These terms of service together with a completed and executed Statement of Works shall form the Agreement between Face US Inc t/a PULSAR, a New York corporation located at xxxxxxx (“PULSAR”) and you (the “Customer”).
(A) PULSAR is engaged in delivering social media research and management software and consultancy.
(B) PULSAR has developed a range of social media analytics and management software products in connection with its business.
(C) The Customer wishes to acquire a licence to use the software indicated in the Statement of Works pursuant to the terms of this Agreement.
1 Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires:
means this agreement, together with the Statement of Works;
means 9am until 5:30pm on a day (other than a Saturday, Sunday or a public holiday) in the London, England;
any information relating to the business of the disclosing party which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence or as having commercial value in relation to the business of the disclosing party;
means, in relation to Pulsar TRAC Software, an interaction on Facebook, including, but not limited to, posts, reshares and comments which meet the specifications set out in a Search and which is located by the Pulsar TRAC Software;
means those fees payable by the Customer to PULSAR under this Agreement as set out in the Statement of Works;
means a Mention which has been located by the Software prior to a Query Start Date;
means a Query which relates to a period of time prior to a Query Start Date;
Intellectual Property Rights
means any and all patents, rights in inventions, rights in designs, trademarks, trade and business names and all associated goodwill, rights to sue for passing-off or for unfair competition, copyright, moral rights and related rights, rights in databases, topography rights, domain names, rights in information (including know-how and trade secrets) and all other similar or equivalent rights (subsisting now or in the future) in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term;
means, in relation to Pulsar TRAC Software, a webpage or section of a webpage which meets the specifications set out in a Query and which is located by the Pulsar TRAC Software;
means a source from which Mentions are generated and in respect of which an additional fee is payable in accordance with the Statement of Works;
Pulsar CORE Software
means the Pulsar CORE proprietary channel effectiveness software system developed and owned outright by PULSAR;
Pulsar TRAC Software
means the Pulsar TRAC proprietary software system developed and owned outright by PULSAR;
Pulsar TRAC Software Daily Limit
means 5,000 Mentions per day;
Pulsar TRAC Software Monthly Limit
means 200,000 Mentions per month per search;
means each consecutive period of three (3) months beginning with the period from the Subscription Start Date and expiring after three (3) months;
means, in relation to Pulsar TRAC Software, a search string which is submitted by the Customer and/or any agents acting on its behalf, and which specifies the words which must be present on a webpage;
Query Start Date
means, in relation to Pulsar TRAC Software, the date and time at which a Query is submitted;
means, in relation to Pulsar TRAC Software, a search string which is submitted by the Customer and/or any agents acting on its behalf, and which specifies the words which must be present in an interaction on Facebook including, but not limited to, posts, reshares and comments;
Search Start Date
means, in relation to Pulsar TRAC Software, the date and time at which a Search is submitted;
means the service managers appointed by Customer and PULSAR as set out in the Statement of Works;
means the services provided by the Software under this Agreement;
means Pulsar CORE Software and Pulsar TRAC Software software-as-a-service products offered by PULSAR that are order by the Customer using the Statement of Works;
Statement of Works
means the statement of works to be completed and executed by PULSAR and the Customer;
Subscription End Date
means the subscription end date set out in the Statement of Works;
Subscription Start Date
means the subscription start date set out in the Statement of Works;
means the term of this Agreement, commencing on the Subscription Start Date and, subject to the provisions of clause 10, continuing until the Subscription End Date;
means the territory set out in the Statement of Works; and
means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
2 Licensing and Intellectual Property Rights
2.1 In consideration of payment by the Customer to PULSAR of the Fees, PULSAR hereby grants to the Customer a personal, revocable, non-exclusive, non-transferable licence to use the Software for its internal business purposes.
2.2 The Customer shall not republish, make publicly available, sell, sub-license or share with any third parties:
2.2.1 the Software;
2.2.2 any report derived from the Software or the Services; or
2.2.3 any comparison of data provided by one social media network against another social media network.
2.3 Other than to the extent permitted by law, the Customer may not print, copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part, or translate, reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code of the Software.
2.4 All Intellectual Property Rights in and to the Software and the Services are owned by PULSAR or its licensors and shall remain vested in PULSAR or its licensors. Save where expressly provided in this Agreement, the Customer shall not acquire any proprietary right, title or interest in and to any Intellectual Property Rights in the Software or the Services.
