Daily Pulse Master Subscription Agreement
This Agreement sets forth the terms and conditions between Customer (as defined below) and Daily Pulse, Inc. ("Daily Pulse," "we," "our," or "us") which govern Customer's and its Affiliates' access and use of Daily Pulse's Services. Daily Pulse and Customer may individually be referred to as a "party" and collectively as "the parties." The Agreement is effective as of the date that you sign up for any Service online or submit an Order Form that references this Agreement (the "Effective Date").
By accepting this Subscription Agreement ("Agreement"), either by clicking a box indicating your acceptance, executing an Order Form or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organization, business, or other legal entity for which you act ("Customer," "you," or "your"); and (2) represent and warrant that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
"Account Information" means information about your Daily Pulse account, including information that you and your Users provide to Daily Pulse in connection with (1) the creation or administration of your Daily Pulse account; or (2) Daily Pulse's maintenance of your account or the Services.
"Add-on" means enhanced features or services that are purchased separately and provide extra functionality or usage rights.
"Affiliate" means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party.
"Confidential Information" means information that either party ("Discloser") discloses to the other party ("Recipient") under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances.
"Customer Data" means all data stored by or on behalf of Customer or at Customer's direction in the Services.
"Documentation" means Daily Pulse-provided user documentation relating to the Services.
"Force Majeure Event" means any circumstances beyond Daily Pulse's reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-Daily Pulse Application failure, or acts undertaken by third parties, including without limitation, any denial of service attack.
"Intellectual Property Rights" means all patent rights, copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights throughout the world.
"Non-Daily Pulse Service(s)" means any third-party service, connection, data, software, application, or integration that interoperates with the Service that is provided or made available by Customer or a third party.
"Order Form" means any ordering documentation or online sign-up or subscription pages agreed to between the parties which sets forth the Services accessed by the Customer and any relevant pricing.
"Organization" means the separated sections of the Service where Users may submit, post or modify Customer Data. Organizations have different tiers that have different features and functionality as specified in the Documentation. Users can own or belong to multiple Organizations.
"Services" means Daily Pulse's online software-as-a-service platform and services governed by this Agreement including any related APIs provided by Daily Pulse, together with all related mobile and desktop applications, and Add-ons to which you subscribe.
"Subscription Fees" means all fees associated with your Subscription.
"Subscription Plan" means the applicable subscription level of packaged functionality and services as detailed on Daily Pulse's website and in the applicable Documentation.
"Subscription Term" means the period during which you have agreed to subscribe to a Service.
"User" means any individual who is authorized to access the Services by Customer. Each User must use a unique identity to access and use the Services, and may access the Services only to the extent purchased by Customer and in accordance with the applicable Subscription Plan. Users may own or belong to multiple Organizations within the Service.
2.1 Subscriptions and Subscription Terms. Customer and its Affiliates may subscribe to Services by executing an Order Form. Daily Pulse grants access to the Services pursuant to Subscriptions. Subscriptions will be for the Subscription Term agreed to in the applicable Order Form.
2.2 Subscription Plans; Add-ons. Daily Pulse will provide the Services to you according to the Subscription Plan to which you subscribe. Additional features and functionality may be made available in the form of Add-ons.
2.3 Provision of the Services. Daily Pulse will use commercially reasonable efforts to make the Services available in accordance with the Service Level Terms. Daily Pulse may modify or update the Services from time to time in its sole discretion.
2.4 Access to the Services. Subject to Customer's payment of all Subscription Fees and compliance with this Agreement, Daily Pulse grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to use the Services in accordance with the applicable Subscription Plan and Documentation, and solely in connection with Customer's internal business operations.
2.5 Support. Subject to payment of all Subscription Fees and compliance with this Agreement, We will provide technical support to you via electronic mail 24 hours a day, 7 days a week.
3.1 Use Restrictions. Customer will not, and will not permit or authorize third parties to: (1) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Services; (2) modify, translate, or create derivative works based on the Services; (3) use the Services in a manner that violates or attempts to circumvent applicable law; (4) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (5) use the Services to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights.
3.2 Authorized Users; Accounts; Customer Responsibilities. Customer is responsible for all actions and inactions by its Users or by any Affiliate or third party that Customer or a User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for providing true and accurate information when registering a Daily Pulse account and keeping such information, including billing information, up to date. Customer is responsible for maintaining control over Customer's account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer's account and its Users' accounts. Customer will not, and will not permit Users to, share User account credentials, or use them in multiple locations at the same time. Customer acknowledges that it is solely responsible for maintaining its configurations of the Services, including its sharing and permission settings across all Organizations.
4.1 Customer Data. Customer hereby grants Daily Pulse a worldwide, non-exclusive, royalty-free license to host, transfer, use, display, and create derivative works of Customer Data solely in order to provide the Services to Customer.
4.2 Ownership by Daily Pulse. Daily Pulse and its licensors retain all right, title, interest and ownership of the Services, Documentation, and all deliverables created by Daily Pulse and delivered to Customer, including all Intellectual Property Rights therein.
