These Terms of Service (Terms) are between Pulsee Group Pty Ltd (ABN 40 615 397 094) (referred to as Pulsee) and the each individual or entity agreeing to these Terms (referred to as you or your), collectively referred to as the Parties and each a Party. These Terms govern the access to and use of the Pulsee product (Product) and any related services made available to you (together with the Product referred to as Services) and set out on the website: www.pulsee.email (Site).
- These Terms form a binding legal agreement between the Parties. By using the Services, you agree to comply with and be legally bound by these Terms. Please read these Terms carefully. If you have any questions, you should contact Pulsee using the contact details at the end of these Terms.
- You acknowledge and agree to these Terms by: (i) ticking ‘I Agree’; (ii) accessing or using the Site or Services; or (iii) making any payment for the Services. If you do not agree to these Terms, you should cease accessing or using the Services and Site immediately. If you are agreeing to these Terms on behalf of an entity, including but not limited to a company or other organisation, you represent and warrant that you have the power and authority to enter into agreements and bind such entity and act on behalf of any person who uses the Services (each a User, collectively referred to as Users).
- You agree the Services will only be used by Users who are your employees, contractors or authorised agents acting in the ordinary course of business and directly working for or managed by you. You must ensure that each User using or accessing the Services does so in accordance with these Terms.
- Some Services may be subject to additional terms. Where applicable, such terms will be displayed prior to use of that Service or otherwise notified to you.
- Pulsee reserves the right to make changes to these Terms at any time, effective upon the posting of the modified Agreement. Pulsee will give you at least 14 days’ notice via email prior to the change. It is your obligation to ensure that you (and each User where applicable) have read, understood and agreed to the most recent Terms available on the Site.
- Using the Site or Services may be prohibited or restricted in certain countries. If you use the Services outside of Australia, you are responsible for complying with the laws and regulations of the country from which you access or use the Services.
ADDITIONAL TERMS AND CONDITIONS
- Users can access and use the Services on any computer, mobile, tablet or other device which supports the Product (Device). Pulsee recommends each User access the Site and Services using the recommended browsers as notified to you.
- To access the Services, you must:
a) complete Pulsee’s registration form as set out on the Site (Registration Form) including name, contact details and other related information as requested by Pulsee (User Information); and
b) subscribe to the Services (Subscription) for a period of time as set out on the Registration Form (Subscription Period). The fees for each Subscription (Subscription Fee) will vary subject to the functionalities and Services you request as identified on the Registration Form.
- Upon receipt of the completed Registration Form and applicable Subscription Fee, Pulsee will create an account (Account) for you or your organisation (as applicable). You are responsible for determining (a) what Services you require; and (b) if you are an organisation with an Account to manage multiple users: who will be a User of the Services, each User’s access level and whether to revoke a User’s access to the Services at any time for any reason via your Account.
- Any information you submit via the Services, including but not limited to email account data, User Information or information otherwise collected by Pulsee (collectively referred to as Data) will be stored by Pulsee’s third party service providers. Pulsee will take reasonable steps and use industry standard procedures to ensure that Data is kept secure and confidential.
- You grant Pulsee a non-exclusive, worldwide
licence to any Intellectual Property rights
subsisting in your Data in order to use,
copy, transmit, reference, disclose or
back-up your Data or otherwise for purposes
a) to enable you and each User to access and use the Services;
b) for Pulsee’s administrative, support and training purposes; and
c) in accordance with these Terms or as otherwise required for Pulsee to provide the Services.
- You represent and warrant that:
a) any and all Data collected, stored or otherwise used via the Services are your sole and exclusive property; or
b) you have secured any and all authorisation and rights to use the Data as applicable under the relevant laws.
- Title to and all Intellectual Property rights in any Data you input into the Services remains your property. However, your access to the Data and continued use of the Services is contingent on payment of your Subscription Fee for your Subscription.
- You acknowledge and agree that:
a) Pulsee is not responsible for any corruption or loss of any Data if such corruption or loss is due to an act or omission by you, your employee(s), contractor(s), agent(s), any User or other third party; and
b) you are responsible for complying with all laws and regulations regarding the use and disclosure of Data including but not limited to the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and any other requirements under Australian law.
c) Pulsee has implemented reasonable measures that are intended to prevent unauthorised Data infiltration or security breaches. Pulsee does not guarantee the security of any Data you store on your servers, or the servers of your contractors, your service providers or User Devices.
