TERMS AND CONDITIONS
These Terms of Use (the “Terms”) govern your access to and use of the https://beyondpulse.com/ website, its subdomains, and all of the website and Internet properties owned or operated by Beyond Pulse (the “Site”), our mobile applications (the “Beyond Pulse Apps,” or “Apps”), and our wearable health and wellness monitoring devices (the “Sensors”), and any information, text, graphics, photos, or other materials uploaded to, downloaded from, or appearing on the Site, Apps, and Sensors (collectively, the “Beyond Pulse Content”, as more specifically defined below). We refer to the Site, the Apps, the Sensors, and related services collectively throughout this policy as the “Services.” By accessing or using the Services, you agree to be bound by these Terms. Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. These Terms are an agreement between you and Beyond Pulse (“Beyond Pulse,” “we,” “us”).By using the Services, you acknowledge and accept our Privacy Policy found at https://beyondpulse.com/privacy-policy and you agree to be bound by these Terms (or if applicable, the Additional Terms as defined below) and consent to the collection and use of your data in accordance with the Privacy Policy. By using the Services, you further agree that Beyond Pulse may change, alter, or modify the settings or configurations on your Device (defined below) in order to allow for or optimize your use of the Services.In some instances, both these Terms and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Services (in each such instance, and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE SERVICE TERMS, YOU (AND THE ENTITY ON WHOSE BEHALF YOU ARE SEEKING TO ENTER INTO THESE SERVICE TERMS) MAY NOT USE THE SITE AND/OR SERVICES.
1. Accounts; Orders; Returns
A. Account
You may be required to create an account and specify a password in order to access certain areas or features of the Services. To create an account, you must be at least 13 years old and you must provide truthful and accurate information about yourself. Accounts for children must be authorized by such child’s parent or legal guardian. You may not impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.In some cases, an account may be assigned to you by an administrator, such as your team, coach or other organization you may be a member of, such as a private coaching facility. If you are using or logging into an account assigned to you by an administrator, Additional Terms may apply to your use of the Services. Moreover, your administrator may be able to access or disable your account without our involvement.You may not share your account with anyone else. You agree to keep your password confidential, and you understand that your password should not be the same as passwords you use on other websites. If you believe that your account has been compromised at any time, please notify Beyond Pulse at legal@beyondpulse.com.
B. Eligibility to Order/Purchase
To place an order on the Services, you must be at least 18 years of age, or have parental or guardian consent, and abide by all applicable local, state, federal and international laws and regulations.
C. Fees and Payment Terms.
For Service availability and pricing questions, please email legal@beyondpulse.com and we will be happy to help you with your inquiry. Prices are quoted in U.S. dollars and are subject to change at any time. Discounts are usually limited time offers and may not be combined with any other offers. We make no representations as to how long a limited time offer will be available or whether and for how long the Service was sold at the full retail price prior to any discount being offered. We reserve the right to limit the quantities of any Services that we offer through the Services at our sole discretion. All prices posted on or provided through the Services are subject to change without notice. The price charged for a Service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes. All such taxes and charges will be added to your order total and will be itemized in your shopping cart and in your order confirmation email. We are not responsible for pricing, typographical, or other errors in any offer by Beyond Pulse and we reserve the right to cancel any orders arising from such errors.Terms of payment are within our sole discretion and payment must be received by Beyond Pulse before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to Beyond Pulse is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
D. Refund Policy.
Services purchased through the Services are non-refundable. Notwithstanding the foregoing, we may offer credits in our discretion where the Services the Service is defective. Such credit is your sole remedy with defective Services. Such Refund Policy may change from time to time.
2. Our Content, Ownership, Limited License, and Reservation of Rights
A. Our Content.
The Services contains a variety of: (i) materials and other items relating to Beyond Pulseand its Services, and similar items from our licensors and other third-parties, including any and all copyrightable material (including source and object code) as well as software libraries, articles, and other materials provided by third-parties; (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Beyond Pulse (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Beyond PulseContent”).
B. Ownership.
The Services (including past, present, and future versions) and the Beyond Pulse Content are owned or controlled by Beyond Pulse,our licensors and/or certain other third-parties. All right, title, and interest in and to the Beyond Pulse Content available via the Services are the property of Beyond Pulse,our licensors and/or certain other third-parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible.
