TERMS & CONDITIONS

V.03 - 01.05.2021

 

THESE TERMS AND CONDITIONS (THE “AGREEMENT”) CONSTITUTE THE LEGAL AGREEMENT BETWEEN YOU (THE “ADVERTISER” OR THE “PUBLISHER”, AS MAY BE APPLICABLE) AND PUSHGROUND, S.L. (“PUSHGROUND”) THAT WILL GOVERN YOUR PARTICIPATION IN PUSHGROUND’S PLATFORM. PLEASE READ THE AGREEMENT BEFORE COMPLETING THE REGISTRATION PROCESS IN THE PUSHGROUND PLATFORM. BY PRESSING THE “REGISTER” BUTTON AT THE END OF THE REGISTRATION PROCESS YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT AND ALL ITS TERMS AND CONDITIONS, AND WILL BECOME PART OF THE PUSHGROUND NETWORK.

 

1. DEFINITIONS

For purposes of this Agreement, any capitalized terms shall have the meaning expressly set out below for such term.

Administration Panel means the interface provided by Pushground (i) to the Advertiser in order the Advertiser to be able to upload its Push-Notifications, and follow-up its performance; (ii) to the Publisher in order the Publisher to be able to check feeds statistics.

Advertiser(s) means Pushground’s clients, who after completing the registration process (by providing all the required information and pressing the REGISTER button) will become part of the Pushground Network, being then entitled to create Push-Notifications (providing the required Push-Ads Material, for which the Advertiser will be liable of), and authorizing Pushground as your intermediary to include them on the Pushground real time bidding system.

Click means the number of times, as recorded by Pushground’s Platform an End-User visits the Advertiser’s Website or Application, as identified by clicks on the relevant Push-Notifications.

End-User means individuals who have legally and validly subscribed or accepted to receive Push-Notifications.

Publisher(s) means an entity that has the capacity to (directly or indirectly) deliver Push-Notifications to End-Users, and who after completing the registration process (by providing all the required information and pressing the REGISTER button) will become part of Pushground Network, being then able to participate on the Pushground real time bidding system, and authorizing to this effect Pushground to act as intermediary.

Push-Ads Material means the text, graphics, logos, designs, trademarks and copyrights created by the Advertiser for a particular Push-Notification.

Push-Notification means the ad format directly delivered to End-Users' mobile or desktop device, who have previously and expressly accepted to receive push notifications, or subscribed to the same.

Pushground Network means the network formed by the Advertisers and Publishers that have been duly registered in the Pushground Platform.

Pushground Platform means the online platform owned and operated by Pushground, to which YOU have registered, and that (i) enables the Advertiser to create and launch Push-Notifications, and (ii) enables the Publisher to obtain Push-Notifications that will be delivered to the End-Users to whom the Publisher has the capacity (directly or indirectly) to deliver Push-Notifications.

 

2. PURPOSE OF THE AGREEMENT

By virtue of this Agreement Advertiser(s) markets and advertises their goods and services using Push-Notifications and Publisher(s) delivers the Push-Notifications to its End-Users, using the Pushground Platform, and through the Pushground real time bidding system. On top of that, Pushground provides guidance to help Advertiser(s) and Publisher(s).

Pushground acts at all times as an intermediary, with no effective knowledge on the content of the Push-Notifications shown to End-Users (or the Websites or Applications they redirect to), and with no control on the End-Users to which the Push-Notifications will be shown. The Advertiser and the Publisher are the only responsible parties, respectively, for such content, and for ensuring End-Users have legally and validly completed the subscription or acceptance to receive Push-Notifications; and will always hold Pushground harmless for any responsibility, infringement, damage or loss that may derive from, or in relation to, Push-Notifications delivered to End-Users using the Pushground Platform.

If YOU detect that:

• Push-Notifications within the Pushground Platform contain illegal content or infringe third-party rights;
• Push-Notifications within the Pushground Platform redirect to websites or applications which (a) are illegal; or (b) which content infringe third party rights, or (c) which offer illegal services or products;
• Push-Notifications are delivered to End-Users that have not duly given their consent to receive such type of campaigns; or
• Clicks to Push-Notifications are not done by real individuals or End-Users visiting the Advertisers’ Websites or Applications (being clicks generated by automated systems or other fraudulent means);

please notify such circumstance to Pushground at compliance@pushground.com, so we can adopt the required measures to prevent non-compliant traffic.

