Please read these Terms of Service and Customer Contract carefully. By executing the Customer Contract you are also agreeing to the provisions contained in these Terms of Service.
You are the Customer for the purposes of these Terms of Service. Pulsate Mobile Limited is the Provider.
A. The Provider has developed certain software applications and platforms known as Pulsate which it makes available to customers via the internet on a subscription basis, along with beacon hardware, as required.
B. The Customer wishes to use the Provider's service for its business operations.
C. The Provider has agreed to provide and the Customer has agreed to take and pay for the Provider's service, subject to the terms and conditions of this Agreement.
1 Definitions and interpretation
1.1 In this Agreement:
Access and Support Charges are those charges set out in the Customer Contract;
Affiliate (i) any corporation, firm, partnership or other entity, that directly or indirectly owns or controls, (to the extent of at least 50 per cent of the equity having the power to vote on or direct the affairs of the entity) a Party to this Agreement; and (ii) any corporation, firm, partnership or other entity actually owned or controlled by (to the extent of at least 50 per cent of the equity having the power to vote on or direct the affairs of the entity) a Party to this Agreement;
Agreement means these Terms of Service (including the Schedules), the Customer Contract, and any amendments to any of these documents from time to time;
Beacon means a Bluetooth device that broadcasts tiny and static pieces of data within short distances.
Beacon Event means anytime a user enters or exits the broadcast range of a beacon that has been added to Pulsate;
Business Day means any week day, other than a bank or public holiday in Ireland;
Business Hours means between 09:00 and 17:30 Dublin time (GMT in winter / GMT+1 in Summer) on a Business Day;
Change means any change to the terms of this Agreement;
Charges means the amounts payable by the Customer to the Provider under or in relation to this Agreement (as set out in the Customer Contract executed by the Customer and Provider);
Confidential Information means the Customer Confidential Information and the Provider Confidential Information;
Customer Confidential Information means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term of this Agreement that is marked as confidential, or described as confidential;
(b) the financial terms and conditions of this Agreement;
(c) the Customer Materials.
Customer Contract means the contract entered into by a Customer with the Provider relating to the Services with particulars specific to the Services to be supplied to such Customer contained therein;
"Customer Data means any electronic data and information uploaded by or for the Customer via the Services or collected and processed by or for the Customer using the Services. For the avoidance of doubt, this includes any data (including personal data) relating to customers of the Customer or users of the mobile app of the Customer, using the Platform.
"Customer Materials" all works and materials including Customer Data:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and
(b) otherwise provided by the Customer to the Provider in connection with this Agreement;
"Documentation" means the documentation produced by the Provider and supplied or made available on the Platform to the Customer specifying how the Platform should be used;
Effective Date means the effective date set out in the Customer Contract;
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Geofence means a virtual barrier that is placed on a digital map over real world geographical areas. Geofences on the Pulsate platform run off low-ambient wifi and cell tower data.
Geofence Event means any time that an app user enters or exits any digital perimeter that has been setup in Pulsate as a Geofence
Initial Subscription Term means such period from the Effective Date as set out in the Customer Contract.
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the intellectual property rights referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
Monthly Active Users (MAU) means the number of unique users that are active in Pulsate in any calendar month. Active is defined as any user that records a Pulsate Session and/or any user who records a Beacon Event or Geofence Event within a calendar month;
"Permitted Purpose" means the purpose(s) for which the Platform may be used, namely an end to end contextual marketing platform that enables the Customer to engage with its customers;
Platform means the web-based software platform and associated software development kit (SDK), in aggregate known as Pulsate that is owned and operated by the Provider, and that is made available to the Customer as a service via Internet and transmission of certain files under this Agreement which are installed in the Customer's mobile application;
Provider Confidential Information means any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Cusomter during the Term of this Agreement that is marked as confidential, or described as confidential, including for the avoidance of doubt, the terms of this Agreement.
