Updated: March 20th 2019
Please read these Terms of Service and your Commercial Agreement carefully. By signing the Commercial Agreement and/or by using any portion of the Pulsate Service you are also agreeing to the provisions contained in these Terms of Service which constitute a legally binding Agreement. If you do not agree to these terms DO NOT USE THIS SERVICE. If If you are using the Service on behalf of your employer or another entity, you represent that you are authorized to accept these Terms on your employer’s or that entity’s behalf. If you are using Pulsate on behalf of a company, you must have the authority to bind that company to these TOS. You must be over 18 to be eligible to use the service.
Pulsate reserve the right to change or modify any of these TOS at our sole discretion at any time. Acceptance of such changes or modifications is constituted by your indication of Agreement to the updated terms, via click-through or continuation of the use of the Pulsate service beyond 30 days of the notification.
1.1 .The Pulsate Service is made available by Pulsate Mobile Ltd., a limited Irish registered company; Reg no. 541320, with offices at: Lis Cara Business Centre, 51 Fitzwilliam Square, Dublin 2, Ireland, Eircode D02 X504
1.2.In these TOS the Pulsate will be referred to as “Pulsate”, “The Licensor” “us” or “we”.
1.3.You and/or your company will be referred to as “The Licensee” or “you”.
1.4.Definitions for capitalized terms used in these TOS and not otherwise defined in the text are set out in the attached Appendix: Definitions & Terms.
2. The Services
2.1.The Licensor has developed certain software applications and a Platform known as ‘Pulsate Mobile’ which it makes available to Licensees via the internet on a subscription basis.
2.2.The Licensor will make available Pulsate to The Licensee by setting up an account for The Licensee on the CMS and providing to The Licensee login details for that account and sending SDK files as soon as practicable following the Effective Date.
2.3.The Licensor undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2.4.Details of the scope of Services to be provided by Pulsate to The Licensee are set out in the Commercial Agreement; detailing the onboarding and implementation service, support services and ongoing licence fee that The Licensee agreed to.
2.5.Subject to the limitations and prohibitions set out in clause 2.4, The Licensor hereby grants to The Licensee 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.
3.1.This Agreement shall, unless otherwise terminated as provided in clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term of 36 months and, thereafter, this Agreement shall be automatically renewed thereafter for successive 12 month periods (each a Renewal Period), unless: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.
4. Limitations and Prohibitions
4.1.The licence granted by The Licensor to The Licensee under clause 2.4 is subject to the following limitations and prohibitions herein contained.
4.2.The Licensee must comply at all times with the terms of the Acceptable Use Policy set out in the attached 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 Licensee undertakes that it shall not without the prior written consent of The Licensor, exceed the variables set out in the Commercial Agreement. In the event of such a breach by The Licensee, The Licensor shall be entitled to:
a)charge such additional charges as set out in the Commercial Agreement;
b)terminate this Agreement pursuant to clause 15.1 for material breach.
5.1. In relation to the Pulsate Dashboard Users, The Licensee undertakes that: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;
5.2. It shall maintain a written, up to date list of current Pulsate Dashboard Users and provide such list to The Licensor within 5 Business Days of The Licensor's written request at any time or times;
5.3. It shall permit The Licensor 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 Licensor's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with The Licensee's normal conduct of business;
5.4. If any of the audits referred to in clause 5.3 reveal that any password has been provided to any individual who is not Pulsate Dashboard User, then without prejudice to The Licensor's other rights, The Licensee shall promptly disable such passwords and The Licensor shall not issue any new passwords to any such individual.
5.5. Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by The Licensor to The Licensee under clause 2.4 is subject to the following prohibitions:
a)The Licensee must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform; and
b)The Licensee must not frame or otherwise re-publish or re-distribute the Platform;
c)The Licensee must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.
5.6. For the avoidance of doubt, The Licensee has no right to access the object code or source code of the Platform, either during or after the Term.