C. Limited License.
Subject to your compliance with these Terms and any applicable Additional Terms, Beyond Pulsegrants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, and/or play, the Beyond Pulse Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use certain Beyond Pulse Content that we may from time to time make available on the Services explicitly for you for use as part of your User Content (“Beyond Pulse Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Beyond Pulse Licensed Elements are made available on the Services; but we and our licensors and certain other third-parties, as the case may be, retain ownership of such Beyond Pulse Licensed Elements. The foregoing limited license (x) does not give you any ownership of, or any other intellectual property interest in, any Beyond Pulse Content, and (y) may be immediately suspended or terminated for any reason, in Beyond Pulse’s sole discretion, and without advance notice or liability. Any use of the Beyond Pulse Content other than as set forth herein shall require a separate agreement between Beyond Pulse and you.
3. Your Content; Ownership; Limited License
A. Your Content.
The Services may allow you to submit, post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“User Content”) (whether by collaboration on or sharing files with workout, emailing, messaging, sharing a link, sharing files with other applications or Services or users, posting in a forum or gallery or otherwise). Suspending or terminating your account will not delete or inhibit access to any of your User Content that was earlier shared or published. If you do not want others to have any such access or any of those rights, do not use the sharing, publishing or other collaboration features of the Services and set your permissions accordingly. You are responsible for the User Content that you post on or through the Service, including its accuracy, completeness, legality, reliability, and appropriateness.By posting User Content on or through the Services, you represent and warrant that: (i) the User Content is yours (you own it and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms), (ii) the posting of your User Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity, (iii) you have fully complied with any third party license terms relating to User Content that you upload or post using the Services and have satisfied all terms and conditions to pass through to end users the right to use User Content; and (iv) User Content does not contain or will not install any viruses, worms, malware, Trojan horses, or other harmful or destructive programming. We reserve the right to terminate the account of anyone found to be infringing on a copyright.Except where otherwise stated, Beyond Pulse has the right but not the obligation to monitor all User Content provided by users.
B. Ownership.
You retain any and all of your rights to any User Content you submit, post or display on or through the Services and you are responsible for protecting those rights. We take no responsibility and assume no liability for User Content you or any third-party posts on or through the Services. However, by posting User Content using the Services you grant us the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such User Content on and through the Services for the sole purpose of providing the Services to you and any users of the User Content and Services who you authorize.In addition, other User Content not owned by you found on or through the Services are the property of Beyond Pulse or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said User Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
C. Limited License.
Except as otherwise described in any applicable Additional Terms, you hereby grant to Beyond Pulse, and you agree to grant to Beyond Pulse, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Content. You acknowledge and agree that Beyond Pulse has the right to share User Content with third party developers and licensees using the application programming interface (API) provided and licensed in connection with the Services, however, that this will only occur if you authorize access to any of User Content by any other licensees or other users of the Services. Please see your account for details of access authorization.
4. Service and Content Use Restrictions
A. Service Use Restrictions.
You agree to use the Services and any Beyond Pulse Content, in a manner consistent with all applicable laws and regulations. Additionally, you will not take any of the following actions with respect to the Services, or Beyond Pulse Content, nor will you use the Services or related services to upload, post, email, distribute, transmit, link, solicit or otherwise make available any Beyond Pulse Content or use the Services in any manner that:is unlawful, harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, invasive of another’s privacy, or racially, ethnically or otherwise offensive, hateful or abusive;infringes someone else’s patent, trademark, trade secret, copyright or other intellectual property or other rights;removes any proprietary notices or labels on the Beyond Pulse Content;advocates or solicits violence, criminal conduct or the violation of any local, state, national or international law or the rights of any third party;is deceptive in any way, such as an offer to sell fraudulent goods or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity;specifically advertises firearms or ammunition, tobacco, alcohol, illegal drugs, or other contraband;constitutes unsolicited or unauthorized advertising, junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;interferes with others using the Services;is off-topic according to the description of the group, forum or webpage;contains software viruses, worms, time bombs, corrupted files, Trojan horses or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair or limit the