal research and/or for providing legal advice to Customer.
c. PushEngage will not “sell” Personal Data (as such term in quotation marks is defined in Data Protection Laws), “share” or Process Personal Data for purposes of “cross-context behavioral advertising” or “targeted advertising” (as such terms are defined in Data Protection Laws), or otherwise Process Personal Data for any purpose other than for the specific purposes set forth herein, unless obligated or permitted to do otherwise under applicable law.
d. Customer will ensure that: (i) all such notices have been given, and all such authorizations have been obtained, as required under applicable laws, for PushEngage (and its Affiliates and Subprocessors) to process Personal Data as contemplated by the Terms and this DPA; (ii) it has complied, and will continue to comply, with all applicable laws; and (iii) it has, and will continue to have, the right to transfer, or provide access to, Personal Data to PushEngage for Processing in accordance with the terms of the Terms and this DPA.
e. Unless otherwise specified in the Terms, Customer agrees it will not provide PushEngage with any sensitive or special categories of Personal Data that impose specific data security or data protection obligations on PushEngage in addition to or different from those specified in this DPA (including any appendix to the DPA) or Agreement.
3. PERSONAL DATA PROCESSING REQUIREMENTS.
PushEngage will:
a. Ensure that the persons it authorizes to Process the Personal Data are subject to confidentiality obligations regarding such activity or are under an appropriate statutory obligation of confidentiality.
b. Promptly notify Customer of: (i) any third-party or Data Subject complaints regarding the Processing of Personal Data; or (ii) any government request for access to or information about PushEngage’s Processing of Personal Data on Customer’s behalf, unless prohibited by applicable laws.
c. Upon prior written request, provide to Customer reasonable assistance and information regarding the PushEngage Services provided under the Terms to assist Customer in (a) Customer’s performance of a data protection impact assessment of the PushEngage Services, and (b) an investigation by any regulatory authority to the extent that such investigation relates to Customer’s use of the PushEngage Services and the Processing or proposed Processing of Personal Data by PushEngage in accordance with the Terms, when required by Data Protection Laws. Such assistance will be at Customer’s sole expense, except where such assistance is required due to PushEngage’s failure to act in accordance with the Terms.
d. Promptly notify Customer if it determines that: (i) it can no longer meet its obligations under this DPA or Data Protection Laws; or (ii) in its opinion, an instruction from Customer infringes Data Protection Laws.
4. DATA SUBJECT REQUESTS.
a. If PushEngage receives a direct request from a Data Subject regarding rights under Data Protection Laws, PushEngage will promptly notify the request to Customer if the Data Subject has identified Customer as Controller of the Personal Data subject to the request and may inform the Data Subject that it has done so. PushEngage will provide reasonable assistance to Customer in fulfilling its obligations under Data Protection Laws to respond to Data Subject requests, but Customer understands and agrees that, as a Controller, Customer is solely responsible for responding to such Data Subject’s requests or inquiries and that PushEngage has no responsibility to respond to a Data Subject for or on behalf of Customer.
b. If Customer receives a request or inquiry from a Data Subject related to Personal Data Processed by PushEngage, Customer can either: (i) access its PushEngage Services containing Personal Data to address the request or inquiry; or (ii) to the extent such access is not available to Customer, contact PushEngage customer support for additional assistance to enable Customer to address the request or inquiry.
5. DATA SECURITY.
a. PushEngage will implement appropriate administrative, technical, physical, and organizational measures to protect Personal Data. Details regarding the specific security measures that apply to the PushEngage Services are as described in the Processor Policy and the Terms. Customer acknowledges that PushEngage’s security measures are subject to technical progress and development and that PushEngage may update or modify the security measures from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the PushEngage Services purchased by Customer.
b. Customer shall be responsible for properly implementing access and use controls and configuring certain features and functionalities of the PushEngage Services that Customer may elect to use and agrees that it will do so in accordance with this DPA and the Terms in such manner that Customer deems adequate, including, without limitation, maintaining appropriate security, protection, deletion, and backup of its own Personal Data.
