Important Notice: Please read the following terms and conditions carefully. They shall govern your use of Pulseware’s software, services and website. If, after reading these terms and conditions, you wish to use the services, software and website, please indicate your acceptance of these terms by ticking the box marked "I have read and agree with the terms and conditions".
This License Agreement ("Agreement") is an agreement between PULSEWARE (RBN: NSW BN98192322, referred to as "PULSEWARE"); and you, the "Customer." This License Agreement shall apply for all of PULSEWARE’s services and software, as well as to guest or trial access to PULSEWARE’s services and software.
This Agreement sets forth the terms and conditions that are applicable to Customer's access to and use of PULSEWARE’s services and software, which may or may not include guest and registered user access to the PULSEWARE website. Use of the Licensed Products will constitute acceptance of all terms and conditions contained herein.
If at any point you do not agree with the terms and conditions stated herein, or with those terms and conditions that may be adopted subsequent to your indication that you agree with the terms herein, you must immediately discontinue your use of and access to the Licensed Products and contact PULSEWARE accordingly to terminate your account with us.
1) GRANT OF LICENSE. PULSEWARE hereby grants to you ("Customer"; "User") a License to use PULSEWARE’s Services and Software (“Licensed Products”) for your benefit. PULSEWARE grants to Customer and each of its licensed Users a non-exclusive, non-transferable, limited right to access and use the Licensed Products in accordance with this License Agreement. Customer is solely responsible for selecting, purchasing, installing and maintaining the hardware, equipment, and other software necessary to use the Licensed Products. PULSEWARE’s grant of any license to use any of its Products is subject to the following rights, which are exercisable in PULSEWARE's sole discretion:
a) the right to change, suspend, or discontinue any aspect of the Licensed Products at any time, including the availability of any feature, database, or Content. PULSEWARE will use reasonable efforts to notify Customer of such changes; and
b) the right to impose limits on or restrict access to any feature of the Licensed Products without notice or liability, including if PULSEWARE believes that a Customer or any User in Customer's organization has engaged in any conduct or activity that violates applicable law or any provision of this License Agreement.
2) CUSTOMER.
a) For the term purposes of this license, "Customer" shall mean and include all single and group users that PULSEWARE has authorized to have access to the Licensed Products. The terms and conditions of this Agreement shall apply to each such User. If requested by PULSEWARE, Customer will identify to PULSEWARE, in writing, the names and addresses of each such User in the group.
3) PAYMENT/PRICING.
a) All payments are due to PULSEWARE within thirty (30) days after the invoice date. After thirty (30) days, PULSEWARE will assess interest on all amounts reflected in the invoice at a rate of 1% per month. PULSEWARE may also immediately terminate all access to the Licensed Products by Customer and Users in Customer's organization without further notice if PULSEWARE does not receive payment, or written notice of a payment dispute, within THIRTY (30) days after the invoice date.
b) RENEWALS: PULSEWARE reserves the right to revise its prices for responses at any time and without notice. Customer's payment of any invoice will constitute acceptance of the new price and the corresponding licensing terms for that product, which will continue to be otherwise governed by this License Agreement.
4) PRIVACY.
a) PULSEWARE agrees to treat User's information in accordance with its Privacy Policy unless otherwise provided for in this Agreement. This License Agreement incorporates by reference the PULSEWARE "Privacy Policy" as amended from time to time. This Agreement, the PULSEWARE "Privacy Policy," and other terms of service may be changed without notice by PULSEWARE, and use of PULSEWARE's website, software applications, and/or services constitutes agreement with and acceptance of any such changes.
b) SERVICE REGISTRATION: During the registration process, Users will be asked to complete a Registration Form which will request certain personally identifiable information about Users, such as their name, address, e-mail address, phone and fax number. Consistent with corporate policies, PULSEWARE agrees not to share such information with third parties (see PULSEWARE’s "Privacy Policy" for more information).
c) LEGAL DISCLOSURE OF INFORMATION. Notwithstanding anything to the contrary in this Agreement, PULSEWARE shall, pursuant to valid legal process such as a search warrant, subpoena or court order, allow access to all available and relevant information, including Users' IP addresses, in order to comply with such valid legal process and to otherwise protect PULSEWARE’s rights and property. If warranted, PULSEWARE may also allow access to this information in special emergencies where physical safety is at risk.