functioning of any software, hardware, network, server or communications systems or equipment;contains a petitions for signatures, chain letters or letters relating to a pyramid scheme;disrupts, interferes or inhibits any other user from enjoying the Services or other affiliated or linked websites, material, contents, products and/or services.uses any robot, spider, or other such programmatic or automatic device, inducing but not limited to automated dial-in or inquiry devices, to obtain information from the Services or otherwise monitor or copy any portion of the Services, products and/or services;creates a false identity for the purpose of misleading others;prepares, compiles, uses, downloads or otherwise copies any user information and/or usage information for any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such information to any third party;uses any Beyond Pulse domain name, or confusingly similar variation, as a pseudonymous return email address;contains any offer for unsolicited goods or services or any advertising or promotional materials, except in those areas specifically designated for such purpose (e.g., classified bulletin board);provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act;attempts to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into the software or any Beyond Pulse Content or the Services;reproduces, duplicates, copies, sells, trades, resells or exploits for any commercial purposes, any portion of the Services or Beyond Pulse Content, use of the Services, or access to the Services;publishes, publicly performs or displays, or distributes to any third party any Beyond Pulse Content, including reproduction on any computer network or broadcast or publications media;systematically collects and uses any Beyond Pulse Content including the use of any data mining, or similar data gathering and extraction methods;makes derivative uses of the Services or the Beyond Pulse Content;uses, frames, or utilizes framing techniques to enclose any portion of the Services (including the images found at the Services or any text or the layout/design of any page or form contained on a page); and/ormodifies, translates, decompiles, disassembles, uses reverse engineering or otherwise attempts to derive the source code for the computer systems and other technology that operate the Services. For purposes of these Terms, “reverse engineering” shall include the examination or analysis of the Services to determine the source code, structure, organization, internal design, algorithms or encryption devices of the Services’ underlying technology.
B. Availability of the Services and Content.
Beyond Pulse reserves the right, in its sole discretion, at any time, to modify, suspend, terminate or discontinue, temporarily or permanently, the availability of the Services and Beyond Pulse Content (or any elements and features of them) for any reason, with or without advance notice. You agree that Beyond Pulse shall not be liable to you or to any third-party for any modification, suspension or discontinuance of the Services.
5. Procedure For Alleging Copyright Infringement
A. DMCA Notice.
Beyond Pulseasks our users to respect the intellectual property of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Beyond Pulse’s sole discretion, Beyond Pulse may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Beyond Pulse has adopted a policy of terminating, in appropriate circumstances and at Beyond Pulse’s sole discretion, users who are deemed to be repeat infringers. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Services, then you may send Beyond Pulse a written notice that includes all of the following:(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit Beyond Pulse to locate the material (please include the URL of the Services on which the material appears);(iv) your full name, address, telephone number, and e-mail address;(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and(vii) your electronic or physical signature.Beyond Pulse will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses below:By Mail: Copyright Agentc/o Beyond Pulse555 SE MLK JR BLVD STE 105Portland, OR 97214 USABy E-Mail: copyright@beyondpulse.comFor clarity, only DMCA Notices should go to the above e-mail address.It is often difficult to determine if your copyright has been infringed. Beyond Pulse may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Beyond Pulse may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send Beyond Pulse a DMCA Counter-Notification (as described below).Without limiting Beyond Pulse’s other rights, Beyond Pulse may, in appropriate circumstances, terminate a repeat infringer’s access to the Services and any other website owned or operated by Beyond Pulse.
B. Counter-Notification.
If access on the Services to a work that you submitted to Beyond Pulse is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send Beyond Pulse a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:(i) a legend or subject line that says: “DMCA Counter-Notification”;(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Services from which the material was removed or access to it disabled);(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;(iv) Your full name, address, telephone number, e-mail address, and the username of your account (if you have an account);(v) a statement that you consent to the jurisdiction of the United States District Court for the District of Oregon, and that you will accept service of process from the person who provided DMCA notification to Beyond Pulse or an agent of such person; and(vi) Your electronic or physical signature.If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent Beyond Pulse the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Services. You should also be aware that we may forward the Counter-Notification to the party who sent Beyond Pulse the DMCA Copyright Infringement Notice.
6. Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property other than copyright has been infringed by an improper posting or distribution of it via the Services, then you may send Beyond Pulse a written notice to the addresses set forth above that includes: (a) a legend or subject line that says: “Intellectual Property Infringement Notice”; and (b) all the other information required for the DMCA notice above, except describing the other intellectual property alleged to have been infringed.We will act on such notices in our sole discretion. Any user of the Services that fails to respond satisfactorily to Beyond Pulse with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Third-Party Content and Services
Some of the content, services and functionality on the Services, such as advertisements, widgets, software, applications, articles, photographs and videos, may be provided by third-parties (collectively, “Third-Party Content”). Although we try to keep inappropriate third-party ads and other content off of the Services, we are not responsible for this third-party content or the third parties if you interact with them.Users of the Services may be able to view, access and interact with Third-Party Content without leaving the Services, including viewing, accessing or interacting with Third-Party Content that is imported or “framed” within the Services. The Services may also contain links to third-party websites that are not owned, controlled or operated by Beyond Pulse, and the Services may include links to third-party ads on the Services or otherwise, to or from third-party websites (collectively, “Third-Party Services”), including websites operated by advertisers, licensors, licensees, and certain other third-parties who may have business relationships with Beyond Pulse.Beyond Pulse may have no control over the content, operations, policies, terms, or other elements of Third-Party Content or Third-Party Services, and Beyond Pulse does not assume any obligation to review any of them. Beyond Pulse doesnot endorse, approve, or sponsor any Third-Party Services, or any Third-Party Content, advertising, information, materials, products, services, or other items. Furthermore, Beyond Pulse is not responsible for the quality or delivery of the Services offered, accessed, obtained by or advertised at such sites. Finally, Beyond Pulse will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Services, and you agree to be bound thereto. Beyond Pulse disclaims all liability in connection therewith.
8. Dispute Resolution
Certain portions of this Section 8 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Beyond Pulse agree that we intend that this Section 8 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 8 can only be amended by mutual agreement. Where arbitration is not permitted by the mandatory laws in your country of residence, or where the parties have not otherwise agreed to arbitration in accordance with applicable laws, the provisions of Section 9 shall apply to all relevant disputes between you and Beyond Pulse.
A. First – Try To Resolve Disputes and Excluded Disputes.
To the fullest extent permitted by applicable law, if any controversy, allegation, or claim arises out of or relates to the Services, the Beyond Pulse Content, your User Content, these Terms, or any applicable Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Beyond Pulse’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 8(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide Beyond Pulse. But if no such information exists or if such information is not current, then we have no obligation under this Section 8(A). Your notice to Beyond Pulse must be sent to: Beyond Pulse, 555 SE MLK JR BLVD STE 105, Portland, OR 97214 USA Attention: Customer Service. For a period of sixty (60) days from the date of receipt of notice from the other party, Beyond Pulse and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Beyond Pulse to resolve the Dispute or Excluded Dispute on terms with respect to which you and Beyond Pulse, in each of our sole discretion, are not comfortable.
B. Binding Arbitration.
If we cannot resolve a Dispute as set forth in Section 8(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND AI INFRASTRUCTURE ALLIANCE (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SITE. The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between Beyond Pulse and you regarding these Terms (and any Additional Terms) and the Services. Beyond Pulse and you agree, however, that Oregon or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Beyond Pulse regarding these Terms and the Services, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Oregon’s choice of law principles.A Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Beyond Pulse consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Beyond Pulse to pay a greater portion or all of such fees and costs in order for this Section 6 to be enforceable, then Beyond Pulse will have the right to elect to pay the fees and costs and proceed to arbitration.
C. Limited Time To File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 8(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief.
To the fullest extent permitted by applicable law, the foregoing provisions of this Section 6 will not apply to any legal action taken by Beyond Pulse to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Beyond Pulse Content, your User Content and/or Beyond Pulse’s intellectual property rights (including such Beyond Pulse may claim that may be in dispute), Beyond Pulse’s operations, and/or Beyond Pulse’s Services.
E. Small Claims Matters Are Excluded From Arbitration Requirement.
Notwithstanding the foregoing, either of Beyond Pulse may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 8(G).
F. No Class Action Matters.
To the fullest extent permitted by applicable law, disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 8(B) holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 8(G).
G. Federal and State Courts in Portland, OR.
Except to the extent that arbitration is required in Section 8(B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Portland, OR. Accordingly, you and Beyond Pulse consent to the exclusive personal jurisdiction and venue of such courts for such matters.
