Terms and Conditions

PushKin is an internal employee connectivity platform designed for communication, confirmation, and coordination of an organization. This Terms of Use (“Terms”) governs the relationship between you, as a current or prospective customer of PushKin (“Employer”) or as an end-user of PushKin's services (which includes Employers’ employees, contractors, workers, Administrators (as defined below) in their capacity as any of the foregoing, non-Administrator users and other end-users, and which are collectively referred to as “End Users”)  and PushKin, Inc. (“PushKin”, “we”, and “us”) as well as your use of the PushKin app and the pushkinapp.com website  (collectively the “PushKin Platform”) and the services provided by PushKin (the “Services”). “Employer” and “End Users” are each referred to as “you” in these Terms.

If you do not agree to these Terms, including the binding arbitration clause in Section 13 below, please discontinue using the Services. By using the Services, you agree to be bound by these Terms. If you are a franchise administrator or administrative user for an Employer, including any designee(s) (the “Administrator”) you acknowledge on behalf of Employer, the Privacy Notice located at https://www.pushkinapp.com/privacy (the “Privacy Notice”). If you are an End User you acknowledge the Privacy Notice located at https://www.pushkinapp.com/privacy.

We strongly believe clear, sensible policies are a matter of trust between ourselves and our users. PushKin will provide commercially reasonable advance notice to our users of material changes—any changes which impact your rights—through the PushKin app and by posting those changes online before the change goes into effect. If you have any questions regarding changes, please contact us at legal@pushkinapp.com. Your continued use of the Services after the changes go into effect constitutes consent to the change.

1. Creating a PushKin Account

In order to use the Services, you must create an account. During registration, we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. If you are creating an account on behalf of an Employer, you agree that you are authorized to create an account on behalf of that Employer. PushKin recommends you treat all content shared through the Services as public, and you agree not to share any content you are not otherwise authorized to share publicly. You are fully responsible for all activity that occurs under your account, including for any actions taken by persons to whom you have granted access to the account.

By creating an account, you agree that you are at least 14 years of age. The Services are not directed to children under 13, if you are under 13 years of age you are not permitted to access or use the Services. If we become aware that you are using the Services even though you are under 13, we will deactivate your account.

2. Administrator User Accounts

The user who initially creates an account on behalf of an Employer is considered an Administrator. Administrators have the ability to create messages, create groups, add members, and view consolidated reports of user activity. An Administrator may be an Employer or an End User, acting on behalf of an Employer. If an Administrator abandons an active account or ceases to be employed or engaged by Employer, you agree that PushKin, at our discretion and upon verification, may reassign administrative permissions to another End User of the Employer. By maintaining Administrator status of your account, you agree to abide by these Terms regarding proper user conduct, including in compliance with Section 6 below, and agree not to use the Services for unauthorized or unlawful purposes. PushKin is committed to preventing fraud, harassment, or abuse through the Services, and violation of these Terms may result in account termination.

Employers and Administrators should not rely on the Services to meet their compliance obligations. While the Services offer tools to facilitate labor management, PushKin does not guarantee that the Services perform these tasks in a manner that is consistent with the laws applicable to your business, which can vary by region and can change at any time. Similarly, the Services may not include all features and functionality necessary to meet the federal, state, and/or local requirements applicable to your business, including but not limited to those pertaining to itemization and issuance of pay statements; overtime calculation and payment; paid sick leave accrual, pay rate, and usage increment requirements; expense reimbursement; attendance; minimum wage laws, wage deduction laws; meal period and rest break premiums; and laws pertaining to the timing of pay (including final pay). Employers are solely responsible for the accurate calculation and disbursement of wages of End Users and PushKin shall not be responsible for verifying, and disclaims any and all liability as to, the accuracy, timeliness, and completeness of End Users’ personal, wage, timecards, or any other information Employers, Administrators or End Users provide or input via the Services.

Employers are solely responsible for compliance with all applicable laws, including federal, state, and local wage and hour laws and PushKin assumes no responsibility for assuring compliance with applicable laws, including wage and hour laws.  Employers are responsible for determining whether the Services meet their business’ needs, and PushKin is not providing any legal, financial, accounting, tax, or other professional advice by providing the Services. Employers should consult federal and local government websites and/or consult with qualified counsel to help you with their compliance obligations.

3. End-User Accounts

End Users may be invited to join one or more organizations maintained by an Employer using the Services (each, an “Organization”) by any member of the Organization, based on the Employer’s settings. End Users may share messages and images with other members of the Organization. You may access multiple Organizations through one account. PushKin offers the Services on your Employer’s behalf to communicate with you and provide features like message acknowledgment and support requests.

