Terms of Use

Welcome to Netpulse. Please read these Terms of Service (the “TOS”) carefully because it is an agreement between you and Netpulse, Inc. (“Netpulse”, which term will include affiliates of Netpulse, Inc.) and governs your use of our website located at www.netpulse.com and any related domains or subdomains (collectively, the “Site”), our personalized entertainment and workout tracking services accessible via the Site and via use of exercise equipment that contains Netpulse-enabled content or controls, to the extent that such use relates to hardware, software or services provided by Netpulse, and our mobile device application (“App”). The Site, our services and App are collectively called the “Netpulse Services.”

1. Acceptance of Terms

By accessing and using the Netpulse Services, you accept and agree to be bound by these TOS. If you do not agree to these TOS and our Privacy Policy, do not use the Netpulse Services.

2. Changes to Terms or Services

We may modify the TOS at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified TOS on the Site or through other communications. It’s important that you review the TOS whenever we modify them because if you continue to use the Netpulse Services after we have posted modified TOS on the Site, you are indicating to us that you agree to be bound by the modified TOS. If you don’t agree to be bound by the modified TOS, then you can’t use the Netpulse Services anymore.

Netpulse is always striving to make the Netpulse Services better and because the Netpulse Services are evolving over time, Netpulse may change, add new features, or discontinue all or any part of the Netpulse Services. This change may happen at any time and without notice.

3. Registration and Account Information

You represent that you are (a) 18 years or older with the legal capacity to form a binding contract and be subject to these TOS under the laws of any applicable jurisdiction, and (b) not barred from using the Netpulse Services under applicable law.

If you want to use certain features of the Netpulse Services you’ll have to create an account. You can do this via the Site or through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.

You also agree that you will provide true, accurate, current and complete information for your account as prompted by the Netpulse Service’s registration form, with updates, as applicable. If you provide any information that is untrue, inaccurate, not current or incomplete, or Netpulse has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Netpulse has the right to suspend or terminate your account and refuse to provide you any further access to any portion of the Netpulse Services.

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

4. Health Disclaimer

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

5. Privacy Policy

Please refer to our Privacy Policy (www.netpulse.com/privacy-policy/) for information on how we collect, use and disclose information from our users.

6. Content and Content Rights

For purposes of these TOS: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Netpulse Services; and (ii) “User Content” means any Content that Netpulse account holders (including you) provide to be made available through the Netpulse Services. Content includes without limitation User Content.

Netpulse does not claim any ownership rights in any User Content that you make available through the Netpulse Services and nothing in these TOS will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Netpulse and its licensors exclusively own all right, title and interest in and to the Netpulse Services and Content, including all associated intellectual property rights. You acknowledge that the Netpulse Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Netpulse Services or Content.

By making any User Content available through the Netpulse Services you hereby grant to Netpulse a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify (formatting purposes only), publicly display, publicly perform and distribute your User Content in connection with operating and providing the Netpulse Services and Content to you and to other Netpulse account holders.

You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these TOS. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Netpulse Services, nor any use of your User Content by Netpulse on or through the Netpulse Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

Subject to your compliance with these TOS, Netpulse grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to access and view the Content solely in connection with your permitted use of the Netpulse Services and solely for your personal and non-commercial purposes.

7. Conduct

You understand that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such User Content originated. You understand that by using the Netpulse Services, you may be exposed to Content that is offensive or objectionable. Under no circumstances will Netpulse be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Netpulse Services.

We ask that you respect the Netpulse community of users and our desire for all users to feel safe when using the Netpulse Services, including any Content. Accordingly, you agree you will not use the Netpulse Services to:

Although Netpulse is not obligated to monitor access to, or use of, the Netpulse Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Netpulse Services, to ensure compliance with these TOS, or to comply with applicable law or other legal requirements. Netpulse reserves the right, but is not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these TOS. Netpulse has the right to investigate violations of these TOS or conduct that affects the Netpulse Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

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

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

8. Rights and Terms for Apps

Subject to your compliance with these TOS, Netpulse grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. If you would like to install the App on any additional device of yours, you will need to download the App again for the additional device. Netpulse reserves all rights in and to the App not expressly granted to you under these TOS.

Additional Terms for App Store Apps

If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:

These TOS are concluded between you and Netpulse, and not with the App Provider, and that Netpulse (not the App Provider), is solely responsible for the App.