9. Other Dispute Resolution Where Arbitration Is Not Available
This Section 9 applies to all users of the Services, if, and only to the extent that, the mandatory laws in your country of residence do not permit arbitration of Disputes in accordance with Section 6 or the parties have not otherwise agreed to arbitration if required by applicable law.
A. Section 9 Disputes.
To the fullest extent permitted by applicable law, if any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Services, the Beyond Pulse Content, these Terms, whether heretofore or hereafter arising or to any of Beyond Pulse’s actual or alleged intellectual property rights (collectively, a “Section 9 Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Section 9 Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide Beyond Pulse. But if no such information exists or if such information is not current, then we have no obligation under this Section 9.A. Your notice to Beyond Pulse must be sent to: Beyond Pulse, Attention: Beyond Pulse Legal, 555 SE MLK JR BLVD STE 105, Portland, OR 97214 USA. Subject to applicable law, for a period of sixty (60) days from the date of receipt of notice from the other party, Beyond Pulse and you will engage in a dialogue in order to attempt to resolve the Section 9 Dispute, though nothing will require either you or Beyond Pulse to resolve the Section 9 Dispute on terms with respect to which you and Beyond Pulse, in each of our sole discretion, are not comfortable.
B. Jurisdiction.
The parties agree that the state or federal courts in Washington County, Oregon shall have non-exclusive jurisdiction of any Section 9 Dispute, unless otherwise required by applicable laws of your jurisdiction of residence.
C. Governing Law.
To the maximum extent permitted by the mandatory laws in your country of residence, these Terms and any Section 9 Dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), will be governed by, and construed in accordance with, the laws of the State of Oregon, without regard to its conflicts of law provisions.
D. Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A SECTION 10 DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 10.A) WITHIN ONE (1) YEAR AFTER DISCOVERY OF THE SECTION 10 DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
E. Injunctive Relief.
The foregoing provisions of this Section 9 will not apply to any legal action taken by Beyond Pulse to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, any Beyond Pulse Content, your User Content and/or Beyond Pulse’s intellectual property rights (including such Beyond Pulse may claim that may be in dispute), Beyond Pulse’s operations, and/or Beyond Pulse’s Services.
10. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK.THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, Beyond Pulse and its subsidiaries, affiliated companies and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, data suppliers, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Beyond Pulse Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:(a) the Services (including the Beyond Pulse Content and the User Content);(b) the functions, features, or any other elements on, or made accessible through, the Services;(c) any Products, services, or instructions offered or referenced at or linked through the Services;(d) security associated with the transmission of your User Content transmitted to Beyond Pulse or via the Services;(e) whether the Services or the servers that make the Services available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);(f) whether the information (including any instructions) on the Services are accurate, complete, correct, adequate, useful, timely, or reliable;(g) whether any defects to the Services will be repaired; and(h) whether your use of the Services are lawful in any particular jurisdiction.EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A AI INFRASTRUCTURE ALLIANCEPARTY, AI INFRASTRUCTURE ALLIANCEPARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD-PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. AI INFRASTRUCTURE ALLIANCE PARTIES FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO COMPLETENESS, VALIDITY, CONSISTENCY, TIMELINESS, AVAILABILITY AND ACCURACY OF AI INFRASTRUCTURE ALLIANCE CONTENT.Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
11. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY AI INFRASTRUCTURE ALLIANCE PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:(a) the Services (including the Beyond Pulse Content and the User Content);(b) your use of or inability to use the Services, or the performance of the Services;(c) any action taken in connection with an investigation by Beyond PulseParties or law enforcement authorities regarding your access to or use of the Services;(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;(e) any errors or omissions in the Services’ technical operation; or(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Beyond PulseParties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Services).Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AI INFRASTRUCTURE ALLIANCE PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID AI INFRASTRUCTURE ALLIANCE IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S) DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME SUCH LOSSES OR DAMAGES WERE INCURRED; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY AI INFRASTRUCTURE ALLIANCE OR A MANUFACTURER OF A PHYSICAL PRODUCT.
12. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, AI INFRASTRUCTURE ALLIANCE CONTENT, USER CONTENT AND DATA, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY AI INFRASTRUCTURE ALLIANCE(INCLUDING YOUR LICENSED USER CONTENT AND DATA) OR A LICENSOR OF AI INFRASTRUCTURE ALLIANCE.