End Users and Administrators acknowledge that as part of your use of the Services, you may interact with features that include content monitoring and filtering, read-receipts, and/or features that collect information about your location.

4. Your Content

You retain ownership of the rights in the copyrighted content you contribute or post to the Services. By contributing content via the Services, you grant us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, distribute, and display your user content in order to provide the Services. You agree not to contribute or post content that (i) may create a risk of harm to any other person or company, (ii) may constitute a crime or tort, (iii) is unlawful, (iv) infringes the intellectual property rights of others, (v) is invasive of personal privacy or publicity rights, (vi) constitutes harassment or a threat to others, or (vii) contains information that you do not have a legal right to post under any contractual or fiduciary relationship, including information protected by trade secret laws or non-disclosure agreements. While we will do our best to create a tolerant and productive environment on the PushKin Platform, you agree that you may see content on the PushKin Platform that is offensive, inaccurate, or otherwise objectionable and that you shall not hold PushKin in any way responsible for such content. You agree that your content may remain available on the PushKin Platform even if your employment ends with your current employer, you leave an Organization, or if you delete the PushKin app. However, you will be able to delete your content at any time while you remain on the PushKin Platform.

5. PushKin's Content

Feel free to tell others about PushKin, but don’t steal our design or code.

PushKin grants you a personal, revocable, non-sublicensable, non-transferable, and non-exclusive license to use the PushKin Platform solely in connection with the Service. Any rights not expressly granted herein are reserved.

Content we create is protected by copyright, trademark, and other laws. Some examples of our content are the text on the site, our logo, and our source code.

You may not use, reproduce, distribute, perform, publicly display or prepare derivative works of our content unless we give you permission in writing. Please contact support@pushkinapp.com if you have any questions.

6. Your Conduct

Do not do anything on the PushKin app you wouldn’t do at work. You are responsible for all the activity on your account. Inappropriate conduct may lead to account termination. Examples of inappropriate conduct may include:

1. Illegal Activities – Do not break the law or encourage others to break the law.
2. Abuse – Do not harass or bully others, or promote violence or hatred towards others.
3. Tracking – Do not use the Services to track, monitor, or spy on other users or employees.
4. Personal Information – Do not distribute others’ personal information or otherwise abuse it.
5. Fraud – Do not post information that is false or otherwise misleading.
6. Impersonation – Do not impersonate anyone. Don’t use another’s account, or allow others to use your account.
7. Intellectual Property – Do not infringe on others’ intellectual property rights.
8. Spam – Do not spam others or distribute unsolicited advertising material.
9. Reverse Engineering – Do not take apart the PushKin Platform or Services.

You agree that PushKin may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to claims that any of your data or content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of PushKin, its users and the public.

7. Payment

Employers may upgrade your account to Core or Core Plus and will be required to select a payment plan and provide accurate payment information. Employer agrees to promptly update account information with any changes in payment information. Employer agrees to pay PushKin in accordance with the terms set forth in Employer’s invoice and these Terms, and Employer authorizes PushKin or its third-party payment processors to bill Employer in advance on a periodic basis in accordance with such terms.

Employer may cancel a Subscription at any time with 30 days notice and we will cease invoicing Employer for such Subscription. If Employer disputes any charges Employer must let us know within 60 days after the date that we invoice Employer. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we increase our prices for the Service plan applicable to Employer, we will provide commercially reasonable notice of the change on the PushKin Platform, via the Services, or in email to Employer or their Administrator before the change takes effect. Continued use of the Service after the price change goes into effect constitutes Employer’s agreement to pay the changed amount. PushKin may choose to bill Employer through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Employer shall be responsible for all taxes associated with Services other than U.S. taxes based on PushKin's net income.

8. Account Termination

You may delete your account at any time by contacting us at support@pushkinapp.com, but in some cases, we’ll delete it for you.

If an account is inactive for over six (6) months, it may be considered abandoned, and we may (but have no obligation to) disassociate from your account or delete all stored content, messages, associations, and other information. PushKin will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data.

If PushKin determines an End User or any other user of an End User’s account has violated these Terms through the use of the Services, PushKin may terminate the account at our own discretion.

9. SMS Text Messages

We use text messaging as part of our service.

PushKin occasionally sends text messages using the short message service (“SMS”) to mobile devices. Our service provider delivers these text messages, which consist of administrative information, such as verification PINs, or invitations to join the PushKin Platform.

