End User Subscriber Agreement (EUSA)

(Formerly Known as Terms of Use – AUP)

Definitions

“Authorized Identities”: means persons loaded into the database for audit purposes, it being hereby stated that the number of Authorized Identities shall under no circumstances exceed the number defined on the order form.

 “Configuration”: the technical pre-requisites corresponding to the Client’s computer equipment (hardware, operating system, software, subscription to an internet service provider) required to run and/or access the Service (e.g. workstation browser, plug-ins).

“Documentation”: all documents relating to the installation, settings and use of the Software that has been provided to the Client.

 “Intellectual Property Rights”: all intellectual property rights, whether or not registered and all applications, renewals and extensions of the same, including, without limitation, author’s rights, copyright, software rights, database rights, patents, rights in know-how, trademarks, trade names, design rights, trade secrets and any other similar rights existing and/or future – whether registered or unregistered – anywhere in the world.

“Open Source Libraries”: the libraries subject to open source licenses, whose text is available as a downloadable archive.

“Service”: any service provided by NewPush to Client, including the access to SaaS, PaaS, and IaaS.

“Scope”: the scope of Services as defined in the Subscription.

Software”: any software used in conjunction with the Service, in executable and code object, designed, developed and published by their respective Vendors (e.g. Microsoft, RedHat, Oracle, Brainwave) to be provided to several users for the same application, including the Documentation.

“Start Date”: the initial Subscription to Services that commences on the effective date.

“Subscription”: the subscription to Services by the Client under the terms of the Service Agreement and/or any other applicable agreement entered into with Client.

“Service Agreement”: the agreement between NewPush and the Client relating to Services.

“Subscription Term”: the subscription period to Services, regardless of the use of Service by Client.

“User”: any person in possession of credentials allowing access to the Client’s Service.

Technical Prerequisites

The client is responsible for ensuring its equipment complies with the specified Configuration.

Granted Software Rights

NewPush grants the Client, for the Subscription Term, with a worldwide, personal, non-transferable and non-exclusive right to access and use the Services and for its own needs only – in accordance with the terms and conditions, the Scope of the Subscription Agreement, for the Subscription Term, and the procedures and methods as defined in the Documentation.

In particular, the Client is not allowed to:

  • alter the metering used to define the true value of the services (e.g. share user IDs, exceed/alter the measurement of the number of Authorized Identities, create shadow users);
  • allow a third party (other than a User) to use the Software, except as otherwise stated in the Subscription Agreement;
  • reproduce, download, make copies of the local Software components, or access directly the Software on the server (e.g. by circumventing security measures), or attempt to perform such acts;
  • modify, translate, reverse-engineer, decompile, disassemble, recreate any Software component, even partially, or attempt to or enable third parties to perform such acts, except as otherwise permitted by applicable laws subject to NewPush’s prior written consent, e.g. connectors installed on customer premises;
  • modify, alter, or remove the copyright identifications, trademarks and/or any other intellectual property notice, appearing in and/or on the Software, or which enables its identification;
  • sell, rent, sublicense, make available or otherwise transfer and/or share the rights pertaining to the Services, whether in part or entirely, by any means whatsoever, e.g. connectors on customer premises;
  • introduce into the Software a virus, robot, bot, electronic agent, any automated system or any other element of code, intending – in whole or in part – to disturb or damage the Software, and/or alter, damage or erase any content, and/or recover or save information on the Software or its users. The user shouldn’t use the service in a way which would be detrimental to the SaaS service;
  • transmit, distribute or store of any material in violation of any applicable law or regulation. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat or violates export control laws;
  • send Unsolicited Bulk Email (“UBE”, “UCE”, “spam”). The sending of any form of Unsolicited Bulk Email through NewPush’s servers is prohibited. Likewise, the sending of UBE from another service provider advertising a web site, email address or utilizing any resource hosted on NewPush’s servers, is prohibited. NewPush accounts or services may not be used to solicit customers from or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider. UCE referencing sites on our servers in any manner (as originator, intermediary, destination or reply-to address) is STRICTLY PROHIBITED and your account may be terminated without notice or refund if you send UCE through our network or your site on our network is referenced in UCE. In addition, we reserve the right to impose a minimum $100 fee for each reported unsolicited e-mail. Additional charges may apply for administrative work or any penalties incurred by NewPush or its upstream providers for abusing our services;
  • run unconfirmed mailing lists. Subscribing email addresses to any mailing list without the express and verifiable permission of the email address owner is prohibited. All mailing lists run by NewPush customers must be Closed-loop (“Confirmed Opt-in”). The subscription confirmation message received from each address owner must be kept on file for the duration of the existence of the mailing list. Purchasing lists of email addresses from 3rd parties for mailing to from any NewPush-hosted domain, or referencing any NewPush account, is prohibited;
  • advertise, transmit, or otherwise make available any software, program, product, or service that is designed to violate this EUSA or the AUP of any other Internet Service Provider, which includes, but is not limited to, the facilitation of the means to send Unsolicited Bulk Email, initiation of pinging, flooding, mail-bombing, denial of service attacks;
  • operate an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO)database at spamhaus.org;
  • attempt to gain access to any account or computer resource not belonging to that user (e.g., “cracking”);
  • obtain or attempt to obtain service by any means or device with intent to avoid payment;
  • perform unauthorized access, alteration, destruction, or any attempt thereof, of any information of any NewPush customers or end-users by any means or device.
  • knowingly engage in any activities designed to harass, or that will cause a denial-of-service (e.g., synchronized number sequence attacks) to any other user whether on the NewPush network or on another provider’s network.
  • use Service to interfere with the use of the NewPush network by other customers or authorized users.