2.5 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Software or the Services, the Customer’s use of any such Intellectual Property Rights is conditional on PULSAR obtaining a written licence from the relevant licensor on such terms as will entitle PULSAR to license such rights to the Customer.
2.6 The Customer shall promptly give PULSAR written notice of any claim, demand suit or proceeding made or brought against the Customer by a third party alleging that the use of the Software or the Services in accordance with this Agreement infringes or misappropriates the Intellectual Property Rights of such third party (a “Claim”).
2.7 If the Customer notifies PULSAR of a Claim against it or other potential violation by the Software or the Services of any applicable laws, PULSAR may in its discretion:
2.7.1 modify the Software or the Services, at no cost to the Customer, so that they no longer infringe or misappropriate third party rights or fail to comply with any applicable law;
2.7.2 obtain a licence for the Customer’s continued use of the Software and the Services, at no cost to the Customer, in accordance with this Agreement; or
2.7.3 terminate this Agreement upon thirty (30) days’ written notice and refund to the Customer any fees paid covering the period after the effective date of termination.
3.1 PULSAR shall perform the Services and fulfil its obligations as set out in this Agreement for the benefit of the Customer.
3.2 There will be a minimum period of five (5) Business Days between the Subscription Start Date and the provision by PULSAR to the Customer of login details and training in connection with the Services.
3.3 Each party shall appoint a Service Manager prior to the commencement of the Services to represent and co-ordinate communications between the parties in all matters relating to the Agreement.
3.4 PULSAR may make any changes to the Software or the Services which are necessary to comply with any applicable law or safety requirements, or which do not materially affect the nature or quality of the Software or the Services.
3.5 The Customer acknowledges that the Services provided are subject to PULSAR receiving services and data supplied by social media networks. The Customer agrees that, where the Customer is made aware of the terms of service or policies of such social media networks, it shall comply with such terms of service or policies.
3.6 The Customer agrees that PULSAR may include the Customer’s name and/or logo on PULSAR’s websites, including, but not limited to, www.pulsarplatform.com, save always that the Customer may opt-out of such inclusion by sending a written request to PULSAR.
4 Customer Obligations
4.1 The Customer shall not:
4.1.1 exceed the number of Users for whom it has purchased access to the Services under a Statement of Works;
4.1.2 access any part of the Services in order to build a product or service which competes with the Services or to copy any features, functions or graphics of the Services;
4.1.3 attempt to obtain, or assist third parties (other than Users) in obtaining, access to the Services; and
4.1.4 exceed the limits on the number of Mentions or Facebook Interactions or Queries or Searches per month.
4.2 PULSAR shall inform the Customer when it is approaching its limit on the number of Mentions or Facebook Interactions or Queries or Searches per month.
4.3 If the Customer exceeds its limit on the of the number of Mentions or Facebook Interactions per month, then PULSAR may charge the Customer for the excess number of Mentions or Facebook Interactions at a rate of £500 per 100,000 Mentions.
4.4 If the Customer exceeds its limit on the number of Queries or Searches per month, then PULSAR may charge the Customer for the excess number of Queries or Searches at a rate of or £900 per additional Query or Search.
4.5 The Customer shall:
4.5.1 procure that each User shall keep his/her password for use of the Services secure and confidential;
4.5.2 ensure that the Users use the Services in accordance with the terms of this Agreement and shall be responsible for any User’s breach of this Agreement; and
4.5.3 be responsible for making all arrangements necessary for it to have access to the Services.
4.6 The Customer agrees not to publish any data, results or debrief findings derived from the services in the public domain without the prior written consent of PULSAR
5 Archiving Queries
5.1 If, following creation by the Customer of a Query or Search, the Customer either:
(a) pauses; and/or
(b) stops; and/or
(c) does not access,
the relevant Query or Search, for a period of at least four (4) months after the Query Start Date or Search Start Date, PULSAR may archive the relevant Query or Search.
5.2 For the avoidance of doubt, the Customer may, upon written request to PULSAR, access a Query or Search which has been archived pursuant to clause 5.1 above.