We also provide Services that allow Employers to send SMS messages to their End Users (the “Employer-Initiated SMS Services”). Employers agree they will only use the Employer-Initiated SMS Services in compliance with these Terms and all other applicable laws and regulations of the jurisdiction from which Employer sends messages and in which Employer’s messages are received.

Employers represent and warrant to PushKin that they have obtained on behalf of PushKin all necessary rights and consents from End Users to enable PushKin to communicate via text messages and push notifications to the cellular telephone number of End Users in connection with their use of the PushKin app.

End Users consent to accept and receive communications from PushKin, including email, text, messages, calls, and push notifications to the cellular telephone number you provide to us when you join an Organization and/or create an account or update the contact information associated with your account. Such communications may include but are not limited to invitations to join PushKin app, requests for secondary authentication, messages from your Employer and Organizations you are a member of, and reminders and notifications regarding updates to your account or account support. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.

You may only opt out of text messages from PushKin by replying STOP to received SMS messages or updating your account settings via your Employer.  You acknowledge that opting out of receiving communications may impact your use of the Services. PushKin does not guarantee that text messages will be sent or will arrive, and you agree that we shall not be liable for any failure for a text message to arrive or any other technical problems related to text message delivery.

10. Indemnity

Your obligation to indemnify under this clause applies to PushKin, our affiliates, officers, directors, employees, agents, and third-party service providers. We reserve the right to exclusive control over the defense of a claim covered by this clause.

Employer Indemnity. Employer will indemnify us from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Employer’s or any of its Administrators’ or End-Users violation of these Terms. Employer will indemnify the PushKin indemnified parties for all attorney’s fees incurred and damages and other costs awarded.

End-User Indemnity. To the extent permitted by law, you, as an End User, will indemnify us from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or related to any violation of these Terms. End User will indemnify the PushKin indemnified parties for all attorney’s fees incurred and damages and other costs awarded.

This section states your sole liability with respect to, and the PushKin indemnified parties’ exclusive remedy against you for, any claim against PushKin. PushKin disclaims any liability, whether based in contract, tort, strict liability or otherwise, for any direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with of the service.

11. Warranty Disclaimer

There will be software disruptions from time to time as we continue to improve our services, and you accept that.

The Services are provided “as is” and without warranty of any kind. Any warranty of merchantability, fitness for a particular purpose, non-infringement, and any other warranty is expressly disclaimed and excluded to the greatest extent permitted by law.

The disclaimers of warranty under this clause also apply to our affiliates, officers, directors, employees, agents, and third-party service providers.

12. Limitation of Liability

To the extent permitted by law, we are not liable to you for any indirect, incidental, consequential, special, or punitive damages arising out of these terms, or your use or attempted use of the Services. To the extent permitted by law, our liability for damages is limited to the amount of money we have earned through your use of the Services. Under no circumstances will we be liable for loss associated with failure to provide accurate reporting of user activity, from losses caused by conflicting contractual agreements, or any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the Services, your account, or the information contained therein.

For this clause “we” and “our” include our affiliates, officers, directors, employees, agents, and third-party service providers.

13. Governing Law and Dispute Resolution

If we have a disagreement, we will have a conversation. If that doesn’t resolve the issue, we both agree to go to arbitration instead of court.

“Disputes” are defined as any claim, controversy, or dispute between you and PushKin, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), whether arising before or during the effective period of these Terms, and including any claim, controversy, or dispute based on any conduct of you or PushKin that occurred before the effective date of these Terms, including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.

General. You and PushKin agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).

13.1 No Class Actions

ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST PUSHKIN.

13.2 Governing Law

These General Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by Arkansas law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.

13.3 Informal Dispute Resolution

Pre-Filing Requirement to Attempt to Resolve Disputes. Before an arbitration is commenced, you or PushKin agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to PushKin should be sent to legal@pushkinapp.com. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may elect, in writing sent to the other party, that it will pursue the matter either through small claims court or arbitration. The party receiving the notice shall then have seven (7) days to respond, including to elect for the case to be heard by a small claims court with jurisdiction. If either party elects small claims court, the dispute will be resolved in that forum and not through arbitration. Each party agrees that state courts in the County of Benton, in the City of Bentonville, Arkansas, or federal court for the Western District of Arkansas, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.

13.4 We Both Agree to Arbitrate

You and PushKin agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate (Section 13.8) below.

