Pulse Microsystems Ltd. User Terms of Service
Effective Date: February 2019
Pulse Microsystems Ltd. (“Pulse,” “we,” “our”) offers a variety of design personalization, storage, and organizational tools relating to designs, including via a mobile application (collectively, the “Service”), and websites, including but not limited to www.pulsemicro.com, cloud.pulsemicro.com, ambassador.pulsemicro.com, dgcommunity.pulsemicro.com (the “Websites”).
Pulse has two different types of users depending on the Pulse products used:
We call users of the Websites “Site Visitors.”
We call users who use the Service as part of a paid Pulse software package “Subscribers.” The Service features and functionalities available to Subscribers are determined by the software package purchased and the specific terms agreed to between Pulse and the organization (e.g., your employer or another entity or person, called the “Customer”) that entered into a separate agreement that governs delivery, access, and use of the Service (the “Customer Agreement”).
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 Service and Websites. 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 Service and Websites after any such update constitutes your acceptance of such changes.
1. ELIGIBILITY AND SCOPE
1.1 General. To use the Service and Websites 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 Service and Websites, you are not permitted to access or use the Service and Websites.
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 Service and Websites, you must register for a Pulse account by providing an email address, 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 email@example.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. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, Pulse reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
3. OUR PROPRIETARY RIGHTS
The Service and Websites 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 are protected by Canadian and United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service and Websites 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 Service and Websites. You acknowledge that the Service and Websites 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 Service and Websites during and after the term of these Terms and to comply with all 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 Service and Websites. You agree to notify Pulse immediately upon becoming aware of any claim that the Service and Websites 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 Service and Websites 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 Service and Websites may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
4. USER CONTENT AND FEEDBACK
4.1 User Content and Submissions on the Service. The Service allows 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 to the Service is subject to the following terms:
4.1.1 Subscriber User Content on the Service. Content submitted to the Service by Subscribers (“Subscriber User Content”) is owned and controlled by the Customer as set forth in the introduction to these Terms and the Customer Agreement, except with respect to Subscriber User Content submitted by students pursuant to a Customer Agreement with an educational institution (“Student Content”). Such Student Content is owned by the student and not the educational institution. Pulse maintains a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display Subscriber User Content for the following limited purposes: (i) to maintain, provide and improve the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Subscriber User Content is in violation of the Customer Agreement or these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process that meets the requirements of the Customer Agreement; and (v) as otherwise set forth in our Customer Agreement or as expressly permitted in writing by the Customer.
4.2 Feedback on the Websites. The Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to Pulse and share such Feedback with other users, or the public. By submitting Feedback through the Websites, you grant Pulse a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other Pulse marketing materials and where required to do so by law or in good faith to comply with legal process.). We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.
4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that Pulse does not control, and is not responsible for User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback 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 or Feedback you submit through the Service and/or Websites. 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
5.2 Acceptable Use. Your use of Pulse websites and services must comply at all times with our Acceptable Use Policy.
5.3 Violations of the Acceptable Use Policy. In addition to any other remedies that may be available to us, Pulse reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Service or Websites, upon notice and without liability for Pulse should you fail to abide by the Acceptable Use Policy or if, in Pulse’s sole discretion, such action is necessary to prevent disruption of the Service or Websites for other users. If you are a Subscriber, Pulse reserves the right to notify the Customer’s Account Administrator(s) or other Customer representative(s) of any violations of these Terms.
7. WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY
THE SERVICE AND WEBSITES AND USER CONTENT, WHETHER PROVIDED BY PULSE, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE AND WEBSITES 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 SERVICE AND WEBSITES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF USER CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICE AND WEBSITES OR THE SERVER(S) THAT MAKE THE SERVICE AND WEBSITES 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 SERVICE AND WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE AND WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE AND WEBSITES, 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 SERVICE OR WEBSITES 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 SERVICE AND WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE AND WEBSITES, 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 SERVICE AND WEBSITES. 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 or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
8. 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 7 specifically do apply to you.
10. THIRD-PARTY LINKS AND SERVICE AND WEBSITES
The Service and Websites 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.
11. MODIFICATION AND TERMINATION
11.1 Pulse reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and Websites (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 Service and Websites.
11.2 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 Litigation 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.
12. 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.
12.1 Application. This Section 12 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.
12.2. Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. If you have any dispute with us, you agree that before taking any formal action, you will contact us at firstname.lastname@example.org and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). 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.
12.3 Litigation. 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.
12.4 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.
12.5 Exception: 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.
12.6 Changes to This Section. Pulse will provide thirty (30) days’ notice of any changes to this section by posting on the Service and Websites. Amendments will become effective thirty (30) days after they are posted on the Service and Websites 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 Litigation and Class Action Waiver, and the court shall apply the first Litigation and Class Action Waiver section in existence after you began using the Service and Websites.
12.7 Survival. This Litigation and Class Action Waiver section shall survive any termination of your use of the Service and Websites.
13. 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.
14. GENERAL TERMS
14.1 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.
14.2 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.
14.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
14.4 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 Service and Websites and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
14.5 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 Service and Websites, 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 Service and Websites 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.
14.6 Notices. We may deliver notice to you by e-mail, posting a notice on the Service and Websites 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) email@example.com.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.