6 Fair Use
6.1 In relation to Pulsar TRAC Software, if PULSAR considers:
6.1.1 a Query or Queries to track or attempt to track all, or a significant proportion of, social media websites generally;
6.1.2 a Query or Queries is being used by the Customer to track multiple large brands;
6.1.3 a Query or Search will result in the processing an amount of data which will adversely affect PULSAR’s performance of the Services and/or its services to any other customer;
6.1.4 constitute a Historic Query or Historic Queries which generates more than six (6) months’ worth of Historic Mentions in any one (1) month period; or
6.1.5 constitute a Query which generates a number of Historic Mentions which is equal to or more than 15% of the Customer’s total monthly limit of Mentions as specified in the Statement of Works,
then PULSAR may restrict the number of Mentions or Facebook Interactions in respect of that Query, Queries or Search by providing the Customer with a list of sample Mentions or Facebook Interactions only.
6.2 PULSAR shall use its reasonable efforts to notify the Customer in advance of implementing the restriction detailed in clause 6.1.
6.3 In relation to Pulsar TRAC Software where the Customer has purchased unlimited Mentions per month:
6.3.1 the Customer shall not create a Query or Queries that exceeds the Pulsar TRAC Software Daily Limit or the Pulsar TRAC Software Monthly Limit;
6.3.2 if the Customer creates a Query or Queries that exceed the Pulsar TRAC Software Daily Limit or the Customer has used 80% of the Pulsar TRAC Software Monthly Limit, then PULSAR shall inform the Customer; and
6.3.3 if, after being informed in accordance with clause 6.3.2, the Customer creates a Query or Queries that exceed the Pulsar TRAC Software Daily Limit or the Customer exceeds the Pulsar TRAC Software Monthly Limit, then in each month where the Customer exceeds the Mentions PULSAR may for that month charge the Customer £500 for every 100,000 Mentions in excess of the limits.
7 Fees, Payment and other Financial Provisions
7.1 The Customer shall pay to PULSAR the Fees set out in the Statement of Works in accordance with this clause 7.
7.2 On or before the Subscription Start Date, the Customer shall pay to PULSAR all Fees payable for the contract period commencing on the Subscription Start Date
7.3 All Fees shall be paid by the Customer to PULSAR by cheque or by electronic bank transfer by no later than thirty (30) days from the date of the relevant invoice (“Due Date”).
7.4 All amounts set out in this Agreement shall be exclusive of any applicable taxes, which shall be paid by Customer at the rate and the manner prescribed by law from time to time.
7.5 Without limiting any other right or remedy that PULSAR may have, if the Customer fails to make any payment due under this Agreement within fourteen (14) days of the Due Date, the Customer shall pay interest on the overdue amount at the rate of 1.5% above the base rate of the Royal Bank Of Scotland per annum of the overdue amount accruing on a daily basis from the Due Date until the date of actual payment by the Customer to PULSAR of the overdue amount, whether before or after judgment, and compounding quarterly.
7.6 The Customer shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and the Customer shall not assert any credit, set-off or counterclaim against PULSAR in order to justify withholding payment of any such amount in whole or in part. PULSAR may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by PULSAR to the Customer.
7.7 PULSAR may suspend the Services if at any time the Customer falls in arrears with the payment of any amount of Fees then due to PULSAR (“Outstanding Fees”), which period of suspension (“Suspension Period”) shall be effected by service of written notice to the Customer and shall continue until receipt by PULSAR of the full amount of Outstanding Fees, provided always that the Suspension Period shall not be added to and/or affect the duration of the Term.
7.8 The Service Managers shall agree the Fees applicable in respect of any renewal of the Term prior to the Subscription End Date.
7.9 The Customer shall be made aware of any increase to the Fees during the Term and any such increase shall:
7.9.1 be limited to 10% of the Fees currently payable by the Customer pursuant to this Agreement; and
7.9.2 take effect after thirty (30) days after PULSAR has provided the Customer with written notice of such increase in Fees.
8.1 Customer shall, for a period of seven (7) years from creation, keep or cause to be kept full and accurate records pertaining to the licensing of the Software and delivery of the Services.
8.2 Customer grants to PULSAR the right to audit its use of the Software. The exercise of the audit right shall be directed towards confirming that Customer’s use of the Software is in accordance with the terms of this Agreement.
8.3 If any such audit result show that a payment is owed to PULSAR, such payment shall be made by the Customer to PULSAR within thirty (30) days of the audit results being provided to the Customer.
9 Warranties and Liabilities
9.1 PULSAR does not warrant the accuracy, completeness, currency or reliability of any of the content or data derived from the Software or that the Software will be error free, virus free or secure. The Software is provided “as is” and PULSAR expressly disclaims all warranties and conditions (to the extent permissible by law), including implied warranties and conditions or satisfactory quality, fitness for a particular purpose and non-infringement, and those arising by statute or otherwise in law or from a course of dealing or usage of trade.