 

3. ADVERTISERS’ PUSH-NOTIFICATIONS

Advertiser will be responsible for creating and uploading in the Pushground Platform, through its Administration Panel, the Push-Ads Materials that will contain the creatives that will be showed to End-Users and that will be launched as Push-Notification.

When setting up a Push Notification, in addition to the Push-Ads Materials, the Advertiser will determine the target (including territory and/or carrier and/or city); traffic restrictions (if applicable); operating system; eligible days per week / hours per day; payable price per click; and any other specification regarding the Push-Notification that the Pushground Platform may require from time-to-time.

The Advertiser is the only entity liable for the Push-Ads Materials and any other information and specification included in the Pushground Platform regarding a particular Push-Notification.

Pushground’s unique responsibilities are: including the Push Notification in the real time bidding system (at the price per click determined by the Advertiser minus Pushground’s Commission, which will be freely determined by Pushground and at its sole discretion), calculation of statistics, click-through rate and revenues. CET Time shall be the time period for traffic and tracking purposes. Statistics will be available to Advertiser online in the Administration Panel.

Pushground shall not be responsible for any damage or loss as may be caused by the disruption of Push-Notifications or the removal of Push-Notifications by any Publisher and/or third party.

Advertiser warrants and represents to Pushground, that it has all rights, title and interests in and to the Push-Ads Materials it places on the Pushground Platform, and that its Push-Notifications content, and any website or application or other destination that the Push-Notifications direct to, do not (i) contain material which is unlawful, harmful, threatening, defamatory, offensive, profane, harassing, discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), incites violence or otherwise is objectionable, libellous or misleading, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; (ii) contain “spam”, malicious code, adware, spyware or drive-by download applications, viruses, worms, Trojan horses, corrupted files, unauthorized programs or similar programs that might harm data or computer systems, or may damage or render inoperable the corresponding software, hardware or security measures, or that interact with end users' browsers in any manner, it effects end users’ web navigation by error page redirections, hijacking, tabs redirection, creation of new tabs, or in any other manner; (iii) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (iv) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable (including regulations on consumer protection, product liability, or tort); or (v) otherwise contain material which may have an adverse effect on Pushground, Publishers, affiliates, licensors, agents or End-Users.

If the Advertiser becomes aware to any legal restriction concerning a Push-Notification usage and/or distribution it will immediately notify Pushground.

Positioning of the Push-Notifications is at the sole discretion of Pushground. Pushground does not guarantee that Advertiser’s Push-Notifications will be to Publishers End-Users, the timing of delivery of the Push-Notifications and/or the placement and positioning of Advertiser’s Push-Notifications. Pushground reserves the right to approve, omit, or reject any of Advertiser’s Push-Notifications for any reason at any time. In addition, Pushground reserves the right, at any time, to remove any of Advertiser’s Push-Notifications if Pushground determines, in its sole discretion that the Push-Notification, violates any of Pushground’s policies or may result in liability to Pushground. Pushground’s failure to reject, cancel, approve, omit, or reject any Push-Notification shall not be construed as an acceptance of a Push-Notification. Publisher or its affiliates may reject or remove any Push-Notification for any or no reason. Advertiser agrees that Pushground shall not be responsible for any discrepancy in targeting criteria.

 

4. ADVERTISING BUDGET

Advertiser must prepay its advertising budget through credit card, wire transfer, credit lines or any other payment method available in the Pushground Platform or mutually agreed by the Advertiser and Pushground (the Advertiser’s Budget). Advertiser shall pay all charges in U.S. Dollars. The minimum amount in order to start a specific campaign is 20 USD.

Pushground will deliver the Advertisers Push-Notifications until the Advertiser’s Budget is reached. It is stated that the Advertiser’s Budget may be exceeded up to a maximum of 20%, in case Pushground continues delivering Advertiser’s Push-Notifications. Also if the campaigns accumulative amount of daily budgets exceeds the current balance of the account, the account manager is entitled during the moderation process to adjust the daily budgets according the current account balance. In the event that the Advertiser’s Budget has been exceeded, Pushground will invoice the Advertiser the corresponding pending amounts (up to the maximum allowable excess, which is established at 20% of the Advertiser’s Budget), in which case the Advertiser must pay the invoices in the maximum term of 30 days from invoice date.

Advertiser’s Push-Notifications will be relaunched to the Pushground real time bidding system once the Advertiser has prepaid another deposit (and in case applicable, has paid any excess) and the Advertiser’s Budget balance is positive.

Each time Pushground receives a deposit from the Advertiser, it will issue the corresponding invoice to the Advertiser. All amounts payable represent the net amounts to be received by Pushground.

