Last updated: December 1. 2014
1. Compliance with Terms, Product and Service Offerings
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.
6. Your Use of the Site
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.
7.1 To the Service Offerings. We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.
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.
8. User Content
We may, but are not obligated to allow you to upload content for display on the Site. If we allow this feature, please choose carefully the information you post on the Site, provide to other Users and/or otherwise make available to us and through the Site. Your content may not include any form of prohibited content, as outlined below. Despite this prohibition, information, materials, products or services provided by other Members (for instance, in their profile or displayed on the Site in areas in which users can post content) may, in whole or in part, be unauthorized, impermissible or otherwise violate the Terms, and we assume no responsibility or liability for this material. If you become aware of misuse of the Site or its features by any person, please click on the “Contact Us” link on the Site pages and follow the directions as to how to contact us.
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.
8.2 Proprietary Rights
Bitsmart Global does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on the Site (if applicable). After posting your Content to the Site, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. The Site may contain Content of Users and other licensors. Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Site.
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”). Bitsmart Global Content is protected by copyright, trademark, patent, trade secret and other laws, and Bitsmart Global owns and retains all rights in the Bitsmart Global 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.
You agree to not use the Site to:
- upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable harm minors in any way
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Site;
- upload, post, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships
- upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials or any other form of solicitation
- upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
- interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site
- intentionally or unintentionally violate any applicable local, state, national or international law and/or
- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through g above.
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.
8.4 Other Security and Backup
You are responsible for properly configuring and using the Service Offerings and Your Content to maintain appropriate operation. PushWizard's log-in credentials, App and API keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
9. Protection of Intellectual Property Rights
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:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest
- a description of the copyrighted work or other intellectual property that you claim has been infringed
- a description of where the material that you claim is infringing is located on the Site
- your address, telephone number, and email address
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
- Bitsmart Global’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Bitsmart Global LLC.
- 7950 NW 53rd Street
- Suite 337 Miami, FL 33166
10. Fees and Payment
10.1 Service Fees
We calculate and charge fees monthly, quarterly, half-yearly or annually based on your chosen option. You will pay us the applicable fees for use of the Service Offerings in advance and as described on the PushWizard Site using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the PushWizard Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days’ advance notice.
All fees and charges payable by you are inclusive of applicable taxes and duties, including VAT and applicable sales tax.
11. Temporary Suspension
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. Term; Termination
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.
Bitsmart Global is not responsible for and makes no warranties, express or implied, as to any content on the Site, including, without limitation with respect to the accuracy and reliability of the Bitsmart Global Content, User Content or other Content posted on or through the Site, whether caused by us, by Users, by any of the equipment or programming associated with or utilized by the Site, or otherwise. The User Content does not necessarily reflect the opinions or policies of Bitsmart Global. Profiles and third party applications created and posted by Members on the Site may contain links to other websites. Bitsmart Global is not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by Bitsmart Global. Inclusion of any linked website on the Site does not imply approval or endorsement of the linked website by Bitsmart Global. When you access these third party sites, you do so at your own risk. Bitsmart Global takes no responsibility for third party advertisements or third party applications that are posted on or through the Site, nor does it take any responsibility for the goods or services provided by its advertisers. Bitsmart Global is not responsible for the conduct, whether online or offline, of any User of the Site including, without limitation, any Content posted by any User. Bitsmart Global assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. Bitsmart Global is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any portion of the Site or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Site. Under no circumstances shall Bitsmart Global be responsible for any loss or damage, including personal injury or death, resulting from use of the Site, from any User Content posted on or through the Site or from the conduct of any Users, whether online or offline. Additionally, Bitsmart Global shall have no liability for any viruses or anything beyond our control. We are not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Site. We will not be liable to you if you are unable to access information through the Site.
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.
14. Limitations of Our Liability
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.