Terms of Service
The following terms of service (these “Terms”), govern your access to and use of the pulse-ltd.co.uk website (the “Website”), an online platform for the creation of Mobile App(s) and related services (collectively, the “Services”) provided by Pulse Creative Media Services Ltd, trading as Pulse Mobile Solutions (“Pulse”, “our”, “us” or “we”).
- 1. “Customer” means any person or entity having an account allowing access to our Services and paying a subscription to access our Services.
- 2. “End-User” means any person or entity who uses the Mobile App(s).
- 3. “Intellectual Property Rights” means inventions and patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade names, trade dress, logos, trade secrets or confidentiality rights, and any other intangible property rights including applications for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
- 4. “Mobile App(s)” means a mobile or desktop application created by the Customer through Pulse and made available to the public for download from a third-party platform or accessible from a web browser.
- 5. “Order” means a subscription to our Services made via any currently available method, including but not limited to our website, an online form, a signed proposal, or signed quotation.
- 6. “User” means a person or entity having an account allowing access to use the Services and create Mobile App(s).
- 7. “User Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components created or provided by a User through its use of the Mobile App(s).
2. GRANT OF LICENSE
- 1. Customer’s License.Pulse hereby grants to Customer a limited, non-exclusive, non-assignable, non-transferable, non-sub-licensable right and license, during the Term to use the software, tools, features and services that are provided as part of the Services solely to create, use, distribute and administer the Mobile App(s).
- 2. User Content License.You grant Pulse a license to use the User Content. By posting, downloading, displaying, performing, transmitting, or otherwise distributing User Content to the Website, you are granting Pulse and its affiliates and their respective officers, directors, employees, consultants, agents, and representatives a license to use user content in connection with the operation of the Services, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. By posting User Content on the Website, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
3. PAYMENT AND REFUNDS
- 1. Payment.A valid credit card is required. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
- 2. Refunds.We will not issue any refunds or credits for design/setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made. Pulse will use commercially reasonable efforts to have your Mobile App(s) approved by the appropriate mobile platform provider. Although there is a high likelihood of approval, we do not and cannot guarantee acceptance. If your Mobile App(s) is not approved by the appropriate mobile platform provider you may cancel your account, however there are no refunds under any circumstances.
- 3. Changes to Fees and Services.Pulse reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Pulse shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services. From time to time, Pulse may issue an update to the Pulse Website which may add, modify, and/or remove features. These updates may be pushed out automatically with little or no notice, although Pulse will do everything in its power to notify you in advance of an upcoming update, including details on what the update includes.
4. INTELLECTUAL PROPERTY
- 1. Pulse IP.Pulse retains all right, title and interest in and to the Website and Services, and any derivatives thereof, including any Intellectual Property Rights contained and/or made available therein or in connection thereto. You agree not to remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on our Website or Services. The look and feel of the Services is owned by Pulse Creative Media Services Ltd. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from Pulse.
- 2. Software.Pulse may make certain software available to you through the Services. If you download or otherwise use the software from the Service, the software, including all files and images contained in or generated by the software, look and feel, HTML/CSS, visual design elements, and accompanying data (collectively, “Software”) are deemed to be licensed to you by Pulse, for your personal and non-commercial use only. Pulse does not transfer either the title or the Intellectual Property Rights to the Software, and Pulse retains full and complete title to the Software as well as all Intellectual Property Rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form.
- 3. User Content.We claim no intellectual property rights over the User Content. Your User Content remain yours. However, by using the Pulse Website to create your Mobile App(s), you agree to allow others to view and share your User Content. Pulse does not pre-screen User Content, but Pulse and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any User Content that is available via the Services. When accessing or using the Services, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Services is at all times governed by and subject to laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any party’s Intellectual Property Rights. You agree to abide by laws regarding copyright, trademark, patent, and trade secret ownership and use of intellectual property, and you shall be solely responsible for any violations of any laws and for any infringements of any Intellectual Property Rights caused by any content you provide, post, or transmit, or that is provided or transmitted using your user name or user ID. The burden of proving that any User Content does not violate any laws or Intellectual Property Rights rests solely with you.