9.2 PULSAR does not guarantee that the Services or any content on it, will always be available or be uninterrupted. Access to the Services is permitted on a temporary basis. PULSAR may suspend, withdraw, discontinue or change all or any part of the Services without notice. PULSAR will not be liable to the Customer if for any reason the Services are unavailable at any time or for any period.
9.4 The Customer shall indemnify PULSAR and its affiliates against all and any claims, loss or damages incurred as a direct or indirect result of any breach by the Customer of any of its obligations in this Agreement to include, but not be limited to, any act or omission of the Customer or any party authorised or permitted by it to use the Software or the Services under this Agreement (including, but not limited to, Users).
9.5 Subject to clause 9.6 and to the maximum extent permitted by law, neither party, nor their respective employees, officers, directors, affiliates agents or suppliers, shall be liable for any consequential, special, incidental, or indirect damages, or lost or imputed profits or royalties, lost data or cost of procurement of substitute goods or services arising from or related to this agreement, whether for breach of warranty or any obligation arising therefrom or otherwise, however caused and on any theory of liability (including negligence or strict liability), and irrespective of whether the party has advised or been advised of the possibility of any such loss or damage.
9.6 Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from its negligence, fraud or fraudulent misrepresentation, or any matter which cannot be limited or excluded by law.
9.7 Subject to clause 9.6, PULSAR’s total liability to the Customer in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total of twelve (12) months’ Fees payable under the applicable Statement of Works.
10 Term and Termination
10.1 The parties agree that the term of this Agreement shall renew automatically for an additional twelve (12) month period unless the Customer provides PULSAR with written notice of its intention not to renew the terms of this Agreement at least one (1) month prior to the expiration of the Term.
10.2 Without prejudice to any right or remedy either party may have against the other for breach or non-performance of this Agreement, either party may, by notice in writing to the other party, terminate all or any part of this Agreement on or at any time after the happening of any of the following events:
10.2.1 if the other party commits a material breach of any of the terms of this Agreement provided that where such breach is capable of remedy the other party has been notified in writing of the breach and has not cured it within thirty (30) days of receipt of such notice;
10.2.2 the passing by the other party of a resolution for its winding-up (except in connection with a bona fide business re-organisation) or the making by a court of competent jurisdiction of an order for the winding-up of the other party or the dissolution of the other party;
10.2.3 the making of an administration order in relation to the other party or the appointment of a receiver or an administrative receiver over, or the taking possession or sale by an encumbrance of, any of the other party’s assets;
10.2.4 the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
10.2.5 where a force majeure event (as described in clause 14.5) continues for four (4) weeks or more.
10.3 Without prejudice to any other rights or remedies available to it, the Customer may terminate this Agreement on or prior to the tenth Business Day after the Subscription Start Date by giving at least three (3) Business Days’ prior written notice to PULSAR.
10.4 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
10.5 Following termination of this Agreement for any reason, each party shall immediately on request deliver to the other party all materials and copies thereof (whether in hard or electronic format) relating to the Confidential Information together with a written confirmation from a senior authorised representative that it has complied with all of its obligations under this Agreement.
10.6 Subject to PULSAR’s obligations regarding personal data, if at the date of termination there are no other agreements for services in force between the Customer and PULSAR, then PULSAR shall delete any Customer data that has been collected upon termination of this Agreement.
10.7 On termination or expiry of this agreement he following clauses shall continue in force: clause 2 (Licensing and Intellectual Property Rights), clause 7 (Fees, Payment and other Financial Provisions), clause 9 (Warranties and Liabilities), clause 10 (Term and Termination), clause 11 (Confidentiality), clause 14.1 (Notices), clause 14.10 (Arbitration) and clause 14.11 (Governing law).
