Terms of Service

PLEASE READ THESE TERMS OF SERVICE AND PRIVACY POLICY CAREFULLY BEFORE USING PULSARIO.


General

Prevail Holdings Inc., a Delaware corporation, and their affiliates, licensees, successors and assigns (collectively “Prevail”) operate certain software programs, websites, and applications known as Pulsario (collectively, “Pulsario”). You may only use Pulsario pursuant to the following Terms of Service and Privacy Policy, and by using Pulsario, you agree to the Terms of Service and Privacy Policy and consent to the transmission of certain information in connection with the use of Pulsario. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE AND PRIVACY POLICY, DO NOT USE PULSARIO. Use of Pulsario may also be subject to additional terms and conditions defined by certain content providers (“Licensors”), which you accept by your use of Pulsario. Prevail reserves the right to modify or revise these Terms of Service and Privacy Policy or its other policies at any time at its sole discretion. Any such modifications to the Terms of Service and Privacy Policy shall be effective within forty-eight (48) hours of being posted by Pulsario unless otherwise stated by Prevail in writing. You are bound by such modifications or revisions, and should therefore visit this page frequently to review the terms. Your continued use of Pulsario following Prevail’s posting of any changes or modifications to these Terms of Service and Privacy Policy will constitute your acceptance of such changes or modifications. In the event that you do not agree to any changes or modifications of these Terms of Service and Privacy Policy, do not use Pulsario. THESE TERMS OF SERVICE AND PRIVACY POLICY CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT AFFECT YOUR RIGHT TO RESOLVE A DISPUTE WITH PREVAIL, AND YOU SHOULD READ THEM CAREFULLY.

No Medical Advice

Pulsario and its content, such as text, graphics, images, information, and other material ("Content") are for informational purposes only. Pulsario and its Content are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read or heard in connection with Pulsario!

If you think you may have a medical emergency, call your doctor or 911 immediately. Prevail does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned in connection with the Pulsario program. Reliance on any information provided by Prevail, its employees, agents, or contractors is solely at your own risk.

Scope of License

For the Iphone you go to the App Store and search on Pulsario then install. For the Android, go to Google Play and search on Pulsario then install.

How do I enter my vitals?

Prevail grants you a non-exclusive, revocable, limited right and license to access and use Pulsario for personal, noncommercial purposes. The components of Pulsario are licensed as a single unit. You may not separate or virtualize the components and install them on different computers or devices. This license is for direct use of Pulsario only through the input mechanisms of the licensed computer or smartphone, such as a keyboard, mouse, or touchscreen. This license does not give you any right to, and you may not, install Pulsario on a server or for use by or through other computers or devices connected to a server over an internal or external network. Prevail reserves all rights (such as rights under intellectual property laws) not expressly granted in these Terms of Service and Privacy Policy. In particular, this license does not give you any right to, and you may not: use or virtualize features of Pulsario separately; publish, copy, rent, lease, or lend Pulsario; transfer Pulsario; attempt to circumvent technical protection measures in Pulsario; reverse engineer, decompile, or disassemble Pulsario; or use any data mining, robots, or similar data gathering and extraction tools. Pulsario, including its operation, interface and contents, are covered by United States patent, copyright, and trademark laws and international laws and treaties, and may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any unauthorized purpose without the express prior written consent of Prevail. Any unauthorized use or the violation of these Terms of Service and Privacy Policy shall immediately terminate the licenses and rights granted by Prevail and any Licensors hereunder, and may subject you to civil or criminal prosecution. Prevail does not guarantee continuous, uninterrupted or secure access to its services or Pulsario, and the operation of Pulsario may be interfered with by numerous factors outside or within Prevail’s control.