The Client is responsible for the acceptance and the compliance with the terms and conditions of the Service Agreement by Users.

Ownership of Intellectual Property Rights

All Intellectual Property Rights attached to or associated with the Service are and shall remain the property of their respective owners and/or publishers or of any third party that has granted a licensing right to NewPush. Any amendment and/or enhancement of each Software provided to the Client under the Service Agreement shall remain the property of their respective owners.

Libraries Subject To Open Source Licenses

Several of the libraries supplied with the Software are subject to Open Source Libraries.

The Client understands and agrees that the provisions of the NewPush Terms do not apply to Open Source Libraries.

Disclaimer

NEWPUSH WARRANTS THAT THE SOFTWARE WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. NEWPUSH DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT NEWPUSH WILL CORRECT ALL SOFTWARE ERRORS. CUSTOMER ACKNOWLEDGES THAT NEWPUSH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY NEWPUSH (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SAAS AGREEMENT. NEITHER NEWPUSH NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL NEWPUSH OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CLIENT’S OR ANY USER’S DATA, FILES, OR PROGRAMS.

Indemnification

The Client shall protect, indemnify, defend and hold NewPush and its directors, officers, employees, affiliates, contractors, vendors, and agents, harmless from and against any loss, damages or costs (including reasonable attorney’s fees) incurred in connection with any claim, suit or proceeding made or brought against NewPush by any third party arising from or relating to the Client’s use of the Software in violation of NewPush’s Terms and/or the Client’s data uploaded by the Client and/or any information generated by the Client (or the Users) as part of the use of the Software.

Limitation of liability

Unless otherwise provided, the obligations of NewPush under the terms of NewPush Terms are obligations of means, and NewPush liability should be initiated only in case of proven misconduct.

NewPush will not be liable in any manner whatsoever with respect to the results of data analysis, their quality, their relevance, their completeness or their use by the Client. The use of such data analysis through the Software is made by the Client on an “as is” basis”, under its sole responsibility and at its sole exclusive risk.

NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF NEWPUSH) SHALL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS OR PROFITS OR COST OF REPLACEMENT OF THE SOFTWARE INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES..

NO PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT SHALL EXCEED THE FEES PAID OR PAYABLE BY CLIENT UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE

Termination and Survival

Upon termination of the Subscription Agreement for any reason whatsoever, the access to the Software is immediately withdrawn. All the provisions which should survive the termination of the Subscription Agreement by nature shall remain applicable, for the term necessary to give them full force, in particular, the provisions relating to disclaimer and liability.

Customer Responsibility for Customer’s Users

Each NewPush customer is responsible for the activities of its Users and, by accepting the Service from NewPush, is agreeing to ensure that its Users abide by this Policy. Complaints about Users of a NewPush customer will be forwarded to the NewPush customer’s postmaster for action. If violations of the NewPush EUSA occur, NewPush reserves the right to terminate services with or take action to stop the offending customer from violating NewPush’s EUSA as NewPush deems appropriate, without notice.