Price Variation Notice means a notice served in accordance with clause 10.6;
Pulsate Dashboard Users means those individuals who are authorised by the Customer to use the Services, and to whom the Customer (or the Provider at the Customer's request) has supplied a login ID and password. Pulsate Dashboard Users may include the Customer's employees, officers, partners (in the case of a partnership), members or contractors, and Pulsate Dashboard User means any one of them.
Pulsate Session means Data transferred to Pulsate relating to an app session representing a single period of user interaction with your app;
Schedule means a schedule attached to this Agreement;
Service means the service or services provided or to be provided by the Provider to the Customer under this Agreement, including the Support Services;
Software: the online software applications provided by the Provider as part of the Services.
"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1;
Term the term of this Agreement;
Upgrades means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform; and
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
1.5 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.6 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2.1 This Agreement shall, unless otherwise terminated as provided in clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed thereafter for successive periods of the same duration as the Initial Subscription Term (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 40 Business Days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall be renewed for a mutually agreed Renewal Period or terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Term.
3 The Services
3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform and providing to the Customer login details for that account and sending SDK files as soon as practicable following the Effective Date.
3.2 The Provider undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
3.3 Details of the scope of Services to be provided by the Provider to the Customer are set out in the Customer Contract, plus the Support Services set out in the Customer Contract.
3.4 Subject to the limitations and prohibitions set out in clause 4, the Provider hereby grants to the Customer a non-exclusive, non-transferable licence to permit the Pulsate Dashboard User(s) to use the Services for the Permitted Purpose in accordance with the Documentation during the Term.
4 Limitations and Prohibitions
4.1 The licence granted by the Provider to the Customer under clause 3.4 is subject to the following limitations and prohibitions herein contained.
4.2 The Customer must comply at all times with the terms of the acceptable use policy supplied with the Platform or set out in Schedule 2, and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy.
4.3 The Customer undertakes that it shall not without the prior written consent of the Provider, exceed the variables set out in the Customer Contract. In the event of such a breach by the Customer, the Provider shall be entitled to: (i) charge such additional charges as set out in the Customer Contract; or (ii) terminate this Agreement pursuant to clause 14.1 for material breach.
4.4 In relation to the Pulsate Dashboard Users, the Customer undertakes that:
(a) it shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Pulsate Dashboard Users shall keep his / her password confidential;
(b) it shall maintain a written, up to date list of current Pulsate Dashboard Users and provide such list to the Provider within 5 Business Days of the Provider's written request at any time or times;
(c) it shall permit the Provider to audit the Services in order to establish the name and password of each Pulsate Dashboard User. Such audit may be conducted no more than once per quarter, at the Provider's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
(d) if any of the audits referred to in clause 4.4(c) reveal that any password has been provided to any individual who is not Pulsate Dashboard User, then without prejudice to the Provider's other rights, the Customer shall promptly disable such passwords and the Provider shall not issue any new passwords to any such individual.
4.5 Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under clause 3.4 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and
(c) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.
4.6 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
4.7 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
4.8 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Provider reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
4.9 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 18.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Pulsate Dashboard Users , or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; and
4.10 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Provider.
4.11 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
5 Support Services
5.1 During the Term and in connection with the Services, the Provider will provide certain Support Services to the Customer, in accordance with the service level agreement set out in Schedule 1.
5.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
5.3 The Provider may provide additional professional services, if required by the Customer. Any professional services will be an additional cost to the Customer at an hourly rate of Û100 plus VAT.
6.1 During the Term the Provider may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 1.
7 Customer Obligations
The Customer shall:
(a) provide the Provider with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the Provider
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) inform the Provider of any obligation on the Customer to register with the Data Protection Commissioner of Ireland (or analogous authority in a jurisdiction outside of Ireland);
(d) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Provider, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time;
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Provider's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8 Customer Materials
8.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
8.2 Subject to clause 8.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
8.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any person's Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in any jurisdiction and under any applicable law.