The App Provider has no obligation to furnish any maintenance and support services with respect to the App.

In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Netpulse.

The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Netpulse will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these TOS.

The App Provider and its subsidiaries are third party beneficiaries of these TOS as related to your license of the App, and that, upon your acceptance of the terms and conditions of these TOS, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these TOS as related to your license of the App against you as a third party beneficiary thereof.

You must also comply with all applicable third party terms of service when using the App.

You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.

9. Interstate and International Nature of the Netpulse Services

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

10. Contributions to Netpulse

Netpulse welcomes feedback, comments, ideas, and suggestions for improvements to the Netpulse Services (“Contributions”). You can submit Contributions by emailing us at feedback@netpulse.com. By submitting Contributions to Netpulse, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Netpulse is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Netpulse will be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Netpulse may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Netpulse without any obligation of Netpulse to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Netpulse under any circumstances.

You hereby assign and agree to assign any rights you may have in your Contributions to Netpulse.

11. DMCA/Copyright Policy

Netpulse respects copyright law and expects its users to do the same. It is Netpulse’s policy to terminate in appropriate circumstances Netpulse account holders who repeatedly infringe the rights of copyright holders. Please see Netpulse’s Copyright and IP Policy at www.netpulse.com/copyright-policy/ for further information.

12. Indemnity

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

13. Advertisers

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

14. Links to Third Parties

The Netpulse Services may contain links to third-party websites or resources. Netpulse provides these links only as a convenience. You acknowledge and agree that Netpulse is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources and agree that Netpulse will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Content, goods or services available on or through any such website or resource.

15. Third Party Materials

WARRANTIES AND REPRESENTATION BY CLIENT
Client represents, warrants and covenants to Netpulse, Inc. that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content (including but not limited to any and all Client assets provided to Netpulse, Inc.), (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Netpulse, Inc. shall be void.

THIRD PARTY MATERIALS
Intellectual property rights in Third Party Materials shall be owned by the respective third parties. Client may need to obtain a license for Third Party Materials at Client’s own expense, and unless otherwise arranged by Client, Netpulse, Inc. shall obtain a license for Client to use Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless Netpulse, Inc. from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

16. Termination

We may terminate your access to and use of the Netpulse Services or deactivate or cancel your account, at our sole discretion and without liability to you. You may cancel your Account at any time via the “Cancel Account” feature of the Services or by sending an email to us at support@netpulse.com. Upon any termination, discontinuation or cancellation of Netpulse Services or your account, the following provisions of these TOS will survive: sections 4, 6 (with respect to parts of your User Content which won’t be deleted as noted in Section 6), 10, 12, 14, 16, 17, 18, 19, 20, 21 and 23.

17. Netpulse’s Proprietary Rights

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

Netpulse grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Netpulse Services.

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

18. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE NETPULSE SERVICES AND SOFTWARE ARE AT YOUR SOLE RISK. THE NETPULSE SERVICES, CONTENT, THE NETPULSE NETWORK AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, NETPULSE AND OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

NETPULSE AND ITS OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE NETPULSE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) THE NETPULSE SERVICES, NETPULSE NETWORK OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE NETPULSE SERVICES, CONTENT, THE NETPULSE NETWORK OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE NETPULSE SERVICES OR THE NETPULSE NETWORK WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NETPULSE SERVICES, THE NETPULSE NETWORK OR SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NETPULSE OR THROUGH OR FROM THE NETPULSE SERVICES OR SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.

19. Limitation of Liability

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

IN NO EVENT WILL NETPULSE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TOS OR FROM THE USE OF OR INABILITY TO USE THE NETPULSE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO NETPULSE FOR USE OF THE NETPULSE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO NETPULSE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NETPULSE AND YOU.

20. Exceptions to Disclaimers and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 14 AND 15 MAY NOT APPLY TO YOU.

21. No Third Party Beneficiaries

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

22. Dispute Resolution

Governing Law

These TOS and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

Agreement to Arbitrate

You and Netpulse agree that any dispute, claim or controversy arising out of or relating to these TOS or the breach, termination, enforcement, interpretation or validity thereof or the use of the Netpulse Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Netpulse are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Netpulse otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these TOS.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

Unless you and Netpulse otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Netpulse submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Netpulse will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Netpulse will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes

Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Netpulse changes this “Dispute Resolution” section after the date you first accepted these TOS (or accepted any subsequent changes to these TOS), you may reject any such change by sending us written notice (including by email to support@netpulse.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Netpulse’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Netpulse in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these TOS (or accepted any subsequent changes to these TOS).