- OFFERS AND PROMOTIONS
- Pulsee may, from time to time, make offers or promotions which may be applicable to the Services. This may include, but is not limited to, access to a free trial of the Services (Trial Service) for a limited period of time as set out on the Site (Trial Period). If any additional terms and conditions apply to such offers or promotions, these will be set out on the Site or otherwise notified to you via the Services.
- You acknowledge and agree that subject to
you purchasing a Subscription to the
a) If you access the Trial Service, your access to the Services and any Data collected, stored or otherwise used by the Services will terminate upon expiry of the Trial Period and such Data may be permanently deleted or otherwise lost;
b) Pulsee may at its sole discretion, remove or extend any offers or promotions and Pulsee will not be responsible or liable for any potential loss or damage which you incur as a result of the removal or extension of any offer or promotions.
- If you purchase a Subscription, you agree to pay the Subscription Fee as required to enable you to access and use the Services.
- You will be required to make payment by way of credit card and you must provide your credit card details when completing your Registration Form.
- You acknowledge and agree that:
a) to maintain your subscription payment to Pulsee will be made in advance on a periodic payment date from your nominated credit card; and
b) if Pulsee or its payment service provider is unable to take payment, Pulsee and/or its payment service provider will attempt to contact you via email as soon as it becomes aware of the payment failure. Until payment is confirmed, your Account will be locked and any access or use of the Services may be suspended.
- If you make a payment by way of credit card, you warrant that the information you provide to Pulsee and/or its payment service provider is true and complete, that you are authorised to use the credit card to make payment and that your payment will be honoured by your card issuer.
- If payment is not made within 7 days of the last payment date, Pulsee may suspend or otherwise terminate your Account without notice to you, in which case you will not be able to access your Account, you and Users will not be able to use the Services and any of your or Users’ data on the Account will be deleted and not recoverable.
- All amounts are stated in Australian dollars and unless otherwise stated, all amounts are exclusive of GST.
- Pulsee’s pricing structure or payment methods may be amended from time to time at its sole discretion.
- CANCELLATION AND TERMINATION
- You may terminate your Account and/or access to the Services at any time by contacting Pulsee using the details at the bottom of these Terms.
- Your Account will be terminated at the end of the billing cycle, and automatic payments will cease at the end of the payment period during which Pulsee is notified of your intention to terminate.
- It is your responsibility to retrieve all necessary Data from your Account prior to termination.
- Pulsee may terminate these Terms
immediately, in its sole discretion, if:
a) you breach any of these Terms and, if the breach is capable of being remedied, you do not remedy the breach within 7 days after receiving notice of the breach;
b) Pulsee reasonably suspects that you are attempting to reverse engineer the Product or any technology delivered via the Services;
c) Pulsee considers that a request for Services is inappropriate, improper or unlawful;
d) you fail to provide Pulsee with clear or timely instructions to enable Pulsee to provide you with the Services;
e) Pulsee considers that the working relationship between the Parties has broken down including a loss of confidence and trust; or
f) for any other reason outside Pulsee’s control which has the effect of compromising Pulsee’s ability to provide you with the required Services within a required timeframe.
- On termination of these Terms, Pulsee may retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to these Terms constitutes your authority for Pulsee to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
- YOUR OBLIGATONS
- You warrant that all information including User information provided to Pulsee is true, accurate and complete.
- You acknowledge and agree that you are
responsible for how Users use the Services
a) each User uses the Services at their own risk;
b) the Services will only be used for your or the User’s own lawful personal or business purposes in accordance with these Terms;
c) all usernames and passwords required to access the Services are kept secure and confidential;
d) if there is any unauthorised use of your passwords or any other breach of security, you will immediately notify Pulsee of such activity;
e) it is your responsibility to determine that the Services meet your and each User’s needs and are suitable for the purposes for which the Services are used;
f) you are responsible for obtaining any consents, licences, permits and permissions from other parties as required for the Services to be provided, at your cost, and for providing Pulsee with the necessary consents, licences and permissions; and
g) the reliability of the Services are dependent upon each User’s Device operating system, a User’s internet connection and choice of web-browser.
- You acknowledge and agree that each User:
a) is authorised to use the Services and to access any Data, User Information or other information they input into the Services or provide to Pulsee as required for the Services; and
b) will keep all usernames and passwords required to access the Services secure and confidential.