5) INTELLECTUAL PROPERTY.
a) Copyright. The Products contain proprietary Content and/or Software of PULSEWARE that is protected by copyright and other laws respecting proprietary rights. The Products also may contain similarly protected licensed proprietary material of other Licensors. Future updated versions of the Licensed Products are dependent upon continuing contractual relations between PULSEWARE and other Licensors. PULSEWARE and its Licensors retain all rights in the Licensed Products, including (without limitation) all copyright and other proprietary rights worldwide in all media. Customer may not use the Licensed Products except as expressly permitted under this License Agreement and as provided for under Australian copyright laws. All images, text, programs, and other materials found on PULSEWARE's website are protected by Australian and international copyright laws and other laws. Any use - without the express written consent of PULSEWARE - of the images, text, programs, or other materials found on PULSEWARE's web site is strictly prohibited.
c) No ownership. The term "survey owner," if used herein or in any PULSEWARE documentation, is a term of art intended to specify a customer or licensed user of PULSEWARE that has immediate control over a particular survey. The use of the term "survey owner" in such contexts does not imply or create any condition of ownership of computer resources or intellectual property. A User's interest in any survey arises solely from User's ongoing relationship as customer with PULSEWARE, and ends when such an arrangement is terminated. User acknowledges that it retains no ownership in database information that may be generated, nor do such rights extend to any resources, program code, technical knowledge, or any intellectual property provided by PULSEWARE in the creation, hosting, or tabulation of surveys or other reports.
d) User-Posted Materials: Users represent and warrant they retain the right to post any sound, image, text, or other material on PULSEWARE's website, unless such materials are in the public domain or are otherwise unprotectable. Any sound, images, text, or other materials provided by a User and hosted on PULSEWARE's web site remain the property of the owner of such materials. Such materials are "posted" if they are incorporated as part of a survey hosted by PULSEWARE on behalf of its customers, or as part of responses to such surveys. User acknowledges and agrees that PULSEWARE is not responsible for any such materials posted on its website, and acknowledges that PULSEWARE assumes no liability for User's posted materials. User agrees to defend, indemnify, and hold PULSEWARE harmless from any liability arising out of material posted to PULSEWARE's website.
6) USE OF THE LICENSED PRODUCTS; PLEASE REVIEW CAREFULLY:
a) EXCEPTION TO USE RESTRICTIONS: DATA FILE EXPORTATION. Notwithstanding any of the use restrictions that are contained in this License, Users are permitted to export data files that contain their survey results to use in third-party spreadsheet programs (including Microsoft® Excel®, SPSS, etc.) for the purposes of conducting internal statistical analyses, only.
b) Use By/For Minors Prohibited: PULSEWARE is intended for survey creators and respondents of the age of majority. PULSEWARE may not be used by, or to collect information from, minor children, without parental permission. Such activity may additionally be subject to federal and state laws in the minor's locality. User shall in no case use PULSEWARE to collect information from children under age 13 without parental permission.
c) UNAUTHORIZED DUPLICATION. The rights granted here are an expansion of the rights granted under the Copyright Act and do not include any rights to reproduce in whole or part the Licensed Products, the PULSEWARE website, or materials contained therein. No part of the Licensed Products may be duplicated in any medium or format beyond the express terms of this Agreement without prior written authorization from PULSEWARE. Any use not authorized by this Agreement is prohibited under Australian and International copyright law, and is subject to severe civil as well as criminal penalties. IF IN DOUBT, ASK FIRST.
d) INFRINGING ACTIVITY: Subject to the exceptions in this Section, unless otherwise authorized in writing by PULSEWARE Customer may not and may not permit others to: reproduce, create derivative works from, perform, publish, transmit, distribute, sell (or participate in any sale), or otherwise access, use, or exploit any material retrieved from or contained in the Licensed Products in any manner whatsoever that may infringe any copyright or proprietary interest of PULSEWARE or any Licensors, subject to the data file export exceptions listed herein.
i) SINGLE USER LICENSEES may not store any Content, other than permitted data files (see data file export exception, above), from the Licensed Products in any information storage and retrieval system.
e) Subject to exceptions contained herein:
i) Users may not distribute the information contained in the Licensed Products, or distribute any URL "hyperlinks" indicating the same, to any Person who is not duly authorized to use or receive the Licensed Products.
ii) Users may not distribute, rent, sublicense, lease, transfer or assign the Licensed Products or this License Agreement; they may not decompile, disassemble, or otherwise reverse-engineer the Licensed Products, or alter, translate, modify, or adapt the Licensed Products to create derivative works; they may not make use of "framing" or other means of redirecting content; nor may they copy and/or redistribute (internally or externally) any tables of contents, highlights, indexes, or other finding aids included in the Licensed Products.
f) User acknowledges that the Licensed Products (and any licensed materials contained therein) are highly proprietary in nature and that unauthorized copying, transfer or use may cause PULSEWARE or its Licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. Customer and each User agree that PULSEWARE may enforce any breach of this Agreement by Customer or any User by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
g) FALSE INFORMATION. User agrees not to falsify or misrepresent any information provided to PULSEWARE. User further agrees that any information that it submits to PULSEWARE (notwithstanding information submitted during the registration process) becomes the property of PULSEWARE, and User hereby expressly grants PULSEWARE the right to use any information submitted in accordance with PULSEWARE's corporate policies (including PULSEWARE’s "Privacy Policy"). For purposes of this Agreement, "information submitted to PULSEWARE" shall not include information in surveys which are hosted by PULSEWARE on behalf of its customers, nor shall it include any responses to such surveys.
h) EXCESSIVE RESOURCES. User agrees not to utilize excessive resources when accessing the Licensed Products, as determined solely by PULSEWARE. PULSEWARE, in its sole discretion, may take any measures that it deems appropriate, at any time, with or without notice, in response to excessive resource use by User. User agrees that PULSEWARE shall not be liable to User for any actions that it takes to ameliorate excessive use.
i) UNSOLICITED EMAIL (SPAM): USER AGREES NOT TO USE PULSEWARE'S EMAIL OR SURVEY INVITATION FACILITIES FOR THE PURPOSES OF SENDING UNSOLICITED EMAIL (SPAM); such conduct is grounds for immediate termination of this License, and PULSEWARE will assist the appropriate parties in investigating and pursuing such prohibited conduct to the fullest extent of the law.