8.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this clause 8, the Provider may:
(a) delete or amend the relevant Customer Materials; and/or
(b) suspend any or all of the Services and/or the Customer's access to the Platform while it investigates the matter.
8.5 Any breach by the Customer of this clause 8 will be deemed to be a material breach of this Agreement for the purposes of clause 14.
8.6 The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.
9 Customer Data
9.1 The Customer shall own any and all Customer Data and shall be solely responsible for the accuracy and quality of any and all Customer Data and for establishing all terms and conditions applicable to the Customer's own customers and/or mobile app users.
9.2 The Customer hereby grants to Provider a non-exclusive, royalty-free, non- transferable worldwide license during the Term to access and use Customer Data solely for the purpose of providing the Service and any applicable professional services in accordance with this Agreement.
9.3 The Provider shall, in providing the Services only process Customer Data on the instructions of the Customer. The Provider shall keep the Customer Data secure from unauthorised access, disclosure, destruction or accidental loss.
9.4 If the Provider processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Provider shall be a data processor and in any such case:
(a) The Customer acknowledges and agrees that the personal data will be stored in an EU country in order to carry out the Services and the Provider's other obligations under this Agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Provider so that the Provider may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Provider shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9.5 The Customer or any Pulsate Dashboard Users shall not use the Service to collect, upload, retrieve, transmit, send, and/or store government issued ID numbers, individual medical or health individual financial information, non-Platform related security codes or passwords, credit or debit card numbers. The Provider shall have the right (but not the obligation) in its sole discretion to refuse or remove any Customer Data that violates Directive 95/46/EC with regard to sensitive personal data or other data at the Provider's discretion.
9.6 The Customer grants to the Provider a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from the Customer's, and Pulsate Dashboard Users' use of the Service (Usage Data) as aggregated with usage data from Provider's other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Provider's services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer and shall not be deemed Customer Data.
9.7 The Customer will
(a) be responsible for the Customer's and any Pulsate Dashboard Users' compliance with this Agreement,
(b) be responsible for the accuracy, quality and legality of Customer Data and the means by which the Customer acquired Customer Data and use Customer Data,
(c) use the Service only in accordance with the Documentation, Acceptable Use Policy and applicable laws and government regulations.
9.8 The Customer confirms that all data subjects whose data is comprised in the Customer Data have given their valid consent to the transfer of their personal data by the Customer to the Provider and to the processing of their personal data by the Provider for the business purposes identified herein in countries whose laws they have acknowledged may provide a lower standard of privacy and data protection than exists in the European Economic Area. The Provider may likewise also transfer Customer Data within the European Economic Area for the business purpose identified herein in adherence to European Union data protection laws. The consent to this Agreement followed by your submission of such information represents your agreement to that transfer. The Provider currently uses Amazon Web Services based in the European Union, but reserves the right to move Customer Data to another web service provider.
10.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Customer Contract. The first Access and Support Charges invoice under this Agreement will be issued on the date of execution of this Agreement by the Provider and upon the commencement of a Renewal Term.
10.2 The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with clause 10.1.
10.3 All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.
10.4 Charges must be paid by bank transfer, credit card or by cheque (using such payment details as are notified by the Provider to the Customer from time to time).
10.5 If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 6% per year above the base rate of 3 Month Euribor from time to time (which interest will accrue daily and be compounded quarterly).
10.6 Subject to the rights of the Customer under clause 2.1, the Provider may vary the Charges payable as detailed in the Customer Contract for a Renewal Period by giving to the Customer not less than 60 Business Days' written notice of the variation in advance of the commencement of a Renewal Period (a Price Variation Notice).
10.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under this Agreement are overdue by more than 30 days.
