End User License Agreement
IMPORTANT: BY USING YOUR COUNTERPACE MOBILE APPLICATION OR COUNTERPACE SENSOR, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS:
A. COUNTERPACE SOFTWARE LICENSE AGREEMENT
B. COUNTERPACE TERMS OF SERVICE
C. NOTICES FROM COUNTERPACE
COUNTERPACE SOFTWARE LICENSE AGREEMENT
Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE
CLICKING THE “I AGREE” BUTTON, USING YOUR COUNTERPACE MOBILE APPLICATION OR COUNTERPACE SENSOR, OR DOWNLOADING THE SOFTWARE UPDATE ACCOMPANYING THIS LICENSE.
BY CLICKING THE “I AGREE” BUTTON, USING THE COUNTERPACE MOBILE APPLICATION OR COUNTERPACE SENSOR, OR DOWNLOADING THE SOFTWARE UPDATE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK ON THE “I AGREE” BUTTON AND DO NOT USE THE COUNTERPACE MOBILE APPLICATION OR COUNTERPACE SENSOR OR DOWNLOAD THE SOFTWARE UPDATE.
IF YOU HAVE RECENTLY PURCHASED A COUNTERPACE SENSOR AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE COUNTERPACE SENSOR WITHIN THE RETURN PERIOD TO THE COUNTERPACE STORE OR AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO THE COUNTERPACE RETURN POLICY FOUND AT:
- Our software is licensed to you, not sold. The software (including embedded software and third party software), documentation (including “online” or electronic documentation), interfaces, content, fonts and any data that came with your Counterpace sensor (“Original Sensor Software”), together with the software, documentation, interfaces, content, fonts and any data that are included in the Counterpace mobile application which connects to the Counterpace sensor and lets you control and update the Original Sensor Software (“Original App Software”) as may be updated or replaced by feature enhancements, software updates or system restore software provided by Pulson (“Counterpace Software Updates”), whether in read only memory, on any other media, or in any other form (the Original Sensor Software, Original App Software and Software Updates are collectively referred to as the “Counterpace Software”) are licensed, not sold, to you by Pulson, Inc. (“Pulson”) for use only under the terms of this License. Pulson and its licensors retain ownership of the Counterpace Software itself and reserve all rights not expressly granted to you.
- Software updates are also covered by this License. Pulson, at its discretion, may make available future Counterpace Software Updates. The Counterpace Software Updates, if any, may not necessarily include all existing software features or new features that Pulson releases for newer or other models of Counterpace sensor. The terms of this License will govern any Counterpace Software Updates provided by Pulson that replace and/or supplement the Original Sensor Software or the Original App Software, unless such Counterpace Software Update is accompanied by a separate license in which case the terms of that license will govern.
- Permitted License Uses and Restrictions.
- You have a limited license to the Counterpace Software. Subject to the terms and conditions of this License, you are granted a limited non-exclusive revocable license to install, use, access, and run one copy of the Counterpace Software on a single mobile device in conjunction with a single Counterpace sensor. Except as provided in a separate agreement between you and Pulson, you may not distribute or make the Counterpace Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use Pulson proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third party software applications, for use with Counterpace sensor. Some of those rights may be available under separate licenses from Pulson. Any rights not expressly granted herein are reserved.
- You have a limited license to the Counterpace Software Updates. Subject to the terms and conditions of this License, you are granted a limited non-exclusive revocable license to download Counterpace Software Updates that may be made available by Pulson including those for your model of the Counterpace sensor to update or restore the software on any such Counterpace sensor that you own or control. This License does not allow you to update or restore any Counterpace sensor that you do not control or own, and you may not distribute or make the Counterpace Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time.
- Updates may be mandatory. You agree that Pulson may automatically install the Counterpace Software Updates or may prevent you from using the Counterpace Software until a Counterpace Software Update has been installed.
- You cannot take the underlying intellectual property of the Counterpace Software. You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Counterpace Software or any services provided by the Counterpace Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Counterpace Software).
- You will follow the law. You agree to use the Counterpace Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Counterpace Software and Services.
- Features will vary by location and connectivity; you are responsible for data charges. Features of the Counterpace Software and the Services may not be available in all languages or regions, some features may vary by region, and some may be restricted or unavailable from your service provider. A Bluetooth connection from the Counterpace sensor to a supported iOS device (“Paired iOS Device”) with Wi-Fi or cellular data connection is required for some features of the Counterpace Software and Services. In addition, you acknowledge that many features of the Counterpace Software transmit data and could impact charges to your data plan, and that you are responsible for any such charges.
- Creating an account is required. Use of the Counterpace Software and the Services requires a unique user name and password combination, which is also required to access Counterpace Software Updates.
- Avoid being distracted; stay safe. Using the Counterpace sensor, the Counterpace Software, and the Services in some circumstances can distract you and may cause a dangerous situation. By using them, you agree that you are responsible for your safety and for observing rules that prohibit or restrict the use of mobile phones or headphones in certain circumstances.