7) Web-Linking to PULSEWARE Products & Services:
a) Users are permitted to share survey reports with or solicit participation in surveys by other authorized web users via hyperlinks or similar features, as established by PULSEWARE through its website. PULSEWARE is not responsible for the provision of such links to unauthorized users by those authorized to use the Licensed Products.
b) PULSEWARE makes no representations or warranties concerning any websites outside of PULSEWARE's control that may be accessible from PULSEWARE's web site (either by link, frame, or any other means ("Linked Site")). Any link, frame, or any other means to access any Linked Site provided by PULSEWARE or otherwise appearing on PULSEWARE's Internet site does not constitute PULSEWARE’s endorsement, recommendation, or acceptance of any responsibility for the content or operators of that Linked Site.
8) Disclaimer of Professional Advice. The information provided through or contained within the Licensed Products is not a substitute for legal and/or other appropriate professional advice where the facts and circumstances warrant. If any User in Customer's organization requires legal advice or other professional assistance, Users are urged to consult legal or other professional advisors.
9) MAINTENANCE. PULSEWARE reserves the right to upload changes, substitute content, deploy new features or perform network system maintenance at any time, without advance notice. PULSEWARE will endeavor to minimize such service/access disruptions to the extent feasible, and shall limit the same to nights and weekend days. PULSEWARE shall not be responsible for taking its site offline for such purposes, and Users will not receive any pro rata credit for time offline due routine system maintenance or site or service upgrades.
10) LIMITATIONS OF LIABILITY / DISCLAIMER OF WARRANTIES:
a) While PULSEWARE and its licensors attempt to include accurate and complete content and error-free software, occasional errors or omissions may occur. Upon notice, PULSEWARE will make reasonable efforts to correct these errors or omissions, but it is not obligated to do so.
b) Licensees/Users acknowledge that PULSEWARE cannot control the actions of all of its users. PULSEWARE is not responsible for conduct or any consequences that may arise, for example, with users’ sharing of links to surveys with any unauthorized survey respondent(s), or Users sharing reports or results data files with unauthorized viewers.
c) NO REPRESENTATION OF WARRANTY: NEITHER PULSEWARE NOR THIRD PARTY INFORMATION PROVIDERS MAKE ANY REPRESENTATION REGARDING THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED OR THE ERROR-FREE NATURE OF THE SUPPLIED SERVICE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LICENSE AGREEMENT, THE LICENSED PRODUCTS ARE PROVIDED TO THE CUSTOMER AND USERS "AS IS." PULSEWARE, ITS LICENSORS, AND SUPPLIERS OF CONTENT AND SOFTWARE FOR THE LICENSED PRODUCTS MAKE NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED. WITH REGARD TO THE LICENSED PRODUCT SOFTWARE, ANY CONTENT RELATIVE THERETO, AND/OR ANY SUCH INFORMATION DELIVERY METHODS FOR THE SAME: PULSEWARE, ITS LICENSORS, AND SUPPLIERS OF CONTENT, DO NOT WARRANT THE ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
d) USERS MUST ASSUME THE ENTIRE RISK OF USING THE PROGRAM. PULSEWARE, ITS LICENSORS, AND CONTENT AND SOFTWARE SUPPLIERS FOR THE LICENSED PRODUCTS DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RESULTING FROM, ARISING OUT OF, OR ANY WAY RELATED TO (i) ERRORS IN OR OMISSIONS FROM ANY LICENSED PRODUCT AND/OR ITS CONTENT, INCLUDING TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS; (ii) ANY THIRD PARTY WEB SITES OR CONTENT THEREOF WHICH IS DIRECTLY OR INDIRECTLY ACCESSED THROUGH ACTIVE LINKS IN ANY LICENSED PRODUCT; (iii) THE NON-AVAILABILITY OF ANY LICENSED PRODUCT; (iv) ANY USE OF ANY LICENSED PRODUCT; (v) ANY EQUIPMENT OR SOFTWARE USED IN CONNECTION WITH ANY LICENSED PRODUCT; OR (vi) ANY RELIANCE UPON THE INFORMATION CONTAINED IN OR GENERATED FROM THE LICENSED PRODUCTS OR IN ANY CUSTOMER SUPPORT INFORMATION.
e) LIMITATION OF LIABILITY: IN NO EVENT SHALL PULSEWARE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO ANY USER, ANY CUSTOMER, OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS LICENSE AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE ANY LICENSED PRODUCT OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS LICENSE AGREEMENT. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO ALL CUSTOMERS OR THEIR RESPECTIVE USERS.
f) IN NO EVENT MAY CUSTOMER OR ANY USER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST PULSEWARE MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
g) IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, PULSEWARE'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO CUSTOMER, ANY USER, OR ANY OTHER PERSON SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF PAID BY CUSTOMER FOR ANY OF PULSEWARE’s LICENSED PRODUCTS.