Each Party will bear the costs and commissions charged by its bank. Advertiser is responsible for paying all taxes, government charges, and reasonable expenses and attorneys’ fees Pushground incurs collecting unpaid amounts. Charges are solely based on Pushground Platform measurements. Nothing in these Agreement may obligate Pushground to credit any amount to the Advertiser.

Advertiser expressly acknowledges that Pushground will generate the invoices based on the data provided by the Advertiser and therefore warrants that such data is accurate, fully and legally compliant, especially for invoicing and taxation purposes. Any Advertiser residing in the European Union who has provided a VAT number expressly warrants that such VAT number is, in its own country, valid for the issuance of VAT-exempt invoices. Advertiser expressly accepts to be solely liable for any error, direct or indirect loss or damage arising from the inaccuracy or non-compliance of such data or the breach of any of the aforementioned warranties and, accordingly, Advertiser will hold Pushground totally harmless from any of the said errors, direct or indirect loss or damages.

Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to Pushground may be shared with companies who work on Pushground’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Pushground and servicing Advertiser’s account.

Pushground reserves the right to withhold deposit or charge Advertiser’s account due to any breach of this Agreement by Advertiser.

Except for the events for which Pushground has the right to retain and keep the Advertiser’s deposits (as established in this Agreement), if the Agreement is terminated before the prepayment is depleted, Pushground will refund to the Advertiser that portion of the prepayment amount that remains undelivered at such time of termination, subject to the following conditions:

• Refunds will we made:
  1. In the corresponding credit card if payment was made by credit card
  2. By paypal or bank transfer in any other cases (at Pushground’s discretion)
  3. By USDT
  4. No other refund method will be applicable
• Any commission or fee applicable to the refund will be borne by the Advertiser
• No refund will be made for amounts below 50 USD.

For the sake of clarity, such refunds will not include any bonus or free credit given by Pushground (only payments made by the Advertiser and not used).

 

5. USE OF THE PUSHGROUND PLATFORM BY PUBLISHERS

Upon registration, each Publisher will be assigned an Account Manager that will set up the feeds required to allow the Publisher access to Pushground’s real time bidding system. Once this process has been completed, Publishers will be entitled to deliver the Push-Notifications included in the Pushground Platform to its End-Users, at the price per Click fixed by Pushground’s real time bidding system.

Misuse of the Pushground Platform, this is procuring business transactions by unfair methods or inadmissible means that violate applicable law or this Agreement, is prohibited.

In particular, Publishers are prohibited from attempting to obtain commissions by procuring business transactions themselves or through a third person, which not derive from End-Users effectively visiting Advertisers’ Websites or Applications, by means of real clicks on the relevant Push-Notification (for instance fraudulently pretending or faking business transactions, by obtaining clicks on the Push-Notifications generated by automated systems or similar mechanisms). Any method to artificially and/or fraudulently inflates the volume of clicks is strictly forbidden.

Any form of misuse will lead to the blocking of the Publishers’ accounts immediately (in this case Publishers may raise an objection (i.e. via letter, fax, e-mail) within fifteen days in order to provide a statement and evidence that its performance has been at all times in accordance with this Agreement). Publisher’s use of any means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, Pushground may terminate this Agreement without prior notification. Such termination is at the sole discretion of Pushground and is not in lieu of any other remedy available at law or equity. In the event of termination, as a penalty for the breach of this Agreement, the Publisher shall not be entitled to any remuneration or amounts credited in its Administration Panel, regardless of any other or further liability incurred by the Publisher.

Pushground’s Platform will be the official counter for determining the number of Clicks delivered and amounts payable under this Agreement.

Publisher(s) will indemnify and hold Pushground harmless of any liabilities, losses or damages of any nature which are directly or indirectly derived from their infringement of this Agreement.

 

6. PUBLISHER PAYMENT

Pushground will pay Publisher for the Clicks obtained at the fee established by the real time bidding system (Publisher’s Revenue).

If no particular terms are agreed, payments will be done monthly (Net 30), based on the Clicks obtained during the previous month.

Publisher will issue the corresponding invoices, which shall strictly contain the Publisher Revenue as shown in the Pushground Platform.

Publisher payments will be made by wire transfer, credit card, or by any other payment mechanism mutually agreed between the Publisher and Pushground.

