Terms of Service
Last updated | March 27, 2020
PLEASE READ THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICE OFFERED BY PULSIFY, INC. (“PULSIFY”). THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF PULSIFY’S SERVICE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE PULSIFY’S SERVICES. BY ACCEPTING THESE TERMS BELOW, BY USING PULSIFY’S SERVICES IN ANY MANNER, OR BY SIGNING AN ORDER FORM, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.
1.1 “Customer Data” means all electronic data submitted by Customer to the Service. This includes information about Users that is uploaded or otherwise provided by Customer or by Users. This does not include any analysis, compilation, or aggregation of Customer Data or any derivative work or other work of authorship created by Pulsify based upon Customer Data.
1.2 “Documentation” means Pulsify’s user guides and other end user documentation for the Service available on Pulsify’s online help feature of the Service, as updated by Pulsify from time to time.
1.3 “Order Form” means an ordering document, including without limitation purchase orders and statements of work, mutually agreed by Pulsify and Customer on a case-by-case basis, pursuant to which Customer places orders for the Service or Professional Services to be provided by Pulsify under this Agreement, whether on-line or a physical signed copy. Order Forms shall include, without limitation, the Service ordered, capacity licensed (i.e. the number of Users, log-ins, etc.), pricing, bill to, sold to, and the Term of the order. Order Forms shall be subject solely to and incorporate by reference the terms of this Agreement.
1.4 “Professional Services” means technical, consulting, education and support services provided by Pulsify in connection with the Service. Professional Services shall not include the Service.
1.5 “Service” means the on-line, web-based manager insight and learning services provided by Pulsify, and related materials provided by Pulsify for Customer’s use as part of the Service, as may be made available by Pulsify to Customer from time to time, or as specified on an Order Form. The Service shall not include the Professional Services.
1.6 “Term” means the period identified on an Order Form, on a renewal document, or, in the absence of an Order Form, the period set forth in Section 6.1, during which Customer’s Users are authorized to use or access the Service pursuant to the terms set forth in this Agreement, in all cases subject to Section 10 below.
1.7 “Users” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service have been procured, and who have been supplied a user identification and password by Customer. Users are limited to Customer’s employees. Users shall be bound by obligations and restrictions consistent with this Agreement.
2. Provision of Service
2.1 Grant of Rights. Subject to compliance with the provisions of this Agreement and any applicable Order Form, Pulsify grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the applicable Term to allow its Users to access and use the Service in accordance with the Documentation supplied by Pulsify, solely for Customer’s internal business purposes. The Service is hosted by Pulsify; no software is delivered to Customer hereunder. Customer’s rights in the Service will be limited to those expressly granted in this Section 2, and Pulsify reserves all other rights, title, and interest therein. Customer agrees that its subscription to Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Pulsify regarding future functionality or features.
2.2 Restrictions. Customer is responsible for all activities conducted under its and its Users’ logins on the Service. Customer shall use the Service in compliance with applicable law and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Service, or any part thereof, or use them for the benefit of any third party, or make them available to anyone other than its Users; (ii) send or store infringing or unlawful material; (iii) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Pulsify Service or the data contained therein; (v) directly or indirectly modify, copy or create derivative works based on the Service, or any portion thereof; (vi) access the Service for the purpose of building a competitive product or service or copying its features or user interface; or (vii) directly or indirectly delete, alter, add to or fail to reproduce in and on the Services the name of Pulsify and any copyright or other notices appearing in or on the Pulsify Service or which may be required by Pulsify at any time.
3. Security; Service Levels; Support. Pulsify will use commercially reasonable efforts to comply with all applicable requirements of Data Protection Legislation as required by all applicable data privacy laws including the requirements of the EU General Data Protection Regulations 2016/679. Pulsify will use commercially reasonable efforts to ensure that it has in place appropriate measures to: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data; (ii) provide support for the Service to Customer during the Term; and (iii) provide Customer with 99% availability to the Service excluding reasonable support windows during non-peak hours as generally applicable to all of Pulsify’s customers. Pulsify will notify the Customer immediately, and in no event more than two (2) business days on becoming aware of any unauthorized or unlawful processing, use of, or access to Customer Data, or any theft of, loss of, damage to or destruction of Customer Data.