- You may use the Services on behalf of others or in order to provide services to others but if you do so you must ensure that you are authorised to do so and that all persons for whom or to whom services are provided comply with and accept these Terms that apply to you.
- Pulsee is not responsible to any person or
entity other than you and nothing in these
Terms confer, or purport to confer, a
benefit on any other person or entity. If
you use the Services on behalf of or for the
benefit of any third party, including Users,
you agree that:
a) you are responsible for ensuring that you have the right to do so;
b) Pulsee does not warrant the fitness for purpose or suitability of the Services for such third party’s purposes and third parties may not rely on Pulsee for any purpose;
c) you are responsible for authorising any person who is given access to your Data, and you agree that Pulsee has no obligation to provide any person or entity with access to such Data without authorisation from you and may refer any requests for access to the Data to you to address; and
d) you will indemnify Pulsee, on first demand, against any and all claims, expenses, liabilities or losses arising out of or in connection with Pulsee’s refusal to provide any persons with access to your Data in accordance with these Terms and Pulsee making Data available to any person with authorisation from you.
- You remain solely responsible for complying with all applicable laws. It is your responsibility to ensure that the storage of and access to your Data via the Site comply with laws which are applicable to you, including any laws requiring you to retain records of your Data.
- Each User must have their own safeguards and back up processes in place to recover from any failures or loss of Data which might occur whilst using the Services and protect the confidentiality of your and Users’ Data with suitable management procedures, as you may see fit.
- PROHIBITED USE
- You acknowledge and agree that you and each
User will not:
a) use the Services in any manner that is illegal or violates any applicable law or regulation;
b) attempt to circumvent or disable the Services or any technology features or measures in the Services by any means or in any manner;
c) attempt to modify, copy, adapt or reproduce the Services except as necessary to use it for normal operation;
d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product or any technology in the Services;
e) distribute, encumber, sell, rent, lease, sub-license, or otherwise transfer, publish or disclose the Services to any third party (except as permitted under these Terms);
f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Services or used in connection with the Services;
g) use Site or Services in any manner to aid in the violation of any third party Intellectual Property, including but not limited to another’s copyrights, trade secrets and patents;
h) take any action that interferes in any manner with Pulsee’s rights with respect to the Site or Services;
i) attempt to undermine the security or integrity of Pulsee’s computing systems or where the Services, Site or any and all part of the Services are hosted by a third party, that third party’s computing systems and networks;
j) use, or misuse, the Site or Services in any way which may impair the functionality of the Site or Services or other systems used to deliver the Services or impair the ability of any other user to use the Site or Services;
k) attempt to gain unauthorised access to any materials, other than those to which you have been given express permission to access, or to the computer system on which the Services are executed or Services provided; and
l) transmit or input into Site or Services any files that may damage any other person's Devices or software, content that may be offensive or material or Data in violation of any law (including any content protected by copyright or trade secrets which you do not have the right to use).
- Title, ownership rights and Intellectual Property rights in and to any content displayed on Site or Services, or accessed through the Site or Services, are the property of the applicable content owner and may be protected by applicable copyright or other law. These Terms give you no rights to such content.
- You acknowledge that any breaches of this clause may lead to termination of these Terms.
- You acknowledge and agree that you and each User will not:
- INTELLECTUAL PROPERTY
- If you hold a current Subscription, Pulsee grants you a personal, non-exclusive, non-transferable, limited and revocable licence to use any reports or related materials containing your Data generated from the Services for your personal or non-commercial purpose. All other uses are prohibited unless you obtain Pulsee’s prior written consent.
- Title to, and all Intellectual Property rights in the Site or Services and any documentation relating to the Services remain the property of Pulsee, its successors and permitted assigns. Your right to use such Intellectual Property is subject to these Terms.
- You grant Pulsee a non-exclusive, worldwide, royalty-free, irrevocable license to use any Intellectual Property which subsists in any materials you provide in connection with a User’s Account or otherwise make available via the Site or Services, including but not limited to copyright in any third party logos or other materials.
- You grant Pulsee a licence to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Services and for any other purpose related to provision of the Services to you and the performance of Pulsee’s obligations under these Terms.
