These Push Notification Demo Terms of Service (“Terms“) apply to your use of the OpenMarket Inc. (“OpenMarket“) push notification service (“Service“) during the Demo Period (as defined below). Please read these terms carefully. By clicking on the “I accept” button, or by accessing or using the Service, you agree to be bound by these Terms and all terms incorporated by reference. If you do not agree to these Terms, do not access or use the Service.
OpenMarket reserves the right to change or modify these Terms or any policy or guideline of the Service, at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting the revisions to the Legal Information page, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of this Service following the posting of changes or modifications will confirm your acceptance of such changes or modifications. Therefore, you should frequently review the Terms and applicable policies to understand the terms and conditions that apply to your use of the Service. If you do not agree to the amended terms, you must stop using the Service.
If you have any questions regarding the Service, please contact OpenMarket.
2. Eligibility, Registration and Account
By accessing or using the Service, you represent and warrant that you are at least 18 years old and that you have not previously had your right to use the Service suspended or terminated.
In order to access the Service during the Demo Period, you will need to register online for an account with OpenMarket. You are permitted to create only one account. You agree to (a) provide accurate, truthful, current and complete information when creating an account; (b) maintain and promptly update your account information; (c) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (d) promptly notify OpenMarket if you discover or otherwise suspect any security breaches related to the Service; and (e) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.
3. Demo Period
Your right to access and use the Service will extend for 45 calendar days following the date on which you first click the “I accept” button or otherwise access the Service (“Demo Period“). During the Demo Period, you will not have access to all of the features of the Service. Instead, you will be provided with limited access to certain features of the Service solely for evaluation purposes. At the end of the Demo Period, your right to access the Service and any licenses granted in connection therewith will automatically be terminated.
4. Ownership of Intellectual Property and Limited License
The Service includes certain proprietary content and other materials, including, without limitation, the OpenMarket logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “Service Materials“). All copyrights, patents, trademarks, trade secrets and/or any other intellectual property rights related to the Service or the Service Materials (collectively, “Intellectual Property“) are and will remain the sole property of OpenMarket or its licensors and are protected by U.S. and international law. Other than the limited license expressly set forth in this Section, you do not acquire any title or ownership rights in the Intellectual Property. You acknowledge that OpenMarket considers the Intellectual Property to contain trade secrets of OpenMarket and/or its licensors. Such trade secrets include, without limitation, the software, the specific design, structure and logic of individual programs, their interactions with other portions of programs, both internal and external, and the programming techniques employed therein.
You are granted a limited, non-sublicensable, revocable, royalty-free and non-transferable license to access and use the Service and Service Materials during the Demo Period solely for evaluation purposes; however, such license is subject to these Terms and does not include: (a) any resale or commercial use of the Service or the Service Materials; (b) the distribution, public performance or public display of any Service Materials; (c) modifying or otherwise making any derivative uses of the Service and the Service Materials, or any portion thereof, unless modification or derivative use is specifically provided for under separate terms; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Service, the Service Materials or any information contained therein, except as expressly permitted on the Service; or (f) any use of the Service or the Service Materials other than for its intended purpose. Any use of the Service or the Service Materials other than as specifically authorized herein, without the prior written permission of OpenMarket, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright, patent and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to Intellectual Property rights, whether by estoppel, implication or otherwise.
The Service and related documentation, as well as all business information, data, customer information, market information, Intellectual Property, product information, and Service Materials are the proprietary and confidential information of OpenMarket (collectively, the “Confidential Information“). You agree not to disclose or provide Confidential Information to any third party for any purpose. You agree to immediately notify OpenMarket upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate in any reasonable way to help OpenMarket regain possession of the Confidential Information and prevent further unauthorized use.
6. Notifications and Acceptable Use
You are solely responsible for the content of the notifications that you transmit through the Service (“Notifications“). You agree to provide notice and receive affirmative consent from an end user prior to transmitting any Notification through the Service to that end user’s mobile device. You further agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Service Notifications that contain any of the following:
- Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By transmitting any Notifications, you represent and warrant that you have the lawful right to distribute and reproduce such Notifications;
- Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
- Content that would constitute unsolicited promotions, political campaigning, advertising or solicitations;
- Content that discloses private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files; and
- Content that, in the sole judgment of OpenMarket, is objectionable or which may expose OpenMarket or its users to any harm or liability of any type.
You further agree that you will not do any of the following in connection with the Service:
- Use the Service in any manner that could damage, disable, overburden or impair the functioning of the Service in any manner;
- Use the Service in a way that harms OpenMarket or OpenMarket’s affiliates, partners or vendors, or any customer of OpenMarket or its affiliates, partners or vendors;
- Send any unsolicited commercial messages through the Service;
- Use the Service for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms;
- Circumvent or attempt to circumvent any filtering, security measures or other features;
- Attempt to use or access the Service or any of OpenMarket’s servers using any software or service other than the Service; or
- Use the Service other than for its intended purpose.
OpenMarket takes no responsibility and assumes no liability for any Notifications posted, stored or uploaded by you or any third party, or for any loss or damage thereto. Enforcement of these Terms is solely at OpenMarket’s discretion, and failure to enforce the Terms in some instances does not constitute a waiver of OpenMarket’s right to enforce the Terms in other instances. In addition, the Terms do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited herein. As a provider of interactive services, OpenMarket is not liable for the content of any Notifications provided by you through the Service. Although OpenMarket has no obligation to screen, edit or monitor any of the Notifications, OpenMarket reserves the right, and has absolute discretion, to remove, screen or edit any Notifications transmitted through or stored on the Service at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any Notifications you transmit at your sole cost and expense. Any use of the Service in violation of the foregoing violates these Terms and may result in, among other things, termination of the Demo.