4. Confidentiality. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Pulsify technology, related benchmark or other similar test results, other technology and technical information, security information, security audit reports, product designs, business and marketing plans, and business processes. Confidential Information (except for Customer Data) shall not include, or shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Receiving Party; (c) were rightfully known to the Receiving Party prior to its receipt thereof from the Disclosing Party; (d) are or were disclosed by the Disclosing Party generally without restriction on disclosure; (e) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance. Notwithstanding any other term to the contrary, Pulsify may publicly disclose that Customer is a customer of the Service and may use Customer’s name and logo to identify Customer as a Pulsify customer, including on Pulsify’s public website. Any use shall be subject to Pulsify complying with any written guidelines that Customer may deliver to Pulsify regarding the use of its name and logo.
5. Customer Data & Ownership
5.2 By providing any Customer Data, Customer acknowledges and agrees that Customer (and any applicable Users) may receive emails, phone calls, or other communications from Pulsify regarding the Services or about use of the Services, and Customer (and any applicable Users) may also receive marketing materials from Pulsify. Customer agrees that any notices, agreements, disclosures or other communications that Pulsify sends to you electronically shall be deemed to satisfy any legal communication requirements to the extent permitted under applicable law.
5.4 Except for the rights expressly granted under this Agreement, all right, title and interest in and to the Customer Data is owned exclusively by Customer. Except for the rights expressly granted under this Agreement, Pulsify retains all right, title, and interest in and to the Service, Professional Services, (and all other products, works, and other intellectual property created, used, or provided by Pulsify for the purposes of this Agreement). Customer agrees that Pulsify may use and exploit any data generated in connection with the Service (e.g., types of web applications utilized, information regarding use of the Service, etc.) without any duty to account or pay royalties to Customer, including for improvement of its products and services, provided, however, in the event Pulsify provides such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to Customer or a User. Customer shall, and hereby does, grant Pulsify a royalty-free, fully paid-up, worldwide, transferable, sublicensable (through one or more tiers), irrevocable, perpetual license to use, or incorporate into the Service and Professional Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service (collectively “Feedback”). Pulsify shall have no obligation to incorporate any Feedback into the Service or Professional Services. Customer shall have no obligation to provide any Feedback.
6. Fees and Taxes
6.1 Pulsify may make the some or all of the features and functions available as part of the Services accessible to Customer without requiring the payment of Fees (the “Free Tier”). Pulsify may adjust the features and functions that comprise the Free Tier at any time in Pulsify’s sole discretion, without advance notice to Customer. If Customer is using the Free Tier of Services, and therefore is not subject to an Order Form, then (i) Sections 3, 7.1 and 9.1 shall not apply, (ii) the “Term” begins when Customer accepts and is bound by this Agreement, and the Term terminates as set forth in Section 10, or at such other time as Pulsify delivers written notice of termination to Customer (which termination is effective immediately upon Pulsify’s transmission of such written notice).
6.2 Customer shall pay Pulsify the fees set forth on the applicable Order Form (“Fees”) in accordance with the terms and conditions set forth in this Agreement and the Order Form. If not otherwise specified on an Order Form, Fees will be due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Pulsify hereunder are nonrefundable. If Customer fails to pay any amounts due under this Agreement by the due date, Pulsify will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Pulsify will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue. Unless otherwise stated, Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Pulsify’s net income or property), even if such amounts are not listed in the Order Form. The limitations set forth in Section 8 shall not apply to Customer’s payment obligations under this Section 6.
7.1 Warranty. Subject to Section 7.2 below, Pulsify warrants that: (a) the Service shall perform materially in accordance with the applicable Documentation, (b) all Professional Services shall be performed in a professional and workmanlike manner, commensurate with industry standards for like services, and (c) Pulsify will employ then-current industry standard measures to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs whose effect is to negatively impact the operation or performance of the Service (other than programs that prevent Customer’s use after the applicable Term or inconsistent with this Agreement). As Customer’s exclusive remedy and Pulsify’s entire liability for a breach of the warranties set forth in Sections 7.1(a) and (c), Pulsify shall use commercially reasonable efforts to correct the non-conforming Service, and in the event Pulsify fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Service and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service. As Customer’s exclusive remedy and Pulsify’s entire liability for a breach of the warranty set forth in Section 7.1(b), Pulsify shall re-perform the non-conforming Professional Services at no additional charge, and in the event Pulsify fails to successfully re-perform the Professional Services within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable statement of work and receive an immediate refund of any and all amounts paid for such non-conforming Professional Services.
7.2 Exclusions. The warranties set forth in Section 7.1 are made to and for the benefit of Customer only. Such warranties shall only apply if (a) the applicable Service has been utilized in accordance with the Documentation, this Agreement and applicable law and (b) no modification, alteration or addition has been made to the applicable Service by persons other than Pulsify.