- Maintain proper ergonomics while using Counterpace. The Counterpace Software is designed to help you match your pace to your heart rate; this may involve a stride which is longer or shorter than your typical stride. It is your responsibility to maintain proper ergonomic form for your safety. Each human body is different, and it is up to you to evaluate whether a pace is safe for you, or if you should stop using Counterpace.
- Counterpace is not a medical device. The Counterpace sensor, the Counterpace Software, and the Services are not medical devices and are intended for fitness purposes only. They are not designed or intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease.
- Consult a doctor before making changes or if you have any difficulties. Before starting or modifying any exercise program using our products, consult your physician. Be careful and attentive while exercising. Stop exercising immediately if you feel pain, or feel faint, dizzy, exhausted, or short of breath. By exercising, you assume inherent risks including any injury that may result from such activity. If you have any medical condition that you believe could be affected by use of the Counterpace sensor, the Counterpace Software, or the Services (for example, seizures, blackouts, or headaches), consult with your physician prior to using them.
- Transfer. You can transfer your license under certain conditions. You may not rent, lease, lend, sell, redistribute, or sublicense the Counterpace Software. You may, however, make a one-time permanent transfer of all of your license rights to the Counterpace Software to another party in connection with the transfer of ownership of your Counterpace sensor, provided that: (a) the transfer must include your Counterpace sensor and all of the Counterpace Software, including all its component parts, and this License; (b) you do not retain any copies of the Counterpace Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Counterpace Software reads and agrees to accept the terms and conditions of this License. You are not required to transfer this License to the Counterpace Software if you transfer ownership of your Counterpace sensor; you may continue to use the Counterpace Software to access your data so long as you comply with the License.
- Services and Third Party Materials.
- Services may be limited and have their own terms. The Counterpace Software may utilize or enable access to Pulson and third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require a Pulson account, and may require you to accept additional terms. By using a Service in connection with a Pulson account, you agree to the applicable terms of service for that Service.
- Pulson not responsible for third party content. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Pulson is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Pulson, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.
- Content may be offensive. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Pulson, its affiliates, agents, principals, or licensors shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
- Data not guaranteed. Neither Pulson nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of any data displayed by any Services.
- Your use of the Services must follow the law and the terms of service. To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services, including Pulson’s Terms of Service. You agree that the Services contain proprietary content, information and material that is owned by Pulson, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Pulson. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Pulson is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.
- Services not guaranteed. In addition, Services and Third Party Materials are not available in all languages or in all countries or regions. Pulson makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. Pulson and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Pulson be liable for the removal of or disabling of access to any such Services. Pulson may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
- Termination. Your license will be revoked if you don’t follow the rules. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Pulson if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Counterpace Software. Sections 4, 5, 6, 7, 8, 11 and 12 of this License shall survive any such termination.
- Disclaimer of Warranties.
- If you are a customer who is a consumer (someone who uses the Counterpace Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE COUNTERPACE SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE COUNTERPACE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COUNTERPACE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PULSON AND PULSON’S LICENSORS (COLLECTIVELY REFERRED TO AS “PULSON” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE COUNTERPACE SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- YOU EXPRESSLY AGREE THAT PULSON IS NOT PROVIDING MEDICAL ADVICE VIA THE COUNTERPACE SOFTWARE AND SERVICES. THE CONTENT PROVIDED THROUGH THE COUNTERPACE SOFTWARE AND SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY PULSON OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, or (b) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED BY THE COUNTERPACE SOFTWARE OR THE SERVICES, AND YOU SHOULD NOT USE THE COUNTERPACE SOFTWARE, THE SERVICES, OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND PULSON.
- YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, CYCLING, RUNNING, WALKING, OR THE USE OF EXERCISE EQUIPMENT) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF PULSON OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS.
- PULSON DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE COUNTERPACE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE COUNTERPACE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE COUNTERPACE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE COUNTERPACE SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE COUNTERPACE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS COUNTERPACE SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, AS WELL AS PULSON PRODUCTS AND SERVICES.
- NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PULSON OR A PULSON AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE COUNTERPACE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PULSON, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE COUNTERPACE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE COUNTERPACE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PULSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Pulson’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of five hundred dollars (U.S.$500.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Export Control. You can only export in accord with the law. You may not use or otherwise export or re-export the Counterpace Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Counterpace Software was obtained. In particular, but without limitation, the Counterpace Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Counterpace Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Counterpace Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
- Government End Users. Government users have special terms. The Counterpace Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
- Controlling Law and Severability. California law governs this license. This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
- Complete Agreement; Waivers; Governing Language. Miscellaneous terms. This License constitutes the entire agreement between you and Pulson relating to the Counterpace Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Pulson. All waivers by Pulson will be effective only if in writing. Any waiver or failure by Pulson to enforce any provision of this License on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Section titles, headings, and emboldened “plain English” descriptions in the License are for convenience only and have no legal or contractual effect. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
- Third Party Acknowledgements. Third party material may have different terms. Portions of the Counterpace Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Counterpace Software, and your use of such material is governed by their respective terms.
NOTICES FROM PULSON
If Pulson needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.