READ THESE TERMS CAREFULLY BEFORE EXECUTING AN ORDER FORM FOR ACCESSING THE SERVICES. BY EXECUTING THE ORDER FORM REFERENCING THIS AGREEMENT, THE INDIVIDUAL AND CUSTOMER ENTITY THAT HE/SHE REPRESENTS AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
PushWords may periodically update these terms and Customer will be notified of such changes through email. The updated terms shall be applicable from the date of such notification.
1.1 Rights Grant. Subject to the limitations laid down in this Agreement, PushWords grants Customer a subscription, software as a service (‘SaaS’), nonexclusive and non-transferable right to access and operate the Services (“Use”) and solely to perform those functions described in the Order Form during the Subscription Term (defined hereinafter).
1.2 Use. Customer shall have a limited right to Use the Services solely for its internal purposes. Customer may avail the features described in the Order Form through the Use of the Services. The Customer hereby acknowledges that the features are self-driven, i.e. the Customer can use the on-boarded data to avail the features. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
1.3 Restrictions on Use. In no event, Customer shall or permit or cause others to (i) disassemble, decompile, or reverse engineer the Services or any software or data provided with the Services (“Software”) or to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (ii) license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Services; (iii) allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Services; (iv) use or access the Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Services or (v) interfere with or disrupt the integrity or performance of the Service or breach or circumvent any security or authentication measures.
2.1 If agreed under the Order Form, prior to the Subscription Term, Customer shall have trial access to the Services only for evaluation purposes (“Trial”). Trial will commence from the Trial Period Start Date mentioned in the Order Form and shall extend for a period (“Trial Period”) as set out in the Order Form.
3.1 Commencement of Services. PushWords shall provide Customer the right to Use (“Subscription Services”) after the end of the Trial Period if Customer desires to purchase the same in accordance with this Agreement and Order Form.
3.2 Service Limits. The limits that apply to the Subscription Services will be specified in the Order Form. Customer shall be responsible for additional fees if such limits are exceeded. All such fees will be based on PushWords reported numbers. Customer may not downgrade the Subscription Services during the Subscription Term and in order to avoid additional charges, Customer should purchase the appropriate tier of Subscription Services for Customer’s anticipated needs. If Customer desires to subscribe to additional functionality as part of the Subscription Services, the parties shall execute a new Order Form capturing the terms and conditions of such subscription.
3.3 Service Availability. The Customer acknowledges that the Services may be taken down for scheduled updates. Customer acknowledges that internet services provided or controlled by third parties controls the flow of data to or from PushWords’s network and other portions of the internet. Such actions or inactions of such third parties may disrupt Customer’s connections to the internet (or portions thereof) that may impair availability of the Services. PushWords disclaims any and all liability resulting from or related to such events.
3.4 Third Parties. PushWords shall have the right to use third parties (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to PushWords or its employees shall be deemed to include such Subcontractors.
3.5 Third Party Products. If Customer opts to use any third party products with the Service or Customer data, PushWords is not responsible for the performance of such products or any usage, transmission, disclosure, modification or deletion of Customer data resulting from access by such third party product.
4.1 Subscription Fees. Company may charge subscription or other fees to access certain Services. You acknowledge and agree that Company is authorized, but not required, to act on payment instructions received from anyone using your account. You authorize Company to (A) initiate debits or charges against your financial account or credit or debit card periodically for the amount then due for purchases made; and (B) initiate any other debits or charges authorized by you or anyone using the Company account registered to you. All payments must be made in U.S. dollars from a U.S. bank or via alternative payment methods made available by Company. You acknowledge that transactions may be facilitated by a third-party payment processor (the "Processor"), and agree that Company may share your information, including information about your financial accounts, with the Processor for this purpose. You acknowledge that Company is not responsible for the information collection, usage and disclosure practices of any Processor. In select cases, only when authorized by PushWords in writing, PushWords may invoice Customer for Subscription Services upon execution of the Order Form. For any subsequent billing period/renewal periods, PushWords will invoice no more than thirty (30) days before the commencement of such billing period/ renewal period. Fees for Subscription Services will be payable within the payment due date in case of the first invoice and in advance for the next billing period/ renewal period thereof.
4.2 Marketing Activation Feature Fees. In addition to monthly software licensing fees for use of the PushWords engagement platform under this agreement, if Customer opts for any additional marketing features and services such as programmatic media buying, emails, text messages, etc under the Order Form. PushWords will invoice Customer for the fees at the end of the month. All fees will be based on PushWords reported numbers.