7.3 Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1, THE SERVICE IS PROVIDED “AS IS,” AND PULSIFY AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES, REPRESENTATIONS, PROMISES, COVENANTS OR UNDERTAKING RELATING TO THE SERVICES, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 7.1. NEITHER PULSIFY NOR ITS SUPPLIERS MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR PROFESSIONAL SERVICES OR THAT THE SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.
8. Limitation of Liability
8.1 PULSIFY SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT PULSIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8.2 IN NO EVENT WILL PULSIFY’S LIABILITY FOR DIRECT DAMAGES HEREUNDER, FOR ALL CLAIMS CUMULATIVELY, EXCEED THE GREATER OF THE TOTAL AMOUNTS PAID/PAYABLE TO PULSIFY BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM, AND FIFTY DOLLARS ($50).
9.1 Pulsify Indemnification Obligation. Subject to Section 9.3, Pulsify will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Service or Professional Services, as provided by Pulsify to Customer under this Agreement infringe any registered U.S. patent or registered U.S. copyright owned by the claimant third party (each, an “Infringement Claim”). Pulsify will indemnify Customer for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Pulsify, in connection with an Infringement Claim. In the event of any such Infringement Claim, Pulsify may, at its option: (i) obtain a license to permit Customer the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, Pulsify will have no liability for any infringement claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Pulsify; (2) the use of the Service with equipment, devices, data or software provided by Customer; (3) Pulsify’s compliance with any specifications or requirements provided by Customer; or (4) Customer’s use of the Service other than in accordance with this Agreement. The indemnification obligations set forth in this Section 9.1 are Pulsify’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
9.2 Customer Indemnification Obligation. Subject to Section 9.3, Customer will defend Pulsify from any and all claims, demands, suits or proceedings brought against Pulsify by a third party arising from Customer's use of the Service or provision of the Customer Data. Customer will indemnify Pulsify for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer. The indemnification obligations set forth in this Section 9.2 are Customer’s sole and exclusive obligations, and Pulsify’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
9.3 Indemnity Requirements. The party seeking indemnity under this Section 9 ("Indemnitee") must give the other party ("Indemnitor") the following: (a) prompt written notice any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the claim, provided that (i) the Indemnitee may participate in the defense of the claim at its sole expense, and (ii) the Indemnitor may not, without the prior written consent of the Indemnitee, enter into a settlement to the extent such settlement restricts the business or operations of Indemnitee except for settlements entered into by Pulsify that restrict Customer's right to continue use of the allegedly infringing Service.
10.1 Term, Renewals. This Agreement shall commence on the earlier of (i) the date that Customer uses the Service, or (ii) the first day of the Term. Upon expiration of the Term, unless otherwise stated on an applicable Order Form, the Service will automatically renew for additional Terms of one (1) year each, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
10.2 Suspension and Termination. If at Pulsify’s reasonable determination, Customer is using the Service in a manner that violates laws or breaches this Agreement, creates an excessive burden or potential adverse impact on Pulsify’s systems, or the account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Pulsify may, without liability, immediately suspend Customer’s access to the Service until such breach is cured. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Upon termination, the rights granted to Customer hereunder shall terminate immediately. The sections titled “Definitions,” “Restrictions”, “Confidentiality,” “Ownership,” “Fees and Taxes,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “No Endorsement,” “Term; Termination,” and “General” shall survive any termination or expiration of this Agreement. Upon termination or expiration of the Agreement, Pulsify shall provide a report of all historical data of Services performed under the Agreement if requested by Customer, to the extent reasonably available in the Services.
11.1 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Pulsify without the other party’s prior written consent which shall not be unreasonable withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
11.2 Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Boston, Massachusetts. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
11.3 Notices. All notices hereunder shall be in writing via certified mail, return receipt requested, and shall be deemed to have been duly given upon (i) personal delivery, (ii) five (5) days after sending, if sent by domestic mail; (iii) seven (7) days after sending, if sent by international mail, (iv) two (2) days after deposit with a recognized courier with next-day delivery instructions, or (v) posting a notice in the Administrative instance of Customer’s account.
11.4 Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party or its subcontractors, the party so affected shall be excused from such performance to the extent of such prevention or restriction. Examples include without limitation, (a) changes or clarifications in applicable law, (b) judgments, subpoenas, court orders or the like, (c) electrical, bandwidth, networking, transmission or Internet-related shortages or failures, (d) computer viruses or computer-related attacks, (e) natural disasters or outbreaks of disease or (f) acts of terrorism.
11.5 Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
11.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.7 Compliance with Law. Customer will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export
to such countries); (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
11.8 Entire Agreement. This Agreement together with any applicable Order Form(s) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.