- It is your responsibility to maintain copies of all Data which are inputted into the Services. Pulsee will endeavour to prevent Data loss, however, as the Services rely on third party service providers, Pulsee does not make any guarantees that there will be no loss of Data and does not represent or warrant that access to the Services, the Data or an Account will be available without interruption.
- As the Services will be enabled and used in conjunction with third party products or services, the User acknowledges that Pulsee may allow the providers of those third-party applications to access any inputted Data as required for the interoperation of such third-party applications with the Services. Pulsee is not responsible for any disclosure, modification or deletion of Data resulting from any such access by third-party application providers.
- UPDATES AND AVAILABILITY OF
- Whilst Pulsee intends that access to the Services via the Site be available on a full-time basis, the Services may be unavailable due to maintenance or other development activity. Where possible, Pulsee will provide notice to you and Users of any maintenance or development activity in advance via email.
- Pulsee may issue updates to the Services (Updates) from time to time for the duration of these Terms. You acknowledge that Pulsee has no obligation to provide you with any support for Updates to the Services, as agreed in these Terms. Pulsee may, from time to time, issue updated versions of the Product and update automatically.
- The Services contain automatic communications features which relay certain non-personally identifiable information to Pulsee in connection with the operation of the Services. This information may include your Account settings and what version of browser and operating system you are using. Pulsee may use this information for research purposes including statistical analysis of aggregate customer behaviour.
- FEEDBACK AND DISPUTE RESOLUTION
- Your feedback is important to Pulsee. Pulsee seeks to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact Pulsee using the contact details at the end of these Terms.
- If there is a dispute between the Parties in
relation to these Terms, the Parties agree
to the following dispute resolution
a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith to seek to resolve the dispute.
- Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
- LIMITATION OF LIABILITY AND
- Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by Pulsee to you which cannot be excluded, restricted or modified (Statutory Rights). If applicable, these Terms must be read subject to such legislation and nothing in these Terms remove the applicable Statutory Rights.
- You agree that Pulsee’s liability for Services provided to consumers is governed solely by the ACL to the extent applicable and these Terms. To the extent any Statutory Rights apply and notwithstanding any provision of these Terms, Pulsee limits its liability pursuant to such provisions: for any goods, to the replacement, repair or refund of the cost of the goods; or for services, to the re-supply or the payment of the cost of having the services supplied again.
- To the fullest extent permitted by applicable law, the Services and all material or work are provided to you without warranties of any kind, either express or implied, and Pulsee disclaim all warranties, express or implied, including, without limitation: any implied warranties of merchantability; fitness for a particular purpose that the Services will not infringe third party intellectual property rights; the Services will be delivered without interruption; or that the Services will be free of viruses, bugs or other harmful components or defects or that such defects will be corrected from the Services.
- You acknowledge that whilst Pulsee will take
reasonable steps to ensure that the Services
will be fit for the advertised purpose,
Pulsee gives no guarantees that:
a) the Services will meet your requirements as the functionality of the Services is dependent upon configuration with the User’s device, system and other components;
b) the Site or Services will work in each of your desired use case scenarios; and
c) the Site or Services can be executed on every operating system, as it is impossible to test each variant.
- Pulsee does not warrant that use of the Site or Services will be uninterrupted or error free. The operation of the Site or Services are dependent on public telephone services, computer networks and the internet, which can be unpredictable and may from time to time interfere with the use of the Services. Pulsee accepts no responsibility for any such interference or prevention of your or a User’s use of the Services. The Services also use third party hosting services which are provided without any sort of warranties, and Pulsee cannot ensure that these third party hosting services are provided free of defect or without interruption.
- You acknowledge and agree that while the information and materials provided on or via the Site or Services or otherwise provided to you by Pulsee is provided in good faith on an “as is” basis, Pulsee and its directors, officers, employees, contractors and agents accept no responsibility for and make no representations or warranties to you or to any other person as to the reliability, accuracy, currency or completeness of the information in such materials or information generally contained or produced via the Site or Services. You are solely responsible for (and where applicable you must ensure each User understands they are responsible for) determining the suitability of any Services and you rely on and information provided to you through the Site or Services at your own risk. Pulsee has no control over the content of any emails or content displayed by third party products or services used in association with the Services.
- All risk arising out of the use or performance of the Services remains with you. You understand and agree that the use of the Services, material, content or data downloaded or otherwise obtained through the use of the Services, is at your own discretion and risk and that you will be solely responsible for any infections, contaminations or damage to your computer, system or network. Pulsee is not responsible or liable for delays, inaccuracies, errors or omissions arising out of your use of the Services, any third party software or operating system.