13. Updates to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SITE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF ADDITIONAL TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE ADDITIONAL TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Services (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Services will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional Terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the e-mail you associated with your account for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or additional Terms by discontinuing use of the Services and related services.
14. General Provisions
A. Beyond Pulse’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Beyond Pulse a right of consent or approval, or permits Beyond Pulse to exercise a right in its “sole discretion,” Beyond Pulse may exercise that right in its sole and absolute discretion. No Beyond Pulse consent or approval may be deemed to have been granted by Beyond Pulse without being in writing and signed by an officer of Beyond Pulse.B. Applicable Law. These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Oregon, without regard to its conflicts of law provisions.C. Indemnity. You agree to, and you hereby, defend, indemnify, and hold all Beyond Pulse Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Beyond Pulse Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User Content; (ii) your use of the Services and your activities in connection with the Services; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Beyond Pulse Parties’ use of the information that you submit to Beyond Pulse (including your User Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Beyond Pulse Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Beyond PulseParties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Beyond PulseParties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Beyond Pulse Party.D. Operation of the Services; Availability of Services; International Issues. Beyond Pulsecontrols and operates the Services from its U.S.-based offices in the U.S.A., and Beyond Pulse makes no representation that the Services are appropriate or available for use beyond the U.S.A. If you use the Services from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Services may describe Services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Services and/or the provision of any content, program, Product, service, or other feature described or available on the Services to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, Product, service, or other feature that we provide. You and we disclaim any application to these Terms of the UN Convention on Contracts for the International Sale of Goods.E. Export Controls. Software related to or made available by the Services may be subject to export controls of the U.S.A. No software from the Services may be downloaded, exported, or re-exported to any county, or to any person, entity, or end-user subject to U.S. export controls.F. Government. For U.S. Government procurement, all Services that constitute or include software are deemed to be commercial computer software as defined in FAR 12.212 and DFARS 227.7202, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the software by the U.S. Government will be solely in accordance with the license rights, restrictions and other terms set forth in these Terms.G. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.H. Communications. When you communicate with Beyond Pulse electronically, such as via e-mail and text message, you consent to receive communications from Beyond Pulse electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.I. Investigations; Cooperation With Law Enforcement; Termination; Survival. Beyond Pulse reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Services security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms, (iii) investigate any information obtained by Beyond Pulse in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any applicable Additional Terms, and (vi) discontinue the Services, in whole or in part, or, except as may be expressly set forth in any applicable Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third-party. Any suspension or termination will not affect your obligations to Beyond Pulse under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Services, or upon notice from Beyond Pulse, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Services. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Beyond Pulse in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.J. Assignment. Beyond Pulse may assign its rights and obligations under these Terms, the Privacy Policy, and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Beyond Pulse.K. No Waiver. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Beyond Pulse in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.L. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all Internet service provider, mobile service, and other services needed for your access to and use of the Services and you will be responsible for all charges related to them.M. Notices and Questions. You agree that: (A) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Services, or in another reasonable manner; and (B)we may contact you by mail or e-mail sent to the address provided by you. Beyond Pulse may give notice by means of an electronic mail to Subscriber’s e-mail address on record in Beyond Pulse’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Beyond Pulse’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Beyond Pulse (such notice shall be deemed given when received by Beyond Pulse) at any time by letter to Beyond Pulse delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Beyond Pulse, in either case, addressed to:Beyond Pulse
555 SE MLK JR BLVD STE 105
Portland, OR 97214 USAN. Call Monitoring and Recording. For quality assurance, we may record and/or monitor incoming calls to, and outgoing calls from, Beyond Pulse. By accepting these Terms, you also consent to any and all call recording and monitoring performed by Beyond Pulse or our agents, employees and/or affiliates.
Questions or Additional Information
If you have a question regarding using the Services, you may contact Beyond PulseCustomer Support by sending an e-mail to legal@beyondpulse.com. You acknowledge that the provision of customer support is at Beyond Pulse’s sole discretion and that we have no obligation to provide you with customer support of any kind.Beyond Pulse
555 SE MLK JR BLVD STE 105
Portland, OR 97214 USA
legal@beyondpulse.com
