Pulse,
LLC’s End User License Agreement ("Agreement")
Version 1.1, July
9, 2020
You understand, agree, and acknowledge that this Agreement constitutes a
legally binding agreement between you and Pulse, LLC ("Us" or
"We" or "Our") and that your downloading, installing,
and/or use of the Digital Imaging Community (DI Community) Software, the
serviced offered therein, and any website offered by Us (the
"Software") shall indicate your conclusive and irrefutable acceptance
of this Agreement.
You need to read the following terms and conditions carefully before
downloading, installing, or using this Software. Clicking "Accept" at
the end of this agreement indicates your acceptance of these terms and
conditions. If you do not agree with to these terms and conditions, do not
install or use this Software. If you are under the age of majority, you must
review these terms and conditions with your parent or guardian to make sure
that you and your parent or guardian understand and agree to these terms and
conditions.
1. Electronic Agreement. This
Agreement is an electronic agreement which sets out the terms and conditions
for your use of the Software.
2. Representation and Warranties. By
installing and using this Software you hereby represent and warrant to Us:
a. You are at least of the age of majority or your guardian or parent has
agreed to this Agreement on your behalf.
b. You have the right, authority, and capacity to enter into this Agreement and
to abide by and comply with all of the terms and
conditions of this Agreement.
c. All the information you have provided to Us is solely owned by you, is your
own personal information, and you have the absolute right and authority to
provide the information to Us for the purposes of the use of the Software.
d. You will not use the Software or intend to use the Software to harm, stalk,
threaten, or harass another person, organization, and/or Us.
e. You will not submit any false information or misrepresentation that could
result in liability or damage to Us or any third party;
f. You will not submit any material that is unlawful, obscene, defamatory, libelous,
threatening, pornographic, graphic or gratuitously violent, harassing, hateful,
racially or ethnically offensive, encourages conduct that would give rise to
criminal or civil liability, violate any law, or is otherwise inappropriate;
such objectionable content that is reported via the Help Desk will be removed
within 24 hours of Our receiving notice and your account will be immediately
disabled;
g. You will not impersonate another
person, including submitting their photographs as your own;
h. You will not damage, disable, overburden, or impair the Software and server;
resell or redistribute the Software or any part of it; use any unauthorized
means to modify, re-route, or gain access to the Software or attempt to carry
out these activities; or use any automated process or service to access or use
the Software.
i. You will not use the Software for any unlawful or
prohibited purpose and only use the Software according to the terms and
conditions set out in this Agreement and any other applicable federal,
provincial, territorial, national, and international laws.
3. Online Account. If you sign up
for an online account (the "Online Account"), you are responsible for
maintaining the confidentiality of the username and password that you designate
during the sign up process for the Online Account throughout the term of the
Agreement, and you are fully responsible for all activities that occur under
your username and password. You agree to immediately notify Us of any
unauthorized use of your username or password or any other breach of security
of your Online Account and/or your Software. If you use the Online Account, (a)
ensure that you properly log out from your account at the end of each session;
(b) ensure that you remove all cached copies and other relevant data from your
browser to prevent any unintentional or deliberate access of your account of
any third party; and (c) ensure that you have used and use, on a reasonable
basis, appropriate and up-to-date anti-malware/virus software on your device. We
will not be liable for any loss or damage arising from your failure to comply
with this section.
4. Grant of License. So long as you
are in compliance with this Agreement, We grant you a
non-exclusive and revocable license to use the Software subject to the
restrictions set forth below. Except as expressly stated herein, no other
rights are granted to you by implication, estoppel, or otherwise, under any
patent, copyright, trade secret, trademark, or other intellectual property
right.
5. Restrictions on Use. You may use
the Software only on your personal electronic device (e.g. mobile phone,
tablet, desktop computer, laptop, etc.). You may not further copy,
redistribute, sublicense, rent, loan or lease the
Software. You may not reverse engineer, decompile, disassemble or otherwise
attempt to derive the source code for the Software, or use any part of the
Software for any use other than that for which it was supplied by Us, unless
specifically authorized by Us. You may not modify, adapt, alter, translate, or
create derivative works from the Software.
6. Term. This Agreement is effective
until terminated. You may terminate this Agreement at any time by deleting or
otherwise destroying the Software together with all copies in any form. This
Agreement will automatically terminate if you fail to comply with any term or
condition of this Agreement. You agree that We also may, at Our sole
discretion, temporarily or permanently terminate the Agreement with prior
notice to you and/or terminate the Software without prior notice to you. Upon
termination, for any reason, you agree to destroy the Software together with
all copies in any form. You agree that We shall not be liable to you or to any
third party for any modification, suspension or
discontinuance of the Software. Provisions which, by their nature, should
remain in effect beyond termination of this Agreement shall survive.
