If you have difficulty reading these Terms of Use on your mobile phone, please view them at http://www.bluepulse.com/terms.php, where they may be read, saved and printed using your computer prior to your acceptance or rejection of them on your mobile phone. By pressing the button on your mobile phone that activates the "I accept these Terms" button accessible by scrolling to the bottom of these Terms of Use, you indicate that you have read, understand and agree to be bound by these Terms of Use, and agree that you will make no claim that you had inadequate opportunity to read and understand these Terms of Use.
BLUEPULSE TERMS OF USE
Last revised October 22, 2007
Introduction; Your Agreement to these Terms of Use.
Welcome to the Bluepulse, Inc. ('Bluepulse') mobile phone-based social network and the Bluepulse web site – http://www.Bluepulse.com – (collectively, the 'Service'). These Terms of Use are a legal contract between you ('User'), and Bluepulse regarding your use of the Service as well as the Bluepulse software application you may download to your mobile phone in order to use the Service ('Software') and certain third-party software applications for your mobile phone that Bluepulse may make available through the Software and Service ('Widgets').
BEFORE USING THE SERVICE OR DOWNLOADING THE SOFTWARE OR ANY WIDGETS PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY. BY DOWNLOADING THE SOFTWARE OR ANY WIDGETS, OR BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE BLUEPULSE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE 'TERMS'). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICE, SOFTWARE AND WIDGETS.
NOTE TO CHILDREN UNDER 13 YEARS OF AGE: THE SERVICE AND SOFTWARE ARE NOT FOR PERSONS UNDER THE AGE OF 13. If you are under 13 years of age, then please do not use the Service or Software.
Eligibility; Mobile Phone and Internet Access Charges. You represent that you are individual 13 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Service and Software are not intended for children under 13. Your access to and use of the Software, Services and Widgets may cause you to incur airtime, data transmission, Internet access or other charges, and you acknowledge and agree that you are responsible for any and all such charges imposed upon you by your mobile phone or Internet service provider.
Privacy Policy. Your privacy is important to Bluepulse. Bluepulse's Privacy Policy is hereby incorporated into these Terms by reference. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information. [Click here for the Privacy Policy.]
Individual Features and Services. When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the 'Guidelines'). All such Guidelines are hereby incorporated by reference into the Terms.
Modification of the Terms. Bluepulse reserve the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time. Your continued use of the Service or Software after Bluepulse notifies you of changes or after such changes have been posted constitutes your binding acceptance of such changes.
Grant of Permission. Bluepulse grants you permission to use the Service, Software and Widgets as set forth in these Terms, provided that (i) you use the Service, Software and Widgets solely for your personal, private, noncommercial use; (ii) you do not copy, publicly display or distribute any part of the Service, Software or Widgets in any medium without Bluepulse's prior written authorization; (iii) you do not alter or modify any part of the Service, Software or Widgets; (iv) you do not alter or modify any part of the Service other than as may be specifically enabled by Bluepulse to allow you to use the Service for its intended purposes; (v) you do not engage in any of the prohibited uses described below; and (v) you will otherwise fully comply with these Terms. The Service is controlled and offered by Bluepulse from its facilities in the United States of America. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local law.
Ownership; Proprietary Rights. The Software, Service and Widgets are owned by Bluepulse and its third party licensors, as applicable. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service, Software and Widgets('Bluepulse Materials') are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Bluepulse Materials do not include User Submissions (defined below). All Bluepulse Materials are the copyrighted property of Bluepulse or its subsidiaries or affiliated companies and/or third-party licensors, as applicable. All trademarks, service marks, and trade names contained in the Bluepulse Materials are proprietary to Bluepulse or its affiliates and/or third-party licensors. Except as expressly authorized by Bluepulse, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Bluepulse Materials. Bluepulse reserves all rights not expressly granted in these Terms. User shall not acquire any right, title or interest to the Bluepulse Materials, except for the limited rights set forth in this Agreement.
User Submissions.
General. The Service and Software permit the submission and posting or linking of media, audio and video recordings, commentary or any other content or information submitted by you and other users ('User Submissions'), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are displayed for entertainment and informational purposes only and are not controlled by Bluepulse. Bluepulse makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, Bluepulse does not guarantee any confidentiality with respect to any User Submissions.
Grant of Rights. You shall retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Bluepulse, you hereby grant Bluepulse and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the Software, Service and Bluepulse's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Software or Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant Bluepulse and its affiliates and sublicensees the right to use the name that you submit in connection with such User Submission if they choose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. You also hereby grant to each user of the Service that is authorized to access your User Submissions a non-exclusive license to access your User Submissions through the Software or Service, and to otherwise use and exploit such User Submissions as may be permitted by the functionality of the Software and Service and these Terms.
User Submissions Representations and Warranties. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Bluepulse to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions within the Service in the manner contemplated by Bluepulse and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, Bluepulse's use of such User Submissions pursuant to these Terms of Use, and Bluepulse's exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other rights of any other person or entity; or (c) violate any applicable law or regulation. User Submissions Prohibited Uses. In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Bluepulse or any third party; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or (vi) post User Submissions that would be harmful to minors in any manner.