Pushground acts solely as an intermediate between Publishers and Advertisers; and therefore, Pushground shall only be liable to Publisher for Publishers Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to Pushground. Publisher agrees that (i) Pushground shall have no liability or obligation to Publisher for payments due but unpaid from Advertisers; and (ii) Publisher shall hold Pushground harmless and indemnify it from any claims or liability related to such unpaid amounts. Pushground agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. Pushground, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein.

Pushground assumes no responsibility for paying any income taxes, banking commissions or currency fees on behalf of Publisher. By participating in the Pushground Network, Publisher assumes complete and sole responsibility for any taxes, banking commissions or currency fees owed as a consequence thereof.

Pushground is entitled to withhold, stop or cancel any payments due to Publisher, or disclose any information regarding the Publisher, should it be required to do so by a court or administrative authority.

 

7. MEASUREMENT OF PUSH-NOTIFICATIONS PERFORMANCE

Pushground’s Platform will be the official counter for determining the number of Clicks delivered and amounts payable under this Agreement.

Advertiser and Publisher understand that Pushground’s online real-time statistics may not be 100% accurate and that Pushground may make adjustments to online statistics.

Pushground cannot guarantee any volume of traffic. Clicks can differ from one day to another following the performances of each Push-Notification.

Each Party undertakes not engage any Fraudulent Activity. Fraudulent Activity means any of the following: (i) fictitious, automated and/or fraudulent clicks; (ii) management and placement of Push-Notifications in violation of any applicable law or regulation or breaching the specifications agreed between the Parties.

 

8. PARTIES REPRESENTATIONS

Each Party will make every effort to uphold the highest ethical and commercial standards.

Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) this Agreement constitutes a legal, valid and binding obligation for such Party, enforceable against the same in accordance with its terms; and (iii) it will act in accordance with all applicable laws, rules and regulations.

Additionally, the Advertiser represents and warrants that (i) all of the information provided to Pushground (or Pushground Platform) is correct, complete and current; (ii) it will fulfil all representations and commitments made in any Push-Notifications; and (iii) it will have a clearly labelled and easily accessible privacy policy in its Websites or Applications that provides users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from End-Users’ devices, including information about End-Users’ options for cookie management.

Additionally, Publisher represents and warrants that (i) all of the information provided by Publisher to Pushground (or Pushground Platform) is correct, complete and current; and (ii) all End-Users to whom Push-Notifications will be delivered have validly and legally subscribed to (or accepted) such Push-Notifications.

PARTICULAR COVENANTS ON ANTI-BRIBERY

Pushground is committed, in accordance with its zero-tolerance policy for bribery and corruption (the Anti Bribery and Corruption Policy), to ensure that all Pushground’s activities and the activities of all of Pushground’s advertisers, publishers, affiliates and business partners comply with all applicable laws and regulations and accord to the highest principles of corporate ethics. Accordingly, YOU undertake, in performing your activities under this Agreement, to comply with all applicable laws related to the fight against bribery and corruption and in particular:

• YOU hereby agree that neither yourself (directly or through your own networks), nor your agents or other representatives involved in your business shall violate any applicable anti-corruption or anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and United Kingdom’s Bribery Act of 2010 (the Anti-Bribery Laws), or act in a way which may result in such violation or cause other to violate Anti-Bribery Laws. To this effect it is placed on record that the Anti-Bribery Laws: (i) prohibit payments to government officials and private individuals, either directly or through intermediaries, for the purpose of obtaining or retaining business, or securing an improper business advantage; (ii) require the maintenance of complete and accurate books, records, invoices and other documents concerning payments and expenses which reflect in reasonable detail the character and amount of such expenditures and the transactions to which they relate; and (iii) prohibit use of any funds that are not fully accounted for, including “off book” accounts.
• YOY represent, warrant and covenant that, in connection with the Agreement or any other transactions or actions involving or benefiting Pushground, neither YOU nor any of your agents or other representatives will make or promise to make, have ever made, or have ever agreed or promised to make, any payments or transfer any gifts, valuables, property, benefits, or anything of value, directly or indirectly, to: (а) any governmental officials or employees (including representatives of state-owned and state-controlled corporations), (b) any political parties or their officials or candidates, or (c) any other person or entity, if such a payment or transfer could violate the Anti-Bribery Laws. YOU shall not offer, promise, give, authorize, solicit or accept any undue amount or other advantage related to any prospective leads, impressions, clicks, acquisitions, installations, registrations, or payments made under this Agreement or otherwise.
• Upon the request of Pushground, YOU shall make books, records, and documents available for inspection to the extent to which they concern the transactions on the Pushground Platform, provided that the inspection takes place while the Agreement is in force or within the five (5) years upon Agreement’s termination. YOU shall fully cooperate in any survey and/or audit that may be conducted.
• YOU represent, warrant and covenant that YOU have not taken or failed to take any actions which would subject Pushground or its network to potential liability under the Anti-Bribery Laws.

