1. Account Registration And Access
To register for the Push Monkey Service and create an account, you must complete the registration process by providing Push Monkey with the information prompted by the registration form, including e-mail address (username), password, and billing information.
You agree to provide us with complete and accurate information when you register for the Push Monkey Service, and to keep such information up to date.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow a third party to access the Push Monkey Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement.
You agree to notify Push Monkey immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Push Monkey Service.
Push Monkey may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2.1 Subscription terms
Push Monkey offers a range of subscription plans to its Push Monkey Services, including, without limitation, a “Starter Plan,” a “Sweet Spot Plan,” a “Pro Plan,” and “Custom Plans.” As an express condition of your use of and access to the Push Monkey Service, you agree to pay all fees applicable to your subscription plan (your “Plan”), any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Push Monkey Service. To view the specific details of your Plan, including pricing information and the commencement date of your next renewal period, visit the Push Monkey Website, login at Push Monkey and click the “Your Account” page after logging in.
The Push Monkey Service is priced based on usage, determined by the number of push notifications available in the subscription plan that you purchased. With respect to each such subscription, Push Monkey will not, and will have no obligation to allocate or allow the sending of any more push notifications for any of the site/sites that use your subscription once you reach the maximum number of Push Notifications, as specified in your Plan.
2.2 Changes in fees
We may, upon any notice required by applicable law, change the fees for the Push Monkey Service at any time or require new fees or charges. Such changes will be effective immediately upon posting on our Website; provided, however, that such fee changes will be effective only as to prospective Push Monkey Service orders (including renewals) accepted by Push Monkey after the effective date of such change. Please be aware that any discounts applicable to previous subscriptions may not apply to renewed subscriptions.
2.3 Payment of fees
We will bill the fees due under your Plan to the credit card or payment method that you provide to us during registration (or to a different credit card or payment method if you change your payment information).
We reserve the right to deactivate your access to the Push Monkey Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
2.4 Payment Terms, Refunds, and Upgrade and Downgrade Terms
The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly or annual basis, as specified in your Plan. No refunds or credits will be provided for partial months of the Push Monkey Service, upgrades/downgrades, or for months unused with an open account. If you downgrade your Plan level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. Push Monkey does not accept any liability for such loss.
If you upgrade your Plan level, your credit card will immediately be charged a pro-rated amount reflecting the increased rate, and you will be charged the full amount of the new rate beginning with your next billing cycle. Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
2.5 Account Cancellation
The only valid method for canceling your Plan is via the cancellation link provided on the “Your Account” page, accessible after logging in to the Push Monkey Website. Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation. If you cancel your Plan before the end of your current pre-paid period, you will not be charged again for your Plan beginning with the next billing cycle. If you cancel your Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Push Monkey Service and any data or information stored in your account (see Section 12 (“Term and Termination”) for additional details). If you cancel your Plan during a Free Trial Period, effective upon such cancellation, you will immediately lose all access to the Push Monkey Service and any data or information stored in your account.
The FREE Trial Plan is the only plan that does not auto-renew and ends automatically after 30 days.
2.6 Free Trial Period
Push Monkey may offer, during the registration process, a one-time free trial period during which you can try out the Push Monkey Service for 30 days from the date you register to use the Push Monkey Service without pre-paying in advance (“Free Trial Period”). To view the specific details regarding your Free Trial Period, if any, visit the Push Monkey Website and login at getpushmonkey.com/sign-in. You may cancel your Plan at any time during the Free Trial Period by following the steps described in Section 2.5 (“Account Cancellation”). Upon cancelling your account, you will immediately lose all access to the Push Monkey Service and any data or information stored within your account (see Section 8 (“Term and Termination”) for additional details). Push Monkey reserves the right to modify, cancel and/or limit the Free Trial Period offer at any time.
Your Push Monkey account is protected by a username and password, and should be accessed only by you or authorized third parties. For maximum protection, you should protect against unauthorized access to your username and password and remember to log off when using any shared computer or device. Push Monkey has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited access, firewalls and SSL encryption to protect transmission of data. However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to Push Monkey, information we compile on your behalf, and/or information that we collect about you. Push Monkey cannot guarantee the security of such information and is not responsible for unauthorized access to client accounts.
3.2 Push Monkey Limits Access to Your Information
Push Monkey will not knowingly permit access to, or otherwise divulge to a third party, the statistical information we compile for you except for the express purpose of generating reports which have been authorized by or approved by you, or unless acting under a good faith belief that such action is necessary to (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of Push Monkey; (iii) enforce our agreements with clients and/or Visitors; (iv) troubleshoot problems with the Services; or (v) generate aggregate reports as set forth below.
3.3 Aggregate Reports
Push Monkey reserves the right to aggregate certain broad categories of data (such as open rate, click rate, usage) across some or all of the websites using Push Monkey for the purposes set forth in Section 4 (“License to Client Data”) and/or to compile reports regarding general web usage or trends, which may be provided to third parties. This information will be presented only in aggregate form, and in no event will we compile specific site data that identifies clients or clients’ visitors without client permission.
4. Restrictions on use
You shall not (i) use, or allow the use of, the Services or any Push Monkey Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Push Monkey or inconsistent with Push Monkey’s standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Services or Push Monkey Technology, or attempt to access data of any other customer of Push Monkey; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Push Monkey; (v) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Services; (vi) use the Services, or any Push Monkey Technology, for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program; (viii) post or transmit any message, data, image or program that would violate any property rights of others; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; or (x) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
You agree to indemnify, hold harmless and (if requested by Push Monkey) defend Push Monkey, at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against Push Monkey or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by Push Monkey or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, or (iii) your unauthorized use of the Push Monkey Script. In such instances, Push Monkey will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to Push Monkey within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. Push Monkey reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
6. Representations, Warranties, Disclaimers
Push Monkey does not represent or warrant that (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. You specifically agree that Push Monkey shall not be responsible for unauthorized access to or alteration of your data. THE SERVICES, THE Push Monkey PLUGIN AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY Push Monkey EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE Push Monkey PLUGIN, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Push Monkey DOES NOT WARRANT THAT THE SERVICES, THE Push Monkey PLUGIN OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE Push Monkey Services. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
Push Monkey does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of your equipment, systems or local access services; (iii) for previously scheduled maintenance; or (iv) relating to events beyond Push Monkey’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Push Monkey or your servers are located or co-located.
7. Term And Termination
7.1 In General
Push Monkey may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
7.2 Termination of Push Monkey Services
Either party may terminate the Push Monkey Services at any time and for any reason. To terminate your use of the Push Monkey Service, please follow the steps described in Section 2.5 (“Account Cancellation”). Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation. Upon any termination of the Push Monkey Services (i) Push Monkey will cease providing the Push Monkey Service; (ii) any outstanding balance payable by you to Push Monkey will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iii) you will not be entitled to any refunds of any usage fees or any other fees; and (iv) all of your historical report data will no longer be available to you through Push Monkey.
8. Other terms and conditions
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
Push Monkey shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
8.1 Agreement to Arbitrate
This Agreement shall be governed by and construed under the laws of the country of Germany without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Germany law, rules, and regulations, Germany law, rules and regulations shall prevail and govern.
Push Monkey may deliver notice to you under this Agreement by means of electronic mail or a general or specific notice on the Services or a communication to your Push Monkey account.
Any notices to Push Monkey must be sent to:
Eichendorffstr. 6, 56220
Sankt Sebastian, Germany
and are deemed given upon receipt.