Content Disclaimer. You understand that when using the Service, you will be exposed to User Submissions and other content (such User Submissions and other content, collectively, 'Content') from a variety of sources, and that Bluepulse is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Bluepulse with respect thereto. Bluepulse does not endorse any Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Bluepulse be liable in any way for or in connection with any Content, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Service.
Monitoring Users and Content. You understand that all Content is the sole responsibility of the person from whom such Content originated. This means that you, and not Bluepulse, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through via the Service. Bluepulse does not control the Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Content for any purpose. If at any time, Bluepulse chooses, in its sole discretion, to monitor the Content, Bluepulse nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. You acknowledge that Bluepulse may or may not pre-screen User Submissions, but that Bluepulse and its designees shall in any event have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Service. Without limiting the foregoing, Bluepulse and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Bluepulse violates these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission or other Content.
Removal of Content. Bluepulse and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available on Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind. Without limiting the generality of the foregoing, Bluepulse reserves the right to remove any Content in connection with receipt of a notice in accordance with its DMCA policy, available at http://www.bluepulse.com/dmca.php ('DMCA Policy').
Prohibited Uses.
As a condition of your use of the Software, Service and Widgets, you will not use the Software or Service for any purpose that is unlawful or prohibited by these Terms. Access to the Bluepulse Materials and the Service from territories where their access or use thereof is illegal is strictly prohibited. Bluepulse Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.
Any use by you of any of the Bluepulse Materials, Software, Widgets or Service other than for private, non-commercial use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Software, Widgets or Service, use of the Software, Widgets or Service, access to the Software, Widgets or Service, or Content obtained through the Service, for any purpose other than for your personal, private, non-commercial purposes.
You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Service, or collect, or attempt to collect, personal information about Users or third parties without their consent.
You agree not to intentionally interfere with or damage, impair or disable the operation of the Service or any User's enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.
You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Software, Widgets or Service, features that prevent or restrict the use or copying of any Content , or features that enforce limitations on the use of the Software, Widgets or Service.
You agree not to attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Software, Widgets or Service. You agree neither to modify the Software, Widgets or Service in any manner or form, nor to use modified versions of the Software, Widgets or Service, including (without limitation) for the purpose of obtaining unauthorized access to the Software, Widgets or Service.
You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
You agree not to utilize framing techniques to enclose any trademark, logo, or other Bluepulse Materials without our express written consent. You agree not to use any meta tags or any other 'hidden text' utilizing Bluepulse's name or trademarks without our express written consent.
You agree not to deep-link to the Service and will promptly remove any links that Bluepulse finds objectionable in its sole discretion. You agree not to use any Bluepulse logos, graphics, or trademarks as part of the link without our express written consent.
You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, Widgets or Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
You agree not to modify, adapt, translate or create derivative works based upon the Software, Widgets or Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Account Information. In order to access some features of the Software or Service, you will have to create an account. You agree that the information you provide to Bluepulse upon registration and, at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Bluepulse may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties, including but not limited to a notice received in accordance with the DMCA Policy; (d) to respond to your requests for customer service; or (e) protect the rights, property or personal safety of Bluepulse, its users and the public. You understand that if your mobile phone number changes, you will need to create a new account, and that accounts are not transferable between mobile phone numbers.
Password. When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Bluepulse. You may be liable for the losses incurred by Bluepulse or others due to any unauthorized use of your account.
Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. YOU AGREE THAT BLUEPULSE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE BLUEPULSE SERVICE.
Links and Third Party Content. Bluepulse or third parties may provide links on the Service or within the Software to other sites or content ('Reference Sites'). Bluepulse has no control over such Reference Sites, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Reference Sites linked to by the Service or Software. Bluepulse provides links to you only as a convenience, and the inclusion of any link on the Software or Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. These Terms, the Privacy Policy and any other Bluepulse policies and terms and conditions do not apply to Reference Sites. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
Availability of Service. Bluepulse may make changes to or discontinue any of the Widgets, media, web communities, products, or services available within the Software or Service at any time, and without notice. The Widgets, media, products, or services on the Software or Service may be out of date, and Bluepulse makes no commitment to update these materials on the Software or Service.
User Disagreements. You are solely responsible for your involvement with other Users.
Terms of Use Violations; Termination.
Bluepulse. You agree that Bluepulse, in its sole discretion and for any or no reason, may terminate any User or customer account (or any part thereof) you may have at the Service or your use of the Service, and remove and discard all or any part of your account or any User Submission, at any time, with orwithout notice. Bluepulse may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Bluepulse shall not be liable to you or any third-party for any such termination. Bluepulse does not permit infringing activities on the Service, and reserves the right to terminate access to the Service, and remove all content submitted, by any persons who Bluepulse finds to be infringers. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Bluepulse may have at law or in equity.