11.1 The Customer warrants to the provider:
(a) that it is the owner of or has the right to use the Intellectual Property Rights in any rights licensed or to be licensed to the Provider for the purpose of providing the Services to the Customer;
(b) that it has the legal right to disclose all Customer Materials that it does in fact disclose to the Provider under or in connection with this Agreement
(c) that all requisite consents of its customers have been duly obtained to enable the Provider lawfully provide the Service hereunder;
(d) that as far as it is aware, the processing of the Customer Materials under this Agreement will not infringe the Intellectual Property Rights of any third party;
(e) the Customer Materials contains nothing that is defamatory or indecent;
(f) it is not aware of any circumstances likely to give rise to breach of any of the data protection rights of its customers in providing the Customer Materials to the Provider for the purposes of this Agreement;
(g) all Customer Materials provided to the Provider are accurate and up-to-date; and
(h) that it has the legal right and authority to enter into and perform its obligations under this Agreement.
11.2 The Customer shall indemnify the Provider against any claims, losses, damages, costs (including all reasonably incurred legal fees) and expenses incurred by or awarded against the Provider arising out of or in connection with the processing of the Customer Materials under this Agreement (Claims against Provider), except to the extent that the Claims against Provider have arisen out of or in connection with any negligence or wilful default of the Provider or any breach by the Provider of this Agreement.
11.3 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Customer Materials performed by the Provider on behalf of the Customer;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Materials and against loss or corruption of personal data processed by the Provider on behalf of the Customer;
(c) it has the legal right and authority to enter into and perform its obligations under this Agreement;
(d) it will perform its obligations under this Agreement with reasonable care and skill;
(e) the Platform will perform substantially in accordance with the Documentation (subject to any Upgrades);
(f) the Platform will be hosted in accordance with the requirements set out in Customer Contract, and will be available to the Customer in accordance with the uptime commitments given in Schedule 1; and
(g) that it owns or has the right to use all Intellectual Property Rights required in connection with the provision of the Services.
11.4 The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified in Customer Contract; and
(c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
11.5 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
12 Limitations and exclusions of liability
12.1 This clause 12 sets out the entire financial liability of the Provider (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Customer in connection with the Services, or any actions taken by the Provider at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.3 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
12.4 The limitations and exclusions of liability set out in this clause 12 and elsewhere in the Agreement:
(a) are subject to clause 12.3; and
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty;
12.5 The Provider and the Customer will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
12.6 The Provider and the Customer will not be liable for any loss of business, contracts or commercial opportunities.
12.7 The Provider and the Customer will not be liable for any loss of or damage to goodwill or reputation.
12.8 The Provider and the Customer will not be liable in respect of any loss or corruption of any data, database or software.
12.9 The Provider and the Customer will not be liable in respect of any special, indirect or consequential loss or damage.
12.10 The Provider and the Customer will not be liable for any losses arising out of a Force Majeure Event.
12.11 Subject to clauses 12.3 and 12.4, the Provider's aggregate liability in relation to any event or series of related events will not exceed the total Charges actually paid by the Customer to the Provider pursuant to this Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
13 Confidentiality and publicity
13.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this clause 13;
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
13.2 The Customer will:
(a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this clause 13;
(b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.3 Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, sub-contractors, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.
13.4 The obligations set out in this clause 13 shall not apply to:
(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer, and Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider;
(c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement.
13.5 The Provider has the right to reference the Customer as a client on its website, in press releases, in case studies and to use the Customer's logo and/or marks for the purposes thereof.
14.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of this Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach).
14.2 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) where that other party is an individual that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
14.3 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date specified in an invoice issued by the Provider.
15 Effects of termination
15.1 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Provider may destroy or otherwise dispose of any of the Customer Materials in its possession unless the Provider receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Materials. The Provider shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Provider in returning or disposing of Customer Materials; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.2 A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination of this Agreement if:
(a) that party is obliged to retain such document by any law or regulation or other rule enforceable against that party; or
(b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the party retaining the document.
