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Terms of Engagement

General Terms of Engagement between Pulseem Ltd. (“Pulseem”) and the Customer

  1. During the Term (as defined below) and subject to the full payment of the Fees (as defined in the electronic order), Pulseem will provide the customer indicated in the proposal (the “Customer“) with a licensed email marketing system (the “Pulseem System“) and the other services specified in this agreement (the “Services“), in accordance with the terms of this agreement (the “Agreement“).
  2. The Customer acknowledges that the Pulseem System is solely a distribution system for electronic mail and SMS messages sent by the Customer (or its customers as resellers of the Pulseem System) directly to their customers and/or other recipients (the “Messages” and the “Recipients“, respectively). Pulseem is not responsible for, and/or controls and/or participates in any way in the content of the Messages and/or the timing of the distribution of the Messages and/or the identity and selection of the Recipients to whom the Messages will be sent, and that will be the sole responsibility of the Customer. Pulseem does not determine the purposes of processing the information in the Customer’s database (as these terms are defined in the Privacy Protection Law, 5741-1981 (the “Privacy Law“)), for which all responsibility, including registration obligations if applicable, rests solely with the Customer.
  3. The Customer represents and undertakes that it shall not use the Services, including the Pulseem System, in an unlawful manner or with the intention of violating any law or in any manner prohibited by this Agreement. The Customer shall act in accordance with the provisions of all applicable laws, including the Privacy Law and the Communications Law (Telecommunications and Broadcasting), 5742-1982 (the “Communications Law“), including regulations enacted under them. The Customer further declares that they have obtained all necessary approvals and/or consents required for sending the Messages to the Recipients, including the prior consent from each Recipient as required for receiving advertising material (as required under Section 30A of the Communications Law), and the Customer shall maintain documentation of such consent from each Recipient for the entire duration of receiving Services from Pulseem. The Customer will also provide Pulseem with such documentation for any Recipient upon request. Additionally, the Customer undertakes that in using the Pulseem System, they will not use content that infringes upon the intellectual property rights of any third party, including copyrights and trademarks, and/or any harmful content of any kind.
  4. The Customer further undertakes that for the purpose of sending Messages (SMS or MMS) using the Pulseem System, it shall only use one of the following methods: (a) sending a message where the sender’s number (CLI) is a virtual number or appears in English letters; (b) sending a message where the sender’s number (CLI) is the Customer’s number, only if a reliable identification and association of the number has been performed for the Customer by the Customer and at its own expense, in accordance with the rules of the Ministry of Communications. The Customer declares that it is aware that Pulseem relies on this representation and warranty, which is a condition for the validity of this agreement, and that Pulseem would not have entered into this agreement without it.
  5. Customer undertakes to ensure that it will not, under any circumstances, send Unsolicited Traffic or knowingly transfer Messages that are classified as Spam under this Agreement or any applicable law to the Pulseem System. Customer shall perform all such actions that prevent Unsolicited Traffic from reaching the Pulseem System.

For the Purpose of this Agreement, “Unsolicited Traffic” shall mean any message which: (a) is considered as Spam under this Agreement or any applicable law; and/or (b) contains content which is defamatory, threatening, abusive, obscene, pornographic or otherwise or which otherwise is of criminal or unethical nature according to the applicable law; and/or (c) contains content which violates any intellectual property of any third party.

“Spam” means unsolicited message which (i) is sent to Recipient without his prior due consent; and/or (ii) is sent to Recipient encouraging such Recipient to call or send a message at a premium rate or to a premium rate number; and/or (iii) results in a situation whereby Recipient is charged for the receipt of a message by the mobile operator and such Recipient has not requested such message; and/or (iv) does not contain truthful information about the name of the original sender; and/or (v) results in a situation whereby Recipient is unable to terminate receipt of such message; and/or (vi) is unlawful or fraudulent or considered as spam according to applicable law(s), rules or regulations, including the legislation of Recipient to whom the corresponding message is designated.

If any provision in this section is violated, Pulseem shall be entitled to immediately suspend and/or temporarily stop providing the Services or terminate this Agreement, at its sole discretion, without prejudice to any damages that Pulseem may be entitled to claim and any penalties shall be applicable to Pulseem in this case.