4.3 Fee Adjustments. Customer shall be required to pay additional charges as per the rates set out in the Order Form if fee adjustments are necessitated as per Section 3.2 above. PushWords will invoice Customer for such amounts in the subsequent invoice for Subscription Services.
4.4 Payment Obligations. All fees payable shall be specified in the Order Form. Subject to the terms of this Section, all invoices shall be payable by Customer within thirty (30) days of the invoice date. In addition to other rights and remedies available to PushWords under the law, PushWords shall have the right to suspend the Services or terminate the Agreement in the event of Customer’s declined credit card or other failure to pay any undisputed invoice or billed amount within the due date. Any late payment shall be subject to costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
4.5 Payment Dispute In the event Customer disputes any amounts stated in an invoice from PushWords, Customer must notify PushWords in writing of such disputed amounts within seven (7) business days after receipt of the applicable invoice. Such notice shall contain the amount disputed and the basis for Customer’s objection. The parties will work together in good faith to resolve the dispute as soon as reasonably practicable. Customer shall promptly pay the undisputed portion of the amounts.
4.6 Taxes. All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse PushWords and hold PushWords harmless for all sales, use, VAT, GST, excise, property or other taxes or levies which PushWords is required to collect or remit to applicable tax authorities. Customer shall not withhold any taxes at the time of payment upon PushWords providing its tax residency certificate or a nil/lower withholding tax certificate, as applicable.
5.1 Reservation of Rights. By agreeing to this Agreement, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Services provided to Customer. PushWords shall own all right, title, and interest in Services and Software, subject to any limitations associated with intellectual property rights of third parties. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements and other contributions provided by Customer regarding the Services and Software shall be owned by PushWords and Customer hereby agrees to assign any such rights to PushWords. Nothing in this Agreement shall preclude PushWords from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by PushWords in the performance of services hereunder. PushWords reserves all rights not specifically granted herein.
5.2 Trademark. PushWords owns all rights in trademarks and logos contained in the Services or its websites. Customer shall not have a right to use them in any manner without prior written consent of PushWords.
5.3 Customer Data. As between the parties, Customer owns and retain all rights to the data and advertising materials provided to PushWords. Customer grants PushWords a non-exclusive, worldwide, royalty-free license to use, copy and display Customer data to the extent necessary to provide the Services and reports to Customer. PushWords may use Customer data in an anonymized and aggregated form in order to identify industry level insights.
6.1 Definition. “Confidential Information” includes all information disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. All Confidential Information shared in tangible form shall be marked as “Confidential” or the like or if orally disclosed shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed PushWords Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by PushWords; (ii) the, written, oral and visual information relating to the Services.
6.2 Exceptions. Confidentiality obligations will not apply to any material or information that:
(i) is or becomes a part of the public domain through no act or omission by the receiving party;
(ii) is independently developed by the other party without use of the disclosing party’s Confidential Information;
(iii) is rightfully obtained from a third party without any obligation of confidentiality. Neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized government agency. The Receiving party shall give prompt written notice to the disclosing party such that the disclosing party may seek a protective order and minimize the required disclosure. The parties shall cooperate fully in seeking such protective order.
6.3 Non-Disclosure. Each party shall take reasonable measures, but no less than those steps used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information. Both parties agree to keep all Confidential Information belonging to the other party strictly confidential. and to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
6.4 Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party irreparable loss and injury. Accordingly, such party shall be entitled to obtain injunctive relief, in addition to any other remedies available at law or in equity.
7.1 Authorized Representative. Customer and PushWords warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
7.2 PushWords Warranty.
(i) the Subscription Services will perform materially in accordance with the applicable documentation.
(ii) All Services performed hereunder shall be performed in a workmanlike and professional manner.
(iii) PushWords will not make any changes to, or tamper with data, or share any data provided by Customer, in any manner whatsoever, unless authorized in writing by the Customer and/or to provide the Services opted for by the Customer;
7.3 Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties in this Agreement will be void if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of PushWords.
7.4 For any breach of the services warranty, Customer’s exclusive remedy shall be the correction of the deficient services that caused the breach of warranty.
7.5 If Customer is given Trial access, notwithstanding Section 7, during the Trial Period, the Software and Services are provided “as-is” without any warranty or liability.