11) INDEMNITY. Customer agrees to indemnify, defend, and hold PULSEWARE and the suppliers of Content and technology for the Licensed Products harmless from and against any and all claims and losses arising out of or in any way related to any use of the Licensed Products, or of any content, data or documentation received by Customer or any of its Users in connection with the Licensed Products.
12) TERM AND TERMINATION. This License Agreement shall be terminable for any of the following reasons:
a) By either PULSEWARE or the Customer, if the terminating party delivers to the other party written notice of its intent to terminate the applicable License no less than 30 days before the last day of the Term;
b) by either PULSEWARE or the Customer, upon written notice to the other party, if the other party materially breaches any provision of this License Agreement and the other party fails to remedy that breach within 30 days after such party gives written notice to the defaulting party of such breach.
NOTE: Upon termination of this Agreement, all continuing obligations under this License Agreement shall survive such termination (including any monies accrued and owing prior to the effective date of any termination under this License Agreement).
13) NOTICES. All notices, requests, and other official communications in connection with this License Agreement shall be in writing. Such notice may be served in person; by first class or certified mail, return receipt requested (postage prepaid); or by commercially recognized overnight delivery service that requires a signed receipt (prepaid). Any such notice that is delivered in accordance with the foregoing shall be deemed to have been given as follows: three days after mailed in any general or branch Australian Post Office; one day after deposit with a commercially recognized overnight delivery service in Australia; or upon personal delivery, as applicable. If notice is to be sent to Customer, to the address that Customer provided during registration as the primary contact address (or as otherwise designated by Customer by written notice to PULSEWARE). Either PULSEWARE or Customer may change its notice address by written notice to the other served as provided above, provided, however, that any notice of change of address shall be effective only upon receipt.
14) MISCELLANEOUS PROVISIONS.
a) Force Majeure. PULSEWARE shall not be liable for failure to perform any part of this License Agreement where such failure is due to fire, flood, power outages, strikes, labor troubles or other industrial disturbances, inevitable accidents, war (declared or undeclared), acts of terror, commercially unreasonable hostile acts by a Third Party with respect to the Products (including a denial of service attack), embargoes, blockages, legal restrictions, governmental regulations or orders, riots, insurrections, or any cause beyond the control of such party. PULSEWARE shall use diligent efforts to resume performance. This License Agreement shall not be regarded as terminated or frustrated as a result of such failure of performance that does not exceed six (6) months, and the parties shall proceed under this License Agreement when the causes of such non-performance have ceased or have been eliminated.
b) No Waiver. Should PULSEWARE or any Customer fail to exercise or enforce any provision of this License Agreement or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.
c) Choice of Law. This License Agreement shall for all purposes be governed, interpreted, construed, and enforced solely and exclusively in accordance with the law of the State of New South Wales, Australia.
d) Entire Agreement. Unless otherwise specified in this License Agreement as it may be amended from time to time, this License constitutes the entire agreement between each Customer and PULSEWARE with respect to the subject matter thereof. This License Agreement supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind and every nature (including, without limitation, any oral, written, or electronic communications) between Customer and PULSEWARE with respect to the subject matter of this License Agreement.
e) Severability. If any provision of this License Agreement shall be held to be unenforceable, the parties shall renegotiate those provisions in good faith to be valid, enforceable substitute provisions, and such provisions shall reflect as closely as possible the intent of the original provisions of this License Agreement. If the parties fail to negotiate a substitute provision, this License Agreement will continue in full force and effect without that provision and will be interpreted to reflect the original intent of the parties.
f) Electronic Execution. Any use of any Licensed Products by Customer or any Users within Customer's organization indicates Customer's acceptance of every provision of this License Agreement. In any action or proceeding arising from or related to any Products, a printed version of any and all registration documentation, this License Agreement (as it may be amended from time to time), and of any other electronic communications between Customer and PULSEWARE will be admissible to the same extent as other documents and communications originally generated or maintained in printed form.
g) Third Party Beneficiaries. All beneficial rights (other than the right to collect fees) granted to or reserved in this License Agreement by PULSEWARE, including limitations of liability, warranty disclaimers, confidentiality, ownership, limitation of damages, and indemnification for Third Party claims, shall accrue to and are for the benefit of Licensors to the same extent as PULSEWARE. Except as expressly stated therein, nothing contained in this License Agreement is intended to create third party beneficiaries thereof or there under.
h) Each Party Acting Independently. PULSEWARE and each Customer agree that each is acting independently of the other, that they are not joint ventures, and that neither is an agent, partner or joint venture of the other.
i) Assignment. No Customer may assign this License Agreement or any rights or obligations created under this License Agreement without the prior written consent of PULSEWARE.
j) Headings and Cross-References. The headings in this License Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. All references to Sections or headings shall be deemed references to such parts of this License Agreement, unless the context shall otherwise require.
