IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE SERVICES PROVIDED BY PULSE ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW. These User Terms of Service (the “Terms”) create a legal agreement between you (a “User”) and Pulse Microsystems Ltd. (“Pulse,” “we,” “our”). These Terms govern your use of the services, software and websites (together, the “Services”) provided by Pulse. By accessing or using the Services, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms, our Acceptable Use Policy, and our Privacy Policy. If you do not agree to these Terms, then you have no right to access or use the Services. We may, from time to time, modify these Terms. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.

1.ELIGIBILITY AND SCOPE

• 1.1 Eligibility. To use the Services you must be, and represent and warrant that you are, at least 13 years of age and competent to agree to these Terms. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). If Pulse has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
• 1.2 Use Outside the United States of America. The Services are controlled and operated by Pulse from its offices in Canada on servers located primarily, but not exclusively, in the United States of America. Pulse makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law. Pulse may offer services in other jurisdictions in which case a different version of these Terms may apply and will be presented to you on such services.

2.ACCOUNT REGISTRATION AND USE

• 2.1 Account Registration and Confidentiality. To access the Services, you must register for a Pulse account by providing an email address and creating a password, and providing us with other information that we request. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your user name and password. We may assume that any communications we receive under your account have been made by you.
• 2.2 Unauthorized Account Use. You are responsible for notifying us at terms-questions@Pulsemicro.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Pulse will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Pulse or a third party due to someone else using your account.

3.OUR PROPRIETARY RIGHTS

The Services are owned and operated by Pulse and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by Pulse and its partners, as well as other sources, and is protected by Canadian and United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under Canadian and U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Pulse and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Pulse and such others. You agree to protect the proprietary rights of Pulse and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Pulse or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Pulse immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and Pulse, at all times be and remain the sole and exclusive property of Pulse. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.

4.USER CONTENT AND SUBMISSIONS

• 4.1 User Content and Submissions. The Services allow you to view, modify and create embroidery designs and submit associated information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available (“submitted”) to the Services is subject to the following terms:
  • 4.1.1 Free User Content. Users of Pulse’s free Services maintain ownership of the User Content that they submit to the Services (“Free User Content”). By submitting Free User Content, Users grant Pulse a license to use, copy, reproduce, process, adapt, publish, transmit, host and display that Free User Content. We reserve the right to remove any Free User Content on the Services that violates these Terms or that is otherwise objectionable in Pulse‘s sole discretion.
  • 4.1.2 User Content. Content submitted to the Services by Users (“User Content”) is owned and controlled by you. Pulse maintains a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display User Content for the limited purposes of (i) providing the Services and associated User support; (ii) displaying the User Content to the Users; and (iii) analyzing and improving the Services.
• 4.2 User Content Representations. You acknowledge and agree that you have all required rights to submit User Content without violation of any third-party rights. You understand that Pulse does not control, and is not responsible for User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Pulse for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

5.LICENSE AND ACCEPTABLE USE

• 5.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services only for your own internal, personal, or non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Services, including the Pulse Privacy Policy, these Terms, and if applicable, the Subscriber Agreement. Pulse may revoke this license at any time, in its sole discretion. Upon any such revocation, you must promptly destroy all materials downloaded or otherwise obtained from the Services, as well as all copies of such materials, whether made in accordance with these Terms or otherwise.
• 5.2Acceptable Use. Your use of Pulse websites and services must comply at all times with our Acceptable Use Policy
• 5.3 Violations. In addition to any other remedies that may be available to us, Pulse reserves the right to immediately suspend or terminate your account or your access to the Services upon notice and without liability for Pulse should you fail to abide by the terms of this Section 5.

6.LEGAL COMPLIANCE

You acknowledge, consent, and agree that Pulse may access, preserve, and disclose your information and/or any User Content you submit to the Services if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by Pulse’s Privacy Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms, our Privacy Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; and/or (5) to protect the rights, property, or personal safety of Pulse, its agents and affiliates, its users, and the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.

7.PRIVACY

For information about how we collect, use, and share the data we collect from and about you, please see our Privacy Policy which is incorporated by reference into these Terms.

8.WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY

THE SERVICES AND ITS CONTENTS, WHETHER PROVIDED BY PULSE, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, PULSE DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL PULSE OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT PULSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100. PULSE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICES, AND PULSE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. PULSE WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.

