You agree to use the Site only in accordance with the Terms, whether you are a “Visitor” (which means that you simply browse the Site) or you are a “Member” (which means you have registered with us for the Site). The term “User” means a “Visitor” or a “Member.” Please read and save all of the Terms. If you do not agree with the Terms, do not use this Site or any of its features. If you register to become a Member you may be required to indicate your acceptance to these Terms during the registration process.
Notwithstanding the foregoing, if you elect to purchase or otherwise obtain access to any of Bitsmart Global’s products and services, you acknowledge and agree that your access to and use of all such products and services shall be subject to and governed solely by the terms of Bitsmart Global’s then-current Service Agreement, available at http://pushwizard.com/terms.
We may amend or terminate any Terms at any time and such amendment or termination will be effective at the time we post the revised Terms on the Site. Each time you use the Site you should visit and review the then current Terms that apply to your transactions and use of this Site. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. If you are dissatisfied with the Site, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Site. The Terms are the entire agreement between you and Bitsmart Global with respect to your use of the Site.
Use of the Site and its features and registration to be a Member (“Membership”) is void where prohibited. By using the Site and its features, you represent and warrant that (a) you are not a minor and may otherwise enter into and form binding contracts under applicable law; (b) all registration information you submit is truthful and accurate; (c) you will maintain the accuracy of such information; and (d) your use of the Site and its features does not violate any applicable law or regulation.
The Terms, as we may revise them from time to time, shall remain in full force and effect while you use the Site features or are a Member. You may terminate your Membership at any time, for any reason, by providing written notice to us. We may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, the Terms will remain in effect and you will remain bound by them except that your right to use the Site as a Member will terminate.
By registering on the site, you confirm, that you are at least 13 years old. You are allowed to register only one account per company/individual. If you register to become a Member, you will be asked to choose a user name (or email address) and password. You also agree to receive occasional notifications (Newsletter) about news, changes and technical issues regarding our website and our services by email. You are allowed to disable the Newsletter on your administration panel.
You are solely responsible for maintaining the confidentiality of this information. You are not permitted to allow anyone else to use your user name and password to log into the Site. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account so please be vigilant in protecting its confidentiality.
Users have a non-transferable, non-exclusive license to access this Site, to view information contained at this Site and to interact with the Site solely for their own personal use and not for any commercial purpose. You agree not to use the Site for any unlawful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or any portion thereof or use it in any manner not expressly authorized by the Terms. You agree not to copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Site.
Tampering with the Site, misrepresenting the identity or age of a user, using buying agents or conducting fraudulent activities on the Site are prohibited.
You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 12.
7.2 To the APIs. We may change, discontinue or deprecate any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
7.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time.
We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Site if we determine, in our sole discretion, that you have violated the Terms, pose a threat to us, our suppliers and/or our Users or for any other purpose we determine in our sole discretion.
By displaying, publishing Content on the Site, or otherwise submitting Content to us (collectively, “posting”), you hereby grant to Bitsmart Global a irrevocable, perpetual, worldwide, royalty-free, non-exclusive license to use, modify, delete from, add to, create derivative works of, publicly perform, publicly display, reproduce and distribute (and to sublicense the foregoing rights through multiple tiers of licensees) such Content on or through the Site. From time to time, we may remove Content from the Site, permanently or temporarily.
You represent and warrant that: (i) you own the Content posted by you on or through the Site or otherwise have the right to grant the licenses set forth above, and (ii) the posting of your Content on or through the Site does not violate the privacy rights, publicity rights, contract rights, intellectual property or any other rights of any person or entity. You agree to be fully responsible for and to pay any and all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you.
The Site also contains Content provided by Bitsmart Global, including, without limitation, text, images and logos (“Bitsmart Global Content”). 3D Magic Content is protected by copyright, trademark, patent, trade secret and other laws, and Bitsmart Global owns and retains all rights in the 3D Magic Content and the features and functionality of the Site. Bitsmart Global hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Bitsmart Global Content (excluding any software code) solely for your personal use in connection with utilizing the products and services available on the Site.