5.7. All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of The Licensor.
5.8. The Licensee shall not:
5.8.1 .except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
a)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
b)attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
c)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
5.8.2. Use the Services and/or Documentation to provide services to third parties; or
5.8.3. Subject to clause 19.5, 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
5.8.4. Attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; and
5.9. The Licensee 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 Licensor.
5.10. The rights provided under this clause 5 are granted to The Licensee only, and shall not be considered granted to any subsidiary or holding company of The Licensee.
6. Support Services
6.1. During the Term and in connection with the Services, The Licensor will provide certain Support Services to The Licensee, in accordance with the level outlined in the Commercial Agreement.
6.2. The Licensor may subcontract the provision of any of the Support Services without obtaining the consent of The Licensee.
6.3. The Licensor may provide additional professional services, if required by The Licensee. Any professional services will be an additional cost to The Licensee at an hourly rate clearly outlined in a mutually agreed scope of work document.
7.1.During the Term, The Licensor may apply Upgrades to the Platform, in accordance with the Service Level Agreement set out in Schedule 1 - The Service Level Agreement attached to the Commercial Terms.
8. Licensee Obligations
8.1. The Licensee shall:
8.1.1. Provide The Licensor with:
a) all necessary cooperation in relation to this Agreement; and
b) all necessary access to such information as may be required by The Licensor in order to provide the Services, including but not limited to Licensee Data, security access information and configuration services;
8.1.2.comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3.inform The Licensor of any obligation on The Licensee to register with the Data Protection Commissioner of Ireland (or analogous authority in a jurisdiction outside of Ireland);
8.1.4.carry out all other Licensee responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in The Licensee's provision of such assistance as agreed by the parties, The Licensor may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.5.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;
8.1.6.obtain and shall maintain all necessary licences, consents, and permissions necessary for The Licensor, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
8.1.7.ensure that its network and systems comply with the relevant specifications provided by The Licensor from time to time;
8.1.8.be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to The Licensor's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to The Licensee's network connections or telecommunications links or caused by the internet.
9. Licensee Materials
9.1.The Licensee grants to The Licensor during the Term a non-exclusive licence to store, copy and otherwise use The Licensee 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.
9.2.Subject to clause 8.1, all Intellectual Property Rights in The Licensee Materials will remain, as between the parties, the property of The Licensee.
9.3.The Licensee warrants and represents to The Licensor that The Licensee Materials, and their use by The Licensor 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 Licensor or The Licensee or any third party,
in each case in any jurisdiction and under any applicable law.
9.4. Where The Licensor reasonably suspects that there has been a breach by The Licensee of the provisions of this clause 8, The Licensor may:
a)delete or amend the relevant Licensee Materials; and/or
b)suspend any or all of the Services and/or The Licensee's access to the Platform while it investigates the matter.
9.5. Any breach by The Licensee of this clause 8 will be deemed to be a material breach of this Agreement for the purposes of clause 14.
9.6. The Licensor shall ensure that The Licensee Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other Licensees of The Licensor.
10. Licensee Data
10.1 .The Licensee shall own any and all Licensee Data and shall be solely responsible for the accuracy and quality of any and all Licensee Data and for establishing all terms and conditions applicable to The Licensee's own Licensees and/or mobile app users.
10.2. The Licensee hereby grants to Licensor a non-exclusive, royalty-free, non- transferable worldwide license during the Term to access and use Licensee Data solely for the purpose of providing the Service and any applicable professional services in accordance with this Agreement.
10.3.The Licensor shall, in providing the Services only process Licensee Data on the instructions of The Licensee. The Licensor shall keep The Licensee Data secure from unauthorised access, disclosure, destruction or accidental loss.
10.4. If The Licensor processes any personal data on The Licensee's behalf when performing its obligations under this Agreement, the parties record their intention that The Licensee shall be the data controller and The Licensor shall be a data processor and in any such case:
a)The Licensee acknowledges and agrees that the personal data will be stored in an EU country in order to carry out the Services and The Licensor's other obligations under this Agreement;
b)The Licensee shall ensure that The Licensee is entitled to transfer the relevant personal data to The Licensor so that The Licensor may lawfully use, process and transfer the personal data in accordance with this Agreement on The Licensee's behalf;
c)The Licensee 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 Licensor shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by The Licensee 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.
