PULSE 24/7 TERMS OF SERVICE
BY ACCESSING AND USING THE PLATFORM, YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18 YEARS OLD, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/ OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises, terms, and conditions set forth herein, Pulse 24/7 and the Customer agree as follows:
1. Description of Services.
Pulse 24/7 is a software service (the “Service”) that provides tools for managing and organizing businesses in different service industries, which are further described on the Pulse 24/7 website. The Service is operated by a third party hosting server and enables access and use to the Customer, the Customer’s users (“End Users”), and employees who have been authorized by Customer (“Authorized Users”).
- A “Subscription” refers to (i) an online order for the Service completed and submitted by the Customer through the website and accepted by Pulse 24/7; or (ii) an order for the Service by the Customer through an authorized Pulse 24/7 reseller. “Subscription Date” refers to (i) the date the Customer submits an online order through the website; or (ii) the date that an authorized Pulse 24/7 reseller has commenced the Services on behalf of the Customer.
- The Subscription begins on the Subscription Date and continues monthly or yearly as specified in the Subscription (“Subscription Term”). The Subscription Term will automatically renew, unless the Customer gives thirty (30) days prior notice that the Subscription should not be renewed.
3. Use Rights and Restrictions; Service Access.
- Pulse 24/7 hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable right to permit the Customer, End Users, and Authorized Users to use the Service during the Subscription Term.
- Customer must use the Service only for Customer’s internal business purposes and in accordance with applicable laws, rules, and regulations. Customer is responsible for all activities that occur within, through, or as a result of Customer’s use of the Service. Customer agrees that Customer will not use the Service for unlawful purposes or to engage in any illegal, offensive, indecent, or objectionable conduct, including violation of any third party privacy or other rights.
- Customer is solely responsible for (i) all use of the Service by the End Users or Authorized Users; (ii) obtaining consent from Customer’s End Users to collect, use, process, and transfer End User data in connection with the Service; and (iii) providing notices or obtaining consent as legally required in connection with the Service.
- Customer agrees on behalf of itself, its End Users, and its Authorized Users, not to directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) knowingly upload invalid data, viruses, or other software agents through the Service; (iii) enable any person or entity other than End Users and Authorized Users to access and use the Service; (iv) modify or create any derivative work based upon the Service; (v) engage in or permit any distribution of the Service; (vi) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any portion of the Service; (vii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (viii) use the Service to send unauthorized advertising or spam; (ix) collect End Users’ data without consent; or (x) engage in or permit any use or other activity by any person or entity within Customer’s control that is not expressly authorized under this Agreement. Any violation under this Section 3(d) is subject to remedies available at law, and Pulse 24/7 will have the right to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
- Pulse 24/7 is not liable for any delays, interruptions, or other transmission errors related to Customer’s device, service, or wireless service provider.
- Pulse 24/7 may in its discretion modify, enhance, or otherwise change the Service from time to time, provided that such change does not adversely affect the Service as it existed during the Customer’s Subscription Date.
- If Customer has purchased the Services through an authorized Pulse 24/7 reseller, the Customer’s Subscription with such reseller is subject to this Agreement.
4. Customer Support and Service Maintenance.
- Pulse 24/7 will provide customer and technical support by e-mail (“Support”) to all Customers under a Subscription. Although no response times are guaranteed, Pulse 24/7 will use commercially reasonable efforts to respond to such Support requests within 72 hours.
- Pulse 24/7 may delegate the performance of certain portions of the Support to third parties, but Pulse 24/7 will remain responsible to Customer for delivery thereof.
- In the event that any Support is not performed with reasonable skill, care, and diligence, Pulse 24/7 will repeat the Support to the extent necessary to correct the defective performance. Customer acknowledges that such re-performance of the Support shall be Customer’s sole and exclusive remedy for any defective performance.
- Pulse 24/7 will use commercially reasonable efforts to maintain availability of the Service twenty-four (24) hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by the Customer or any software, hardware, or service not provided by Pulse 24/7, emergency maintenance or any cause beyond Pulse 24/7’s reasonable control. The Service will be deemed available so long as Customers, End Users, and Authorized Users are able to log in to the Service interface and access their data.
- Notwithstanding the foregoing, if Customer has purchased the Services through an authorized Pulse 24/7 reseller, Customer shall receive support from such reseller as set forth in Customer’s subscription with such reseller, and any additional support not set forth in that subscription from Pulse 24/7.
- The fees for the Service shall be based on the pricing published on the Pulse 24/7 website (“Fee Schedule”). The one-time setup fee, the monthly subscription fee, the yearly subscription fee, and any add-on fees vary based on the subscription plan purchased. Pulse 24/7 reserves the right to change the Fee Schedule upon thirty (30) days advance notice to the Customer.