8.3.1 You are solely responsible for your use of the Site and for the development, operation, maintenance, and use of Your Content that you post on or through the Site, and any material or information that you transmit to other Members and for your interactions with other Users.
For example, you are solely responsible for:
(a) the technical operation of Your Content, including ensuring that calls you make to our or any other Service are compatible with then-current APIs and SDKs for that Service;
(b) compliance of Your Content with our Policies, and the law;
(c) any claims relating to Your Content; and
(d) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
Bitsmart Global respects the intellectual property of others, and requires that our Users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. We reserve the right to terminate the Membership of anyone we suspect to be an infringer.
If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Bitsmart Global’s Copyright Agent the following information:
Bitsmart Global’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
All fees and charges payable by you are inclusive of applicable taxes and duties, including VAT and applicable sales tax.
We may suspend your right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:
(a) your use of or registration for the Service Offerings
(i) poses a security risk to the Service Offerings or any third party, (ii) may adversely impact the Service Offerings or the systems or Content of any other PushWizard customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) you iniciate a refund dispute by our payment processor while your account is still active.
11.2 Effect of Suspension
If we suspend your right to access or use any portion or all of the Service Offerings:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension; and
(c) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section 12.2.
12.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 12.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice. We may terminate this Agreement for any reason by providing you 30 days advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you results in a suspension described in Section 11.1, (B) if we believe providing the Services could create a substantial economic or technical burden or material security risk for us, (C) in order to comply with the law or requests of governmental entities, or (D) if we determine use of the Service Offerings by you or our provision of any of the Services to you has become impractical or unfeasible for any legal or regulatory reason.
12.3. Effect of Termination.
(a) Generally. Upon any termination of this Agreement:
(i) all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(iii) you will immediately return or, if instructed by us, destroy all PushWizard Content in your possession; and
(iv) Sections 8.3.1, 12.3, 8 (except the license granted to you in Section 6), 13, 14, 15, and 16 will continue to apply in accordance with their terms.
(b) Post-Termination Assistance. Unless we terminate your use of the Service Offerings pursuant to Section 12.2(b), during the 30 days following termination:
(i) we will not erase any of Your Content as a result of the termination;
(ii) you may retrieve Your Content from the Services only if you have paid any charges for any post-termination use of the Service Offerings and all other amounts due; and
(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.
Any additional post-termination assistance from us is subject to mutual agreement by you and us.
Some states do not allow the exclusion or limitation of certain warranties and/or liabilities, so certain of the above limitations or exclusions may not apply to you.
The Site is provided “AS-IS” and as available and Bitsmart Global expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Bitsmart Global cannot guarantee and does not promise any specific results from use of the Site.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS. IF THE WARRANTY EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THIS USE AGREEMENT ARE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).
You agree to indemnify and hold Bitsmart Global, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, or demand, including without limitation, reasonable attorneys’ fees, due or relating to or arising out of your use of the Site in violation of the Terms and/or arising from a breach of the Terms and/or any breach of your representations and warranties set forth in the Terms and/or arising out of or relating to any Content that you post or third party transaction that you enter or attempt to enter in connection with the Site.
The Terms will be construed, and their performance enforced, under the laws of Florida without reference to choice of law principles. Any dispute relating to the Terms or the Site may be litigated only in a court having jurisdiction and venue in Miami for state court causes of action and in the District of Florida for federal court causes of action. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms. We may assign the Terms, in whole or in part, to a related entity or to a third party.
EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THE TERMS.
The Terms are accepted upon your use of the Site or any of its features and is further affirmed upon you becoming a Member (if applicable). The Terms constitute the entire agreement between you and Bitsmart Global regarding the use of Site and its services and features. The failure of Bitsmart Global to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. The section titles in the Terms are for convenience only and have no legal or contractual effect. The Terms operate to the fullest extent permissible by law. If any provision of the Terms is unlawful, void or unenforceable, that provision is deemed severable from the Terms and does not affect the validity and enforceability of any remaining provisions.