7. Software Features. The Software
may contain features that enable Us, via the internet, to notify you of
available software upgrades, promotions, products and services in which you may
be interested; to update product data files and instructional and marketing
content in the Software; and to collect usage and personal data if you choose
to synchronize your information with your Online Account. You agree that We may
utilize these features to provide such notices and updates, permit such
downloads and to collect such data, unless you disable the Online Account and
Software synchronization features.
8. Privacy. We respect your privacy
and will never share any of your personal information with any third party
unless you have consented to it. We offer two options for using the Software:
(a) offline mode; and (b) online mode. During the offline mode the only
information we collect from your device is anonymous error reporting and
general user statistics and we may collect information about the device
make/model/ID, OS version, app version, change logs, application
settings/preferences, and time stamps. All of the aforementioned information
will be kept anonymous and we will not retain it for longer than required to
ensure the security of Our Software, the assessment of improvement features of
Our Software, and to provide insight into our user base. If you sign up for an
Online Account and as such use the online synchronization feature, we will also
collect, if you voluntarily choose to do so by synchronizing with our servers,
information such login credentials, cookies or other passive tracking
mechanisms and tools to collect information in order to facilitate your use of
the Software, and any other information that you may voluntarily supply to Us
either by synchronizing your information on the Software with our servers or
via your Online Account.
b. We will never share any of your personal information with anyone unless you
explicitly consent and direct Us to do so. All personal information you provide
to us will be encrypted or, if you have sent it to us by other means than
electronically, it will be securely stored on site with only authorized personnel
having access to it.
c. We will collect aggregated non-personal information from all users of the
Software that will be stripped of all personal information so that it cannot be
recompiled, and individual users identified. We collect and aggregate information
in order to determine how the Software is being used, how it and other products
and services can be improved, and to share the aggregated information to third
parties so that they can use the information for improvements of their own
products and services such as pharmaceutical companies, medical research
organizations, and pain researchers.
d. Please keep in mind that the nature of the Software may be interactive, and
as part of your use of the Software you will be able to share some and/or all
of your information and content with third parties. You should use caution when
deciding what information and content to share through the Software.
e. We may share non-personally identifiable aggregate data with vendors who
assist Us in providing Our Software; with third party business partners with
whom We provide joint promotions; with Our affiliated companies, including any
parent or subsidiaries of Us; and We may share aggregate data if We believes it
is necessary to comply with legal process (such as a court order, subpoena,
search warrant, etc.), or other legal requirements of any governmental
authority; if We believes it would potentially mitigate Our liability in an
actual or potential lawsuit; if We believe it is permitted by law or if doing so
will not violate the law; or if We believe it is otherwise necessary to protect
Our rights or property; or is necessary to protect the interests of other users
of the Software. In the unlikely event that all or part of Our business is sold
or acquired by a third party, We will transfer such
information to the new business owner.
9. Third Party Sites. The Software
may contain hypertext links to third-party web sites or information. We do not
make any warranty, endorsement, sponsorship, or recommendation of the
third-party, the third-party web site, or the information contained therein. We
are not responsible for the availability of any such web site or liable for the
content thereon. You need to make your own decisions regarding your
interactions or communications with any other web site.
10. Copyright in materials and
graphical elements on the Software, including site design, text, graphics,
interfaces, and the selection and arrangements thereof, are owned by Us or a
third party from whom We have licensed such intellectual property. The
reproduction and redistribution of any written and/or graphical elements on the
Software is prohibited except with written permission from Us or the third
party from whom We have licensed such intellectual property. Our or third-party
logos are trademarks or service marks of Us or a third party from whom We have
licensed such intellectual property. You may not use them without Our or the
third party from whom We have licensed such intellectual property written
permission. To make a request for permission and/or further information about
how to obtain permission please contact: connect@pulsellc.com. Some of the
information in the Software has been provided by external sources. We are not
responsible for the accuracy, reliability or currency of the information
provided by external sources. If you wish to rely upon this information you
should consult directly with the source of the information. You acknowledge and
agree that the Software contains proprietary and confidential information that
is protected by applicable intellectual property and other laws and treaties.
11. Exclusion of warranties. Subject
to any applicable legislation which prohibits the following exclusions, we make
no warranties of any kind related to the software, either express or implied,
including the implied warranties of merchantability and fitness for a
particular purpose, non-infringement, or arising from course of performance,
dealing, usage or trade. Some states and countries do not allow the exclusion of
implied warranties or have legislation that imposes certain statutory
warranties that cannot be excluded, so the above exclusion may not apply to
you. We further do not make any warranties that the software and the services
thereof will meet your requirements or that the operation of the software will
be uninterrupted or error free. You assume sole responsibility for operation of
the software, and for the installation, use, and results obtained from the
software.