10.5. The Licensee 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 Licensor shall have the right (but not the obligation) in its sole discretion to refuse or remove any Licensee Data that violates Directive 95/46/EC with regard to sensitive personal data or other data at The Licensor's discretion.
10.6. The Licensee grants to The Licensor 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 Licensee's, and Pulsate Dashboard Users' use of the Service (Usage Data) as aggregated with usage data from Licensor's other Licensees for its own business purposes such as support, operational planning, product innovation and sales and marketing of Licensor's services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Licensee or any particular Licensee or end-user of Licensee and shall not be deemed Licensee Data.
10.7. The Licensee will:
a) be responsible for The Licensee's and any Pulsate Dashboard Users' compliance with this Agreement,
b) be responsible for the accuracy, quality and legality of Licensee Data and the means by which The Licensee acquired Licensee Data and use Licensee Data,
c) use the Service only in accordance with the Documentation, Acceptable Use Policy and applicable laws and government regulations.
10.8. The Licensee confirms that all data subjects whose data is comprised in The Licensee Data have given their valid consent to the transfer of their personal data by The Licensee to The Licensor and to the processing of their personal data by The Licensor 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 Licensor may likewise also transfer Licensee 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 Licensor currently uses Amazon Web Services based in the European Union, but reserves the right to move Licensee Data to another web service Licensor.
10.9. Pulsate may also use Aggregate Data for its external business purposes such as in the preparation of industry reports and white papers for publication. Pulsate will never disclose or publish Aggregate Data relating to an individual Licensee or Licensee App without Licensee’s prior consent.
11.1. The Licensor will issue invoices for the Charges to The Licensee in accordance with the provisions of the Commercial Agreement based on or limited by PAU’s (Pulsate Active Users). The first Access and Support Charges invoiced under this Agreement will be issued on the date of execution of this Agreement by The Licensor and upon the commencement of a Renewal Term.
11.2. The Licensee will pay the Charges to The Licensor within 30 days of the date of issue of an invoice issued in accordance with clause 11.1.
11.3. All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT (where relevant) will be payable by The Licensee to The Licensor in addition to the principal amounts outlined in The Licensee Proposal.
11.4. Charges must be paid by bank transfer, debit/credit card or automated monthly payment service, (using such payment details as are notified by The Licensor to The Licensee on The Licensee Invoice.
11.5. If The Licensee does not pay any amount properly due to The Licensor under or in connection with this Agreement, The Licensor may charge The Licensee 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).
11.6. Subject to the rights of The Licensee under clause 2.1, The Licensor may vary the Charges payable as detailed in the Commercial Agreement for a Renewal Period by giving to The Licensee not less than 30 Business Days' written notice of the variation in advance of the commencement of a Renewal Period (a Price Variation Notice).
11.7. The Licensor may suspend access to the Platform and the provision of the Services if any amounts due to be paid by The Licensee to The Licensor under this Agreement are overdue by more than 30 days.
12.1.The Licensee warrants to The Licensor:
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 Licensor for the purpose of providing the Services to The Licensee;
b) That it has the legal right to disclose all Licensee Materials that it does in fact disclose to The Licensor under or in connection with this Agreement
c) That all requisite consents of its Licensees have been duly obtained to enable The Licensor lawfully provide the Service hereunder;
d) That as far as it is aware, the processing of The Licensee Materials under this Agreement will not infringe the Intellectual Property Rights of any third party;
e) The Licensee 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 Licensees in providing The Licensee Materials to The Licensor for the purposes of this Agreement;
g) All Licensee Materials provided to The Licensor 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.