13.5 Opt-out of Agreement to Arbitrate

Opt Out. You may reject this provision, in which case only a court may be used to resolve any Dispute. To reject this provision, you must send us an opt-out notice (the “Opt Out”) at legal@pushkinapp.com within thirty (30) days after you create a PushKin account, or we first provide you with the right to reject this provision. You must provide your name, address, phone number and the email address(es) you used to sign up and use the Services. This is the only way of opting out of this provision. Opting out will not affect any other aspect of the General Terms, Additional Terms, or the Services, and will have no effect on any other or future agreements you may reach to arbitrate with us.

13.6 Arbitration Procedures – Employers

If you are an Employer using the PushKin app or other Services, these arbitration procedures apply to you:

If we are not able to resolve the Dispute by informal negotiation, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (“Arbitrator”) by the American Arbitration Association (AAA) (https://www.adr.org) according to the Section and the Commercial Arbitration Rules for that forum. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies.

You and PushKin will agree to an Arbitrator within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.  The Arbitrator will be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are enforceable, unconscionable, or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.  Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.

Any arbitration hearing will occur in Bentonville, Arkansas, at another mutually agreeable location or, if both parties agree, by telephone or videoconference.

In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee.  For purposes of this arbitration provision, references to you and PushKin also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.

13.7 Arbitration Procedures - End Users

If you are an individual End User of the PushKin app or other Services, this arbitration provision applies to you:

Scope of Arbitration. If we are not able to resolve the Dispute by informal negotiation or in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Consumer Arbitration Rules through the Procedures for the Resolution of Disputes through Document Submission (the “Desk/Documents Only” arbitration) (the “AAA Rules”), including Rule D-3(b), except you and PushKin will have the right to file early or summary dispositive motions and so long as the claim is arbitrable under the AAA Rules. Except as set forth above and, as provided below, for disputes subject to jurisdiction in small claims court, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. So long as it is consistent with the AAA Rules, including Rule D-3(b), the arbitration shall occur through the submission of documents to one arbitrator. To the extent any in-person arbitration hearing is required, the arbitration hearing will take place in Bentonville, Arkansas. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. PushKin values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.

Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and PushKin also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.

13.8 Exceptions to Agreement to Arbitrate

Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA but before an arbitrator has been selected, the other party can send a written notice to the opposing party that it wants the Dispute decided by a small claims court. After receiving this notice and consistent with Consumer Rule 9, the AAA will administratively close the case.

13.9 Judicial Forum for Disputes

Court Proceedings. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the County of Benton, in the City of Bentonville, Arkansas, or federal court for the Western District of Arkansas.

13.10 Limitations on Claims

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

14. Integration Clause

These Terms and any referenced policies are the entire agreement between you and us and supersede all prior agreements. If any provision of these Terms is held to be unenforceable, that provision is modified to the extent necessary to enforce it. If a provision cannot be modified, it is severed from these Terms, and all other provisions remain in force, except under no circumstances shall class, collective, representative or consolidated actions proceed in arbitration. If either party fails to enforce a right provided by these Terms, it does not waive the ability to enforce any rights in the future.

15. Copyright Policy

Don’t share content through the app that doesn’t belong to you. If you believe that any content on the PushKin Platform infringes your copyrights, please send written notice to:

Copyright Agent

13240 Timberline Rd.

Bentonville, AR 72712

legal@pushkinapp.com

This notice should include the following information:

The electronic or physical signature of the copyright owner, or a person authorized to act on their behalf.

A description of the copyrighted work that you claim has been infringed.

A description of the exact location on the PushKin Platform of the content that you claim is infringing. This description must allow us to find and identify the content.

Your name, address, telephone number, and email address.

A statement by you that: a) you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law, the copyright owner, or the owner’s agent; b) all information contained in your copyright notice is accurate; and c) under penalty of perjury, you are either the copyright owner or authorized to act on their behalf.

If your content has been removed because of a Digital Millennium Copyright Act (“DMCA”) notice, but you believe the content was not infringing on another’s copyrights, then you may send a written counter-notice to have the content restored. Your counter-notice should include the following information:

Your electronic or physical signature.

A description of the content that was removed and the exact location of the content on PushKin before it was removed.

Your name, address, telephone number, and email address.

A statement under penalty of perjury that you believe in good faith that the content was removed by mistake or misidentification.

A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which you are located, or if you are outside the U.S., the Western District of Arkansas, and that you will accept service of process from the party that originally sent us the DMCA notice.

In appropriate circumstances, we may terminate the accounts of repeat infringers.

Questions?

If you have any questions, please email legal@pushkinapp.com

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