12. Limitation of liability and
indemnity. Your use of the software is entirely at your own risk. Under no
circumstance will we, our agents, licensors or
suppliers be liable to you on account of your use or misuse of, or reliance on,
the software. To the extent permitted by law, in no event will we, our
licensors, suppliers or dealers be liable to you for any actual, direct,
indirect, incidental, special, consequential, or punitive damages, including
any lost profits, lost savings, costs of procurement of substitute products or
services or other damages arising out of the use or inability to use the
software even if advised of the possibility of such damages. Some states and
countries do not allow the limitation or exclusion of liability for incidental
or consequential damages, or have legislation that
restricts the limitation or exclusion of liability, so the above limitation may
not apply to you. You agree to indemnify and hold us, our subsidiaries,
affiliates, officers, directors, agents, and other partners and employees,
harmless from any loss, liability, claim, or demand, including reasonable
lawyer’s fees, made by any third party due to or arising out of your use of
software and/or the services thereof in violation of this agreement and/or
arising from a breach of this agreement and/or any breach of your
representations and warranties set forth above.
13. Governing Law. This Agreement is
governed by the laws of the State of Ohio and the federal laws of the United
States applicable therein and should be treated as an Ohio contract without
reference to the principals of conflicts of law. Any dispute between Us and you
or any other person arising from, connected with or relating to the Software
and the services thereof, this Agreement or any related matters must be
resolved before the Courts of the state of Ohio, and you hereby irrevocably
submit and attorn to the original and exclusive jurisdiction of those Courts in
respect of any such dispute or matter. Any claim or cause of action you may
have arising from, connected with, or relating to your use of the Software and
the services thereof, this Agreement, or any related matters must be commenced
in a court of competent jurisdiction in the state of Ohio within six (6) months
after the claim or cause of action arises, after which time the claim or cause
of action is forever barred.
14. Disclaimer regarding Information
Available and Conduct of Others. We are, at no time, responsible for any
incorrect or inaccurate information posted on the Software, whether caused by
users of the Software or by any of the equipment or programming associated with
or utilized in the Software. We are not responsible for the conduct, whether
online or offline, of any user of the Software. We assume no responsibility for
any error, omission, interruption, deletion, defect, delay in operation or
transmission, communications line failure, theft or destruction or unauthorized
access to, or alteration of, your or anyone else's communications. We are not
responsible for any problems or technical malfunction of any telephone network
or lines, computer online systems, servers or providers, computer equipment,
software, failure of email or players on account of technical problems or
traffic congestion on the Internet or at any website or combination thereof,
including injury or damage to you or to any other person\'s computer related to
or resulting from participating or downloading materials in connection with the
Software.
15. Severability. In the event that
any part of a provision of the terms and conditions set out in this Agreement
is held to be invalid, unenforceable, or void, such provision shall, by the
adjudicating body, be applied to the fullest extend
possible and shall be read-down only to the extent absolutely necessary to
comply with applicable law. If any provision of the terms and conditions set
out in this Agreement is held to be invalid, unenforceable, or void, such
provision shall be severed from the Agreement. The fact that part of a
provision or an entire provision has been held to be invalid, unenforceable, or
void such determination shall not affect the validity and enforceability of any
other remaining provisions.
16. Entire Agreement. This
Agreement, including any changes made to this Agreement, and any terms and
conditions you had to agree to when downloading any software from the Android
or IOS market place constitute the entire agreement between you and Us relating
to your use of the Software and the services thereof and supersedes all
previous agreements, written, oral or otherwise, between you and Us with respect
to your use of the Software and the services thereof.
17. Amendment. You understand and
agree that this Agreement may be amended by Us from time to time.
18. Assignment. The provisions of
this Agreement shall ensure to the benefit of and be binding upon each of Us
and Our successors and assigns and related persons, and you and your heirs,
executors, administrators, successors, permitted assigns, and personal
representatives. You may not assign this Agreement or your rights and
obligations under this Agreement without the express prior written consent of
Us which may be withheld in Our sole and absolute discretion. We may assign
this Agreement and Our rights and obligations under this Agreement without your
consent.
19. Waiver. No consent or waiver by
either party to or of any breach or default by the other party in its
performance of its obligations under this Agreement will be deemed or construed
to be a consent to or waiver of a continuing breach or default or any other
breach or default of those or any other obligations of that party. No consent
or waiver will be effective unless in writing and signed by both parties.
20. Cumulative. The rights and
remedies of Us under this Agreement are cumulative and no exercise or
enforcement by Us of any right or remedy hereunder shall preclude the exercise
or enforcement by Us of any other right or remedy hereunder or to which We are
otherwise entitled by law to enforce.
21. Force Majeure. Non-performance
by Us of obligations will be excused to the extent that performance is rendered
impossible by events of force majeure including strike, lock-out, pandemic,
fire, flood, systemic failure of the Internet, fiber/cable cuts, earthquake,
governmental acts, orders or restrictions, pandemics, war, civil unrest, or any
other reason where failure to perform is beyond the reasonable control of Us
provided that We make commercially reasonable efforts to circumvent such events
of force majeure.