Last Modified on December 3, 2018
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Your use of the Site AND/OR THE SERVICE, or BY clicking "I ACCEPT" if presented with THIS TOU in a click-through format, signifies that you agree to THIS TOU and constitutes your binding acceptance of THIS TOU, including any modifications that A1Push makes from time to time.
3. ToU Updates
A1Push will revise this ToU as the Site and/or Service evolves. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
4. Description of Services.
Through the Site you may select from a variety of Services offered as described below. The Services we provide pertain to articles, blog posts, user comments, messages, information, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips ("Content") on the Site, displayed via the Software and accessed by users of your website, and provided by you and promoted through the Services.
4.1.Internal Content Analysis. You may elect to use our Software (as defined in Section 7.1) and Services to provide analysis of the internal content of your registered websites and to recommend and display on such websites links to and displays of relevant Content from your website which may be of interest to your users ("Recommended Content"). While A1Push and its Software endeavors to provide relevant Recommended Content, A1Push makes no representation or warranty regarding the relevance or appropriateness of any Recommended Content.
4.2.Insertion of Promoted Content. You may elect to use our Software and Services to display links on your registered websites to paid third-party Content ("Promoted Content"). If you elect to use the Services and Software to display Promoted Content on your website, you will earn a revenue share from the traffic generated thereby. The revenue share ("Revenue Share")payable to you will be at least 70% of the net revenues actually received by A1Push in respect of such traffic, as determined by A1Push in its sole discretion. Revenue Share payments shall be made in accordance with Section 14.2.
4.3.Insertion of Exchange Content. You may elect to use our Software and Services to have links to your Content displayed on the websites of other users of our Services in exchange for your agreement to allow us to display or promote other third-party Content on your website (collectively, "Exchange Content"). A1Push makes no representation or warranty or guaranty regarding the traffic which may be generated by your Exchange Content, the relevance of the websites where your Exchange Content may be displayed, the relevance of the third-party Exchange Content displayed on your website, or the frequency in which your Exchange Content will be displayed. This portion of the Service is provided at no charge to you.
5. Termination of Service
A1Push reserves the right to deny service to any person and to reject any Content in A1Push's sole and absolute discretion for any reason. The Service is offered with the understanding that A1Push may terminate any account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. A1Push may stop offering and/or supporting the Service or any portion thereof at any time.
6. Accounts and Security
6.1.Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside. 6.2.Account. To access the Service, you must have an account. You can create an account by completing the registration process on the Site. By registering, you will have the ability to control certain settings for the Service. Depending upon which Services you select, you may be required to supply contact and other information.
6.3.Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of the account password. You agree to notify A1Push immediately if you believe that an account password may have been compromised.
6.4.Account Sharing or Transfers. You may not share or transfer any account, except that you may permit your minor child to use an account registered to you so long as you accept full responsibility for the conduct of that child. You may not disclose your password to anyone else.
6.5.Cancellation by You. You have the right to cancel any account registered to you at any time. You may cancel any account registered to you by following the instructions on the Site.
6.6.Effect of Account Termination or Cancellation. If you voluntarily terminate an account or allow that account to lapse, you may reactivate that account at any time through the account interface on the Site. Accounts terminated by A1Push for any type of abuse, including without limitation a violation of this ToU, may not be reactivated for any reason.
7. Software License
7.1.License Grant. Subject to the terms of this ToU, A1Push hereby grants a limited, non-exclusive, personal, non-sublicensable, non-assignable license to (i) download, install and use the Service and any application program interface or any other software code that we may make available to you from time to time provided by A1Push (collectively, the "Software") to develop, reproduce and distribute promotional capabilities that interoperate with the Site or any other web property owned by A1Push; (ii) any A1Push end-user documentation, solely when bundled with Service; and (iii) any upgrades, updates and new versions of the Software and related Services, as further described below. Such license shall include the right to use any A1Push intellectual property rights associated with or related to use of the Software, other matters related to the Service, and the A1Push end user documentation, solely in connection with the use of the Service as described above. The Software may only be used in connection with the Service and in accordance with this ToU and any rules, restrictions or documentation set forth by A1Push from time to time.
7.3.Proprietary Rights. As between you and A1Push, the Service, the Software, all data and information generated thereby and all intellectual property rights in and to the Software are and shall at all times remain the sole and exclusive property of A1Push and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of A1Push. You acknowledge that you do not acquire any ownership rights in or to the Service or such data.
8. Restrictions and Conditions of Use
8.1.Use of Site and Service. As a condition of use, you acknowledge and agree that you may not use the Service for any purpose not reasonably intended by A1Push. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. A1Push reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.
8.2.No Violation of Laws. You agree that you will not, in connection with your use of the Site, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Software, Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
8.3.Software License Restrictions. Notwithstanding anything to the contrary, you may not: (i) remove any proprietary notices from the Service or any copy of the Software; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Software or Service, including, without limitation, through sublicense, to any other entity without the prior written consent of A1Push; or (iv) make any false, misleading or deceptive statement or representation regarding A1Push and/or the Software or Service.
