(“FoxPush, We, or Us”) and the Publisher (as defined in Section 2 herein) hereby agree to the terms and conditions set forth in these Terms of Service (the “Terms of Service”). These Terms of Service confirm and clarify respective rights and obligations between FoxPush and the Publisher in connection with Publisher’s access to and use of the FoxPush Platform and the Services.
DEFINITIONSThe following terms have the meanings ascribed to them below. All references to Section or Subsection numbers refer to Sections or Subsections in these Terms of Service, unless expressly stated otherwise.
- “Account” means an account created for Publisher by completing the registration process on the Site or by a FoxPush Sales representative for Publisher’s authorized access to and use of the Services on the Site.
- “FoxPush Platform” means the FoxPush proprietary marketing platform, which facilitates online and application marketing, personalization, and sharing Publisher Content on the web through use of FoxPush dashboard that allows participating websites to offer personalized push notifications for their end users.
- “FoxPush Technology” means software, code, proprietary methods and systems used to provide the Site or Services. FoxPush Technology includes the FoxPush Platform, Site and Downloadable Code.
- “Downloadable Code” means the code provided on the Site that enables the installation of the FoxPush Technology on the Publisher Site(s).
- “End User” means an individual who is accessing a Publisher Site.
- “Personnel” means, collectively or individually, as the context requires, those employees, agents, contractors and consultants of a party and those of its consultants, subcontractors, representatives, agents, or subcontractors.
- "PI" means information defined as personally identifiable or personal information or data by the applicable Rules of the jurisdiction Publisher Data is collected.
- “Publisher Content” means the content on the Publisher Site.
- “Publisher Data” means the data collected from the Publisher Site(s) (i) upon download of the FoxPush Codes by the Publisher and (ii) regarding End User’s visit to and activity on the Publisher Site(s).
- “Publisher Site” means a website, URL, web page and software application, owned or operated by Publisher on which the Services are enabled or used.
- “Rules” means all applicable data protection, electronic communications and privacy laws, rules, regulations, regulatory guidelines, as well as any applicable self-regulatory guidelines.
- “Services” means the technology, services, and applications provided by FoxPush including, without limitation, reports or other customized services that are related to the Publisher Site(s).
- “Site” means https://www.foxpush.com/
Publisher is the owner or operator of the Publisher Site(s) (“Publisher”) and desires to use the FoxPush Platform to personalize the Publisher web push notifications, recommendations and messaging on Publisher Site(s), and to allow End Users to, among other things, subscribe, view, click, recommended and interact with Publisher Content using FoxPush services. The FoxPush Platform is designed to maximize distribution of Publisher Content, drive traffic back to the Publisher Site(s), boost conversion on the Publisher Site(s) (such as signups and purchases), and provide Publisher with insight into End Users’ engagement, conversion and other activities on Publisher Site(s).
- LICENSE. By downloading the Downloadable Code from the Site and accessing or using the Services on the Publisher Site(s) or within Publisher Content, the Publisher agrees that FoxPush may collect Publisher Data related to an End User's visit to and activity on the Publisher Site(s).
By downloading the Downloadable Code from the Site and accessing or using the Services on the Publisher Site(s) or within Publisher Content, except as specified in Section 11, Publisher grants FoxPush a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sublicensable license to:
- collect, use and disclose the Publisher Data to third parties consistent with the FoxPush Terms of Service and to allow FoxPush’s third party data partners to do the same. FoxPush may use Publisher Data to target advertising toward the End User and/or authorize FoxPush’s third party data partners to do the same - Additional Information about DATA COLLECTION in Section 9; and
- use, reproduce, modify, adapt, translate, publish, publicly perform, publicly display, broadcast, transmit and distribute the Publisher Data for any purpose and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to incorporate or implement the Publisher Data into any FoxPush product or service (including the Services), and to display, market, sublicense and distribute the Publisher Data as incorporated or embedded in any product or service (including the Services) distributed or offered by FoxPush without compensation to Publisher.