Pushground shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of YOUR activities do not fully comply with the Anti-Bribery Laws or Pushground’s Anti Bribery and Corruption Policy.

PARTICULAR COVENANTS ON ANTI-MONEY LAUNDERING

Additionally, Pushground is committed, in accordance with its zero-tolerance policy for money laundering and terrorism financing (the Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy), to ensure that funds related to, or derived form, Pushground’ activities are not derived from criminal activity or other non-legal or non-legitimate means. Accordingly, YOU hereby declare that YOU are also committed to preventing money laundering by having proportionate and effective anti-money laundering systems and processes in place. Pushground shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of YOUR activities do not fully comply with Pushground’s Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy.

 

9. NO WARRANTY

Pushground’s Platform is provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee.

To this effect the Advertiser declares, acknowledges and accepts that (i) Pushground has no obligation to distribute the Push-Notifications or otherwise promote and manage the Push-Notifications, and Pushground disclaims all guarantees regarding the results or performance of Push-Notifications; (ii) the Advertiser has not relied on Pushground’s skills, capacities or results in relation to the management of the Pushground Platform (and it would not be reasonable to do so); (iii) Pushground does not warrant that the services fit for the Advertiser, its business, the purpose, revenue or profit perspectives of the Advertiser or its clients (and Pushground cannot do so); (iii) Pushground has made no express warranties about the Pushground Platform, software or third-party contents; the Pushground Platform may not be uninterrupted, timely, secure or free from errors; Pushground will not be responsible for interruptions or errors which may have occurred in the network, servers or platforms of third parties (iv) the Advertiser is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the Pushground Platform.

ADVERTISER ACKNOWLEDGES, AGREES AND ACCEPTS THE RISK THAT PROHIBITED OR IMPROPER ACTIVITY CAN BE GENERATED BY THIRD PARTIES, AND ANY CREDITS OR REFUNDS FOR SUCH ACTIVITY ARE AT PUSHGROUND’S SOLE DISCRETION. PUSHGROUND SHALL HAVE NO RESPONSIBILITY OR LIABILITY IN RELATION WITH ANY THIRD PARTY CLICK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR.

 

10. DURATION AND CANCELLATION

The Agreement between the Parties shall be indefinite and shall come into force on the date YOU complete your registration in the Pushground Platform by pressing the “REGISTER” button. Either Party may terminate the Agreement, or may cancel or suspend a Push-Notification campaign at any time.

Either Party, acting in good faith, may withdraw a specific campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damages.

Clauses 8 (PARTIES REPRESENTATIONS), 9 (NO WARRANTY), 11 (LIMITATION OF LIABILITY) 12 (INDEMNITY FOR DAMAGES), 13 (DATA PROTECTION) and 14 (MISCELLANEOUS) shall remain in force after the termination of the Agreement.

 

11. LIMITATION OF LIABILITY

• Time Limitation. No action arising under or relating to this Agreement, regardless of its form, may be brought by YOU more than two (2) months after the cause of action has occurred and, in any event, no later than two (2) months after the termination of this Agreement. Pushground will not be liable for actions brought after this time limitation.
• Actions that may entail liability. Pushground will only be liable in case of (a) Pushground’s direct material breach of the Agreement, not remedied within fifteen (15) business days upon YOUR written notification to this effect, or (b) wilful, unlawful or malicious acts (or omissions) committed directly by Pushground.
• Damages. Pushground’s liability will be limited to DIRECT damages, losses, costs, liabilities, fines or penalties suffered by YOU. In no event Pushground will be liable vis-à-vis YOU for the results of a specific campaign, or for any indirect, incidental or consequential damages of any type (including but not limited to loss of profits, revenues, data, business interruption, or loss of goodwill, clients or reputation).
• Amount limitation. TO THE EXTENT PERMITTED BY LAW, THE TOTAL AND MAXIMUM AGGREGATE LIABILITY OF PUSHGROUND ARISING FROM THE AGREEMENT FOR ALL CLAIMS (REGARDLESS THE FORM OF ACTION) WILL BE LIMITED TO ONE MONTH AVERAGE FEE (WHICH SHALL BE DETERMINED BASED ON THE FEES ACTUALLY PAID BY THE ADVERTISER TO / RECEIVED BY PUBLISHER FROM (as may be applicable) PUSHGROUND FOR THE LAST THREE BILLED MONTHS, PRIOR TO THE DATE THE CLAIM TAKES PLACE).
• Claimant. In no event PUSHGROUND will be liable towards third parties different form YOU.