7.6 Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, Any and all of Software, CONFIDENTIAL INFORMATION, and any other technology or materials provided by PUSHWORDS to the CUSTOMER are provided “as is” and without warranty of any kind. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 7 OF THIS AGREEMENT, PUSHWORDS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
7.7 Based on Services opted for by the Customer, (a) PushWords Software may use third party platforms (“Exchanges”), which provides ad inventory, on whose property the Customer’s advertisements have to be displayed and such Exchanges may reject or remove a specific Customer advertisement or target at any time for any or no reason. PushWords shall not be responsible and held liable for such removal of advertisements by Exchanges and (b) If an Exchange suspends PushWords’s ability to utilize its services at any time without notice to PushWords, PushWords will make commercially reasonable efforts to inform the Customer of such suspension. PushWords shall not be held liable if an Exchange has suspended PushWords’s ability to avail such Exchange services.
7.8 Customer’s Warranty. Customer represents and warrants that (a) the data, advertising materials and advertisements provided to PushWords in Using the Marketing Activation Features of the Services are not false, spam, harmful, threatening, abusive, libelous, invasive of another party’s privacy, unethical, and are in compliance with PushWords ad-policy guidelines located at https://www.PushWords.com/legal/ad-policy-guidelines (b) it will be responsible for the accuracy, quality and legality of such data, advertising materials and advertisements (c) it will be responsible for ensuring that its’ users have consented to the collection and handling of their data for the purpose of this Agreement (d) it will comply with all applicable laws while performing under this Agreement, including with respect to privacy laws (e) it will maintain a back-up of all the data and content provided to PushWords and (f) it is solely and exclusively responsible for all third party software that Customer uses in conjunction with the Services and PushWords shall have no responsibility or liability with respect thereto.
7.9 In any instance of non-compliance with Section 7.8 (a) by the Customer, PushWords shall immediately bring to the notice of the Customer and instruct the Customer to review the concerned product feed of the Customer in question and take necessary steps to adhere to the ad-policy guidelines. The Customer shall within twenty-four (24) hours of receiving such instruction, take requisite action to comply with this requirement. If the Customer does not comply to the request within the stipulated time, then PushWords reserves the right to switch-off certain sensitive inventory sources, for campaigns pertaining to the Customer. In case of repeated defaults of non-compliance by the Customer, PushWords shall reserve the right to stop all campaigns of the Customer; till such time that the Customer complies with the ad-policy guidelines.
8.1 PushWords Indemnity. PushWords will defend Customer at its expense from any cause of action based on a claim that the Software infringes on a patent, copyright, or trade secret of a third party. PushWords will have sole control of the settlement, compromise, negotiation, and defense of any such action. PushWords will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by PushWords in writing of, such a claim against Customer.
8.2 Customer Obligations. Customer will notify PushWords in writing immediately after Customer becomes aware of a claim or the possibility thereof and will cooperate, in good faith, in the defense of any such legal action.
8.3 No Liability. PushWords shall have no liability to indemnify Customer for any claim of infringement if (i) the Software is modified by any party other than PushWords or without the written consent of PushWords; (ii) Customer uses the Software in conjunction with data where use with such data gives rise to the infringement claim; or (iii) Customer uses the Software outside the permitted scope of this Agreement.
8.4 Remedies. If in PushWords opinion the Software becomes or is likely to become, the subject of a claim of infringement, PushWords may, at its option, (i) obtain the right for Customer to continue using the Software; (ii) replace or modify the Software so it is no longer infringing or (iii) if the foregoing options are not commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease access and Use of the Software and PushWords will refund to Customer, as Customer’s sole remedy for such termination, all advance subscription fees paid by Customer for the remaining term of the access. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF PUSHWORDS WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SOFTWARE.
8.5 Customer’s Indemnity. Notwithstanding anything stated in this Agreement, Customer shall defend, indemnify and hold harmless PushWords, its parents, subsidiaries, affiliates, successors or assigns, and their directors, officers, employees and representatives, from and against any claims resulting or arising out of any: (i) claim that the data or advertisements provided by Customer infringe a third party’s intellectual property rights ; and (ii) unauthorized or improper use of the Services or Software in violation of this Agreement .
EXCEPT FOR (I) EACH PARTY’S BREACH OF THE OTHER PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) EACH PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BREACH OF PUSHWORDS’S RIGHTS IN THE SOFTWARE) (III) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE PRECEDING 3 (THREE) MONTHS FOR THE SOFTWARE AND (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE.
10.1 In addition to suspension rights of PushWords under Section 4, PushWords shall have the right to suspend the Subscription Services at any time if Customer has violated the terms of this Agreement.
