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