Other Businesses and Links to Other Applications

Prevail may provide links to the websites or applications of third-parties, affiliated companies, co-brand partners, and other parties. These links are provided solely as a convenience to you, and do not constitute an endorsement by Prevail of the content of such third-party sites or of the business practices of such other businesses, entities or individuals. Prevail is not responsible for examining or evaluating, and does not warrant or claim responsibility in any way, the products, services, offerings or business practices of any of these businesses, entities or individuals or the content of their websites or applications. You should carefully review their privacy statements and other conditions of use. Prevail has no control over the business practices of any third party, nor does it control in any way the quality, safety or legality of any content listed on third-party websites or applications or any business transaction that occurs as a result of content provided by Pulsario.

Disclaimer of Warranties and Limitations of Liability

The use of Pulsario is at your own risk. When using Pulsario, information will be transmitted over a medium that may be beyond the control and jurisdiction of Prevail, its Licensors, and its vendors. Accordingly, Prevail assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of Pulsario.

PULSARIO IS PROVIDED BY PREVAIL ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PREVAIL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF PULSARIO OR THE INFORMATION, CONTENT, GRAPHICS, LINKS, MATERIALS, PRODUCTS, OR SERVICES INCLUDED ON PULSARIO, OR THEIR ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS. IN ADDITION, THIRD PARTIES PROVIDE SOME OF THE MATERIAL USED BY PULSARIO; AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PREVAIL SHALL NOT BE RESPONSIBLE FOR ANY SUCH THIRD PARTY MATERIAL. YOU EXPRESSLY AGREE THAT YOUR USE OF PULSARIO OR ANY TRANSACTION RESULTING THEREFROM IS SOLELY AT YOUR OWN RISK. PREVAIL DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO PULSARIO OR ANY SERVICES. OPERATION OF PULSARIO MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OR WITHIN PREVAIL’S CONTROL.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PREVAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, PROPRIETARY OR THIRD PARTY RIGHTS REGARDING PULSARIO. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PREVAIL MAKES NO WARRANTIES OR REPRESENTATIONS THAT PULSARIO, ITS SERVERS, OR EMAIL SENT FROM PREVAIL ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PREVAIL WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF PULSARIO, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RELATED TO LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL, OR LOSS OF REPUTATION.

CERTAIN STATE LAWS IN THE UNITED STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENTS OF PULSARIO, OR DO NOT AGREE WITH THESE TERMS OF SERVICE AND PRIVACY POLICY OR ANY OTHER POLICIES OF PREVAIL OR RELATED TO PULSARIO, YOUR SOLE REMEDY IS TO DISCONTINUE YOUR USE OF PULSARIO.

Indemnity

To the maximum extent permitted by applicable law, you agree to defend, indemnify and hold Prevail, its subsidiaries, affiliates, co-brand partners, and other parties with which Prevail is under contract, and their respective stockholders, officers, directors, employees and agents harmless from and against any claims, actions, demands, damages, awards, liabilities, or settlements, including, without limitation, legal fees, resulting from or alleged to have resulted from your use or misuse of Pulsario or breach of these Terms of Service and Privacy Policy, or resulting from any and all data you submit to Prevail or Pulsario.

Binding Arbitration and Class Action Waiver

Application. Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, all disputes arising out of or related to these Terms of Service and Privacy Policy, including the scope, the construction or application of these Terms of Service and Privacy Policy, shall be resolved by arbitration in accordance with this section. Dispute means any dispute, action, or other controversy between you and Prevail concerning Pulsario or these Terms of Service and Privacy Policy, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law.

Notice of Dispute. In the event of a dispute, you or Prevail must give the other a Notice of Dispute, which is a written statement of the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Prevail Holdings Inc., Attn: General Counsel, 325 N. St. Paul Street, Suite 4400, Dallas, TX 75201. Prevail will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and Prevail will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or Prevail may commence arbitration.

BINDING ARBITRATION. IF YOU AND PREVAIL DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION, ANY OTHER EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator's award.

CLASS ACTION WAIVER. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR PREVAIL WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.

