Terms of Use

1. Acceptance of Terms

Netpulse, Inc. (“Netpulse” or the “Company”, which terms shall include affiliates of Netpulse, Inc.) provides the Netpulse Services (as defined below) to you subject to the following Terms of Service (“TOS”), which may be updated by the Company from time to time without notice to you. Netpulse Services includes any services associated with the Company for use by you, including, without limitation, (a) the netpulse.com website, and any related domains or subdomains (collectively, the “Site”); (b) access and use of the network (the “Netpulse Network”) of content and exercise-related information through any device, equipment, display or other means of access to the Netpulse Services, whether now in existence or in the future; and (c) use of exercise equipment that contains Netpulse-enabled content or controls, to the extent that such use relates to hardware, software or services provided by Netpulse.

By accessing and using the Netpulse Services, you accept and agree to be bound by the terms and provision of these TOS. If you do not agree to these TOS, you should stop use of the Netpulse Services. These TOS include the Netpulse Privacy Policy located at www.netpulse.com. In addition, any rules, guidelines or additional terms that may be presented to you in the course of your use of the Netpulse Services are incorporated by reference into these TOS.

2. Registration and Account Information

You represent that you are a natural person with the legal capacity to form a binding contract and be subject to these TOS under the laws of any applicable jurisdiction. You also agree that you will provide true, accurate, current and complete information about yourself as prompted by the Netpulse Service’s registration form, with updates, as applicable. If you provide any information that is untrue, inaccurate, not current or incomplete, or Netpulse has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Netpulse has the right to suspend or terminate your account and refuse to provide you any further access to any portion of the Netpulse Services. You understand that through your use of the Netpulse Services, you consent to the collection and use, as set forth in the Netpulse privacy policy, of this information, including the transfer of this information outside your applicable jurisdiction to other countries for storage, processing and use by Netpulse and its affiliates.

You are responsible for maintaining the confidentiality of the password and account name or ID your register under, and are fully responsible for all activities that occur under your account. The Company is not liable for any failure on your part to comply with the foregoing. You agree to immediately notify Netpulse of any unauthorized use of your password or account or any other breach of security.

3. Health Disclaimer

The Netpulse Services and the Site may provide physiological data about your body along with information applications and content published over the Internet and are intended only to assist you and other users with respect to such user’s personal health, fitness and wellness efforts. Netpulse is not a medical organization and the Company does not and cannot give you medical advice or diagnoses. Nothing transmitted or contained in the Netpulse Services, the Site or through the Netpulse Network should be construed as medical advice or a diagnosis. Any data or reports generated by through use of the Netpulse Services should not be interpreted as a substitute for physician consultation, evaluation, or treatment. The Company urges you to seek the advice of a qualified physician before beginning any health, fitness & wellness related effort or regimen.

4. Content and Conduct

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated (except that anything disclaimed under Section 3 above is not the responsibility of Netpulse). You understand that by using the Netpulse Services, you may be exposed to Content that is offensive or objectionable. Under no circumstances will Netpulse be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Netpulse Services.

You agree you shall not use the Netpulse Services to:

1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary rights of any party
2. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements)
3. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Netpulse Services or the Netpulse Network.
5. upload, post, email, transmit or otherwise make available any material that contains software viruses, “Trojan horses” or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
6. interfere with or disrupt the Netpulse Services or servers or networks connected to the Netpulse Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Netpulse Services, including using any device, software or routine to bypass our robot exclusion headers
7. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law
8. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
9. “stalk” or otherwise harass anyone; and/or
10. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.

You acknowledge, consent and agree that Netpulse may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these TOS (iii) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Netpulse, its users or the public.

You understand that the Netpulse Services and software embodied within the Netpulse Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Netpulse and/or content providers who provide content to the Netpulse Services. You may not attempt to override or circumvent any of the usage rules embedded into the Netpulse Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Netpulse Services, in whole or in part, is strictly prohibited.

5. Interstate and International Nature of the Netpulse Services

You acknowledge that in using the Netpulse Services you will be causing communications to be sent through Netpulse’s computer networks, portions of which are located in California and other locations in the United States and portions of which may be located abroad. As a result, and also as a result of Netpulse’s network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, you acknowledge that use of the Netpulse Services results in interstate data transmissions.

6. Contributions to Netpulse

By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to Netpulse through the Site, feedback mechanisms or otherwise, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Netpulse is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Netpulse shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Netpulse may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Netpulse without any obligation of Netpulse to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Netpulse under any circumstances.