9.EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 8. Accordingly, some of the above limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 8 specifically do apply to you.

10.INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD PULSE AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TERMS OR PULSE PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

11.THIRD-PARTY LINKS AND SERVICES

The Services may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Pulse is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Pulse 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 linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.

12.MODIFICATION AND TERMINATION

• 12.1 Modification of Services. Pulse reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that Pulse shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
• 12.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at Pulse’s sole discretion, the deletion of your account and/or User Content.

13.MANDATORY LITIGATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

• 13.1 Application. This Section 13 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
• 13.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at dispute-notice@pulsemicro.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Pulse, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
• 13.3 If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate court action in the Province of Ontario, Canada.
• 13.4 Class Action Waiver. The parties further agree that the court action shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PULSE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
• 13.5 Litigation of Intellectual Property and Small Claims Court Claims. Either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in the Province of Ontario, Canada for disputes or claims within the scope of that court’s jurisdiction.
• 13.6 30-Day Right to Opt Out. You have the right to opt out and not be bound by the litigation and class action waiver provisions set forth above by sending written notice of your decision to opt out to dispute-notice@Pulsemicro.com with the subject line, “LITIGATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Site or within 30 days of changes to this section being announced on the Site. Otherwise you shall be bound to litigate disputes in accordance with the terms of these paragraphs. If you opt out of these litigation provisions, Pulse also will not be bound by them and may terminate this agreement and the use of the Service.
• 13.7 Changes to This Section. Pulse will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Litigation and Class Action Waiver, and the court shall apply the first Mandatory Litigation and Class Action Waiver section in existence after you began using the Services.
• 13.8 Survival. This Mandatory Litigation and Class Action Waiver section shall survive any termination of your use of the Services.

14. CONTROLLING LAW AND SEVERABILITY

These Terms shall be construed in accordance with and governed by the laws of the Province of Ontario, Canada notwithstanding its conflicts of law principles. Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the courts of the Province of Ontario, Canada, and you and Pulse consent to the exclusive jurisdiction of such courts.

15. GENERAL TERMS

• 15.1 Force Majeure. Under no circumstances shall Pulse or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
• 15.2 No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Pulse to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
• 15.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
• 15.4 Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
• 15.5 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Pulse on the subject matter, and govern your use of the Services, and supersede any prior agreements between you and Pulse on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Pulse without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Pulse. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
• 15.6 Notices. We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) Pulse Microsystems Ltd., 7125 Mississauga Road, Suite 402, Mississauga, Ontario, Canada L5N 0C2; or (2) terms-questions@pulsemicro.com.

QUESTIONS

If you have any questions about these Terms, please contact us at terms-questions@pulsemicro.com.

1. Disruption of the Service. You may not:

• 1. access, tamper with, or use non-public areas of the Service, Pulse’s computer systems, or the technical delivery systems of Pulse’s providers;
• 2. probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
• 3. access or search the Service by any means other than Pulse’s publicly supported interfaces (for example, “scraping”);
• 4. attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time)
• 5. interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.

2. Misuse of the Service. You may not utilize the Service to carry out, promote or support:

• 1. any unlawful or fraudulent activities;
• 2. the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
• 3. activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
• 4. the publishing or posting other people’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission;
• 5. the sending unsolicited communications, promotions advertisements, or spam;
• 6. the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
• 7. promotion or advertisement of products or services other than your own without appropriate authorization.

3. Content Standards Within the Service. You may not post any Content on the Service that:

• 1. violates of any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
• 2. is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
• 3. contains viruses, bots, worms, or similar harmful materials; or
• 4. contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.

4. Violations of this Acceptable Use Policy. In addition to any other remedies that may be available to us, Pulse reserves the right to immediately suspend or terminate your account or your access to the Service upon notice and without liability for Pulse should you fail to abide by this Acceptable Use Policy. If you are a user of the Service under your employer or organization’s account, Pulse reserves the right to notify your employer or organization of any violations of this Acceptable Use Policy.

5. Modifications. Pulse may amend or modify this Acceptable Use Policy from time to time in its sole and reasonable discretion. We will post any such changes on our website. If you object to any such change(s), your sole recourse shall be to cease using the Service. Continued use of the Service following notice of any such changes shall constitute your acknowledgement and acceptance of such changes.