Arbitration Procedure. The arbitration shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association then in force. The arbitration hearings and all meetings pursuant to this section shall be held in Dallas, Texas, USA, and shall be conducted in English. If the parties cannot agree upon a single arbitrator within fifteen days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in the United States, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of Internet commerce) qualified by the American Arbitration Association. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in Texas with knowledge of Internet commerce in the United States shall be selected by the American Arbitration Association to resolve the dispute. The arbitrators shall conduct a hearing within thirty days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within five days after the completion of the hearing. The decision of the arbitrators shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorneys’ fees or arbitrators’ fees under this section.

Claims or Disputes Must be Filed Within One Year. To the extent permitted by law, any claim or dispute under these Terms of Service and Privacy Policy must be filed within one year. The one-year period begins when the claim or dispute first could be filed. If such a claim or dispute is not filed within one year, it is permanently barred.

Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then arbitration will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.

Choice of Law

These Terms of Service and Privacy Policy will be governed by and construed in accordance with the laws of the State of Texas, without regard to principles of conflicts or choice of law. In addition, the application of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, is expressly excluded.

IP Ownership and Copyright Infringement

Unless otherwise indicated, these Terms of Service and Privacy Policy, all Content, the Pulsario website and application, and all products and services related thereto, and all associated copyrights, trademarks, trade dress and all other intellectual property rights related thereto are owned, controlled, or licensed by Prevail or its Licensors or vendors. All worldwide rights, titles, or interests related to Pulsario or the Content are expressly reserved. The names of actual companies and products associated with Pulsario may also include trademarks or other intellectual property rights of their respective owners.

Prevail disclaims any responsibility for the content of any third party materials provided through Pulsario or other services (”Third Party Content”). Prevail will respond to notices of alleged infringement regarding Third Party Content sent pursuant to, and in accordance with, the Digital Millennium Copyright Act (“DMCA”), which may include Prevail removing or disabling access to Third Party Content claimed to be the subject of infringement or other activity. All notices sent to Prevail regarding matters other than informing Prevail that a party’s copyrighted material may have been infringed (and relating only to Third Party Content) will not receive a response through this process. Written notification must be submitted to the following Designated Agent:

By Mail:

Prevail Holdings Inc.
Attn: General Counsel
325 N. St. Paul Street, Suite 4400
Dallas, TX 75201

Passwords

If any provision of these Terms of Service and Privacy Policy are held to be invalid, void or unenforceable for any reason, such provision shall be struck and the remaining provisions shall remain enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that these Terms of Service and Privacy Policy and all agreements and notices incorporated herein may be automatically assigned by Prevail, in our sole discretion, to a third party. You may not assign your obligations to any other person or entity.

Address for Notice

Notices to Prevail can be sent to the following address:

Prevail Holdings Inc.
Attn: General Counsel
325 N. St. Paul Street, Suite 4400
Dallas, TX 75201

Prevail Privacy Policy

The following policy describes how Prevail handles your personal information collected during your participation in the Pulsario program. In addition, it describes our privacy practices and policies specific to Prevail’s services and tools that help you better manage your health.

Prevail is committed to providing a secure and private environment where patients can record, monitor, and share information with healthcare providers and become more involved in the management of their health. To this end, we will never provide your personal information to any third party without your consent except (1) to comply with legal requirements such as a law, regulation, search warrant, subpoena or court order; or (2) in special cases, such as in response to a physical threat to you or others, to protect property or defend or assert legal rights.

By participating in the Pulsario program, you agree that Prevail may use aggregate data to publish trend statistics, studies, reports, and to market and improve and develop its products and services. For example, Prevail might publish trend data to demonstrate improved health of Pulsario users. None of this data can be used to personally identify you. All individuals enrolled in the Pulsario program will be subject to aggregate data regarding their participation being published.

No publication or public presentation regarding the Pulsario program will reveal your identity without authorization from you. Once all information that does or can identify you is removed from your personal information, the remaining information will no longer be subject to this policy and may be used or disclosed for other purposes.