7. Indemnity

You agree to indemnify and hold Netpulse and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Netpulse Services, your connection to the Netpulse Services, your violation of these TOS, or your violation of any rights of another.

8. Modification or Termination of Netpulse Services

Netpulse reserves the right at any time, in its sole discretion, without notice, to modify or discontinue, temporarily or permanently, any part of the Netpulse Services or to terminate, limit your access to or suspend your Netpulse account and access to the Netpulse Services for any reason. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Netpulse Services, or for any termination, limit to access or suspension of your Netpulse account. .

9. Advertisers

Your dealings with, or participation in promotions of, advertisers or other third parties found on or through the Netpulse Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or third party. You agree that Netpulse shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with advertisers or third parties, or as the result of the presence of such advertisers on the Netpulse Network or through the Netpulse Services.

10. Links to Third Parties

The Netpulse Services may provide, or third parties may provide, links to other websites or resources. You acknowledge and agree that Netpulse is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Netpulse 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 such Content, goods or services available on or through any such site or resource.

11. Netpulse’s Proprietary Rights

You acknowledge and agree that the Netpulse Services, any necessary software used in connection with the Netpulse Services and Netpulse Network (“Software”) and Content provided through the Netpulse Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in advertisements or information presented to you through the Netpulse Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Netpulse or the applicable licensor (such as an advertiser), you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Netpulse Services, such Content or the Software, in whole or in part.

Netpulse grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Netpulse Services.

You agree that all of Netpulse’s trademarks, trade names, service marks and other Netpulse logos and brand features, and product and service names are trademarks and the property of Netpulse Inc. Without Netpulse’s prior permission, you agree not to display or use in any manner the Netpulse Marks.

12. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

1. YOUR USE OF THE NETPULSE SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE NETPULSE SERVICES, THE NETPULSE NETWORK AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NETPULSE AND OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. NETPULSE AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE NETPULSE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE NETPULSE SERVICES, NETPULSE NETWORK OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE NETPULSE SERVICES, THE NETPULSE NETWORK OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE NETPULSE SERVICES OR THE NETPULSE NETWORK WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NETPULSE SERVICES, THE NETPULSE NETWORK OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NETPULSE OR THROUGH OR FROM THE NETPULSE SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
5. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE NETPULSE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE NETPULSE SERVICEs. IMMEDIATELY DISCONTINUE USE OF THE NETPULSE SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE NETPULSE SERVICE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.

13. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NETPULSE AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NETPULSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE NETPULSE SERVICE OR THE NETPULSE NETWORK; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE NETPULSE SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE NETPULSE SERVICE.

14. Exceptions to Disclaimers and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 12 AND 13 MAY NOT APPLY TO YOU.

15. No Third-Party Beneficiaries

You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

16. Notice

Netpulse may provide you with notices, including those regarding changes to these TOS, including by but not limited to postings on the Netpulse Services, email, SMS, MMS, text message, regular mail or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these TOS by accessing the Netpulse Services in an unauthorized manner. Your agreement to these TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the Netpulse Services in an authorized manner.

17. General

Entire Agreement. These TOS constitutes the entire agreement between you and Netpulse and governs your use of the Netpulse Services, superseding any prior version of these TOS between you and Netpulse with respect to the Netpulse Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Netpulse services, affiliate services, third-party content or third-party software, or communicate with third parties such as advertisers

Choice of Law and Forum. You and Netpulse each agree that these TOS and the relationship between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to these TOS, or the relationship between you and Netpulse, shall be brought exclusively in the courts located in the county of San Francisco, California or the U.S. District Court for the Northern District of California. You and Netpulse agree to submit to the personal jurisdiction of the courts located within the county of San Francisco, California or the Northern District of California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.

Waiver and Severability of Terms. The failure of Netpulse to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. If any provision of these TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these TOS remain in full force and effect.

No Right of Survivorship and Non-Transferability. You agree that your Netpulse account is non-transferable and any rights to your Netpulse account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Netpulse Services or these TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in these TOS are for convenience only and have no legal or contractual effect.

18. Violations

Please report any violations of these TOS to the Company at privacy@netpulse.com.

19. Procedure for Making Claims of Infringement of Copyrights or other Intellectual Property

The Company respects the intellectual property of others, and asks users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Netpulse with the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located through the Netpulse Services;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
7. Notice of claims of copyright or other intellectual property infringement can be delivered as follows:
   • By mail:
     Netpulse, Inc.
     2331 Third Street
     San Francisco, CA 94107
     By e-mail: privacy@netpulse.com