11.1 Neither party shall use, copy, adapt, alter, disclose or part with possession of Confidential Information except solely as strictly necessary to perform its obligations or exercise its rights in this Agreement or with the written consent of the other party, except insofar as such Confidential Information:
11.1.1 is disclosed by Customer to any officers, employees, contractors or advisers of Customer (“Customer Recipients”) to the extent that such disclosure is reasonably necessary for the purpose of this Agreement, provided that Customer shall ensure that the Customer Recipient complies with Customer’s obligations of confidentiality under this Agreement;
11.1.2 is disclosed by PULSAR to any PULSAR employees or other officers, employees, contractors or advisers of PULSAR or Subcontractors (“PULSAR Recipients”) to the extent that such disclosure is reasonably necessary for the purpose of this Agreement, provided that PULSAR shall ensure that PULSAR Recipient complies with PULSAR’s obligations of confidentiality under this Agreement;
11.1.3 can be proved by the receiving party to have been in the public domain at the date it was disclosed to a third party;
11.1.4 is lawfully or properly obtained by the receiving party from a person without obligation of confidentiality;
11.1.5 comes into the public domain otherwise than through the default or negligence of the receiving party;
11.1.6 was independently developed by the receiving party without reference to the Confidential Information of the other party;
11.1.7 is, with the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) disclosed to obtain or maintain any listing on any recognised stock exchange; or
11.1.8 is requested to be disclosed by a court, regulator or a body having similar authority over the receiving party provided that to the extent permitted by law the other party is given prompt notice of such request.
11.2 Neither party makes any representation or warranty, express or implied, with respect to its Confidential Information. The disclosing party shall not be liable to the other party or another person in respect of the disclosing party’s Confidential Information or its use.
11.3 Each party acknowledges that breach by it of clause 11.1 may cause irreparable injury to the other party, which injury will be inadequately compensable in damages. Accordingly, each party is entitled to the remedies of injunction, specific performance and other equitable relief in respect of any actual or threatened breach of the confidentiality obligations in this Agreement in addition to any other legal remedies which may be available.
12 Data Protection
12.1 PULSAR shall process the personal data (as defined in the Data Protection Act 1998) of the Customer in accordance with the Customer’s instructions, in order to provide the Software and Services, for its own administrative, market research and customer service purposes or for any other purpose required by law.
12.2 Unless the Customer informs PULSAR otherwise, PULSAR may use the personal data of the Customer for its marketing purposes including supplying the Customer with information about other products or services available from PULSAR.
PULSAR may amend the terms of this Agreement at any time. If PULSAR amends the terms of this Agreement, then it shall notify the Customer of such amendments in writing in a copy of the revised terms within thirty (30) days of such amendments coming into effect.
14.1 Notices: All notices and communications must be in writing and should be either delivered by hand, sent by pre-paid courier or registered post addressed to the other party at the address set out in the Statement of Works. Unless there is evidence that it was received earlier, such notice or document shall be deemed to have been served:
14.1.1 if delivered by courier, when left at the address referred to above; or
14.1.2 if sent by post to an address within the country of postage, 2 Business Days after posting it; or
14.1.3 if sent by post to an address outside the country of postage, 5 Business Days after posting it.
14.2 Sub-contractors: PULSAR may subcontract any of its obligations under this Agreement.
14.3 Entire Agreement: This Agreement constitutes the entire understanding between the parties and supersedes any prior agreement whether oral or written between them.
14.4 Waiver: No waiver of any provision of this Agreement or any rights or obligations of either party will be effective unless in writing and signed by a duly authorised representative of both parties. Any such waiver will be effective only in the specific instance and for the specific purpose specified in writing.
14.5 Force Majeure: Neither party shall be liable to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by an act of God, fire, earthquake, strike, civil commotion, act of government or any other event which is beyond the reasonable control of that party (including, but not limited to, failure of a utility service or telecommunications network), provided that the party affected by such an event notifies the other party as soon as reasonable practicable after such an event has occurred.
14.6 Assignment: Neither party shall assign this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Any attempted assignment in contravention of this clause shall be null and void. Notwithstanding the preceding sentence, nothing in this Agreement shall prevent or restrict PULSAR from assigning, sub-licensing, transferring or otherwise disposing of all or any of its rights or obligations this Agreement to any legal entity which succeeds to all or part of the business or assets.
14.7 Severance: To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, and such finding shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
14.8 No partnership: Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.9 Third parties: A person who is not a party to this Agreement shall not have any rights under or in connection with it.
14.10 Arbitration: Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the American Arbitration Association which Rules are deemed to be incorporated into the Contract by reference in this clause. The number of arbitrators shall be one. If the parties cannot agree on the appointment of an arbitrator then either party may request that the American Arbitration Association shall appoint an arbitrator. Arbitration shall be conducted in New York, NY.
14.11 Governing Law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the State of New York.