- 4. Marks and Publicity.Pulse and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. We may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, we may include Customer’s name and/or logo within its list of customers for general promotional purposes. We will comply with Customer’s trademark use guidelines as such are communicated to us in writing and shall use the Customer’s Marks in a manner which is consistent with industry practice. No party grants to any of the other parties any title, interest or other right in any Marks except as provided in this Section.
- 5. Suggestions/Improvements to Services.Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by you regarding the Services will be owned by Pulse, and you hereby agree to assign any such rights to Pulse. Nothing in these Terms will preclude Pulse from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Pulse in the performance of the Services.
- 6. Reservation of Rights.Pulse reserves all rights not specifically granted herein.
- 1. Definition.“Confidential Information” includes all information disclosed by us, before or after the subscription start date and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by us that contains, reflects, or is derived from such information.
- 2. Exceptions.Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, no party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorised agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
- 3. Ownership of Confidential Information.Nothing in these Terms will be construed to convey any title or ownership rights to the Services or other Confidential Information to you or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to Pulse’s Confidential Information. You shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose Pulse’s Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these Terms.
- 4. Non-Disclosure.You agree at all times to use all reasonable efforts, but in any case no less than the efforts that you use in the protection of your own Confidential Information of like value, to protect Confidential Information belonging to us. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
- 5. Injunctive Relief.Each party acknowledges that any unauthorised disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfil its obligations under this Section.
- 1. No Malicious Code.To the knowledge of Pulse, the Website does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Website, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Website in any manner. This warranty will be considered part of and covered under the provisions of these Terms. You must: (i) notify Pulse promptly in writing of any nonconformance under this warranty; (ii) provide Pulse with reasonable opportunity to remedy any nonconformance under the provisions of these Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.
- 2. Authorised Representative.Customer warrants that it has the right to enter into these Terms and that these Terms and the Orders placed hereunder will be placed by an authorized representative of the Customer.
- 3. Services Warranty.Pulse warrants that all services performed hereunder shall be performed in a workmanlike and professional manner.
- 4. Disclaimer of Warranties.ANY AND ALL OF SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED BY PULSE TO YOU ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 6 OF THESE TERMS. PULSE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NEITHER PULSE (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
- 1. Pulse Indemnity.Pulse will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim that the Services infringe a United Kingdom patent, copyright, or trade secret of a third party. Pulse will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Pulse. Customer may retain its own counsel at their own expense.
- 2. No Liability.Pulse will have no liability for any claim of infringement based on: (i) Services which have been modified by parties other than Pulse where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Services in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Services outside the permitted scope of these Terms.
- 3. Remedies.Should the Services become, or in Pulse’s opinion are likely to become, the subject of a claim of infringement, Pulse may, at its option, (i) obtain the right for Customer to continue using the Services, (ii) replace or modify the Service so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Service. Upon such termination, Customer shall cease accessing the Services and Pulse will refund to Customer as Customer’s sole remedy for such service termination, the fees paid by Customer for the terminated service for the past twelve (12) months. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF PULSE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SERVICES.
- 5. Indemnification Procedures.Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.
8. LIMITATION OF LIABILITY
- 1. Liability Cap.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PULSE BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
- 2. Disclaimer of Damages.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PULSE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
- 3. THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. TERM AND TERMINATION
- 1. Term.These terms will be in effect from the time that the Services are activated and will continue until the termination of your Order.
- 2. Termination by Customer.You must cancel your subscription before your Order renewal date and prior to debiting of funds to Pulse in order to avoid the next billing. To cancel, go to the “Client Login” on our Website and follow the instructions for cancellation. All cancellations must be made in writing, via email, to firstname.lastname@example.org. Sending an email to any other Pulse email address shall not constitute as a proper notification of cancellation.
- 3. Termination by Pulse.These Terms and any usage rights granted hereunder may be terminated by Pulse: (i) if you fail to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to you if you fail to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) you file a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
- 4. Effect of Termination.Upon termination of these Terms, Customer and User shall no longer access the Services and shall not circumvent any security mechanisms contained therein.
- 5. Other Remedies.Termination of Terms will not limit us from pursuing other remedies available to us, including injunctive relief, nor will such termination relieve your obligation to pay all fees that have accrued or are otherwise owed by you under these Terms.
10. YOUR OBLIGATIONS
- 1. You agree to comply with our Acceptable Use Policy, available at https://www.pulse-ltd.co.uk/acceptable-use and which is incorporated herein by reference.