12.2. The Licensee shall indemnify The Licensor against any claims, losses, damages, costs (including all reasonably incurred legal fees) and expenses incurred by or awarded against The Licensor arising out of or in connection with the processing of The Licensee Materials under this Agreement (Claims against Licensor), except to the extent that the Claims against Licensor have arisen out of or in connection with any negligence or wilful default of The Licensor or any breach by The Licensor of this Agreement.
12.3. The Licensor warrants that:
a) It will act only on instructions from The Licensee in relation to the processing of any Licensee Materials performed by The Licensor on behalf of The Licensee;
b) It has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Licensee Materials and against loss or corruption of personal data processed by The Licensor on behalf of The Licensee;
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 Commercial Agreement and the attached Schedule 1 - The Service Level Agreement; and
g) Will be available to The Licensee in accordance with the uptime commitments given in that it owns or has the right to use all Intellectual Property Rights required in connection with the provision of the Services.
12.4. The Licensee acknowledges that:
a) Complex software is never wholly free from defects, errors and bugs, and The Licensor gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
b)The Licensor does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified in Commercial Agreement; and
c)The Licensor 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 Licensor does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of The Licensee or any other person.
12.5. 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.
13. Limitations and exclusions of liability
13.1. This clause sets out the entire financial liability of The Licensor (including any liability for the acts or omissions of its employees, agents and subcontractors) to The Licensee:
a)arising under or in connection with this Agreement;
b)in respect of any use made by The Licensee 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.
13.2. Except as expressly and specifically provided in this Agreement:
a)The Licensee assumes sole responsibility for results obtained from the use of the Services and the Documentation by The Licensee, and for conclusions drawn from such use. The Licensor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to The Licensor by The Licensee in connection with the Services, or any actions taken by The Licensor at The Licensee'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
13.3. 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.
13.4. The limitations and exclusions of liability set out in this clause 13 and elsewhere in the Agreement:
a)are subject to clause 13.3; 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;
13.5. The Licensor and The Licensee will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
13.6. The Licensor and The Licensee will not be liable for any loss of business, contracts or commercial opportunities.
13.7. The Licensor and The Licensee will not be liable for any loss of or damage to goodwill or reputation.
13.8. The Licensor and The Licensee will not be liable in respect of any loss or corruption of any data, database or software.
13.9. The Licensor and The Licensee will not be liable in respect of any special, indirect or consequential loss or damage.
13.10. The Licensor and The Licensee will not be liable for any losses arising out of a Force Majeure Event.
13.11. Subject to clauses 13.3 and 13.4, The Licensor's aggregate liability in relation to any event or series of related events will not exceed the total Charges actually paid by The Licensee to The Licensor pursuant to this Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
14. Confidentiality and publicity
14.1. The Licensor will:
a) Keep confidential and not disclose The Licensee Confidential Information to any person save as expressly permitted by this clause 14;
b) Protect The Licensee 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
14.2. The Licensee will:
a) Keep confidential and not disclose The Licensor Confidential Information to any person save as expressly permitted by this clause 14;
b) Protect The Licensor 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.
14.3. 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.
14.4. The obligations set out in this clause 14 shall not apply to:
a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
b) Licensee Confidential Information that is in possession of The Licensor prior to disclosure by The Licensee, and Licensor Confidential Information that is in possession of The Licensee prior to disclosure by The Licensor;
c) Licensee Confidential Information that is received by The Licensor, and Licensor Confidential Information that is received by The Licensee, 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.
14.5.The Licensor has the right to reference The Licensee as a client on its website, in press releases, in case studies and to use The Licensee's logo and/or marks for the purposes thereof.
15.1. 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).
15.2. 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.
15.3. The Licensor may terminate the Agreement immediately by giving written notice of termination to The Licensee where The Licensee fails to pay to The Licensor any amount due to be paid under the Agreement by the due date specified in an invoice issued by The Licensor.