23. Notice

Netpulse may provide you with notices under these TOS, including those regarding changes to these TOS, including by but not limited to postings on the Netpulse Services, email, SMS, MMS, text message, regular mail or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these TOS by accessing the Netpulse Services in an unauthorized manner. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

24. Payment Terms

Monthly fees are based on the number of accounts/locations. Customer shall notify Netpulse if additional locations are opened or closed during the Order Terms of 12 months and fees will be adjusted accordingly. This Order Form will renew automatically on a month-to-month basis following the initial term. Implementation fees will be invoiced upon execution of this Order Form. All other fees will be invoiced monthly in advance. Beginning on the Billing Effective Date all payments are due on a net 30 basis and are subject to a 1.5% per month late fee.

25. Payment Authorization

Authorization: I authorize Netpulse to charge to my bank account or credit card the monthly rate in my billing form per location on a monthly basis starting within 30 days from the date my app becomes live in the app store. I understand that I am responsible for paying in full for the services provided and that I will be charged the recurring monthly fee on or around the first of the month. All payments must be made in U.S. dollars. Fees not paid when due will bear interest at 1.5% or the maximum amount allowed by applicable law, whichever is less, calculated from the date originally due to the date fully paid. In addition, I agree to pay all fees and costs, including but not limited to collection agency fees and reasonable attorneys’ and professionals’ fees, associated with any legal or collection action that Netpulse institutes in order to recover unpaid fees under this Agreement. The payment authorization is valid and to remain in effect unless I notify Netpulse, Inc of its cancellation by sending 30 day written notice to support@netpulse.com.

26. General

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

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

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

Remedies. Except as expressly set forth in these TOS, the exercise by either party of any of its remedies under these TOS will be without prejudice to its other remedies under these TOS or otherwise.

No Assignment. You may not assign or transfer these TOS, by operation of law or otherwise, without Netpulse’s prior written consent. Any attempt by you to assign or transfer these TOS, without such consent, will be null and of no effect. Netpulse may freely assign or transfer these TOS without restriction. Subject to the foregoing, these TOS will bind and inure to the benefit of the parties, their successors and permitted assigns.

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

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

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

27. Violations

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

28. Contact Information

If you have any questions about these TOS or the Netpulse Services, please contact Netpulse at:

50 Osgood Place Suite 400
San Francisco, CA 94133
877-Netpulse ext 2



Rewards Add-on — Terms & Conditions

1. Description of the Rewards Service Feature

Netpulse has developed a new feature for the Netpulse Service referred to as the "Rewards Service Feature" which enables its customers to create, manage and offer their own rewards programs for their businesses (each a "Rewards Program") and customer branded or third-party branded offers and rewards ("Rewards") to Program Participants using the Netpulse Service. As used herein "Program Participant" means an individual enrolled in a Rewards Program. For the purposes of this Services Addendum, references to the Netpulse "Service" or "Services" in the Master Agreement and in this Services Addendum will include the "Rewards Service Feature."

2. Term

The subscription term for the Rewards Service Feature will be as set forth in the Master Agreement. Netpulse may change, suspend or terminate all or any aspect of the Rewards Service Feature at any time for any reason without liability to Customer. Customer may terminate the Rewards Service Feature upon thirty (30) days prior written notice to Netpulse. For the avoidance of doubt, the rest of the Service will not be affected by this termination.

3. Rewards Program Structure

Customer is solely responsible for determining the Rewards Programs and any Rewards that Customer provides to the Program Participants through the Service. Customer will determine the criteria for Program Participants to earn and redeem Rewards through its Rewards Programs. Netpulse is not responsible for any fulfillment or redemption of Rewards by Customer.

4. Content Disclaimers

Customer acknowledges and agrees that Netpulse is not responsible for (a) the information, branding (trademarks and logos), content and images of any kind or other materials (the “Content”) posted, generated, provided or otherwise made available through the Rewards Service Feature by Customer or (b) any Content that a third-party merchant offers to be made available through the Rewards Service Feature. THE CONTENT IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, NETPULSE EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

5. Program Participants

Customer is responsible for all Program Participant acquisition and enrollment in any Rewards Program (including encouraging users to download and use the Service). Customer is solely responsible for its interactions (including any disputes) with Program Participants and any third parties brands.