- 2. The Customer shall be obliged to inform its Users before the beginning of use of the Services about the rights and obligations set forth in these Terms. The Customer will be liable for any violation of obligations by its Users or by other third parties who violate obligations within the Customer’s control.
- 3. You are obliged to keep the login names and the passwords required for the use of the Services confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct your Users to observe copyright regulations.
- 4. Before entering its data and information, the Users are obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Users shall be responsible for the entry and the maintenance of its data.
- 5. Pulse has the right (but not the obligation) to suspend access to the Services or remove any data or content transmitted via the Services without liability (i) if Pulse reasonably believes that the Services are being used in violation of these Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Pulse shall use commercially reasonable efforts to notify you prior to suspending the access to the Services as permitted under these Terms, or (iii) as otherwise specified in these Terms. Information on our servers may be unavailable to you during a suspension of access to the Services. Pulse will use commercially reasonable efforts to give you at least twelve (12) hours’ notice of a suspension unless Pulse determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Pulse or its customers.
- 6. If you engage in offerings, dealings or transactions with End-Users, you must comply with all applicable consumer protection laws.
- 7. You may not access the Services if you are a direct competitor of Pulse, except with Pulse’s prior written consent.
- 1. Assignment; Transfer. The Customer may not assign these Terms or otherwise transfer any usage rights created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Pulse. If the transfer is approved by Pulse, we reserve the right to charge a transfer fee. Any purported assignment of these Terms, or any rights in violation of this Section will be deemed void. For clarity, Customers are not permitted to solicit other subscribers to transfer or link Mobile App(s) to their account in order to fraudulently obtain discounted pricing. Pulse may terminate the Customer’s right to use the Services immediately if Customer breaches this Section 12.1. The Customer will remain liable for the payment of the applicable fees for the remainder of their initial subscription term or then-current renewal period. Pulse may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.
- 2. Third Parties.Pulse will have the right to use third parties, including, but not limited to, employees of Pulse’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these Terms, all references to Pulse or its employees will be deemed to include such Subcontractors.
- 3. Technical Data. You certify that all information provided to Pulse has been reviewed and scrubbed so that all technical data and other sensitive information has been removed and the information provided is only relevant to bug reports on Pulse products.
- 4. Compliance with Laws.You agree to comply with all applicable laws, regulations, and ordinances relating to your obligations under these Terms.
- 5. Survival.Any provision that by its nature is intended to survive the termination of these Terms will survive termination of these Terms.
- 6. Notices.Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.
- 7. Force Majeure.Pulse will not be liable to you for any delay or failure of Pulse to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Pulse. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by you in providing required resources or support or performing any other requirements hereunder.
- 8. Entire Agreement.These Terms, along with the Order and any other terms incorporated by reference herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein.
- 9. Headings.Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.
- 10. No Waiver.No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
- 11. Severability and Reformation.Each provision of these Terms is a separately enforceable provision. If any provision of these Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these Terms to remain in effect in accordance with its terms as modified by such reformation.
- 12. Independent Contractor.Pulse is an independent contractor and nothing in these Terms will be deemed to make Pulse an agent, employee, partner, or joint venturer of Customer. No party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
- 13. Governing Law; Venue.The laws of the United Kingdom govern the interpretation of these Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these Terms. The parties agree that the law courts located in the United Kingdom will have exclusive jurisdiction for any dispute arising under, out of, or relating to these Terms. Mediation will be held in London, England, UK.
- 15. Dispute Resolution.
- Where there is a dispute, controversy, or claim arising under, out of, or relating to these Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.
- Any dispute, controversy, or claim arising under, out of, or relating to these Terms and any subsequent amendments of these Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language to be used in the mediation will be English.
- Opportunity to Cure.Notwithstanding anything contained hereunder, you agree and acknowledge that no dispute resolution or litigation will be pursued by you for any breach of these Terms until and unless Pulse has had an opportunity to cure any alleged breach. You agree to provide Pulse with a detailed description of any alleged failure and a description of the steps that you understand must be taken by Pulse to resolve the failure. Pulse shall have sixty (60) days from Pulse’s receipt of your notice to complete the cure.
- Injunctive Relief.The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.
Last updated: 12th December, 2018