The following Terms and Conditions govern your use of this Ping4 Inc. web site and the materials accessible on or from the site. Please read them carefully before using the site. Your use of the site means that you accept these Terms and Conditions. If you do not agree with these Terms and Conditions, please do not use the Ping4 web site or the Ping4 services.
This Services Agreement (the “Agreement”) is made and entered into between you (the “USER”) and Ping4 Inc. (“Ping4″). Use of the Service (as defined below) signifies USER’s agreement to the terms and conditions set forth in this Agreement.
1. Description of the Service
As used in this Agreement, the term “Service” refers to Ping4′s Ping4Deals and Ping4Alerts services, which enable direct or server assisted presentation of text, audio, video or content between participating Merchants, Agencies and Users on a Wi-Fi network, on the web or on a private network, all software provided by Ping4 to the USER to enable use of the Ping4Deals and Ping4Alerts services (the “Software”), and all modifications, updates, and revisions thereof, and any documentation provided therewith.
2. Grant of Rights
Ping4 grants USER a non-exclusive, non-transferable, limited license to use the Service in accordance with this Agreement. Ping4 may, in its sole discretion, change the functions and capabilities of the Service and shall, in its sole discretion, determine the functions and capabilities that will be incorporated into subsequent releases of the Service.
3. Restrictions on Use: Prohibited Uses
USER represents and warrants that (a) only authorized users will access the Service solely in connection with USER’s exercise of the license granted hereunder; (b) USER’s Service account will not be transferred to, or used on behalf of, another party or entity without Ping4′s prior written consent; (c) USER will not use or copy the computer code and documentation provided in connection with the Service, except to make a back-up or archival copy of the code as specifically authorized by the copyright law of the United States of America; (d) USER will not remove any copyright, proprietary rights or other notice included in or on any portion of the Service, computer code or documentation, and shall reproduce all such notices in or on all copies made by USER; (e) USER will not distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Software to any third party or reproduce or create derivative works based upon the Software or any portion thereof; (f) neither USER nor any of its employees, subcontractors or other personnel will attempt to reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code of the Software; (g) USER will not use the Service in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation or to impersonate Ping4 personnel or other parties or entities; (h) USER will not transmit by means of the Service any materials of any kind which (i) violate, plagiarize, or infringe on the intellectual property or contractual rights of any third party; (ii) are exported in violation of any law, rule, or regulation governing exports from the United States; (iii) contain libelous, defamatory, obscene, pornographic, abusive or otherwise unlawful material; (iv) contain software viruses or any other malicious code designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and USER will not use the Service (i) for any purpose other than the issuance of bona fide communications to addressees known to USER; (ii) to violate the security of the Service policies; or (iii) to attempt to utilize another user’s account name or persona without authorization from that user.
4. Ownership of Service
USER acknowledges and agrees that Ping4 retains all title, copyright, patent rights and other proprietary rights in and to the Service and related documentation and computer code, including, without limitation, all copies, modifications, translations and other derivative works that duplicate or are based on the Service or components thereof, and that the Service is proprietary to Ping4 . Ping4 reserves all rights not expressly granted herein and no other rights and licenses are granted or deemed to be granted hereunder. USER agrees that any feedback provided to Ping4 regarding the Service shall constitute, and shall be treated by USER as proprietary information of Ping4 .
5. Third Party Proprietary Materials
Third party materials accessible to USER through the Service may be the subject of intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. All rights to such third party materials are retained by the owners of such materials. Except as expressly permitted by the owner of such rights, USER may not reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any such materials.
(a) USER shall be responsible for installing any computer code required to use the Service on USER’s equipment, for any use of the automatic update feature of the computer code, and for assuring proper hardware configurations, audit controls, back-up plans and operating methods, including network overheads associated with use of the Ping4 software. If USER requests consulting or support services, Ping4 may provide such services at a mutually agreed upon fee. (b) USER acknowledges that it may be temporarily disconnected from or logged off of the Service, either due to a system failure or because of USER inactivity and that Ping4 shall have no liability in connection with any such disconnection or log off. (c) USER acknowledges that it is solely responsible for the operation of its computer device and Internet access if so required. (d) USER agrees to comply with all Ping4 instructions for installation and use of the Services.