6. DATA BREACH. PushEngage will notify Customer without undue delay upon becoming aware of any Data Breach and resulting from PushEngage’s Processing of Personal Data on behalf of Customer.
7. SUBPROCESSORS.
a. Customer acknowledges and agrees that PushEngage may use PushEngage Affiliates and other Subprocessors (as defined in Data Protection Law) to Process Personal Data in accordance with the provisions within this DPA and Data Protection Laws. Where PushEngage subcontracts any of its rights or obligations concerning Personal Data, including to any Affiliate, PushEngage will take steps to select and retain Subprocessors that are capable of maintaining appropriate privacy and security measures to protect Personal Data consistent with Data Protection Laws and this DPA and require that each Subprocessor complies with obligations that are no less restrictive than those imposed on PushEngage under this DPA.
8. INTERNATIONAL DATA TRANSFERS.
a. To the extent PushEngage’s cross-border Processing of Personal Data involves a transfer of Personal Data subject to cross-border transfer obligations under Data Protection Laws, the Processor Policy apply to the Processing of Personal Data by PushEngage and/or its Affiliates as part of the provision of PushEngage Services under the Terms. The Processor Policy are incorporated by reference into this DPA, and PushEngage agrees to use commercially reasonable efforts to maintain the regulatory authorization of the Processor Policy or other appropriate cross-border transfer safeguards for the duration of the Terms.
b. PushEngage will not engage in any cross-border Processing of Personal Data, or transmit, directly or indirectly, any Personal Data to any country outside of the country from which such Personal Data was collected, without complying with Data Protection Laws. Where PushEngage engages in an onward transfer of Personal Data, PushEngage shall ensure that a lawful data transfer mechanism is in place prior to transferring Personal Data from one country to another.
9. RETURN OR DESTRUCTION OF PERSONAL DATA. Prior to termination or expiration of the Terms, Customer may retrieve Personal Data processed by PushEngage in accordance with the terms of the Terms and at Customer’s request, PushEngage will promptly delete all Personal Data in its possession or control as soon as reasonably practicable, save that this requirement will not apply to the extent that PushEngage is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which Personal Data PushEngage will securely isolate and protect from any further processing, except to the extent required by applicable law. For Personal Data stored in Customer’s service environment, or for the PushEngage Services for which no bulk data retrieval functionality is provided by PushEngage as part of the PushEngage Services, Customer acknowledges that it is required to take appropriate action to back up or otherwise store separately any Personal Data while the PushEngage Services environment is still active prior to termination and acknowledges that if Customer elects to have Personal Data returned, Customer acknowledges that PushEngage does not offer bulk data retrieval as part of the PushEngage Services and Customer will be required to engage PushEngage Professional Services or customer support at a reasonable fee payable by Customer to PushEngage.
10. DISALLOWED CONTENT
The User shall not use the Website to promote, in any manner Disallowed Content. In the event of the User uses the Website to promote Disallowed Content, the Company shall be entitled to terminate the User’s subscription to the Website.
The following content shall constitute Disallowed Content:
- Adult content: Any site whose revenue is gained in part or whole from its adult content. Photos or videos showing frontal nudity on either men or women for non-scientific or non-artistic purposes. Hyperlinks to adult sites, including but not limited to sites who violate these policies. Sites that have discussion boards and share information that is ‘adult’ in nature. Sites that sell or promote ‘adult’ material, including but not limited to adult toys.
- Online gambling
- Sweepstakes and Sites promoting Freebies
- Hate sites
- Link Farms and Spam sites
11. MISCELLANEOUS PROVISIONS.
a. Notwithstanding anything else to the contrary in the Terms, PushEngage reserves the right to make any modification to this DPA as may be required to comply with Data Protection Laws so long as any such modification shall not degrade any service functionalities or safeguards associated with providing the PushEngage Services.
b. Any claims brought under this DPA shall be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Terms.
This DPA will remain in force and effect through the term of the Terms, or for as long as PushEngage is Processing Personal Data subject to this DPA, whichever is longer.
Last updated: September 1, 2024