PowerInbox, Inc. (“PowerInbox”, “us”, “our”, or “we”)
If you are registering on behalf of a company (“Company”), you represent that you are authorized to enter into and bind the Company to these Terms and register for the Services. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to you and such Company and the right to access the Services is revoked where these Terms or use of the Services is prohibited.
1. ACCOUNT REGISTRATION
- In order to use the Services, you will need to have a registered account. To complete the registration process, you must provide all registration information as requested by us. We may indicate that the provision of some information is optional, but your agreement to provide such information may assist us in providing you with improved Services.
- PowerInbox may refuse to open an account for any individual at its sole discretion.
- You agree to notify us immediately of any unauthorized use of your account or password. You are fully and solely responsible for the security of your mobile device and all activity on your account, even if such activities were not committed by you. To the fullest extent permitted by applicable law, PowerInbox will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold PowerInbox harmless for any unauthorized, improper or illegal use of your account and any charges and taxes incurred, unless you have notified us via e-mail at firstname.lastname@example.org that your account has been compromised and have requested that we block access to it, which we will do as soon as reasonably practicable. We do not police for and cannot guarantee that we will learn of or prevent any inappropriate use of the Services.
2. USE OF THE SERVICES
- Subject to these Terms, PowerInbox allows you to access and use the Services on a non-exclusive basis. PowerInbox may, at its sole discretion and at any time, modify or discontinue providing the Services or any part thereof without notice and shall not be liable to you or any third party for any modification or discontinuance of the Services.
- Use of and access to the Services is void where prohibited by law. You represent and warrant that (a) any and all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older and have the ability to form a binding contract (d) you shall use the Services only for the purposes that are permitted by these Terms and by and in accordance with any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws governing the export or import of data or software to and from the United States or other relevant jurisdictions).
- You agree that you will not engage in any activity that interferes with or disrupts the Services, or the services or networks which are connected to the Services or on which the Services are hosted. Unless as expressly permitted by PowerInbox you may not do or attempt to do or facilitate a third party in doing any of the following: (1) reproduce, duplicate, copy, sell, trade or resell the Services for any purposes (2) decipher, decompile, disassemble, or reverse-engineer any of the software and/or code, if and as applicable, used to provide the Services without our prior written authorization, including framing or mirroring any part of the Services; (3) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content; (4) use the Services or content thereon in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms; (5) use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (6) use or access another user’s account or password without permission; (7) use the Services or content thereon in any manner not permitted by these Terms.
- You agree that you are solely responsible for, and we have no responsibility to you or any third party for, any breach of your obligations under the Terms (including breach of any obligations you may have with respect to a Third Party Service) and for the consequences (including any loss or damage which we may suffer) of any such breach.
- The Services may be subject to the specific terms and conditions, including, but not limited to, the terms and conditions annexed to these Terms.
3. CHANGES TO THE SERVICES; UPDATES
- You acknowledge and agree that the form and nature of the Services which we provide may change from time to time without prior notice to you.
- You acknowledge and agree that we may stop (whether permanently or temporarily) providing the Services (or any features or software within the Services, including any Third Party Services) to you or to users generally at our sole discretion, without prior notice to you, unless otherwise agreed in writing.
- Except as otherwise set forth in a separate agreement between you and PowerInbox or with a Third Party Provider providing software through the Services (including pursuant to a separate end user license agreement with respect to a Third Party Service), you do not need to provide notice to PowerInbox when you stop using the Services. To terminate the Services, you can remove the code, disconnect the account and stop using the Services.
- Software that you may use, download or install from the Services may automatically download and install updates from time to time from PowerInbox. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit PowerInbox to deliver these to you) as part of your use of the Services.
- PowerInbox is authorized to use the Data provided by you, as defined under PowerInbox’s Publisher Data Processing Agreement, to the maximum extent permitted by law for the purpose of providing the Services and for its internal use only. You hereby represent that your users provided and received the relevant notices and consents for the use of Data, and that you shall comply with the terms and conditions in PowerInbox’s Publisher Data Processing Agreement.
5. THIRD PARTY SOFTWARE AND SERVICES
- You acknowledge and agree that we are not responsible for any Third Party Services, including content, websites, services or other software or products provided by Third Party Providers.
- You acknowledge and agree that we do not warrant or endorse, and do not assume and will not have liability to you or any other person for, any Third Party Services, and that your use of such Third Party Services, is at your own risk.
- You acknowledge and agree that your access and/or use of the Third Party Services including use of any information (including personal information) provided by you shall be subject to the terms and policies of such Third Party Providers.
