|
�V tl
<br />TERMS APPLICABLE TO ALL PRODUCTS AND
<br />SERVICES
<br />INTERPRETATION
<br />1.1 Definitions. For the purposes of interpreting this
<br />Agreement, the following terms will have the following
<br />meanings:
<br />(a) "Active" means The Active Network, Inc. as referenced
<br />on the first page of this Agreement.
<br />(b) "Affiliates" of a designated corporation, company or
<br />other entity means all entities which control, are controlled by,
<br />or are under common control with the named entity, whether
<br />directly or through one or more intermediaries. For purposes
<br />of this definition "controlled" and "control" mean ownership
<br />of more than fifty percent (50 %) of the voting capital stock or
<br />other interest having voting rights with respect to the election
<br />of the board of directors or similar governing authority.
<br />(c) "Agreement" means this Products and Services
<br />Agreement, inclusive of all Appendices, Schedules and
<br />exhibits.
<br />(d) "Client" means the legal entity other than Active
<br />entering this Agreement.
<br />(e) "Concurrent Use" means use at the same moment in
<br />time to access a given server computer (of any kind) owned or
<br />controlled by Client.
<br />(f) "Database Server" means the single server computer
<br />upon which the Enterprise Database is resident.
<br />(g) "Effective Date" means the last date set forth on page
<br />one of this Agreement.
<br />(h) "Enterprise Database" means the MSDE, MS SQL
<br />Server, or Oracle database files containing customer data and
<br />that are accessed by the Licensed Software.
<br />(1) "Hosted Software" means computer code and programs,
<br />in executable code form only, including related data files,
<br />rules, parameters and documentation, which have been created
<br />or licensed by Active and are identified in a Schedule as
<br />licensed (or sublicensed) to Client by Active in connection
<br />with this Agreement, and which reside on Active's servers and
<br />are accessible by Client's staff or Users via the Internet.
<br />(j) "Internet Client" means a remote device capable of
<br />using the Internet to access selected Licensed Software on the
<br />Internet Server or the Enterprise Database on the Database
<br />Server via the Internet Server.
<br />(k) "Internet Server" means a single server computer used
<br />by Client which enables access to the Licensed Software by
<br />individuals using an Intranet or the Internet, having a
<br />minimum configuration as set out in hardware specifications
<br />previously described to Client as applicable to the Licensed
<br />Software to be installed and used upon it.
<br />(q "IVR Server" means a single server computer used by
<br />Client for voice - recognition and telephone- based, rather than
<br />computer- based, access to the Enterprise Database by Client's
<br />clients, having a minimum configuration as set out in
<br />hardware specifications previously described to Client as
<br />applicable to the Licensed Software to be installed and used
<br />upon it.
<br />(m) "Licensed Software" means computer code and
<br />programs, in executable code form only, including related data
<br />files, rules, parameters and documentation, which have been
<br />created or licensed by Active and are identified in a Schedule
<br />as licensed (or sublicensed) to Client by Active in connection
<br />with this Agreement, and /or which are in the future provided
<br />to Client by Active under any circumstances unless provided
<br />under a separate licensing agreement.
<br />(n) "Maintenance" means the provision of error
<br />investigation and repair services as set out in Sections 20
<br />through 23, the Support and Maintenance Handbook attached
<br />as Exhibit B, and the provision of new Versions and Releases
<br />in respect of the Licensed Software all as more particularly set
<br />out in the Support and Maintenance Handbook.
<br />(o) "Module" means a single module element of Licensed
<br />Software listed in a Schedule.
<br />(p) "Online Services" means services, such as Internet
<br />registration, that are enabled by Hosted Software and available
<br />to the public via the Internet.
<br />(q) "Other Services" means Services other than
<br />Professional Services as provided in an agreed Schedule.
<br />(r) "Payment Server" means a single server computer used
<br />by Client to process electronic payments from its clients,
<br />having a minimum configuration as set out in hardware
<br />specifications previously described to Client as applicable to
<br />the Licensed Software to be installed and used upon it.
<br />(s) "Products" means all Licensed Software, Hosted
<br />Software, Third Party Products, and other products (including
<br />documentation) provided to Client by or on behalf of Active.
<br />(t) "Professional Services" means any and all types of
<br />services which Active provides, to Client and/or to other
<br />customers of Active, in the course of Active's business,
<br />including but not limited to services relating to the installation,
<br />implementation, optimization, administration, training and
<br />troubleshooting of computers, computer software including
<br />the Licensed Software, computer networks, databases,
<br />intemet- related equipment and applications, but expressly
<br />excludes Support and Maintenance. Professional Services
<br />shall be as set forth in the applicable Schedule.
<br />(u) "Release" means any release, update, patch, set of
<br />revisions, or bug /permanent fix or temporary bypass solution
<br />released by Active to its customers generally during the term
<br />of this Agreement, which provides enhancements and/or error
<br />corrections to the then- current Version or Release, and where
<br />a new Version has been released and no new Release has been
<br />released since the release of that Version, that Version will
<br />also constitute a Release for the purpose of determining
<br />whether Support or Maintenance is available with respect to
<br />drat Version. New Releases will be denoted by an increase to
<br />
|