- Publisher warrants that: (a) it has the right and authority to grant this license; (b) FoxPush’s exercise of the rights granted pursuant to this license will not infringe or otherwise violate any End User’s or any third party rights; and (c) all so-called moral rights in the Publisher Data have been waived to the full extent allowed by law.
- In order to access the FoxPush Platform and as part of the Services, reports or other customized services that are related to the Publisher Site(s), Publisher must create an Account on the Site.
- Publisher agrees to provide only true, current, accurate, and complete registration information, and keep that information true, accurate, and up-to-date.
- Publisher must abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including the Rules and those related to data privacy, international communications and the transmission of technical or personal data. Publisher may not use its Account in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others.
- Publisher may be required to choose a password and a user name. Access to and use of password protected or secure areas of the Site are restricted to authorized Personnel only. Publisher agrees not to share password(s), account information, or access to the Site with any person other that authorized Personnel of Publisher. Publisher may not authorize any third party to use its Account. Publisher is responsible for maintaining the confidentiality of password(s) and Account information, and is responsible for all activities that occur through the use of its password(s) or Account(s) or as a result of Publisher’s access to the Site. Publisher agrees to notify FoxPush immediately of any use of its password(s) or Account(s) that it did not authorize.
- Fees. Publisher will pay all applicable fees when due in accordance with any plan, invoice or other applicable terms, including billing and payment frequency, associated with the level and type of Services selected by Publisher upon Account creation.
- Refunds. Certain refund requests for Subscriptions may be considered by FoxPush on a case-by-case basis and granted in sole discretion of FoxPush.
- Publisher is responsible for the Publisher Content on the Publisher Site(s) and agrees that it will only upload, publish, transmit, display or otherwise make available on the Publisher Site(s) or through the Services ("Subscribe"), content that it has the right and authority to push notification and for which Publisher has all rights and authority to grant to FoxPush all of the licenses and rights set forth herein.
- FoxPush does not endorse any Publisher Content or any opinion, recommendation, or advice expressed in any Publisher Content, and FoxPush expressly disclaims any and all liability in connection with any Publisher Content.
- Termination. Publisher acknowledges and agrees that FoxPush, in its sole discretion, may terminate Publisher’s use of the Site and/or the Services without prior notice for any reason at any time. Publisher agrees that FoxPush shall not be liable to Publisher or any third party for termination by FoxPush.
- Effect of Termination. Upon any termination of this Terms of Service, Publisher shall immediately discontinue all access to and use of the Services and remove all FoxPush, Downloadable Code and other FoxPush Technology from the Publisher Site(s). FoxPush, in its discretion, may close, Publisher’s Account.
- Survival. Those Sections that by their nature would reasonably be expected to survive will survive termination or expiration of this Terms of Service, including Ownership and FoxPush Licenses, FoxPush Trademarks, Data Collection, Rights and Publisher Policies, Confidential Information, Limitations of Liability and Publisher Content, Indemnification, Miscellaneous and this Section. Any provisions regarding ownership and any licenses that by their terms survive termination, will survive the expiration or termination of the Terms of Service for any reason.
GENERAL RULES OF CONDUCT
Publisher agrees not to, nor allow anyone accessing Publisher’s Account or the Site or Services, to:
- Conduct or promote any illegal activities while using the Site or Services;
- Upload, distribute, push, transmit or otherwise make available, including through the FoxPush Platform or Services, any Publisher Content or information that is unlawful, harmful, threatening, abusive, harassing, defamatory, pornographic, vulgar, obscene, libelous, invasive of another's privacy, hateful, harmful to minors in any way, or racially, ethnically or otherwise objectionable;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site or Services, or otherwise attempt to derive the source code of the FoxPush Technology (including the tools, methods, processes, and infrastructure) or other code or software that enables or underlies the Site or Services;
- Modify, change or alter in any way, the proprietary Publisher Content of a third party using the FoxPush Technology or Services;
- Promote or advertise any item, good or service that (i) violates any applicable federal, state, or local law or regulation, including, the Rules, (ii) violates the terms of service of any website upon which the Publisher Content is viewed or (iii) FoxPush determines, in its sole discretion, is inappropriate to be promoted through the Site or the Services;
- Impersonate any person or entity, or otherwise misrepresent Publisher’s affiliation with a person or entity; or
- Mirror or frame the Site or any portion of the Site, place pop-up windows over its pages, or otherwise affect the display of its pages.