User. If you are dissatisfied with the Service, please let us know by sending us an email at service@bluepulse.com. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (i) the Service, (ii) any term of this Terms of Use, (iii) any policy or practice of Bluepulse in operating the Service, or (iv) any content or information transmitted through the Service, is to terminate this Terms of Use and your account. You may terminate this Terms of Use at any time by closing your account, discontinuing your use of any and all parts of the Service, and providing Bluepulse notice of termination at service@bluepulse.com.
Indemnification; Hold Harmless. You agree to indemnify and hold harmless Bluepulse, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney's fees) arising out of (i) your use or misuse of the Software, Service or Widgets; (ii) your User Submissions, including Bluepulse's use, display or other exercise of its license rights granted herein with respect to your User Submissions; (iii) your violation of any of these Terms, including but not limited to all representations, warranties and covenants contained herein; and (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights. Bluepulse reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Bluepulse. Bluepulse will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Disclaimers; No Warranties.
No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BLUEPULSE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BLUEPULSE OR THROUGH THE SERVICE, SOFTWARE OR WIDGETS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION REF _Ref164594642 \\r \\h 20, THE TERM 'BLUEPULSE' INCLUDES BLUEPULSE'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.
'As is' and 'As available' and 'With All Faults.' YOU EXPRESSLY AGREE THAT THE USE OF THE SOFTWARE, SERVICE AND WIDGETS IS AT YOUR SOLE RISK. THE SOFTWARE, SERVICE, WIDGETS, USER SUBMISSIONS AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE, SERVICE OR WIDGETS ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE', 'WITH ALL FAULTS' BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BLUEPULSE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT THE SOFTWARE, SERVICE OR WIDGETS SHALL BE COMPATIBLE WITH YOUR MOBILE PHONE OR COMPUTER SYSTEM.
Platform Operation and Content. BLUEPULSE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE BLUEPULSE MATERIALS, USER SUBMISSIONS, SERVICE, SOFTWARE, WIDGETS OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICE, SOFTWARE, WIDGETS OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
Accuracy. BLUEPULSE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, SERVICE, WIDGETS OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Harm to Your Computer or Mobile Phone. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE SOFTWARE, SERVICE, WIDGETS OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE PHONE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE, WIDGETS, SERVICE OR SUCH INFORMATION, MATERIALS OR DATA.
Limitation of Liability and Damages.
Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL BLUEPULSE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE BLUEPULSE MATERIALS AND USER SUBMISSIONS THROUGH THE SOFTWARE, WIDGETS OR SERVICE, THE SOFTWARE, SERVICE OR WIDGETS THEMSELVES, OR ANY OTHER INTERACTIONS WITH BLUEPULSE, EVEN IF BLUEPULSE OR A BLUEPULSE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, BLUEPULSE'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Limitation of Damages. IN NO EVENT SHALL BLUEPULSE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE BLUEPULSE MATERIALS AND USER SUBMISSIONS THROUGH THE SOFTWARE, SERVICE OR WIDGETS, THE SOFTWARE, SERVICE OR WIDGETS THEMSELVES, OR ANY OTHER INTERACTIONS WITH BLUEPULSE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED ONE HUNDRED U.S. DOLLARS.
Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN BLUEPULSE AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE BLUEPULSE SERVICE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.
Limitations by Applicable Law; Basis of the Bargain.
Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT BLUEPULSE HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BLUEPULSE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BLUEPULSE. YOU ACKNOWLEDGE AND AGREE THAT BLUEPULSE WOULD NOT BE ABLE TO PROVIDE THE BLUEPULSE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Digital Millennium Copyright Act Compliance. It is Bluepulse's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please review Bluepulse's DMCA Policy, available at http://www.bluepulse.com/dmca.html. Bluepulse will promptly terminate without notice any User's access to the Service if that User is determined by Bluepulse, in its sole discretion, to be a 'repeat infringer.' The foregoing does not limit the generality of Section 18.1.
United States Export Controls. You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
Miscellaneous.
Notice. Bluepulse may provide you with notices, including those regarding changes to Bluepulse's terms and conditions, by email, regular mail or postings on the Service. Notice will be deemed given twenty-four hours after email is sent, unless Bluepulse is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing.
Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Bluepulse to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Assignment. The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Bluepulse without restriction. Any assignment attempted to be made in violation of this Terms or Use shall be void.
Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Bluepulse as a result of these Terms or use of the Service. You further acknowledge that by submitting User Submissions or other Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Bluepulse other than pursuant to these Terms.
Survival. The Sections entitled 'Ownership; Proprietary Rights', 'User Submissions', 'Disclaimers; No Warranties', 'Indemnification; Hold Harmless', 'Limitation of Liability and Damages', and 'Miscellaneous' will survive any termination of these Terms.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
Entire Agreement. This is the entire agreement between you and Bluepulse relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in a writing, signed by both parties, or by a change to these Terms or any Guidelines made by Bluepulse as set forth in Section REF _Ref163895587 \r \h 4 above.
Claims. YOU AND BLUEPULSE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE BLUEPULSE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The services hereunder are offered by Bluepulse Inc., located at 71E Third Avenue, San Mateo, CA 94401, and email: service@Bluepulse.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.