6. Compliance with Laws; Program Terms

Customer will ensure that its Rewards Program complies with all applicable laws and regulations. As between Netpulse and Customer, Customer will be responsible for any terms and conditions that apply to a Program Participant’s participation in a Rewards Program or Rewards (the “Rewards Program Terms of Use”). Attached hereto as an Exhibit A is an example rewards program terms titled “Sample Rewards Program Terms”, that Customer may choose to use and/or adapt for its Rewards Program. The Sample Rewards Terms are provided by Netpulse as a courtesy, for reference only. Netpulse disclaims all liability for damages or loss resulting from Customer’s use of the Sample Rewards Program Terms.

7. Responsibility for Rewards

Customer will honor all Rewards for all Program Participants who earn those Rewards through a Rewards Program. The cost associated with honoring Rewards is Customer’s responsibility and Customer acknowledges and agrees that Netpulse is not responsible to Customer, its Program Participants or any third party for Customer’s failure to issue, accept, fulfill or redeem any Rewards provided through Customer’s Rewards Program.



Short Code Terms & Conditions

Program

Netpulse Fitness Alerts

Product Description

Netpulse alerts to users about the changes in their fitness activities

Short Code

42401

Frequency

Max 4 msg/mth

Pricing

Standard rated. Non-premium. Msg & Data rates may apply.

Contact

1-877-638-7857 or support@netpulse.com


Terms and Conditions / Privacy Policy

Mobile User Opt-in

You may opt-in to a specific program on Netpulse Fitness Alerts by texting JOIN to 42401 or creating an account at one of the Netpulse mobile apps. By signing up you agree to receive marketing text messages, which may be sent through an automatic to the mobile number provided. Consent is not required to purchase goods or services.

Mobile User Opt-out

You may discontinue service, by replying "STOP" to any message you receive or by texting "STOP" to the short code from your mobile device. You will not receive any additional messages.

You may also opt-out by replying "QUIT", "END", "CANCEL", or "STOP ALL" to any text message you receive or by texting "QUIT", "END", "CANCEL", or "STOP ALL" to the short code.

Mobile User Fees

This is a standard rated, non-premium service. Netpulse does not charge users fees to send or receive text messages. Msg & Data rates may apply.

Mobile Help

To get help, reply "HELP" to any message you receive or text "HELP" to the short code.
You may also call 1-877-638-7857 or email support@netpulse.com

Mobile User Privacy

We will not share or use your mobile number for any other purpose.

U.S. Mobile Carriers Supported

AT&T, Sprint, T-Mobile, Verizon Wireless, Metro PCS, Nextel, Virgin Mobile, US Cellular Corp., ACS Wireless, All West Wireless, Bluegrass, Boost USA, Cambridge Telecom, Cellcom, Cellular South, Centennial, Cincinnati Bell, Cricket Wirelesss, Dobson, Cellular One of East Central Illinois, Appalachian Wireless, Farmer’s Mutual Telephone Company, General Communications, Golden State Cellular, PC Management, Inland Cellular, Illinois Valley Cellular, Nex-Tech Wireless, Nucla-Naturita, nTelos, Revol, Silver Star PCS (Gold Star), Snake River PCS, South Central, Syringa, Thumb Cellular, UBET Wireless, Unicel, United Wireless, and West Central Wireless.
T-Mobile is not liable for delayed or undelivered messages.

Mobile Warranty

Netpulse will not be liable for any delays in the receipt of any SMS messages connected with our system. Delivery of SMS messages is subject to effective transmission from your wireless service provider/network operator.

Mobile Privacy Policy

Netpulse respects your privacy. We will only use information you provide to transmit your text message. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect our rights or property.

When you complete forms online or otherwise provide information in connection with the Service, you agree to provide accurate, complete, and true information. You agree not to use a false or misleading name or a name that you are not authorized to use. If we, in our sole discretion, believe that any such information is untrue, inaccurate, or incomplete, we may refuse you access to the Service and pursue any appropriate legal remedies.

We maintain and process your messages to provide the Service to you and to improve the Service. Our computers may process the information in your messages for various purposes, including formatting and displaying the information to you, preventing unsolicited bulk messages (spam), backing up messages, and other purposes relating to offering you the Service.