OWNERSHIP AND FoxPush LICENSES
Publisher understands and acknowledges that the FoxPush Technology is: (i) copyrighted by FoxPush or its licensors under international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by FoxPush or its licensors. Subject to the terms of this Terms of Service, FoxPush hereby grants to Publisher a limited, non-exclusive, worldwide license to use and reproduce the Downloadable Code and to display the FoxPush Tools as manifested by the Downloadable Code, with the understanding that this right and license is only granted to Publisher and may not be sublicensed or transferred to any other party. Except if specifically allowed by FoxPush, FoxPush Technology may not be modified, reproduced, republished, posted, displayed, performed, transmitted, sold, offered for sale, or redistributed in any way without FoxPush’s prior written permission and the prior written permission of its applicable licensors.
In the event that Publisher provides FoxPush with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Site, FoxPush Technology or the Services, (collectively "Feedback"), Publisher agrees that FoxPush may use the Feedback to modify the FoxPush products, technology and services and that Publisher will not be due any compensation, including any royalty related to the product, technology or service that incorporates the Feedback. Publisher grants to FoxPush a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same.
DATA COLLECTION, RIGHTS AND PUBLISHER PRIVACY POLICIES
- In consideration for Publisher’s access to and use of the Services, Publisher agrees that FoxPush may set cookies, Token, pixel tabs and/or web beacons (collectively, “Cookies”) on the Publisher Site(s) where the Services are enabled. When an End User visits a Publisher Site, we collect Publisher Data via Cookies. When an End User visits a Publisher Site on which the Services are enabled, FoxPush may deploy a Cookie to record information about how the End User uses the Publisher Site. FoxPush may use Publisher Data to help the Publisher to target the audience with content and advertising through web push notification.
- FoxPush uses Basic and Premium Plan Publisher Data to create commercially viable data products and services for our Business and Enterprise plans, Such Data Products include, but are not limited to, aggregate demographic and behavioral, data Segments that group End Users with common or shared interests into Segments that FoxPush or its partners have inferred (e.g., travel enthusiast, sports fan) based on some or all of the Publisher Data (“Segments”) such as demographic, interest, and geographic location data derived from an End User’s IP address. FoxPush licenses portions of the Data to its Publishers for their use in creating Segments for online content and ad targeting delivery and for other uses such as detection, prevention, and addressing fraud, security or technical issues.
- FoxPush does not sell or share Business or Enterprise Plan Publisher Data with any third party advertisers or marketers.
- In addition, FoxPush may synchronize anonymous or pseudonymous identifiers (e.g., Cookies) collected above with those of third parties (including cross-device identifiers). FoxPush does not retain or provide PI that directly identifies an individual for use in any Audience Segment or other Data Products.
- No PI that Directly Identifies an Individual. Unless otherwise expressly permitted in these Terms of Service, Publisher will not provide FoxPush with, and will not associate, or attempt to associate, FoxPush data with, any PI that directly identifies an individual (including, without limitation, an individual’s name, email address, government assigned identifier, telephone number, health information and payment card information). Publisher will not derive, or attempt to derive, PI that directly identifies an individual from any FoxPush Technology or the Services (including without limitation configuring or otherwise causing any Cookie or other technology to capture or transmit any such PI to FoxPush). Publisher will promptly notify FoxPush if Publisher discovers that it has passed any PI that directly identifies an individual to FoxPush.