This License Agreement ("Agreement") is an agreement between PULSEWARE (RBN: NSW BN98192322, referred to as "PULSEWARE"); and you, the "Customer." This License Agreement shall apply for all of PULSEWARE’s services and software, as well as to guest or trial access to PULSEWARE’s services and software.
This Agreement sets forth the terms and conditions that are applicable to Customer's access to and use of PULSEWARE’s services and software, which may or may not include guest and registered user access to the PULSEWARE website. Use of the Licensed Products will constitute acceptance of all terms and conditions contained herein.
If at any point you do not agree with the terms and conditions stated herein, or with those terms and conditions that may be adopted subsequent to your indication that you agree with the terms herein, you must immediately discontinue your use of and access to the Licensed Products and contact PULSEWARE accordingly to terminate your account with us.
1) GRANT OF LICENSE. PULSEWARE hereby grants to you ("Customer"; "User") a License to use PULSEWARE’s Services and Software (“Licensed Products”) for your benefit. PULSEWARE grants to Customer and each of its licensed Users a non-exclusive, non-transferable, limited right to access and use the Licensed Products in accordance with this License Agreement. Customer is solely responsible for selecting, purchasing, installing and maintaining the hardware, equipment, and other software necessary to use the Licensed Products. PULSEWARE’s grant of any license to use any of its Products is subject to the following rights, which are exercisable in PULSEWARE's sole discretion:
a) the right to change, suspend, or discontinue any aspect of the Licensed Products at any time, including the availability of any feature, database, or Content. PULSEWARE will use reasonable efforts to notify Customer of such changes; and
b) the right to impose limits on or restrict access to any feature of the Licensed Products without notice or liability, including if PULSEWARE believes that a Customer or any User in Customer's organization has engaged in any conduct or activity that violates applicable law or any provision of this License Agreement.
2) CUSTOMER.
a) For the term purposes of this license, "Customer" shall mean and include all single and group users that PULSEWARE has authorized to have access to the Licensed Products. The terms and conditions of this Agreement shall apply to each such User. If requested by PULSEWARE, Customer will identify to PULSEWARE, in writing, the names and addresses of each such User in the group.
3) PAYMENT/PRICING.
a) All payments are due to PULSEWARE within thirty (30) days after the invoice date. After thirty (30) days, PULSEWARE will assess interest on all amounts reflected in the invoice at a rate of 1% per month. PULSEWARE may also immediately terminate all access to the Licensed Products by Customer and Users in Customer's organization without further notice if PULSEWARE does not receive payment, or written notice of a payment dispute, within THIRTY (30) days after the invoice date.
b) RENEWALS: PULSEWARE reserves the right to revise its prices for responses at any time and without notice. Customer's payment of any invoice will constitute acceptance of the new price and the corresponding licensing terms for that product, which will continue to be otherwise governed by this License Agreement.
4) PRIVACY.
a) PULSEWARE agrees to treat User's information in accordance with its Privacy Policy unless otherwise provided for in this Agreement. This License Agreement incorporates by reference the PULSEWARE "Privacy Policy" as amended from time to time. This Agreement, the PULSEWARE "Privacy Policy," and other terms of service may be changed without notice by PULSEWARE, and use of PULSEWARE's website, software applications, and/or services constitutes agreement with and acceptance of any such changes.
b) SERVICE REGISTRATION: During the registration process, Users will be asked to complete a Registration Form which will request certain personally identifiable information about Users, such as their name, address, e-mail address, phone and fax number. Consistent with corporate policies, PULSEWARE agrees not to share such information with third parties (see PULSEWARE’s "Privacy Policy" for more information).
c) LEGAL DISCLOSURE OF INFORMATION. Notwithstanding anything to the contrary in this Agreement, PULSEWARE shall, pursuant to valid legal process such as a search warrant, subpoena or court order, allow access to all available and relevant information, including Users' IP addresses, in order to comply with such valid legal process and to otherwise protect PULSEWARE’s rights and property. If warranted, PULSEWARE may also allow access to this information in special emergencies where physical safety is at risk.
5) INTELLECTUAL PROPERTY.
a) Copyright. The Products contain proprietary Content and/or Software of PULSEWARE that is protected by copyright and other laws respecting proprietary rights. The Products also may contain similarly protected licensed proprietary material of other Licensors. Future updated versions of the Licensed Products are dependent upon continuing contractual relations between PULSEWARE and other Licensors. PULSEWARE and its Licensors retain all rights in the Licensed Products, including (without limitation) all copyright and other proprietary rights worldwide in all media. Customer may not use the Licensed Products except as expressly permitted under this License Agreement and as provided for under Australian copyright laws. All images, text, programs, and other materials found on PULSEWARE's website are protected by Australian and international copyright laws and other laws. Any use - without the express written consent of PULSEWARE - of the images, text, programs, or other materials found on PULSEWARE's web site is strictly prohibited.