11.1 Term. This Agreement shall commence on the Order Date mentioned in the Order Form and shall remain in force till the (i) end of the Trial Period or (ii) if Customer procures Subscription Services, then till end of the Subscription Term or any renewal period thereof (“Term”); unless earlier terminated or suspended as provided under this Agreement.
11.2 Subscription Term and Renewal. If Customer does not opt-out of Subscription Services before the end of the Trial Period, Customer shall be granted right to Use the Services at the end of the Trial Period. The right shall commence on the Subscription Term Start Date mentioned in the Order Form and shall extend for a period (“Subscription Term”) as set out in the Order Form. After the Subscription Term, this Agreement shall automatically renew for additional periods, each equal to the subscription term selected and agreed to in the Order Form at the time of signup. It shall automatically renew monthly, or annually, based on the selected billing cycle by Customer. This Agreement shall continue to govern such renewal periods subject to the renewal pricing provided for in the Order Form or, if not specified in the Order Form, as mutually agreed between the parties in writing.
11.3 Termination for Convenience. Customer may terminate this Agreement at any time. Customer shall be charged Subscription Fees due till the end of the month in which the communication for termination is made to PushWords.
11.4 Termination for Cause. Either party may terminate this Agreement and any rights granted under this Agreement immediately if the other party fails to perform a material obligation required of it hereunder and such failure is not cured within thirty (30) days’ of providing written notice or any longer period if agreed between the parties.
11.5 Termination for Insolvency. Either party may terminate this Agreement on sixty (60) days written notice to the other party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it or is adjudicated a bankrupt concern.
11.6 Effect of Termination. Upon termination of this Agreement, (i) Customer shall clear all pending dues and cease to access the Services (ii) upon Customer’s request and subject to Customer clearing all pending dues, PushWords shall destroy Customer data within its possession. If Customer terminates this Agreement for cause, PushWords will promptly refund any prepaid but unused fees covering use of the Subscription Services after the end of the month in which the termination occurs. If PushWords terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the Term.
11.7 Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued under this Agreement.
12.1 Customer shall not assign or otherwise transfer this Agreement, the Order Form or any rights granted thereunder in any manner, without the prior written consent of PushWords. Any assignment or transfer in violation of this section shall be null and void. PushWords may assign, transfer or novate this Agreement to a third party pursuant to any merger, acquisition or business transfer arrangement by written notice to Customer.
12.2 The provisions set forth in Sections 5 (Ownership), 6 (Confidentiality), 8 (Indemnity), 9 (Limitation of liability) and 11.6 (Effect of Termination) of this Agreement shall survive termination or expiration of this Agreement.
12.3 Any notice required under this Agreement shall be given in writing to the addresses listed on the Order Form or to such other address as the parties may designate in writing and shall be deemed effective upon delivery to the party to whom addressed. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
12.4 Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond its reasonable control that may include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities.
12.5 This Agreement together with the applicable Order Form and Statement of Work made part of the Order Form constitutes the entire agreement between the parties regarding the subject matter thereof and supersedes all prior discussions between the parties with respect to the subject matter contained in these documents. In the event of any inconsistencies between the terms of an Order Form and this Agreement, the Order Form shall take precedence to the extent the variation has been expressly agreed.
12.6 The parties agree that this Agreement cannot be altered, amended or modified, except in writing signed by an authorized representative of each party.
12.7 During the Term and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of PushWords without the prior written consent of PushWords.
12.8 The parties agree that PushWords may include Customer’s name and logo on publicly displayed customer lists (including PushWords Internet Web site and public advertisements).
12.9 No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
12.10 Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement becomes unenforceable or illegal, such provision shall be amended to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such amendment.
12.11 Both parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner of the other. Neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
12.12 Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer obligation to pay for the services.
12.13 Governing Law and Dispute resolution. This Agreement shall be governed and construed in accordance with the laws of State of Massachusetts without regard to the provisions of conflicts of law. The State and Federal courts located in the County of Middlesex, State of Massachusetts shall have exclusive jurisdiction over any dispute or claim arising out of or relating to this Agreement or any breach thereof.
12.14 The parties hereby acknowledge that the terms and language of this Agreement were the result of negotiations among the parties. There shall be no presumption that any ambiguities in this Agreement shall be resolved against any particular party.
12.15 Customer acknowledges and agrees that it has not relied on any statement or warranty not expressly provided in this Agreement or the Order Form with respect to the Software and Services.