A select few Prevail contractors or vendors have access to your personally information in the course of providing products or services to Prevail. These contractors and vendors included companies that provide us with technology, services, data analysis, research, advertising and marketing assistance or content for the operation and maintenance of our websites, software, or applications. We contractually require that our operations and maintenance contractors: 1) protect the privacy of your personal and non-personal information consistent with this Privacy Policy and 2) not use or disclose your personal or non-personal information for any purpose other than providing the limited service or function for Prevail.

Certain features of Pulsario can be used in conjunction with other Prevail products and services, and those features may share information to provide a better user experience and to improve the quality of our platform and services.

By registering and creating a user account on HFDefender.com, or mobile applications developed by Prevail, you agree to provide an accurate and current email address. By affirmatively registering you “agree” or “opt-in” to receive the Prevail Monthly Newsletter and periodic notices to developments and updates to our technology, policies, etc. Should you wish not to receive email from us simply follow the instructions for “Instant removal with SafeUnsubscribe” and click on the SafeUnsubscribe link at the bottom of the email. We do not sell or provide email information to any third parties and only use it to communicate with our members.

Prevail maintains a database in connection with the Pulsario program. This database is protected by a system of firewalls and is physically separate from all web servers. Both web and data servers are actively monitored for intrusion detection and prevention and comply with all applicable laws and industry standards.

By participating in the Pulsario program, your give Prevail permission to provide your personal information to your doctor and other healthcare professionals. These third parties are covered by federal and state health privacy laws (such as HIPAA), and those laws will govern how they may use and share your information.

If you are enrolled in the Pulsario program by a physician, clinic, health plan, or hospital, please also refer to the privacy policy provided by the physician, clinic, health plan, or hospital during your enrollment. When Pulsario users share their personally information, Prevail is not responsible for informational security after the data has been moved from the Prevail secure environment. Prevail is also not responsible for the security or privacy of data you send to Prevail via email from smart phones. When sharing information please consider how your information is going to be handled by the person you are sending it to.

Pulsario is not a substitute for direct, personal, professional medical care and diagnosis. Pulsario does not provide any specific physical medical or health advice, or any other advice whatsoever, for any individual and should not be relied upon for any purpose. The Pulsario program is in no way meant to be a substitute for medical treatment and may not be construed as medical advice, diagnosis or treatment. No action or inaction should be taken based solely on the information provided by Pulsario. Instead, patients should consult with appropriate health professionals on any matter relating to their health and well-being. No doctor-patient relationship is created by the use of Pulsario. You should never delay seeking medical advice, disregard medical advice, or discontinue medical treatment because of information provided through Pulsario. In the event you should have acute symptoms, discontinue use of Pulsario and dial your local emergency number.

In the event of a corporate change in control resulting from, for example, a sale to, or merger with, another entity, or in the event of a sale of assets or a bankruptcy, Prevail reserves the right to transfer your personal information to the new party in control or the party acquiring assets. In the event of such a change, your personal information will continue to be treated in accordance with this Privacy Policy unless any changes to the Privacy Policy are made in accordance with the section below that discusses such changes.

Prevail maintains policies and procedures are maintained to allow for quick and results oriented incident response. The office of the Privacy Officer is responsible for a timely investigation into any perceived violations for the Prevail Privacy Policy. The Privacy Officer, along with management, will evaluate the effects of any incidents. Documentation of any incidents will be provided along with the outcomes for the possible modification of the policies along with the ending result of the incident to prevent any further incidents. The Office of the Privacy Officer can be reached by email at support@mypulsario.com, by calling 1-888-455-6787 and requesting the Privacy Officer, or by U.S. mail to the following address:

Privacy Officer
Prevail Holdings Inc.
325 N. St. Paul Street, Suite 4400
Dallas, TX 75201

By selecting “I Agree,” you certify that you have accepted these Terms of Service and Privacy Policy, and have been able to ask any questions you may have. You also certify that the Pulsario Program has been explained to you to your satisfaction and your questions have been answered. You voluntarily agree to be bound by these Terms of Service and Privacy Policy and authorize the use and sharing of your personal information as described above.

Last Updated: August 2nd, 2013

© 2013 Prevail Holdings Inc. All rights reserved.