- You acknowledge that Pulsee may pursue any available equitable or other remedy against you as a result of your failure to ensure that each and every User complies with all provisions of these Terms.
- Pulsee or its licensors’ liability for breach of any of its obligations under these Terms for the Services, or breach of any warranty implied by law, will be limited, to the extent permitted by law, to the total price paid for the Subscription to use the Services. Pulsee’s total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms for the Services. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- You acknowledge and agree that Pulsee will not be liable for any non-compensatory damages including punitive, aggravated, multiple, exemplary, liquated or any other non-compensatory damages or the consequences of non-payment.
- You will be liable for and agree to
indemnify, defend and hold Pulsee harmless
from and against any and all claims,
liabilities, suits, actions and expenses,
including costs of litigation and reasonable
legal costs, resulting directly or
a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
b) any breach of these Terms;
c) any misuse of the Services, from or by you or a User;
d) any breach of law, regulation or licence by you or a User; and
e) any claim brought by a third party including any User against you and arising out of or in connection with your use of Site or Services.
- You agree to co-operate with Pulsee (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Site or Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given to Pulsee.
- The obligations under this clause will survive termination of these Terms.
- You will be liable for and agree to indemnify, defend and hold Pulsee harmless from and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
- Any notice required or permitted to be given to you under these Terms will be addressed to you at the email address provided by you on the Registration Form.
- Any notice required or permitted to be given to Pulsee under these Terms must be addressed to Pulsee using the contact details at the end of these Terms.
- RELATIONSHIP OF PARTIES
- Neither Party is authorised to bind the other Party in any way without the prior written consent of the other Party.
- The Parties acknowledge and agree that they will not seek to bind the other Party other than with the prior written consent of the other Party.
- RIGHTS OF THIRD PARTIES
- Any person or entity who is not a party to these Terms has no right to benefit under or to enforce any of the terms of these Terms.
- These Terms are personal to you. You must not assign or deal with the whole or any part of your rights and/or obligations under these Terms without the prior written consent of Pulsee. Any purported dealing in breach of this clause is of no effect.
- WAIVER OR VARIATION OF RIGHTS
- Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms do not operate as a waiver or prevent that Party from exercising that power or right or any other power or right.
- A Party is not liable to any other Party for any loss, cost or expense that may have been caused or contributed to by the failure, delay, waiver or exercise of a power or right.
- POWERS, RIGHTS AND REMEDIES
- Except as expressly stated to the contrary in these Terms, the powers, rights and/or remedies of a Party under these Terms are cumulative and are in addition to any other powers, rights and remedies of that Party. Nothing in these Terms merge, extinguish, postpone, lessen or otherwise prejudicially affect any power, right, or remedy that a Party may have at any time against the other Party to these Terms or any other person.
- FORCE MAJEURE
- If performance of these Terms or any obligation under these Terms are prevented, restricted, or interfered with by causes beyond either Party’s reasonable control (Force Majeure), and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, insurrections, riots, wars, strikes, lock-outs and work stoppages. The excused Party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a Party if committed, omitted, or caused by such Party or its employees, officers, agents or affiliates.
- CONSENTS AND APPROVALS
- Where these Terms provide that a Party may conditionally or unconditionally give or withhold any consent or approval in relation to any matter in these Terms, that Party may in its absolute discretion, and without being obliged to give reasons for doing so, withhold any consent or approval or give consent or approval conditionally or unconditionally.
- FURTHER ASSURANCE
- Each Party must from time to time and in a timely manner do all things reasonably required of it by another Party to give effect to these Terms.
- If any provision in these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected.
- ENTIRE AGREEMENT AND UNDERSTANDING
- The date of these Terms is the date that these Terms are accepted by you.
- In respect of the subject matter of these
a) these Terms contains the entire understanding between the Parties; and
b) all previous oral and written communications, representations, warranties or commitments are superseded by these Terms and do not affect the interpretation or meaning of these Terms.
- GOVERNING LAW AND JURISDICTION
- These Terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
For any questions or notice, please contact Pulsee
Pulsee Group Pty Ltd ABN 40 615 397 094
208 Sydney Rd, Brunswick VIC 3056
Last update: 20 December 2016