8.4.Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person's use of the Site and/or Service; (b) attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site and/or Service; (c) use the Site and/or Service for any illegal or unauthorized purpose; (d) use the Site and/or Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any A1Push user; (e) use the Service to submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops), or off-topic content; or (f) use the Service with the intention of artificially inflating, deflating or altering the Service, including by way of creating separate user accounts for the purpose of artificially altering A1Push's services; artificially inflating clicks on Promoted Content or participating in any other organized effort that in any way artificially alters the results of the Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information, including any Content that, or use the Service on any website, that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding A1Push and/or the Software or Service; (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias); (ix) displays adult, obscene, pornographic, libelous, infringing, abusive or defamatory content; (x) participates in, or encourages participation in, illegal activities; (xi) promotes hate or discrimination; or (xii) facilitates the sale of firearms or illegal drugs. A1Push may remove any Content from the Site and Service for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time.
8.5.No Commercial Uses. Except as provided in this ToU, you agree that you will not use the Software, the Site or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Software, the Site or Service.
8.6.No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders or other Software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Software, the Site or the Service.
9.1.Links from the Site and Services. The Site may contain, and Services may generate, links to websites operated by other parties, including Promotional Content, Exchange Content and other user generated Content. The use of these websites is at your own risk. The linked websites are not under the control of A1Push, and A1Push is not responsible for the content available on the other websites. Such links do not imply A1Push's endorsement of information or material on any other website and A1Push disclaims all liability with regard to your access to and use of such linked websites.
9.2.Links to the Site. Unless otherwise set forth in a written agreement between you and A1Push, you must adhere to A1Push's linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with A1Push's and/or its licensors' names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with A1Push, (iii) when selected by a user, the link must display the Site on full-screen and not within a "frame" on the linking Site, and (iv) A1Push reserves the right to revoke its consent to the link at any time and in its sole discretion.
10. Representations and Warranties
You represent and warrant to A1Push that (a) you are the owner (or is otherwise the authorized licensee) of the copyright or other intellectual property rights in any Content provided to A1Push hereunder, and have the right to deliver to, and to authorize A1Push to, display, perform, distribute and exploit such Content in the manner contemplated by this ToU without additional fee or payment whatsoever to any third party, (b) you shall not impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; and (c) none of your Content shall violate the terms of Section 8.4.
11. Intellectual Property
11.1. Trademarks. A1Push hereby grants you a personal, limited, non-exclusive, non-transferable, fully-paid license to use the marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of A1Push in the U.S. and/or other countries (the "A1Push Marks") in conjunction with your use of the Software or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of A1Push Marks at any time without additional authorization by A1Push, provided that you make reasonable efforts to send the blog post to A1Push prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the A1Push Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the A1Push Marks, nor violate any terms of these ToU. The rights granted to you in this license will terminate upon any termination or expiration of this ToU and you will no longer make any use of any A1Push Marks.
11.2. Copyright.The Site, Service and Software and the content made available through the Site, Service and Software are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site, Service or Software, or individual sections of the content, design or layout of the Site without A1Push's express prior written permission.
11.3. Copyright Agent. A1Push respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. A1Push maintains a policy of termination in appropriate circumstances of users who use the Site and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
Copyright Agent: Legal Department
2517 Wood Hollow Trail
zionsville, IN 46077
Email: [email protected]
The Site and the Service are operated by A1Push in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
13. Submitted Content
A1Push does not claim ownership of any Content you make available through the Service. At A1Push's sole discretion, such Content may be included in the Service in whole or in part or in a modified form. With respect to such Content you submit or make available for inclusion through the Service and your registered and unregistered trademarks, service marks, trade dress, graphics or logos ("Licensed Marks"), you grant A1Push a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials or any part of such materials in any of the following: (i) on the Site or any A1Push blog, newsletter or other communication or business development, sales or press release materials, (ii) as any part of the Service; (iii) on any third-party website in connection with the Service, including but not limited to, the display of your Exchange Content on third-party websites, and (iv) in any other reasonable manner that you might expect A1Push to use such Content and Licensed Marks. You hereby represent, warrant and covenant that any Content you provide does not include anything to which you do not have the full right to grant the license specified in this Section 13. If supplied by you, you shall supply Content to us in such formats and as otherwise consistent with our current and prevailing specification requirements. You agree that A1Push may use your name, Licensed Marks and logo, or otherwise refer to you, in its marketing materials and web sites as part of a list of its customers, and in any advertisement, news release or other publication of A1Push for the purpose of publicizing these ToU and/or A1Push's relationship with you. A1Push reserves the right to set your campaign live once the funds have been added to your account and content has been approved by our team.
