In this Agreement the following definitions apply:
“Access and Support Charges” are those charges set out in the Commercial Agreement;
“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 Schedule 2 – Acceptable Use Policy & Appendix – Definitions), the Commercial Agreement (Including Schedule 1 – Service Level Agreement), 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 weekday, 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 Licensee to The Licensor under or in relation to this Agreement (as set out in the Commercial Agreement executed by The Licensee and Licensor);
“Confidential Information” means The Licensee Confidential Information and The Licensor Confidential Information;
“Licensee Confidential Information” means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by The Licensee to The Licensor 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 Licensee Materials.
“Commercial Agreement” means the agreement entered into by a Licensee with The Licensor relating to the Services with particulars specific to the Services to be supplied to such Licensee contained therein;
“Licensee Data” means any electronic data and information uploaded by or for The Licensee via the Services or collected and processed by or for The Licensee using the Services. For the avoidance of doubt, this includes any data (including personal data) relating to Licensees of The Licensee or users of the mobile app of The Licensee, using the Platform.
“Licensee Materials” all works and materials including Licensee Data:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of The Licensee or by any person or application or automated system using The Licensee’s account; and
(b) otherwise provided by The Licensee to The Licensor in connection with this Agreement;
“Documentation” means the documentation produced by The Licensor and supplied or made available on the Platform to The Licensee specifying how the Platform should be used;
“Effective Date” means the effective date set out in the Commercial Agreement;
“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 set up in Pulsate as a Geofence
“Initial Subscription Term” means such period from the Effective Date as set out in the Commercial Agreement.
“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, semiconductor topography rights and rights in designs);
“Pulsate Active Users (PAU)” 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 as per clause 2.5, namely an end to end contextual marketing Platform that enables The Licensee to engage with its Licensees;
“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 Licensor, and that is made available to The Licensee as a service via Internet and transmission of certain files under this Agreement which are installed in The Licensee’s mobile application;
“Licensor Confidential Information” means any information disclosed (whether disclosed in writing, orally or otherwise) by The Licensor to The Licensee 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 11.6;
“Pulsate Dashboard Users” means those individuals who are authorized by The Licensee to use the Services, and to whom The Licensee (or The Licensor at The Licensee’s request) has supplied a login ID and password. Pulsate Dashboard Users may include The Licensee’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 Licensor to The Licensee under this Agreement, including the Support Services;
“Software” means the online software applications provided by The Licensor as part of the Services.
“Support Services” means support and maintenance services provided or to be provided by The Licensor to The Licensee in accordance with those outlined in your Commercial Agreement and Schedule 1 – The Service Level Agreement;
“Term” means 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 another issue in the Platform or enhancing the functionality of the Platform;
“Virus” means anything 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 rearranging, 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.