c) No ownership. The term "survey owner," if used herein or in any PULSEWARE documentation, is a term of art intended to specify a customer or licensed user of PULSEWARE that has immediate control over a particular survey. The use of the term "survey owner" in such contexts does not imply or create any condition of ownership of computer resources or intellectual property. A User's interest in any survey arises solely from User's ongoing relationship as customer with PULSEWARE, and ends when such an arrangement is terminated. User acknowledges that it retains no ownership in database information that may be generated, nor do such rights extend to any resources, program code, technical knowledge, or any intellectual property provided by PULSEWARE in the creation, hosting, or tabulation of surveys or other reports.
d) User-Posted Materials: Users represent and warrant they retain the right to post any sound, image, text, or other material on PULSEWARE's website, unless such materials are in the public domain or are otherwise unprotectable. Any sound, images, text, or other materials provided by a User and hosted on PULSEWARE's web site remain the property of the owner of such materials. Such materials are "posted" if they are incorporated as part of a survey hosted by PULSEWARE on behalf of its customers, or as part of responses to such surveys. User acknowledges and agrees that PULSEWARE is not responsible for any such materials posted on its website, and acknowledges that PULSEWARE assumes no liability for User's posted materials. User agrees to defend, indemnify, and hold PULSEWARE harmless from any liability arising out of material posted to PULSEWARE's website.
6) USE OF THE LICENSED PRODUCTS; PLEASE REVIEW CAREFULLY:
a) EXCEPTION TO USE RESTRICTIONS: DATA FILE EXPORTATION. Notwithstanding any of the use restrictions that are contained in this License, Users are permitted to export data files that contain their survey results to use in third-party spreadsheet programs (including Microsoft® Excel®, SPSS, etc.) for the purposes of conducting internal statistical analyses, only.
b) Use By/For Minors Prohibited: PULSEWARE is intended for survey creators and respondents of the age of majority. PULSEWARE may not be used by, or to collect information from, minor children, without parental permission. Such activity may additionally be subject to federal and state laws in the minor's locality. User shall in no case use PULSEWARE to collect information from children under age 13 without parental permission.
c) UNAUTHORIZED DUPLICATION. The rights granted here are an expansion of the rights granted under the Copyright Act and do not include any rights to reproduce in whole or part the Licensed Products, the PULSEWARE website, or materials contained therein. No part of the Licensed Products may be duplicated in any medium or format beyond the express terms of this Agreement without prior written authorization from PULSEWARE. Any use not authorized by this Agreement is prohibited under Australian and International copyright law, and is subject to severe civil as well as criminal penalties. IF IN DOUBT, ASK FIRST.
d) INFRINGING ACTIVITY: Subject to the exceptions in this Section, unless otherwise authorized in writing by PULSEWARE Customer may not and may not permit others to: reproduce, create derivative works from, perform, publish, transmit, distribute, sell (or participate in any sale), or otherwise access, use, or exploit any material retrieved from or contained in the Licensed Products in any manner whatsoever that may infringe any copyright or proprietary interest of PULSEWARE or any Licensors, subject to the data file export exceptions listed herein.
i) SINGLE USER LICENSEES may not store any Content, other than permitted data files (see data file export exception, above), from the Licensed Products in any information storage and retrieval system.
e) Subject to exceptions contained herein:
i) Users may not distribute the information contained in the Licensed Products, or distribute any URL "hyperlinks" indicating the same, to any Person who is not duly authorized to use or receive the Licensed Products.
ii) Users may not distribute, rent, sublicense, lease, transfer or assign the Licensed Products or this License Agreement; they may not decompile, disassemble, or otherwise reverse-engineer the Licensed Products, or alter, translate, modify, or adapt the Licensed Products to create derivative works; they may not make use of "framing" or other means of redirecting content; nor may they copy and/or redistribute (internally or externally) any tables of contents, highlights, indexes, or other finding aids included in the Licensed Products.
f) User acknowledges that the Licensed Products (and any licensed materials contained therein) are highly proprietary in nature and that unauthorized copying, transfer or use may cause PULSEWARE or its Licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. Customer and each User agree that PULSEWARE may enforce any breach of this Agreement by Customer or any User by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
g) FALSE INFORMATION. User agrees not to falsify or misrepresent any information provided to PULSEWARE. User further agrees that any information that it submits to PULSEWARE (notwithstanding information submitted during the registration process) becomes the property of PULSEWARE, and User hereby expressly grants PULSEWARE the right to use any information submitted in accordance with PULSEWARE's corporate policies (including PULSEWARE’s "Privacy Policy"). For purposes of this Agreement, "information submitted to PULSEWARE" shall not include information in surveys which are hosted by PULSEWARE on behalf of its customers, nor shall it include any responses to such surveys.
h) EXCESSIVE RESOURCES. User agrees not to utilize excessive resources when accessing the Licensed Products, as determined solely by PULSEWARE. PULSEWARE, in its sole discretion, may take any measures that it deems appropriate, at any time, with or without notice, in response to excessive resource use by User. User agrees that PULSEWARE shall not be liable to User for any actions that it takes to ameliorate excessive use.
i) UNSOLICITED EMAIL (SPAM): USER AGREES NOT TO USE PULSEWARE'S EMAIL OR SURVEY INVITATION FACILITIES FOR THE PURPOSES OF SENDING UNSOLICITED EMAIL (SPAM); such conduct is grounds for immediate termination of this License, and PULSEWARE will assist the appropriate parties in investigating and pursuing such prohibited conduct to the fullest extent of the law.