- You acknowledge and agree that PowerInbox, PowerInbox’ licensors, as the case may be, own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (registered or unregistered, and wherever in the world those rights may exist). The relevant Third Party Providers own all legal right, title and interest in and to the Third Party Services.
- Nothing in the Terms gives you a right to use any of our trade names, trademarks, service marks, logos, domain names or other distinctive brand features of PowerInbox any Third Party Provider or any other third party.
- You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed or contained within or on the Services.
- Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any Third Party Services (“Third Party Marks”) available on or through the Services, are the property of the Third Party Providers or their respective licensors. Unless you have been expressly authorized in writing by such Third Party Providers or their respective licensors, you will not use, and have not rights in, any Third Party Marks. You further agree that you will not use any trade name, trademark, service mark, logo, domain name, or other distinctive brand feature of any company, entity or organization in any what that is likely or intended to cause confusion as to the owner or authorized user of such names, marks, logos or features.
- If you provide the PowerInbox with any feedback regarding the Services, PowerInbox may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
- You have all right, title and interest in the User Content (as defined below) you submit.
- Except with respect to Third Party Services, the rights of which shall be governed by any terms, EULA and/or policies you may enter into with Third Party Providers of such Third Party Services, we grant you a limited, non-assignable and non-exclusive license to use the Services, subject to the specific terms and conditions of each service.
- You may not (and may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services, or any part thereof, unless expressly permitted by PowerInbox in writing or as required by applicable law.
- By submitting or posting any User Content, you grant PowerInbox and its successors and assignees a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license under any of your intellectual property, moral or privacy rights to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, alter, decompile, publicly perform such User Content on, through or in connection with the Services.
- Certain types of content may be made available through the Services. “Content” as used in these Terms means, collectively, all content on or made available through the Services. PowerInbox allows you to upload certain content referred to herein as “User Content”.
- POWERINBOX DOES NOT ENDORSE ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY USER CONTENT) OR ANY OPINION, RECOMMENDATION, OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE CONTENT AND/OR USER CONTENT. POEWRINBOX DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY AND ALL USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.
- PowerInbox has no obligation to accept, display, or maintain any User Content. Moreover, PowerInbox reserves the right to remove and permanently delete any User Content uploaded by you, without notice and for any reason. You are and shall remain at all times fully and solely responsible for any User Content that you upload to the Services. You represent and warrant that any User Content that you upload (i) complies with applicable law; (ii) does not infringe or violate any third-party intellectual property rights, privacy or publicity rights, or moral rights; and (iii) that you have all necessary rights, licenses, consents and authorities to submit such User Content.
- Without limiting the foregoing, you agree that you will not transmit, submit or upload any User Content or act in any way that: (1) restricts of inhibits use of the Services; (2) violates the legal rights of others, including defaming, abuse, stalking or threatening users; (3) infringes (or results in the infringement of) the intellectual property rights, moral rights, publicity, privacy, or other rights of any third party; (4) is (or you reasonably believe or should reasonably believe to be) stolen, illegal, counterfeit, fraudulent, pirated, violent or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe or should reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (5) does not comply with all applicable laws, rules and regulations; (6) imposes an unreasonably or disproportionately large load on our infrastructure; or (7) posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (a) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity), (b) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening, (c) pornography or obscene material, (d) any virus, worm, trojan horse, or other harmful or disruptive component or (e) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive.
- PowerInbox may, at its sole discretion, choose to monitor User Content for inappropriate or illegal behavior, including through automatic means, provided however, that PowerInbox reserves the right to treat User Content as content stored at the direction of users for which PowerInbox will not exercise editorial control except when violations are directly brought to PowerInbox attention.
- Content comes from a variety of sources. You understand that PowerInbox is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to this Content (including but not limited to the User Content). Although users must agree to these Terms, it is possible that other users (including unauthorized users) may post or transmit offensive or obscene materials and that you may be involuntarily exposed to such offensive or obscene materials. You hereby waive any legal or equitable rights or remedies you have or may have against us with respect thereto. It is also possible for others to obtain personal information about you due to your use of the Services, including through any User Content that you make available through your account. Anyone receiving or viewing User Content may use information you provided through such User Content (such as your contact details, location or description of an entity you represent) for purposes other than what you intended. We are not responsible for the use of any personal information that you disclose on the Services or through any User Content by any third party. By making any information available through the Services, you acknowledge that you understand and have agreed to such risks.
9. TERM; TERMINATION
- The Terms will continue to apply until terminated by either you or PowerInbox as set out in the specific terms and conditions of the Services, as Annexed herein and unless otherwise agreed upon in writing.