You shall indemnify, and hold harmless, and upon OpenMarket’s request, defend, OpenMarket, its independent contractors, service providers and consultants, and their respective past, present, and future officers, directors, agents and employees from any and all claims, damages, losses, liabilities, costs, settlement fees and expenses including, but not limited to, reasonable attorneys’ fees and costs incurred directly or indirectly by OpenMarket arising from or related to any of the following: (i) your use of or inability to use the Service; (ii) your violation of these Terms; (iii) your violation of any rights of another; or (iv) your conduct in connection with the Service, including the content of any Notifications. and/or (ii) any third party claims, suits, judgments, settlements and causes of action.
Upon receiving notice of damage or a loss, you, if requested in writing by OpenMarket (“Tender”), will assume the Tender of defense for any action or claim, and you shall employ counsel reasonably acceptable to OpenMarket and contest, pay or settle the action as it may determine, except that you shall not enter into any settlement that affects OpenMarket’s rights or interests without the prior written consent OpenMarket. Regardless if a Tender of indemnification from OpenMarket to you is made, you shall pay all reasonable attorneys’ fees, litigation costs and out-of-pocket expenses under this Section as well as all damages whether in the form of settlement, determination or judgment.
YOU AGREE THAT THE SERVICE AND SERVICE MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE BASIS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. OPENMARKET HEREBY EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS INDEMNITEES, INCLUDING ALL OPERATORS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, QUIET ENJOYMENT, SATISFACTORY QUALITY, OR ACCURACY. YOU ACKNOWLEDGE THAT OPENMARKET HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE, COMPLETE, RELIABLE OR WITHOUT DELAY. WHILE OPENMARKET ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, OPENMARKET CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
9. Limitation of Liability
OPENMARKET SHALL HAVE NO RESPONSIBILITY OR LIABILITY OF ANY KIND FOR THE ACTS AND OMISSIONS OF ANY THIRD PARTIES IN CONNECTION WITH THE SERVICE. OPENMARKET SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON FOR OR IN RESPECT OF ANY NOTIFICATION, OR INSTRUCTIONS SUPPLIED BY YOU, WHICH ARE INCOMPLETE, INCORRECT, INACCURATE, ILLEGIBLE, OUT OF SEQUENCE OR IN THE WRONG FORM, OR ARISING FROM THEIR LATE ARRIVAL OR NON-ARRIVAL, OR ANY OTHER ACT OR OMISSION BY YOU. YOU ACKNOWLEDGE AND AGREES THE SERVICE IS NOT FAIL PROOF, AND IS NOT SUITABLE FOR USE IN MISSION-CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SERVICES, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. IN NO EVENT SHALL OPENMARKET OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, CUSTOMERS, LICENSORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, WHETHER ARISING IN AN ACTION IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), CONTRACT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, LOSS OF REVENUES, OR LOSS OF DATA, ARISING OUT OF OR RELATING TO THESE TERMS OR THE USE OR INABILITY TO USE THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OPENMARKET’S RECORDS, PROGRAMS OR SERVICES, EVEN IF OPENMARKET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF OPENMARKET, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE OR THE SERVICE MATERIALS OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO OPENMARKET FOR ACCESS TO OR USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Nothing in these Terms is intended or shall act to release or relieve you from any liability for damages, losses, costs, settlement fees and expenses including without limitation costs and amounts related to indemnification and attorney fees.
10. Violation, Investigation and Demand for Disclosure
You acknowledge that government bodies reserve the right to investigate end-user complaints alleging a violation by OpenMarket or you. You acknowledge that if a government body reasonably believes you have violated a law or policy, OpenMarket may refuse to transmit future Notifications. OpenMarket shall not be liable or responsible for any damages due to third party actions or inactions. In the event a governmental body, judicial or quasi-judicial entity, or other entity with authorization, delivers an order, makes a request or presents a demand (“Demand”) to OpenMarket for the release of information surrounding the Service provided to you, OpenMarket will comply with the Demand without obligation to seek your consent. Upon notification, you shall use your best efforts to cooperate and provide OpenMarket and the party presenting the Demand with all necessary assistance, information or material reasonably related to the Demand.
11. Applicable Law and Venue
These Terms and your use of the Service shall be governed by and construed in accordance with the laws of New York, without resort to its conflict of law provisions and in any dispute arising under these Terms, attorneys’ fees and costs shall be recoverable. OpenMarket shall maintain the ability to seek injunctive relief in the event of a breach of these Terms. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in New York County, New York and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
12. Relationship Of The Parties
Nothing contained in these Terms shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
13. Modifications to the Service
OpenMarket reserves the right to modify or discontinue, temporarily or permanently, the Service, or any features or portions thereof, without prior notice. You agree that OpenMarket will not be liable for any modification, suspension or discontinuance of the Service, or any part thereof.
Notwithstanding the provisions of Section 3, OpenMarket reserves the right, without notice and in its sole discretion, to (a) terminate your license to use the Service or Service Materials or (b) block or prevent your future access to and use of the Service. Sections 4 through 11 shall survive the expiration or termination of these Terms.
You shall not, in whole or in part, by operation of law, merger, or any other means, assign, transfer, or subcontract the rights granted pursuant to these Terms or delegate any of its duties hereunder without OpenMarket’s express, prior written consent. Any assignment in contravention of this provision shall be null and void.
No waiver of any term, provision or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.