This Subscriber Agreement (the “Subscriber Agreement”) is between Pulse Microsystems Ltd., an Ontario, Canada corporation (“Pulse”) and the organization agreeing to these terms (“Customer”). This Subscriber Agreement governs Customer’s access to Pulse’s online software and services (the “Service”) and its associated applications and website. By clicking “I Agree,” attaching this Subscriber Agreement to a purchase order or similar order form, or using the Service as a paid or unpaid subscriber, Customer agrees to the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Subscriber Agreement.

• 1.The Service and Associated Software

  Customer may access and use the Services in accordance with this Subscriber Agreement and Pulse’s Terms of Service and Privacy Policy. Pulse may update or modify the Services from time to time. If, in Pulse’s reasonable judgment, any such modification to the Service materially reduces the Service’s functionality, Pulse will inform Customer via the email address associated with Customer’s account no less than twenty (20) days prior to such change. We provide certain downloadable client software applications (the “Software”) for use in connection with the Service. If such Software is designed for use on a mobile device, then a compatible mobile device is required for use. The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between Pulse and Customer, Pulse retains all right, title, and interest in the Software. Pulse will use technical and organizational security measures to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. For purposes of this Subscriber Agreement, “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer. Pulse will take steps to protect the Service and Software from any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or Software. If Customer has engaged a third-party purchasing agent to purchase seats on its behalf, such purchasing agent is not the Customer, and Customer agrees that Customer is still solely responsible for compliance with this Subscriber Agreement.

• 2.Customer Obligations

  • Conduct; Compliance. Customer is responsible for its use of the Service and for its compliance with Pulse’s Terms of Service. The Service is not authorized for use by persons under the age of 13 and Customer will ensure that it does not allow any person under 13 to use the Service. Customer will promptly notify Pulse if it becomes aware of any unauthorized access to Customer’s account or the Service.
  • Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any third party; (ii) use the Service for any purpose where either the use or the failure of the Service might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse engineer the Service or attempt or assist anyone else to do so, unless such restriction is prohibited by law.
  • Conduct; Compliance. Pulse may suspend the account of any Customer who: (i) violates the Terms of Service; or (ii) is using the Service in a manner that Pulse reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for Pulse.

• 3.Customer’s Use of Third Party Services

  Pulse does not warrant or support any third party service (e.g., a service that utilizes the Pulse API in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.

• 4.Intellectual Property Rights

  • Limited License to Use Customer Content. Customer hereby grants to Pulse a limited, nonexclusive and nontransferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display the Customer Data for the limited purpose of (i) providing the Service and associated customer support to Customer; and (ii) analyzing and improving the Service.
  • Reservation of Rights. Except as expressly set forth herein, this Subscriber Agreement does not (i) grant Pulse any rights or interest in or to the Customer Data or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or to the Service or any Pulse Intellectual Property. For purposes hereof, the term “Intellectual Property” shall mean any current or future worldwide rights under any patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
  • Use of Customer Suggestions. Pulse may incorporate into the Service any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of Pulse. Pulse may also share and publish aggregate, anonymized data about the use of our Service by our customers.
  • Pulse Customer List. Pulse may include Customer’s name in a list of Pulse’s Customers online and in print and electronic marketing materials.

• 5.Fees and Payment

  By subscribing to the Service and providing payment account information, Customer agrees to these payment terms and conditions. If Customer subscribes to the Service under any promotional subscription fee, some additional restrictions may apply. These restrictions, if any, will be provided to Customer before Customer signs up for the Service that is subject to the promotion. Free or discounted introductory offers are only available to new users of the Service, except where expressly stated. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Pulse to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and require recurring payments. Fees will be charged on an annual or monthly basis based on Customer’s subscription. Pulse may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has terminated the Service or Pulse terminates the Service. Customer must cancel the Service prior to its renewal date in order to avoid billing of the next period’s fee. If Customer chooses to cancel the Service, Customer may use the Service until the end of the current period but will not be issued a refund for the most recently (or any previously) charged fees.

  Pulse may revise fee rates and/or the billable amount structure for the Service from time to time and will provide Customer with email notice of any changes in fees at least thirty (30) days prior. Customer is responsible for providing complete and accurate billing information to Pulse. Customer will be billed for the appropriate plan based on the total number of unique users, including those with limited access. Pulse may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Pulse’s net income) and Pulse will charge tax when required to do so by law.