- Your rights under this Agreement will terminate automatically without notice to you if you violate any provision of these Terms. We may immediately terminate these Terms and any use of, or access to, the Services in the event we determine that the Services or use thereof may result in infringement or violation of these Terms or third party rights or claims thereof. Any termination of this Agreement shall also terminate the rights and licenses granted to you hereunder.
- Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
10. WARRANTY DISCLAIMER
- NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT POWERINBOX’ WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
- IN PARTICULAR, POWERINBOX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
- YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
- YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
- ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
- THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SERVICES OR SOFTWARE PROVIDED TO YOU WILL BE CORRECTED.
11. ANY SOFTWARE OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, AND THE SERVICES, ARE USED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH SOFTWARE OR OTHER MATERIAL.
12. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POWERINBOX OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
13. POWERINBOX FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
14. LIMITATION OF LIABILITY
- SUBJECT TO PARAGRAPH 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT POWERINBOX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
- ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
- ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF ANY CHANGES WHICH POWERINBOX MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES).
- IN NO EVENT SHALL POWERINBOX’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS, EXCEED IN THE AGGREGATE THE AMOUNT PAID TO POWERINBOX FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE EVENT, AND IF NO FEES WERE CHARGED, THEN POWERINBOX’S LIABILITY SHALL NOT EXCEED $1,000
- THE LIMITATIONS ON POWERINBOX’ LIABILITY TO YOU IN PARAGRAPH 15.1 ABOVE SHALL APPLY WHETHER OR NOT POWERINBOX HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
15. CHANGES TO THE TERMS
16. Press Release and Case Study
At PowerInbox’s request, you agree to participate with PowerInbox in a press release and case study that will include referencing the usage of the Services by you for public relations’ purposes.
Neither party will share Confidential Information about this Agreement. “Confidential Information” shall include for PowerInbox the proprietary information of PowerInbox, the Terms, CPMs or other metrics generated by PowerInbox Services, traffic quality, logins or passwords, click through rates, screen shots or copies of this Agreement. The receiving party agrees to accept and use Confidential Information solely for the purpose of executing this Agreement and the provision of the Services. The receiving party will not disclose, publish, or disseminate Confidential Information to a third party other than those of its employees, subcontractors and/or consultants (“Authorized Representatives”) with a need to know, and further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, ensure that such receiving party’s Authorized Representatives fully perform the duties and obligations hereunder and the receiving party shall remain liable at all times for any acts and/or omissions of its Authorized Representatives with respect to the disclosing party’s Confidential Information. The receiving party agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of the disclosing party in each instance. In performing its duties and obligations hereunder, the receiving party agrees to use at least the same degree of care as it does with respect to its own confidential information of like importance but, in any event, at least reasonable care. Further, the receiving party agrees that it shall not make any copies of the Confidential Information on any type of media, without the prior express written permission of the authorized representative of the disclosing party. Confidential Information shall not include information and material which: (a) at the time of disclosure by disclosing party to receiving party hereunder, is in the public domain (provided it is not in the public domain as a result of a breach of a confidentiality obligation); (b) after disclosure by the disclosing party to receiving party hereunder, becomes part of the public domain through no fault of the receiving party; (c) was rightfully in the receiving party’s possession at the time of disclosure by the disclosing party hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the receiving party by a third party having the right to do so; or (e) independently developed by the receiving party without use of, or reference to, Confidential Information received from the disclosing party. In the event that the receiving party is required to disclose Confidential Information of the disclosing party pursuant to any law, regulation, or governmental or judicial order (“Order”), the receiving party will if and to the extent permitted under such Order (a) promptly notify disclosing party in writing of such Order, (b) reasonably cooperate with disclosing party in opposing such disclosure, (c) only disclose to extent required by such Order. Upon termination of these Term, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing. This provision shall survive termination of these Terms for any reason.
18. OTHER MISCELLANEOUS TERMS
- The Terms constitute the whole legal agreement between you and PowerInbox and govern your use of the Services (but excluding any services which we may provide to you under a separate written agreement with PowerInbox), and completely replace any prior agreements between you and PowerInbox in relation to the Services.
- You agree that we may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
- You agree that if any party does not exercise or enforce any legal right or remedy which is contained in the Terms (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of its rights and that those rights or remedies will still be available to such party.
- These Terms shall be governed by and construed in accordance with the laws of the State of New York and only the competent courts of New York, New York shall have jurisdiction over any dispute arising from these Terms.
- If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
- You acknowledge and agree that each member of the group of companies of which PowerInbox is part of shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.
- You may not assign (or grant a sublicense to) your rights to use the Services, or otherwise transfer any part of your rights to use the Services.
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