16.1 Any notice or other communication required or permitted to be given or made hereunder to a party shall be addressed or sent to such party at his or its address hereinafter specified, or to such other address as it may from time to time notify to the other party hereto in writing in accordance with the provisions of this clause.
16.2 Any notice or other communication required or permitted to be given or made hereunder shall be validly given or made if delivered personally or if despatched by pre-paid letter post or if sent by email, and shall be deemed to be given or made:
(a) if delivered by hand – at the time of delivery;
(b) if sent by post – forty-eight hours (seven Business Days if posted in a different postal jurisdiction to that of the addressee) after the same shall have been posted to any party other than PayPal or five (5) Business days after the same shall have been posted to PayPal; or
(c) if sent by email – 1 Business Day following the time of the sending of the email.
16.3 The address for notice pursuant to clause 16.1 are as follows:
The Secretary, Pulsate Mobile Limited, 14 Hume Street, Dublin 2, Ireland
The Customer contact details listed in the Customer Contract.
17 Force Majeure Event
17.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
17.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.2 If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
18.3 Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
18.4 This Agreement may only be varied by a written document signed by or on behalf of each of the parties.
18.5 Notwithstanding any other provision of this Agreement, this Agreement may be assigned by the parties to their respective Affiliates subject to 20 Business Days' notice in writing being provided to the other party. Save for such assignment to an Affiliate , the parties shall not, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
18.6 Neither party will, without the other party's prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of this Agreement.
18.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party's power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.
18.8 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
18.9 This Agreement (which for the avoidance of doubt includes these Terms of Service including the Schedules, the Customer Contract, and any amendments to any of these documents from time to time) constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and will have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Nothing in this clause will limit or exclude any liability for fraud.
18.10 This Agreement will be governed by and construed in accordance with the laws of Ireland and the courts of Ireland will have non-exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Service Level Agreement
1.1 In this Schedule:
"New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and
"Protected Functionality" means the Segmentation Tool, Campaign Builder, Geofencing, InApp Messaging and Beacon Configuration.
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2.1 The Provider will make available, during Business Hours, a telephone and email helpdesk facility for the purposes of:
(a) assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer's other systems;
(b) assisting the Customer with the proper use of the Platform; and/or
(c) determining the causes of errors and fixing errors in the Platform.
2.2 Subject to Paragraph 2.3, the Customer must make all requests for Support Services through the helpdesk, and all such requests must include at least the following information: Issue Severity, Issue Category, Issue Description, Contact Information.
2.3 This contract does not provide for support outside or normal business hours. Out of business hours support can be agreed separately if required.
3 Response and resolution times
3.1 The Provider will:
(a) use all reasonable endeavours to respond to requests for Support Services made through the helpdesk; and
(b) use all reasonable endeavours to resolve issues raised by the Customer, as promptly as possible.
3.2 The Provider together with the Customer will determine, acting reasonably, in to which severity category an issue raised through the Support Services falls.
3.2.1 Severity 1 issues, which designate a failure of the service or inability of the Customer to use the service shall be responded to within 1 hour and resolved with the highest priority.
3.2.2 Severity 2 issues, which designate degradation of the service shall be responded to within 4 hours and resolved as soon as possible.
3.3 All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.
4 Limits on Support Services
4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs 2 and 3 during any month exceed the number of hours agreed in the Customer Contract (other than hours spent by the Provider related to any failure of the platform), then:
(a) the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that
(b) the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard hourly rate, currently Û100 plus VAT.
4.2 The Provider shall have no obligation under this Agreement to provide Support Services in respect of any fault or error caused by:
(a) the improper use of the Platform; or
(b) the use of the Platform otherwise than in accordance with the Documentation.
5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes to the appearance and/or functionality of the Platform.
5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality.
5.3 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
(a) the Upgrade introduces New Functionality to the Platform;
(b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;
(c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and
(d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.
6 Uptime commitment
6.1 The Provider shall use all reasonable endeavours to ensure that the Platform is available 99% of the time during each calendar month, subject to Paragraph 8.