  If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are clearly marked as such on the face of the Purchase Order, any terms and conditions on a Customer purchase order that conflict with this Subscriber Agreement will not apply and are null and void.

• 6.Term and Termination

  This Subscriber Agreement will remain in effect until Customer terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 4(b) and (c), 6-9, 12, and 13.

• 7.Confidentiality

  • Confidentiality. During the course of their performance under this Subscriber Agreement, each party may make available to the other party information that is not generally known to the public and at time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information shall include, but shall not be limited to: business plans, strategies, forecasts, projects and analyses; financial information and fee structures; business processes, methods and models; employee, customer and supplier information; sales and marketing information. With respect to the Customer, Confidential Information also includes the Customer Data.
  • Obligations. Except as otherwise expressly permitted under this Services Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party will use the same care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. Pulse may disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information solely for the purpose of performing Pulse’s obligations under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. Customer may disclose Pulse’s Confidential Information to its employees, consultants, agents or advisors who have a strict need to know such Confidential Information and are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.
  • Exclusions. The obligations set forth in Section 7(b) above shall not apply to any Confidential Information that the receiving party can demonstrate: (i) the receiving party possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party; (ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (iv) is or was received by the receiving party from a third party that does not have an obligation of confidentiality to the disclosing party or its affiliates. Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The receiving party may disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding, provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures.

• 8.Indemnification

  • By Customer. Customer hereby agrees to indemnify, defend and hold harmless Pulse, its licensees and licensors, and their respective employees, contractors, agents, officers and directors (together, the “Pulse Affiliates”), from and against any and all liabilities, damages, obligations, losses, costs and expenses (including but not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of any claim by a third party against Pulse or the Pulse Affiliates regarding: (i) use of or access to the Service by Customer in violation of this Subscriber Agreement or our Terms of Service; or (ii) any data or Customer Data transmitted or received through, or posted or stored in, Customer’s account.
  • By Pulse. Pulse hereby agrees to indemnify, defend and hold harmless Customer and its employees, contractors, agents, officers and directors (together the “Customer Affiliates”), from and against any and all Losses arising from or as a result of any claim by a third party against Customer or the Customer Affiliates to the extent based on an allegation that the Service or Pulse’s technology used to provide the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Pulse have any obligations or liability under this section arising from: (i) use of the Service in a modified form or in combination with materials not furnished by Pulse; (ii) use of any third party app developed using Pulse’s API; or (iii) any content, information, or data provided by Customer or other third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY VIOLATION BY PULSE OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
  • Infringement Claims. If the Service becomes, or in Pulse’s reasonable judgment is likely to become, the subject of a claim of infringement, then Pulse may: (i) obtain the right, at Pulse’s expense, for Customer to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that it is no longer infringing. If Pulse, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then Pulse may suspend or terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
  • Process. The party seeking indemnification will provide prompt notice concerning the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party will have full control and authority over the defense of any claim; provided, however, that: (i) the indemnified party may join in the defense at its own expense using counsel of its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability or make any financial payment will require such party’s prior written consent, not to be unreasonably withheld or delayed.

• 9.Limitation of Liability

  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL PULSE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL PULSE BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO PULSE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

• 10.Hosting of the Service; Export Restrictions

  The Service is controlled and operated from facilities in the United States. Pulse makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the Service from other jurisdictions do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Pulse may transfer, store and process Customer Data in locations other than Customer’s country. The export and re-export of Content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.

• 11.Modifications

  Pulse may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Pulse’s obligations unless affirmatively agreed to by Customer in advance. If, in Pulse’s sole and reasonable discretion, the modifications being proposed are material, Pulse will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Pulse’s obligations hereunder, Customer agrees to be bound by such modifications.

• 12.Governing Law; Binding Arbitration and Class Action Waiver

  PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

  This Subscriber Agreement will be governed by the laws of the Province of Ontario, Canada without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

• 13.Miscellaneous

  • Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
  • Force Majeure. Except for payment obligations, neither Pulse nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
  • Assignment. Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void.
  • Entire Agreement. This Subscriber Agreement, together with any Customer purchase order or order form associated herewith (as limited by Section 6), constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
  • No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
  • Communications from Pulse. You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in connection with the Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, in-app notifications, or by posting them on the Pulse website or through the Service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

For questions about these or any Pulse terms or policies, email us at terms-questions@pulsemicro.com