16. Effects of termination
16.1. 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 Licensor may destroy or otherwise dispose of any of The Licensee Materials in its possession unless The Licensor receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to The Licensee of the then most recent backup of The Licensee Materials. The Licensor shall use reasonable commercial endeavours to deliver the back-up to The Licensee within 30 days of its receipt of such a written request, provided that The Licensee 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 Licensee shall pay all reasonable expenses incurred by The Licensor in returning or disposing of Licensee 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.
16.2. 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.
17.1.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.
17.2.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
c)if sent by email – 1 Business Day following the time of the sending of the email.
17.3.The address for notice pursuant to clause 16.1 are as follows:
a)The Licensor: The Secretary, Pulsate Mobile Limited, 51 Fitzwilliam Square, , Dublin 2, Ireland; Email: email@example.com
b)The Licensee contact details listed in the Commercial Agreement
18. Force Majeure Event
18.1. 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.
18.2. 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.
18.3. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
19.1. 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.
19.2. 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).
19.3. Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
19.4. This Agreement may only be varied or amendments added with a written document signed by or on behalf of each of the parties.
19.5. 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.
19.6. 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.
19.7. 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.
19.8. 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.
19.9. This Agreement (which for the avoidance of doubt includes these Terms of Service including Schedule 2 - The Acceptable Use Policy , Glossary, the Commercial Agreement, including Schedule 1 - Service Level Agreement 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.
19.10. 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.
20.1. 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.
20.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
20.3. The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.
20.4. 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.
20.5. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
20.6. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
20.7. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
20.8. A reference to writing or written includes e-mail.
20.9. References to clauses and schedules are to the clauses and schedules of this Agreement or those attached to the Commercial Agreement; references to paragraphs are to paragraphs of the relevant schedules to this Agreement.
Acceptable Use Policy
1. This Policy
1.1. This Acceptable Use Policy (the Policy) sets out the rules governing the use of our web services (the Service) and any content that The Licensee may submit to the Service (Content).
1.2. By using the Service, The Licensee agree to the rules set out in this Policy.
2. General restrictions
2.1. The Licensee 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.
2.2. The Licensee 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.
3.1.Pursuant to clauses 9.1 and 10.2 of the Pulsate Commercial Agreement, The Licensee grants a licence to us in connection with the provision of the Services and the use of Licensee Materials.
4. Unlawful and illegal material
4.1. The Licensee 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 Licensee or us or a third party (in each case in any jurisdiction and under any applicable law).
4.2 .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;
j)be in breach of official secrets legislation; or
k)be in breach of any contractual obligation owed to any person.
4.3. The Licensee 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
5.1. Content must not depict violence in an explicit, graphic or gratuitous manner.
5.2. 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
6.1.The Licensee must not use the Service to promote or distribute any Viruses, Trojans, worms, rootkits, spyware, or any other harmful software, programs, routines, applications or technologies.
6.2.The Licensee 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
7.1.Content must not be untrue, false, inaccurate or misleading.
7.2.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
8.1.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.
9.1.Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.
9.2.Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
9.3.Content should not cause annoyance, inconvenience or needless anxiety.
10.1.The Licensee 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
11.1. We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.
11.2. Without prejudice to this general right and our other legal rights, if The Licensee breaches this Policy in any way, or if we reasonably suspect that The Licensee have breached this Policy in any way, we may:
a)delete or edit any of your Content;
b)send The Licensee one or more formal warnings;
c)temporarily suspend your access to a part or all of the Service; and/or
d)permanently prohibit The Licensee from using a part or all of the Service.
12. Banned users
12.1. Where we suspend or prohibit your access to the Service or a part of the Service, The Licensee must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).
13.1.Notwithstanding the provisions of this Policy, we do not actively monitor Content.
14. Report abuse
14.1. If The Licensee becomes aware of any material on the Service that contravenes this Policy, The Licensee must notify The Licensor.
APPENDIX - Glossary (Definitions)
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 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 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 setup 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, semi-conductor 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 authorised 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 other issue in the Platform or enhancing the functionality of the Platform;
“Virus” means 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 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.