It is expressly placed on record that in no event YOU will be entitled to suspend or retain payments in case a claim is brought against Pushground.

THE FOREGOING LIMITATIONS ARE FUNDAMENTAL TO THE ENTERING INTO THIS AGREEMENT BY PUSHGROUND. YOU DECLARE, ACKNOWLEDGE AND ACCEPT THAT IT IS FAIR AND REASONABLE FOR PUSHGROUND TO RELY ON THE FOREGOING LIMITATIONS.

 

12. INDEMNITY FOR DAMAGES

YOU agree to defend, indemnify and hold harmless PUSHGROUND and each of the members of Pushground Network from and against any and all damage, injury, liability, costs and expense (including reasonable attorneys’ fees) or other claim, whether or not involving a third party claim, related to (i) claims arising from YOUR activities in relation to the Agreement, including, by way of illustration and not limited to, claims arising from the infringement of third-party rights; (ii) the management, publication, display or distribution of Push-Notifications (including claims for defamation; breach of confidentiality agreements; violation of privacy; false, deceptive or misleading publicity or bad sales practices; non-fulfilling of consumers or End-Users rights; or failure to comply with representations made); (iii) wilful, unlawful, negligent or malicious acts (or omissions) committed by YOU; (iv) breach of the terms of the Agreement or the failure to perform any obligation undertaken in the Agreement.

Pushground will have the right to control the defence of any claim involving Pushground.

 

13. DATA PROTECTION AND PRIVACY POLICY

Each of the Parties hereby represents and warrants it is in compliance with the Data Protection regulations applicable to the same (including EU regulations in force on the protection of natural persons with regard to the processing of personal data and on the free movement of such data), and that it has complied with all the terms, requirements, proceedings and regulations required to collect personal data (by whatever means), taking into account the foreseen use of the same.

YOU acknowledge and accept that all personal data submitted in relation to the Agreement (or your registration in the Pushground Platform) will be incorporated on Pushground database, created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information (by any means available, including by web-based technology), in order to complement the commercialized services. Pushground informs YOU of YOUR rights of access, rectification, cancellation and opposition. YOU are entitled to exercise any of these rights, by means to written notification to the following email address: compliance@pushground.com.

 

14. MISCELLANEOUS

License. YOU agree that Pushground may include YOUR name (including any trade name, trademark, service mark and logo) on Pushground’s Network list and marketing materials and sales presentations and YOU provide Pushground with the license to use YOUR trade names, trademarks, service marks and logo for the purpose hereof.

Ownership. Pushground is the sole owner of any and all intellectual property rights associated with the Pushground Platform. Pushground retains all rights, title and interest, including any and all intellectual property rights in and to any materials created, developed or provided by Pushground in the Pushground Platform. Pushground reserves all rights not expressly granted herein.

Commercial Nature of the Relationship. The relationship which is established between the Parties by virtue of the Agreement, is a commercial relationship to all effects. Pushground and YOU are independent Parties who shall act in this capacity at all times, and nothing contained in the Agreement, nor any action taken by any Party in the execution of the same, shall be deemed to constitute either Party (or any of such Party's employees, agents or representatives) an employee, or legal representative of the other Party, nor to create any joint venture, association, syndication or any other type of relationship between them. The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.

Entire Agreement. This Agreement constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties in relation thereto.

Pushground reserves the right to modify, from time to time and in its sole discretion this Agreement. In case of modification of this Agreement, Pushground will communicate said modification to YOU. The notified modification shall be deemed accepted by YOU provided that YOU do not communicate in writing to Pushground YOUR disagreement within a period not exceeding five (5) days. In case YOU communicate YOUR disagreement, Pushground will be entitled either to terminate the Agreement, or to maintain applicable to YOU the terms and conditions in force prior to the modification.

Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.

Force Majeure. Neither Party shall have any liability for any failures or delays in performance of the Agreement arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc.

Governing Law and Jurisdiction. The Agreement between the Parties is governed by and interpreted (without giving effect to conflict of laws principles) in accordance with the Spanish law.

The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Agreement, to the jurisdiction of the courts of the city of Barcelona, waiving any other jurisdiction which may correspond to them.