7. Charges and Payment
(a) USER is responsible for any periodic Ping4 license fees paid for access to the Ping4 service and no refunds will be provided by Ping4 where access to the Service is discontinued. Ping4 further reserves the right, in its sole discretion, to cancel any USER’s access to the Service immediately and without notice. (b) USER is responsible for all charges associated with connecting to the Service, including, without limitation, all access lines, telephone, networking and computer equipment necessary to access the Service. (c) USER is responsible for all activities and any third party charges resulting from use of the Ping4 Service, including, without limitation, taxes levied by any governmental authority in connection with USER’s use of the Service. USER will reimburse Ping4 for any third party charges, including taxes, that Ping4 is obligated to pay as a result of USER’s use of the Service. (d) USER will remain liable for any unauthorized use of its account with the Service until it notifies Ping4 by email, receipt requested and received at support@Ping4.com. (e) Ping4 reserves the right to institute or increase fees at any time upon seven (7) days prior notice posted on the Ping4 Website. If Ping4 does not receive the full amount of Service account balance within thirty (30) days of the billing date, the lesser of 1.5% per month or the highest percentage allowed by law of the outstanding balance will be added to USER’s bill as a late charge each month and shall be due and payable. USER shall also be liable for all attorney and collection fees arising from Ping4 efforts to collect any unpaid account balance(s).
8. User Information
(a) USER certifies to Ping4 that it is a bona fide user if an individual, an Agency or a business. (b) USER agrees to provide Ping4 with accurate, complete, and updated information required by the registration to the Service (Registration Data), including USER’s e-mail address. If required, USER agrees to submit appropriate payment data, including type of credit card, credit card number and expiration date). USER agrees to notify Ping4 within five (5) days of any changes in USER’s Registration Data. Failure to comply with this provision may result in immediate suspension or termination of USER’s rights to use the Service. (c) USER is solely responsible for maintaining the confidentiality of its passwords, and agrees that Ping4 will have no obligations with regard thereto. (d) Ping4 reserves the right to reveal any Registration Data or other information in its possession regarding users of the Services in cooperation with a request or investigation by any governmental body or governmental agency.
9. Encryption of Transmissions
Ping4 encrypts data in USER transmissions utilizing industry standard encryption techniques. Although Ping4 believes that the techniques it uses are reliable, USER understands and acknowledges that no encryption technique is foolproof and therefore that Ping4 cannot and does not warrant that transmissions are absolutely secure from third party interception and de-encryption.
USER hereby agrees to indemnify and hold harmless Ping4 and its employees, licensors, independent contractors, providers, subsidiaries and affiliates, from and against any and all liability and costs (including, without limitation, Ping4 attorneys’ fees and costs) incurred by any of them in connection with any third party claim arising out of any breach by USER of the representations and warranties in Section 3 of this Agreement. USER shall cooperate as fully as reasonably required in the defense of any claim.
11. DISCLAIMER OF WARRANTY
THE SERVICE (INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, Ping4 MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, PING4′s NEGLIGENCE. PING4 WILL NOT BE LIABLE FOR ANY FAILURE OF OR DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY CAUSED BY ACTS OF THE USER, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, CAUSES BEYOND THE CONTROL OF PING4, INCLUDING BUT NOT LIMITED TO ACTS OF GOD AND GOVERNMENTS AND FAILURES OF THE INTERNET OR THE COMPONENTS THEREOF.
12. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL PING4 BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF PING4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PING4′s TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION.
In addition to any other rights of the parties set forth herein, either the USER or Ping4 may terminate this Agreement at any time upon notice. Ping4 also reserves the right to restrict, suspend or terminate the Services in whole or in part, without notice, with respect to any breach or threatened breach of Sections 3 or 5, or if USER is subject to charges and Ping4 is unable to obtain payment due for such charges within thirty (30) days of the date upon which Ping4 submits a request for payment to USER, or USER’s credit card company (depending upon payment method chosen by the USER).
14. Modifications to Agreement
Ping4 has the right to modify this Agreement. Any modification is effective one week after posting on the Service Home Page (http://www.Ping4.com/aboutus/termsofus), or immediately upon notice by electronic mail, or U.S. mail. USER’s continued use of the Ping4 Service following notice of any modification to this Agreement shall be conclusively deemed an acceptance of all such modification(s). USER’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Ping4 in providing the Services, including, without limitation, (i) any change in the content of the Services, or (ii) any change in the amount or type of Service Fees, is to terminate use of the Service.