- Customer may upgrade a subscription plan at any time, either by sending an email or upgrading through the Service dashboard. Once the Subscription Term for the new subscription plan begins, Customer will be responsible for paying the applicable pricing for the new subscription plan as set forth in the Fee Schedule.
- Customer authorizes Pulse 24/7 to charge Customer via credit card (“Payment Method”) for the Service based on the applicable Fee Schedule. Payments are due in accordance with the Fee Schedule. Annual or monthly fees are automatically charged to the Payment Method that Customer provides when Customer subscribes to the Service. Customer must be authorized to use such Payment Method. Customer further authorizes Pulse 24/7 to use a third party to process payments, and consents to the disclosure of Customer’s payment information to such third party.
- Customer must provide and maintain valid, current, and complete billing details. Customer can access and modify Customer’s billing account information from the website at any time. If the Customer notifies Pulse 24/7 to stop using Customer’s previously designated payment method and fails to designate an alternative, Pulse 24/7 may immediately suspend Customer’s use and access to the Service.
- Any fees not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date payment is due until the date paid. In the event of any action by Pulse 24/7 to collect any amount not paid when due, Customer may be subject to a collection agency or debt collector, a collection action, and payment of collection related fees and costs.
- Customer is solely responsible for any and all duties, taxes, levies, or fees (including any sales, use, or withholding taxes) imposed on or in connection with this Agreement or the Service by any authority.
- If Customer has purchased the Service through an authorized Pulse 24/7 reseller, the Customer will pay the applicable fees based on the Fee Schedule directly to the reseller; however, Pulse 24/7 may suspend or terminate the Service to Customer, if such reseller has not paid the applicable fees due from reseller to Pulse 24/7 in connection with Customer’s use of the Service.
6. Third Party Content.
The Platform may include various application program interfaces (APIs), open source software, and other third party content to support Customer’s access and use of the Platform and Service. Customer acknowledges and agrees that all third party content is governed by its respective terms and such terms are solely between customer and the applicable licensor. Customer agrees to comply with such third party terms (including open source software terms), as applicable, and that Pulse 24/7 is not liable with respect to third party content under this Agreement.
7. Rights Grants to Pulse 24/7.
- In order to provide and support the Service for the benefit of the Customer, Customer hereby grants Pulse 24/7 a worldwide, non-exclusive, royalty-free license during the Subscription Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive data, text, software, audio, video, images or other content that Customer, End Users, and Authorized Users upload to the Service, or otherwise transfer, process, use or store in connection with the Service (collectively, “Customer Data”).
- Customer agrees that, so long as no Customer proprietary or confidential information is publicly disclosed, Pulse 24/7 may: (i) use Customer Data to refine, supplement or test Pulse 24/7’s product and service offerings; (ii) include aggregated and anonymized Customer Data in any publicly available reports, analyses, and promotional materials; and (iii) retain anonymized, non-attributable Customer Data following any termination of this Agreement for use in connection with the foregoing.
- During the Subscription Term, Pulse 24/7 may list Customer as a customer and use Customer’s name and logo on the Pulse 24/7 website, on publicly available customer lists, and in media releases. Nevertheless, Pulse 24/7 will not promote Customers to other Customers or End Users, nor will Pulse 24/7 solicit any business on behalf of Customers.
8. Ownership Rights.
- Customer shall retain all right, title, and interest in the Customer Data. Pulse 24/7 will not share Customer Data or End Users’ data with other Customers or End Users using the Service. Nevertheless, Customer is solely responsible and Pulse 24/7 assumes no liability for the Customer Data that End Users, Authorized Users or other third parties upload or otherwise make available over or through the Service.
- Customer acknowledges and agrees that Pulse 24/7 owns all right, title, and interest in and to the Pulse 24/7 Service, including but not limited to any and all patent, copyright, trade secret, trademark, and all other intellectual property rights therein or related thereto, and Customer agrees not to take any action inconsistent with such ownership interests. No such title or ownership of the Service or Platform, or any intellectual property rights associated therewith, is transferred to Customer, any End Users, any Authorized Users, or any third party under this Agreement.
- Under this Agreement, Customer does not acquire any rights or licenses under any of Pulse 24/7’s copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights.
- Any and all suggestions for correction, change, and modification to the Service, evaluation data, evaluations and other feedback, and all improvements, updates, modifications or enhancements, whether made, created, or developed by Pulse 24/7 or otherwise relating to the Service, are and will remain the property of Pulse 24/7. Customer acknowledges and agrees that any contribution of feedback or revision does not and will not give or grant Customer any right, title, or interest in the Service, feedback, or revision.