7) Web-Linking to PULSEWARE Products & Services:
a) Users are permitted to share survey reports with or solicit participation in surveys by other authorized web users via hyperlinks or similar features, as established by PULSEWARE through its website. PULSEWARE is not responsible for the provision of such links to unauthorized users by those authorized to use the Licensed Products.
b) PULSEWARE makes no representations or warranties concerning any websites outside of PULSEWARE's control that may be accessible from PULSEWARE's web site (either by link, frame, or any other means ("Linked Site")). Any link, frame, or any other means to access any Linked Site provided by PULSEWARE or otherwise appearing on PULSEWARE's Internet site does not constitute PULSEWARE’s endorsement, recommendation, or acceptance of any responsibility for the content or operators of that Linked Site.
8) Disclaimer of Professional Advice. The information provided through or contained within the Licensed Products is not a substitute for legal and/or other appropriate professional advice where the facts and circumstances warrant. If any User in Customer's organization requires legal advice or other professional assistance, Users are urged to consult legal or other professional advisors.
9) MAINTENANCE. PULSEWARE reserves the right to upload changes, substitute content, deploy new features or perform network system maintenance at any time, without advance notice. PULSEWARE will endeavor to minimize such service/access disruptions to the extent feasible, and shall limit the same to nights and weekend days. PULSEWARE shall not be responsible for taking its site offline for such purposes, and Users will not receive any pro rata credit for time offline due routine system maintenance or site or service upgrades.
10) LIMITATIONS OF LIABILITY / DISCLAIMER OF WARRANTIES:
a) While PULSEWARE and its licensors attempt to include accurate and complete content and error-free software, occasional errors or omissions may occur. Upon notice, PULSEWARE will make reasonable efforts to correct these errors or omissions, but it is not obligated to do so.
b) Licensees/Users acknowledge that PULSEWARE cannot control the actions of all of its users. PULSEWARE is not responsible for conduct or any consequences that may arise, for example, with users’ sharing of links to surveys with any unauthorized survey respondent(s), or Users sharing reports or results data files with unauthorized viewers.
c) NO REPRESENTATION OF WARRANTY: NEITHER PULSEWARE NOR THIRD PARTY INFORMATION PROVIDERS MAKE ANY REPRESENTATION REGARDING THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED OR THE ERROR-FREE NATURE OF THE SUPPLIED SERVICE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS LICENSE AGREEMENT, THE LICENSED PRODUCTS ARE PROVIDED TO THE CUSTOMER AND USERS "AS IS." PULSEWARE, ITS LICENSORS, AND SUPPLIERS OF CONTENT AND SOFTWARE FOR THE LICENSED PRODUCTS MAKE NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED. WITH REGARD TO THE LICENSED PRODUCT SOFTWARE, ANY CONTENT RELATIVE THERETO, AND/OR ANY SUCH INFORMATION DELIVERY METHODS FOR THE SAME: PULSEWARE, ITS LICENSORS, AND SUPPLIERS OF CONTENT, DO NOT WARRANT THE ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
d) USERS MUST ASSUME THE ENTIRE RISK OF USING THE PROGRAM. PULSEWARE, ITS LICENSORS, AND CONTENT AND SOFTWARE SUPPLIERS FOR THE LICENSED PRODUCTS DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RESULTING FROM, ARISING OUT OF, OR ANY WAY RELATED TO (i) ERRORS IN OR OMISSIONS FROM ANY LICENSED PRODUCT AND/OR ITS CONTENT, INCLUDING TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS; (ii) ANY THIRD PARTY WEB SITES OR CONTENT THEREOF WHICH IS DIRECTLY OR INDIRECTLY ACCESSED THROUGH ACTIVE LINKS IN ANY LICENSED PRODUCT; (iii) THE NON-AVAILABILITY OF ANY LICENSED PRODUCT; (iv) ANY USE OF ANY LICENSED PRODUCT; (v) ANY EQUIPMENT OR SOFTWARE USED IN CONNECTION WITH ANY LICENSED PRODUCT; OR (vi) ANY RELIANCE UPON THE INFORMATION CONTAINED IN OR GENERATED FROM THE LICENSED PRODUCTS OR IN ANY CUSTOMER SUPPORT INFORMATION.
e) LIMITATION OF LIABILITY: IN NO EVENT SHALL PULSEWARE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO ANY USER, ANY CUSTOMER, OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS LICENSE AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE ANY LICENSED PRODUCT OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS LICENSE AGREEMENT. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO ALL CUSTOMERS OR THEIR RESPECTIVE USERS.
f) IN NO EVENT MAY CUSTOMER OR ANY USER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST PULSEWARE MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
g) IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, PULSEWARE'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO CUSTOMER, ANY USER, OR ANY OTHER PERSON SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF PAID BY CUSTOMER FOR ANY OF PULSEWARE’s LICENSED PRODUCTS.