6.2 In the event that, during a calendar month entirely within the Term, the Platform fails to meet the availability commitment set out in Paragraph 6.1 then the Provider shall issue service credits calculated in accordance with Paragraph 6.5 to the Customer, such service credits to be deducted by the Provider from future Charges.
6.3 Subject to Paragraph 6.3, the services credits referred to in Paragraph 6.2 and due in respect of a calendar month shall be calculated as follows:
service credits = (99 - a) x b
a = the actual percentage availability of the Platform during the relevant calendar month; and
b = the Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of VAT and other taxes).
6.4 The maximum service credits available to the Customer in respect of any calendar month shall be the total Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of VAT and other taxes).
6.5 The award of service credits under this Paragraph 6 shall be the exclusive remedy of the Customer in the case of a failure of the provider to meet the uptime commitment in Paragraph 6.1.
7 Back-up and restoration
7.1 Subject to Paragraph 7.2, the Provider will:
(a) make back-ups of the Customer Materials stored on the Platform on a daily, and will retain such back-ups for at least one week; and
(b) at least once every day, the Provider will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Platform (which will be over-written on the following off-site back-up date).
7.2 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph 2, the Provider shall if so directed by the Customer use reasonable endeavours promptly to restore the Customer Materials from the most recent available back-up copy.
8 Scheduled maintenance
8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such suspension to be for not more than 4 hours in each calendar month.
8.2 The Provider must give to the Customer at least 7 days' written notice of schedule maintenance, including full details of the expected Platform downtime.
8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6.
Training and user support shall be provided by the Provider to employees of the Customer subject to the limits outlined in this contract and shall be provided remotely.
Acceptable Use Policy
1 - This Policy
This Acceptable Use Policy (the Policy) sets out the rules governing the use of our web services (the Service) and any content that the Customer may submit to the Service (Content).
By using the Service, the Customer agree to the rules set out in this Policy.
References to us or we or our means a reference to Pulsate Mobile Limited and references to you or your means the Customer.
2 - General restrictions
The Customer must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.
The Customer must not use the Service:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3 - Licence
Pursuant to clauses 8.1 and 9.2 of the Pulsate Mobile Customer Contract, the Customer grants a licence to us in connection with the provision of the Services and the use of Customer Materials.
4 - Unlawful and illegal material
The Customer must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against the Customer or us or a third party (in each case in any jurisdiction and under any applicable law).
Content (and its publication on the Service) must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;
(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime;
(g) be in contempt of any court, or in breach of any court order;
(h) be in breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) be in breach of official secrets legislation; or
(k) be in breach of any contractual obligation owed to any person.
The Customer must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
5 - Graphic material
Content must not depict violence in an explicit, graphic or gratuitous manner.
Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.
6 - Harmful software
The Customer must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, or any other harmful software, programs, routines, applications or technologies.
The Customer must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.
7 - Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in the Content must be true; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true.
8 - Negligent advice
Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:
(a) illness, injury or death; or
(b) any other loss or damage.
9 - Netiquette
Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
Content should not cause annoyance, inconvenience or needless anxiety.
10 - Hyperlinks
The Customer must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy.
11 - Breaches of this Policy
We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.
Without prejudice to this general right and our other legal rights, if the Customer breaches this Policy in any way, or if we reasonably suspect that the Customer have breached this Policy in any way, we may:
(a) delete or edit any of your Content;
(b) send the Customer one or more formal warnings;
(c) temporarily suspend your access to a part or all of the Service; and/or
(d) permanently prohibit the Customer from using a part or all of the Service.
12 - Banned users
Where we suspend or prohibit your access to the Service or a part of the Service, the Customer must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).
13 - Monitoring
Notwithstanding the provisions of this Policy, we do not actively monitor Content.
14 - Report abuse
If the Customer becomes aware of any material on the Service that contravenes this Policy, the Customer must notify the Provider.