- Under this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential, pursuant to a contractual or other obligation owing to a third party. Confidential Information does not include any information that: (i) was known to the Recipient (as defined below) prior to receiving the same information from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Recipient.
- Each party reserves any and right, title, and interest (including any intellectual property rights) that is Confidential Information and that may be disclosed to the other party under this Agreement.
- The party that receives any Confidential Information (“Recipient”) of the other party (“Discloser”) will protect the Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that it is the Confidential Information of the Discloser.
- This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Disclosure an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser.
10. Termination of Subscription.
- Customer cannot terminate the Subscription prior to the expiration date of the Subscription Term. Pulse 24/7 will not provide refunds, if the Customer stops using the Service during the Subscription Term.
- Either party may terminate this Agreement for cause: (i) upon thirty (30) days notice to the other party of a material breach, if such breach remains uncured at the expiration of such period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Pulse 24/7 may also terminate this Agreement for cause upon thirty (30) days notice, if Pulse 247 determines that the Customer, End Users, or Authorized Users are acting, or have acted, in a way that has or may negatively reflect on or affect Pulse 24/7. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Upon termination of this Agreement, Customer will stop all use of the Service. If Customer terminates this Agreement for cause, Pulse 24/7 will promptly refund any prepaid, but unused fees covered under the Subscription Term. If Pulse 24/7 terminates this Agreement for cause, Customer will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
- If Customer makes a request by e-mail within thirty (30) days after termination or expiration of a Subscription, Pulse 24/7 will provide Customer with copies of all Customer Data then in Pulse 24/7’s possession or control, provided that Customer has paid all fees owed to Pulse 24/7. Pulse 24/7 may withhold access to Customer Data until Customer pays any fees owed to Pulse 24/7. Thirty (30) days after termination or expiration of the Subscription, Pulse 24/7 will have no obligation to maintain or provide the Customer Data and may, unless legally prohibited, delete all Customer Data in Pulse 24/7’s systems or control.
- Per Section 5(g), Pulse 24/7 reserves the right to suspend or terminate the Service to Customer if Customer has purchased the Service through an authorized Pulse 24/7 reseller and such reseller has not paid the applicable fees due from reseller to Pulse 24/7 in connection with Customer’s use of the Service.
Customer agrees to indemnify, defend and hold Pulse 24/7, its employees, contractors, agents, officers and directors, harmless from any losses, including but not limited to attorneys’ fees, with respect to any third-party claim, suit, action, or proceeding that arises out of or is related to: (i) Customer’s, End Users’, or Authorized Users’ unauthorized or illegal use of the Service; (ii) Customer’s, End Users’, or Authorized Users’ noncompliance with or breach of this Agreement; (iii) Customer’s, End Users’, or Authorized Users’ violation of any third-party right, including but not limited to any right of privacy, publicity rights or intellectual property rights; (iv) any claim or damages that arise as a result of any Customer Data; or (v) any unauthorized use of the Service by any other person using the Customer’s information.
12. Disclaimer of Warranties; Limitation of Liability.
- Disclaimer of Warranties. PULSE 24/7 AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR DATA MADE AVAILABLE FROM THE SERVICE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. PULSE 24/7 DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE “INDEMNIFICATION” SECTION, AND YOUR LIABILITY FOR VIOLATION OF PULSE 24/7 INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
- Amendment; No Waiver. Pulse 24/7 may update and change any part or this Agreement. The updated Customer Terms of Service will be posted on the Pulse 24/7 website and we will let you know via email. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. Pulse 24/7 encourages you to review these Customer Terms of Service periodically.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. Customer and Pulse 24/7 agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. Pulse 24/7 will comply with all U.S. state and federal laws in our provision of the Service. Pulse 24/7 reserves the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. Customer will comply with all laws in use of the Service, including any applicable export laws. Customer must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. Customer must comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Customer must not directly or indirectly export, re-export, or transfer the Service to prohibited countries or individuals or permit use of the Service or by prohibited countries or individuals.
- Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Pulse 24/7: Pulse 24/7, Inc., 22 Knapp Street, Suite 208 Stamford, CT 06092 To Customer: by address, e-mail address(es), or telephone call as provided in your Subscription account information.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. Pulse 24/7 may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival. The following sections shall survive the expiration or termination of this Agreement: “Use Rights and Restrictions; Service Access,” “Fees,” “Rights Grants to Pulse 24/7,” “Ownership Rights,” “Confidentiality,” “Termination of Subscription,” “Indemnification,” “Disclaimer of Warranties; Limitation of Liability,” and “Miscellaneous.”