  1. The Customer shall ensure that a Recipient has the option to unsubscribe to receive such Messages and if the Recipient withdraws their consent to receive Messages and/or expresses refusal to receive such Messages, the Customer will update the Recipient’s list in the Pulseem System to remove the Recipient’s details and cease sending Messages to them through the Pulseem System.
  2. The Services shall be provided commencing from the date of execution of this Agreement by the Customer and shall continue until the termination of this Agreement by either party in accordance with the provisions of this Agreement (the “Term“). Each party may terminate this Agreement and discontinue the Services by providing thirty (30) days’ prior written notice to the other party. Without prejudice to the above, it is clarified that if the Customer asks to retain a subscription-based service, the subscription period (as well as the Term) shall not be less than three (3) months.
  3. The Customer shall pay Pulseem any payment due promptly. In the event of a delay exceeding ten (10) days in payment, the Customer shall be obligated to pay, upon receipt of a written demand from Pulseem, the outstanding amount, together with interest for late payment at a rate of 1.5% per month, calculated on a monthly basis, from the original due date until the full and final payment of all amounts owed by the Customer to Pulseem.
  4. It is clarified that Pulseem shall be entitled to terminate this agreement immediately upon the occurrence of one or more of the following events: (a) the Customer materially breached this Agreement, subject to providing a five (5) days’ notice from receipt of written notification from Pulseem to remedy the breach (if it is remediable); (b) the expiration of the Customer’s required approvals and permits required for the performance of its obligations under this Agreement; (c) a petition has been filed with the court to declare the Customer bankrupt and/or a decision has been made to appoint a receiver for a significant portion of its assets; (d) the Customer asserts to any third party any claims that contradict the provisions of sections 2-3 above.
  5. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (a) PULSEEM SYSTEM AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER, AND (b) PULSEEM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PULSEEM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS, OR SECURITY OF THE PULSEEM SYSTEM OR THE ACCESSIBLE MOBILE OPERATORS OR OPERATORS OR THE SERVICES AND DOES NOT REPRESENT OR WARRANT THAT PULSEEM SYSTEM OR SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS), THAT THE MESSAGES WILL BE KEPT CONFIDENTIAL OR THAT ALL OR ANY CONTENT WILL BE DELIVERED OR RECEIVED AFTER LEAVING THE PULSEEM SYSTEM.
  6. Pulseem shall not be liable for any direct, indirect, consequential, or special damages arising from the Customer’s inability to access or use the Pulseem System and/or the Services, or any part thereof, including any temporary or permanent interruption or cessation of access to the Services or any content within the Pulseem System, or any errors or mistakes in the technical operation of the Services (including failure to send messages due to events related to the recipient or to internet mail servers, mobile service providers, or any other reason), or any loss or damage to computer equipment, electronic devices, hardware or software, data loss, or any loss or damage resulting from any security breach, or any other use of the Pulseem System, including loss of income or prevention of profit, regardless of the cause.
  7. Pulseem shall not be responsible in any way for any mobile telecommunications systems or networks, which it does not operate. Pulseem is not liable for the acts or omissions of other providers of telecommunication services or for faults in or failures of their apparatus or network, and in general for any other technical reason attributable to a mobile operator’s network or telecommunication service provider. It should be clarified that the Customer shall be charged for Messages sent by Pulseem that did not reach their Recipients due to a fault originating with the mobile operator.
  8. Pulseem has no control over the information which passes using the Services, including content of Messages, and Pulseem does not examine the use of such information or the nature or the source of the information. Customer shall be solely liable for the content of the information and any other material transmitted by Customer or anyone else using the Services including but not limited to Recipients. Pulseem excludes all liability of any kind in connection with the transmission or reception of such content. The Customer shall be solely responsible for any loss, damage, expense, defect, or injury caused to Pulseem and/or the Customer and/or the Recipients and/or any third party and/or the property of any of the foregoing (including intellectual property), arising from or as a result of any act or omission caused in connection with the sending of Messages to the Recipients and/or the mailing activity and/or the use of the Pulseem System by the