14. Reporting; Terms of Payment
14.1. Revenue Share. If you have elected to display Promoted Content, A1Push will report the results of any Revenue Share earned by you via an online reporting tool that may be accessed by you to review pertinent Revenue Share. You will be paid any Revenue Share based on A1Push's reporting. A1Push shall make Revenue Share payments within 30 days of the end of the month, provided that A1Push shall not be obligated to make any payment to you until you have earned an aggregate of $50.00 of unpaid Revenue Share.
14.2. Taxes. You shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these ToU, except for income taxes.
The Site and the Service are not directed toward children under 13 years of age nor does A1Push knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to A1Push.
16. Disclaimer of Warranties.
You acknowledge that A1Push has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that A1Push shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service. You release A1Push from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. A1Push makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content or Exchange Content, and A1Push will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. A1Push does not make any representation, warranty or guarantee of the quantity or quality of traffic that you will receive under this Agreement. THE SITE, SOFTWARE AND SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. A1Push MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE, SOFTWARE OR THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, A1Push SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL VIEW CONTENT, AND (II) ANY BENEFIT YOU MIGHT OBTAIN FROM DISPLAY OF CONTENT BY A1Push. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND/OR THE SERVICE IS AT YOUR SOLE RISK. A1Push DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
17. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, A1Push, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SOFTWARE AND/OR SERVICE, EVEN IF A1Push AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF A1Push OR ANY OF THE RELATED PARTIES EXCEED THE LESSER OF (X) THE TOTAL REVENUE SHARE WE PAID TO YOU DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE, IF SUCH AMOUNT WAS GREATER THAN $0 OR (Y) $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of A1Push and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold A1Push and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys' fees, resulting from or arising out of your use of the Site, the Software and/or the Service or any breach by you of this ToU or any other policies that A1Push may issue for the Site, the Software and/or Service from time to time.
19. Governing Law; Jurisdiction
This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of Florida, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 19 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site, the Software and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, Florida and you agree to submit to the personal jurisdiction and venue of such courts. If either you or A1Push commences a lawsuit for a dispute arising under this ToU or relating to the Site, the Software and/or the Service, all of the issues in such action, whether of fact or law, shall be submitted to general judicial reference pursuant to Florida Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statutes thereto.
20. Binding Arbitration
20.1. Arbitration Procedures. You and A1Push agree that, except as provided in Section 19.4 below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 19 and the JAMS Rules, the terms in this Section 19 will control and prevail.
Except as otherwise set forth in Section 19.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and A1Push may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND A1Push WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
20.2. Location. The arbitration will take place in your hometown area if you so notify A1Push in your notice of arbitration or within ten (10) days following receipt of A1Push's arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, Florida, unless the parties agree to video, phone and/or internet connection appearances.
20.3. Limitations. You and A1Push agree that any arbitration shall be limited to the Claim between A1Push and you individually. YOU AND A1Push AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
20.4. Exceptions to Arbitration. You and A1Push agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or A1Push's intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
21. Fraudulent Activity
21.1. A1Push shall not be liable to Publisher or any third party for any payment for impressions, page views or click-throughs resulting from activity used to artificially increase impressions, page views or click-throughs (including but not limited to incentivized, automated (e.g., bots and spiders) or otherwise deceptive or artificial means) ("Fraudulent Activity"). Publisher shall take commercially reasonable steps to prevent such Fraudulent Activity by blocking IP addresses and/or Publisher’s user accounts associated with such Fraudulent Activity. Publisher shall cooperate with A1Push in any investigation of possible Fraudulent Activity, including access to Publisher’s access logs and other customer and affiliate information, to the extent that such cooperation by the Publisher is commercially reasonable and not in violation of any agreement between the Publisher and a third party. If A1Push determines the Publisher has knowingly engaged in Fraudulent Activity, then in addition to its other rights and remedies A1Push may terminate this Agreement effective upon notice and withhold payment up to the amount generated through Fraudulent Activity.
21.2. Adware. A1Push shall not be liable to Publisher or any other third party for any payment for impressions, page views or click-throughs resulting from any activity generated through adware. Adware is defined as any software which resides on a consumer’s computer and which generates advertising impressions, page views or click-throughs.
22.1. ToU Revisions. This ToU may only be revised in a writing signed by A1Push, or published by A1Push on the Site.
22.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and A1Push as a result of this ToU or your use of the Service or the Software.
22.3. Assignment. A1Push may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without A1Push's prior written consent, and any unauthorized assignment by you shall be null and void.
22.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
22.5. Attorneys' Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
22.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
22.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: A1Push, 2517 Wood Hollow Trail, Zionsville, IN 46077
22.8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
22.9. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Software is "commercial computer software" and "commercial computer software documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this ToU.
22.10. Equitable Remedies. You hereby agree that A1Push would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
22.11. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site, the Software and/or Service.