1. Acceptance of Terms.
1.1 FishPulse provides its Service (as defined below) to you ("You") through its web site located at www.fishpulse.com (the "Site"), subject to this Terms of Service agreement ("TOS"). By accepting this TOS or by accessing or using the Service or Site, You acknowledge that You have read, understood, and agree to be bound by this TOS. If You are entering into this TOS on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this TOS, in which case the terms "You" or "Your" shall refer to such entity and its affiliates. If You do not have such authority or if You do not agree with this TOS, You may not use the Service.
1.2 FishPulse may change this TOS from time to time without prior notice. You can review the most current version of this TOS at any time at http://www.fishpulse.com/terms. The revised terms and conditions will become effective upon posting and if You use the Service after that date, we will treat Your use as acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to You, Your only remedy is to stop accessing and using the Service.
2. Description of Service.
The "Service" includes access to (a) the Site, (b) the FishPulse software platform, tools and services provided through the Site, (c) configuration, setup and training services, if You purchase such services; and (d) all software, data, text, images, sounds, video, and content made available through the Site (collectively referred to as the "Content"). Any new features added to or augmenting the Service are also subject to this TOS.
3. General Conditions/ Access and Use of the Service.
3.1 Subject to the terms and conditions of this TOS, You may access and use the Service only for Your internal business purposes as contemplated by the agreement ("Agreement"). You shall not allow any unauthorized user to access or use the Service. You shall not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this TOS; (b) copy, modify or distribute any portion of the Service; (c) use the Service to process data on behalf of any third party; or (d) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service and its components.
3.2 Subject to Your compliance with this TOS, FishPulse grants You a limited, non-exclusive, non-transferable, non-sublicensable license to use, copy, display and print the Content solely in connection with Your permitted use of the Service and solely for Your internal business purposes.
3.3 Subject only to the limited right to access and use the Service expressly granted to You under this TOS, all rights, title and interest in and to the Service and its components will remain with and belong exclusively to FishPulse. You shall not modify, adapt or hack the Service to falsely imply any sponsorship or association with FishPulse, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 You are responsible for all information, data, text, messages or other materials that You post or otherwise transmit via the Service ("Your Content"). You will not send bulk unsolicited email through the Service. You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as Your plan allows. FishPulse reserves the right to access any or all your accounts in order to respond to your requests for technical support.
3.5 You understand that the technical processing and transmission of the Service, including Your Content, may involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to FishPulse's third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service.
3.6 The failure of FishPulse to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between You and FishPulse, even though it is electronic and is not physically signed by You and FishPulse, and it governs Your use of the Service and takes the place of any prior agreements between You and FishPulse.
3.7 As between FishPulse and You, the Service and Content (except Your Content) and all intellectual property rights therein are the exclusive property of FishPulse or its licensors. You or Your licensors own all intellectual property rights in Your Content. Each party reserves all rights not expressly granted to the other party under this TOS or the Agreement.
4. Trademarks.
"FishPulse" and FishPulse's various logos used or displayed on the Service are trademarks of FishPulse and You may only use these trademarks or logos for promotional purposes to identify Yourself as a customer or user of the FishPulse products and services, provided You do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings.
5. Payment and Refunds.
To the extent the Service or any portion thereof is made available for any fee, you will be required to provide FishPulse information regarding your credit card or other payment instrument. You represent and warrant to FishPulse that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay FishPulse the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize FishPulse to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let FishPulse know within sixty (60) days after the date that FishPulse invoices you. We reserve the right to change FishPulse's prices. If FishPulse does, FishPulse will provide notice of the change on the Site or in email to you, at FishPulse's option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. In addition, special pricing may apply for customers with an exceptionally high number of end-users or an unusually high monthly usage of the Service. FishPulse does not provide refunds or credits.
6. Cancellation and Termination.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. FishPulse reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if FishPulse believes that you have violated this TOS. FishPulse shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. FishPulse will use good faith efforts to contact you to warn you prior to suspension or termination of your account by FishPulse. All of Your Content on the Service (if any) may be permanently deleted by FishPulse upon any termination of your account in its sole discretion. If FishPulse terminates your account without cause and you have signed up for a fee-bearing service, FishPulse will refund the pro-rated, unearned portion of any amount that you have prepaid to FishPulse for such Service.
7. DISCLAIMER OF WARRANTIES.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW AND FishPulse EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT FishPulse DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM FishPulse OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8. INDEMNITY.
You will indemnify and hold harmless FishPulse and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) Your access to or use of the Service or Content and (ii) Your violation of this TOS.
9. LIMITATION OF LIABILITY.
9.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FishPulse BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, FishPulse SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE MONTHLY SERVICE FEE PAID OR PAYABLE BY YOU FOR THE ONE MONTH PRECEDING THE TIME OF ANY CLAIM FOR MONETARY DAMAGES OR ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
9.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, FishPulse'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW .
10. Assignment.
FishPulse may assign or transfer this TOS, in whole or in part, without restriction.
11. Export Compliance.
You are responsible for complying with any applicable laws, rules, or regulations governing the export of the Service or any of its components.
12. Governing Law.
This TOS shall be governed by the laws of the State of California without regard to the principles of conflict of laws. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to Your access to or use of the Service.
13. Contact Information.
If you have any questions about this or the Service, please contact FishPulse at contact@fishpulse.com.