MODIFICATIONS TO THE SITE OR SERVICES
FoxPush reserves the right to modify or discontinue the Site or the Services with or without notice to Publisher. FoxPush will not be liable to Publisher or any third party if FoxPush should exercise its right to modify or discontinue the Site and/or the Services. If Publisher objects to any such changes, Publishers sole recourse will be to cease to access to the Site or the Services. Publisher’s continued use of the Site or the Services following changes to the Site or the Services represents Publisher’s acceptance of those changes.
- The parties acknowledge and agree that each may have access to, or become acquainted with, Confidential Information of the other party (“Confidential Information”). Confidential Information shall be limited to the terms under this Terms of Service, Services, Data Products, Downloadable Code and FoxPush Technology, and all information clearly identified as confidential at the time of disclosure. The parties further agree that, subject to the rights and licenses granted herein, each party’s Confidential Information shall include such party’s intellectual property and all non-public information, including any customer, customer prospect, marketing, marketing and/or strategic plans or information provided by such party to the other party in the performance of the services under this Terms of Service.
- Each party agrees as follows: (i) to use the Confidential Information of the other party only for the purposes described herein; (ii) that the party receiving Confidential Information from the other party will not reproduce such Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Terms of Service, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its Personnel, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Terms of Service; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Terms of Service or upon the disclosing party’s written request. The receiving party shall, upon disclosing party’s request, certify that all Confidential Information has either been returned to the disclosing party or destroyed subject to applicable local, state, national and foreign laws, treaties and regulations.
Publisher grants to FoxPush a non-exclusive license worldwide to use Publisher’s name and logo (including references to Publisher in FoxPush’s sales presentations) for promotion of the FoxPush Platform and the Services including Publisher’s use thereof, subject to Publisher’s trademark and usage guidelines (if any) and so long as any use of such name, logo and any accompanying descriptions of Publisher’s use of the Services are first provided to and approved by Publisher, such approval not to be unreasonably withheld or delayed.
THE SITE AND SERVICES AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOXPUSH, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, QUIET ENJOYMENT, UN-INTERRUPTION, AND/OR SYSTEM INTEGRATION. FOXPUSH, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES MAKE NO WARRANTY ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF THE SITE OR SERVICES, OR THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, OR THAT THE SITE OR SERVICES ARE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATIONS OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH FOXPUSH.COM, THE SERVICES OR THIS TERMS OF SERVICE. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT FOXPUSH IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS TERMS OF SERVICE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF FOXPUSH TO PUBLISHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT OF ALL FEES PAID TO FOXPUSH BY PUBLISHER UNDER THIS TERMS OF SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL EITHER PARTY (INCLUDING FOXPUSH’S LICENSORS) BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR OTHER SIMILAR CAUSES BEYOND SUCH PARTY’S CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES, PROVIDED THAT SUCH PARTY GIVES PROMPT WRITTEN NOTICE OF SUCH CONDITION AND RESUMES ITS PERFORMANCE AS SOON AS POSSIBLE, AND PROVIDED FURTHER THAT THE OTHER PARTY MAY TERMINATE THIS TERMS OF SERVICE IF SUCH CONDITION CONTINUES FOR A PERIOD OF NINETY (90) DAYS.
- Indemnification by Publisher. Publisher will defend at its own expense, from any claim, suit or action against FoxPush brought by a third party (each, a “Claim” and collectively, the “Claims”) to the extent that such Claim is based on: (i) any Publisher Indemnity Responsibilities; (ii) Publisher’s use of the Site, the FoxPush Technology or the Services not in conformance with this Terms of Service, including without limitation any use or modification of the Downloadable Code, (ii) Publisher’s violation of this Terms of Service, (iv) Publisher’s violation of any Rules or rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by Publisher into the Site, the FoxPush Technology or the Services.