5.1 Subscription Fees. The applicable Subscription Fees to your Subscription shall be as specified in the Order Form. Subscription Fees are due and payable upon the commencement of the applicable Subscription Term.
5.2 Invoicing and Payment. Unless specified otherwise in an Order Form, Subscription Fees shall be due and payable in full at the time of purchase.
5.3 Taxes. You are responsible for paying all other taxes assessed in connection with your Subscription.
5.4 Organization Management. The Services include functionality whereby account administrators may manage Organizations that are associated with email addresses provisioned by their organization, including to claim control and ownership of Organizations where the Organization is both (i) created by a User that is registered for Daily Pulse with an email address provisioned by you; and (ii) where a User that is registered for Daily Pulse with an email address provisioned by you is listed as an administrator. When your Account administrators claim such Organization, you acknowledge that you assume all rights and obligations associated with that Organization, including the obligation to pay Subscription Fees for any additional Users resulting from such claimed Organization. You acknowledge that this account administration functionality will allow you to view Organizations your employees may have created or joined for their own purposes and to take action, such as removal, of Your Users from such Organizations. You hereby agree that you are responsible for such actions.
6.1 Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; and (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party.
6.2 Daily Pulse Warranties. Daily Pulse warrants that during the applicable Subscription Term, the Services will function substantially in accordance with the Documentation.
6.3 Customer Warranties. Customer represents and warrants to Daily Pulse that: (1) Customer has the necessary and appropriate rights and consents to validly authorize and permit Daily Pulse to use and otherwise process the Customer Data in accordance with this Agreement; and (2) Customer will use the Services in compliance with the Documentation and applicable law.
Each party as Recipient will take reasonable precautions to protect Discloser's Confidential Information, and will not use or divulge to any third party any Confidential Information.
8.1 Security. Daily Pulse will maintain appropriate administrative, physical, and technical safeguards for protection, confidentiality and integrity of Customer Data in accordance with the Daily Pulse Security Standards.
8.2 Data Processing Agreement. This Agreement incorporates Daily Pulse's Data Processing Addendum ("DPA") when Data Protection Law applies to your use of the Services to process Customer Personal Data.
9.1 Indemnification by Daily Pulse. Daily Pulse shall defend or settle any claim brought against Customer by a third party alleging that the Services as provided under this Agreement infringe any third party Intellectual Property Right and indemnify Customer against damages and costs finally awarded against and payable by Customer in any such claim.
9.2 Indemnification by Customer. Customer will defend and indemnify Daily Pulse from and against any losses arising out of or relating to (1) Customer's use of the Service in a manner that infringes the Intellectual Property Rights of any third party; and (2) violation of law or privacy rights attributable to Customer Data.
10.1 Exclusion of Damages. NEITHER DAILY PULSE NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES WILL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.2 Damages Cap. DAILY PULSE'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO DAILY PULSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
11.1 Term of Agreement. This Agreement shall begin on the Effective Date and shall continue for so long as Customer maintains an active Subscription to the Services or the Agreement is otherwise terminated in accordance with the terms herein.
11.2 Termination. This Agreement and any Order Form may be terminated by either party upon notice if the other party (i) breaches any material term of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business.
11.3 Post-Termination Obligations; Customer Data Retrieval. Upon any termination of this Agreement, Daily Pulse will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. This includes data from all Organizations owned or belonged to by Customer's Users. After such period, Daily Pulse may delete all Customer Data and Daily Pulse will have no obligation to Customer to continue storing such Customer Data. If Customer terminates this Agreement for Daily Pulse's uncured material breach, Daily Pulse will issue to Customer a pro rata refund of Subscription Fees for Services not provided. If this Agreement is terminated for any other reason, within ten (10) days after such termination, Customer will pay Daily Pulse all remaining Subscription Fees owed through the end of the Subscription Term under any terminated Order Forms.
12.1 Beta Services. Daily Pulse may make Beta Services available to Customer. Customer may access and use Beta Services solely for evaluation purposes. Beta Services are provided "as is" without warranty of any kind.
12.2 Free Trials. If you register for a free trial, we will make the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period; (b) the start date of any Subscription; or (c) termination of the trial by us.
The Services are subject to U.S. export controls and sanctions laws and regulations. Both parties shall comply with all relevant import and export regulations.
14.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.
14.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, or sent by documented overnight delivery service to the party to whom the notice is directed.
14.3 Assignment. Customer may not assign this Agreement without Daily Pulse's prior written consent, and any attempt to do so is void.
14.4 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
14.5 Amendments. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Your continued use of the Services following the effective date of any such amendment may be relied upon by Daily Pulse as your consent to any such amendment.
14.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in Loudoun County, Virginia, USA.
14.7 Survival. Sections 1-5, 6.1, 6.3, 7-14, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement.
THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
Last updated: 2024-08-01
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