11) INDEMNITY. Customer agrees to indemnify, defend, and hold PULSEWARE and the suppliers of Content and technology for the Licensed Products harmless from and against any and all claims and losses arising out of or in any way related to any use of the Licensed Products, or of any content, data or documentation received by Customer or any of its Users in connection with the Licensed Products.
12) TERM AND TERMINATION. This License Agreement shall be terminable for any of the following reasons:
a) By either PULSEWARE or the Customer, if the terminating party delivers to the other party written notice of its intent to terminate the applicable License no less than 30 days before the last day of the Term;
b) by either PULSEWARE or the Customer, upon written notice to the other party, if the other party materially breaches any provision of this License Agreement and the other party fails to remedy that breach within 30 days after such party gives written notice to the defaulting party of such breach.
NOTE: Upon termination of this Agreement, all continuing obligations under this License Agreement shall survive such termination (including any monies accrued and owing prior to the effective date of any termination under this License Agreement).
13) NOTICES. All notices, requests, and other official communications in connection with this License Agreement shall be in writing. Such notice may be served in person; by first class or certified mail, return receipt requested (postage prepaid); or by commercially recognized overnight delivery service that requires a signed receipt (prepaid). Any such notice that is delivered in accordance with the foregoing shall be deemed to have been given as follows: three days after mailed in any general or branch Australian Post Office; one day after deposit with a commercially recognized overnight delivery service in Australia; or upon personal delivery, as applicable. If notice is to be sent to Customer, to the address that Customer provided during registration as the primary contact address (or as otherwise designated by Customer by written notice to PULSEWARE). Either PULSEWARE or Customer may change its notice address by written notice to the other served as provided above, provided, however, that any notice of change of address shall be effective only upon receipt.
14) MISCELLANEOUS PROVISIONS.
a) Force Majeure. PULSEWARE shall not be liable for failure to perform any part of this License Agreement where such failure is due to fire, flood, power outages, strikes, labor troubles or other industrial disturbances, inevitable accidents, war (declared or undeclared), acts of terror, commercially unreasonable hostile acts by a Third Party with respect to the Products (including a denial of service attack), embargoes, blockages, legal restrictions, governmental regulations or orders, riots, insurrections, or any cause beyond the control of such party. PULSEWARE shall use diligent efforts to resume performance. This License Agreement shall not be regarded as terminated or frustrated as a result of such failure of performance that does not exceed six (6) months, and the parties shall proceed under this License Agreement when the causes of such non-performance have ceased or have been eliminated.
b) No Waiver. Should PULSEWARE or any Customer fail to exercise or enforce any provision of this License Agreement or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.
c) Choice of Law. This License Agreement shall for all purposes be governed, interpreted, construed, and enforced solely and exclusively in accordance with the law of the State of New South Wales, Australia.
d) Entire Agreement. Unless otherwise specified in this License Agreement as it may be amended from time to time, this License constitutes the entire agreement between each Customer and PULSEWARE with respect to the subject matter thereof. This License Agreement supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind and every nature (including, without limitation, any oral, written, or electronic communications) between Customer and PULSEWARE with respect to the subject matter of this License Agreement.
e) Severability. If any provision of this License Agreement shall be held to be unenforceable, the parties shall renegotiate those provisions in good faith to be valid, enforceable substitute provisions, and such provisions shall reflect as closely as possible the intent of the original provisions of this License Agreement. If the parties fail to negotiate a substitute provision, this License Agreement will continue in full force and effect without that provision and will be interpreted to reflect the original intent of the parties.
f) Electronic Execution. Any use of any Licensed Products by Customer or any Users within Customer's organization indicates Customer's acceptance of every provision of this License Agreement. In any action or proceeding arising from or related to any Products, a printed version of any and all registration documentation, this License Agreement (as it may be amended from time to time), and of any other electronic communications between Customer and PULSEWARE will be admissible to the same extent as other documents and communications originally generated or maintained in printed form.
g) Third Party Beneficiaries. All beneficial rights (other than the right to collect fees) granted to or reserved in this License Agreement by PULSEWARE, including limitations of liability, warranty disclaimers, confidentiality, ownership, limitation of damages, and indemnification for Third Party claims, shall accrue to and are for the benefit of Licensors to the same extent as PULSEWARE. Except as expressly stated therein, nothing contained in this License Agreement is intended to create third party beneficiaries thereof or there under.
h) Each Party Acting Independently. PULSEWARE and each Customer agree that each is acting independently of the other, that they are not joint ventures, and that neither is an agent, partner or joint venture of the other.
i) Assignment. No Customer may assign this License Agreement or any rights or obligations created under this License Agreement without the prior written consent of PULSEWARE.
j) Headings and Cross-References. The headings in this License Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. All references to Sections or headings shall be deemed references to such parts of this License Agreement, unless the context shall otherwise require.
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