- Procedures. A party seeking indemnification (the “Indemnified Party”) shall promptly provide written notice of the Claim to the party responsible for indemnification (the “Indemnifying Party”). Failure to timely provide such notice shall not diminish the Indemnifying Party’s indemnification obligation except to the extent the Indemnifying Party’s ability to defend an applicable Claim is materially prejudiced by such failure or delay. The Indemnified Party shall provide the Indemnifying Party with such information and cooperation as the Indemnifying Party may reasonably request at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall have (i) sole control of the defense and settlement of any Claim and (ii) no obligation to indemnify the Indemnified Party under any settlement made without the Indemnifying Party’s written consent. Notwithstanding the foregoing, the Indemnifying Party may not settle any Claim against the Indemnified Party unless such settlement completely and forever releases the Indemnified Party with respect thereto or unless the Indemnified Party provides its prior written consent to such settlement. In any Claim or action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
- Infringement Claims. Upon the occurrence of a Claim for which indemnity is or may be due, or in the event that FoxPush believes that such a Claim is likely, FoxPush may, at its option (i) appropriately modify the Services so that they become non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Terms of Service on written notice to Publisher. Publisher agrees that FoxPush’s performance of its obligations under this Section constitute Publisher’s exclusive remedy, and FoxPush’s sole obligation, with respect to a third party infringement claim.
- Notices. Any notice or other communication required or permitted under this Terms of Service shall be in writing and will be deemed to have been duly given if delivered personally, mailed by first-class, email, registered or certified Autralian mail with the required pre-paid postage and return receipt requested, or by a recognized courier service, shipment charges pre-paid, properly at its address specified in the opening paragraph of the Terms of Service. In the case of notice to FoxPush such physical notice shall be sent to: FoxPush, 35th Floor, Tower One, International Towers, 100 Barangaroo Avenue, Sydney, NSW, Australia, Attention: General Counsel, Legal Department. Either party may from time to time change the individual to receive notices or its address by giving the other party notice of the change in accordance with this Section.
Applicable Law. Each party agrees to the applicable governing law below without regard to choice or conflicts of law rules and to the exclusive jurisdiction of the applicable courts below:
- If the Client is domiciled in the United States of America, Canada, Mexico, Australia, New Zealand or any other country excluding middle eastern countries (GCC countries, Levant and North Africa) and Europe – Sydney, Australia;
- If the Client is domiciled in the Middle East or Europe – Dubai, UAE;
- Assignment. Publisher may not assign or delegate its rights or obligations under this Terms of Service, in whole or in part, whether by operation of law or otherwise, without the prior written consent of FoxPush (not to be unreasonably withheld or delayed). FoxPush shall have the right to assign this Terms of Service to an affiliate or any successor to its business or assets to which this Terms of Service relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Amendment; Waiver. FoxPush may change the terms of this Terms of Service from time to time on a going-forward basis. FoxPush will notify Publisher of any such material changes by posting notice of the changes on the Site, and/or, in FoxPush’s sole discretion, by email. Any such modifications become effective upon the earlier to occur of (i) Publisher’s acknowledgement of such modifications; or (ii) Publisher’s continued access to and/or use of the Site or the Services after FoxPush posts notice of such modifications. It is Publisher’s sole responsibility to check the Site from time to time to view any such changes to the terms in this Terms of Service. If Publisher does not agree to any changes, if and when such changes may be made to this Terms of Service, Publisher must cease access to the Site and use of the Services. No waiver under this Terms of Service shall be valid or binding against FoxPush unless set forth in writing and duly executed by FoxPush. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of FoxPush in any other respect or at any other time. Any delay or forbearance by FoxPush in exercising any right hereunder shall not be deemed a waiver of that right.
- Links to other Web Sites Our Service may contain links to third-party web sites or services that are not owned or controlled by FoxPush. FoxPush has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that FoxPush shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.