Customer as specified in this Agreement, including for any violation of the provisions of the Privacy Law and/or the Communications Law and/or any other relevant laws and regulations and/or the regulations stipulated thereunder, and/or with regard to the content of the Messages, including any infringement of third-party intellectual property rights and/or the reliability, accuracy, or quality of the Messages. The Customer’s obligation, as described above, shall remain in effect regardless of whether the loss, damage, defect, or injury was caused by accident, directly or indirectly, or whether it was a necessary or foreseeable consequence of the act. The Customer shall indemnify and hold Pulseem harmless for any such damage, loss, or expense immediately upon receiving the first written demand from Pulseem, during the Term and thereafter, in connection with claims and/or demands submitted during the Term and thereafter in connection with the provision of the Services.
  9. Without prejudice to the generality of the foregoing, it is clarified that Pulseem shall not be responsible and shall not bear any direct, indirect, consequential, or special damages that may be caused to the customer and/or to the Recipients and/or to any third party as a result of the use of third-party systems, including any third-party add-ons and their installation by the customer and/or any add-on of Pulseem installed in the aforementioned third-party systems, which will be performed solely at the Customer’s responsibility and in accordance with the terms of use of such third parties.
  10. The Customer undertakes to indemnify Pulseem for any payment and/or penalty that Pulseem may be required to make and/or bear and/or be obligated to pay as a result of sending Messages to Recipients, including but not limited to violations of the Privacy Law and/or the Communications Law and/or violations of any other applicable laws and regulations and/or any criminal or other liability that may be incurred by Pulseem under any law and/or agreement and/or court judgment and/or otherwise, and which results from the sending of Messages to Recipients, in addition to any legal expenses and attorney’s fees.
  11. The Customer shall assume the defense in case of any claim or lawsuit filed against Pulseem by any of the Recipients, in connection with any cause arising during the Term and/or the sending of the Messages, and to indemnify and hold Pulseem harmless for any damage, loss, or expense, including any legal costs that may be imposed on Pulseem as a result of any damage, immediately upon receipt of the first written demand from Pulseem, both during the Term and in connection with claims that may be filed after the Term, for causes arising during the Term and/or from the provision of the Services.
  12. The Customer represents that it is aware that all intellectual property rights in the Pulseem System, including in any part thereof, as well as copyrights, trademarks, patents, logos, methods, and trade secrets, are the exclusive property of Pulseem. The Customer’s access to the Pulseem System and use of the Services does not constitute the granting of a license or right to the Customer and/or anyone on their behalf with respect to the Pulseem System and/or Pulseem’s copyrights, and the customer is not permitted to use them in any manner except as explicitly stated in this Agreement.
  13. Pulseem and the Customer represent that they are aware that each of them (each a “Disclosing Party“) has provided and/or will provide to the other party (each a “Receiving Party“) information in connection with the provision of Services and/or use of the Pulseem System, including but not limited to the Message content, Recipient lists, the Pulseem System, etc., which is deemed confidential, highly valuable, and constitutes a trade secret of the Disclosing Party. Pulseem and the Customer agree to maintain the confidentiality of such information, not to disclose it to others, and not to use it for any purpose other than required to fulfill their obligations as detailed above, during the Term and thereafter, except in cases of suspected illegal acts by the Customer through the Pulseem System, in which case Pulseem shall not be bound by any confidentiality obligations toward the Customer.
  14. The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the laws of Israel, without giving effect to the principles of conflict of laws thereof. The competent courts of the city of Tel Aviv, Israel shall have exclusive jurisdiction to settle all disputes arising in connection with this Agreement and no other courts shall have any jurisdiction whatsoever in respect of such disputes.
  15. Any notices to be given hereunder shall be served on a party by prepaid registered letter, facsimile or email to its address given herein or such other address as may from time to time be notified for this purpose. Any notice given by letter shall be deemed to have been served four days after the time at which it was posted and any notice given by facsimile or email shall be deemed to have been served 24 hours after it is dispatched subject to a valid confirmation receipt.