Standard Terms & Conditions
These Standard Terms and Conditions govern the I Am Here Services (‘Services’) that PulseLearning provides to their Clients. By accessing and utilising the Services, the Client acknowledges and agrees to be bound by these Standard Terms and Conditions as set out hereunder. These Standard Terms and Conditions may be updated by PulseLearning and I Am Here at its sole discretion from time to time.
- Agreement shall mean these Standard Terms and Conditions that govern the relationship between I Am Here and the Customer.
- Customer shall include the Members of Company who are using the Services and to whom the Services are provided.
- Customer Account means the operating environment through which the Customer accesses the services.
- Customer Data means the information provided by the Customer to I Am Here to enable it to provide the Services as well as the data accumulated through the operation of the Services.
- Software Services means subscription-based software, which is usually based in the cloud.
- Professional Services means the non-software services, including consulting, advisory, support, training and project management.
- Ad Hoc Additional Services means the provision of services outside of those specifically in the Contract.
- Services means the Software and/or Professional Services and/or Ad Hoc Services or any combination of these.
- Vendor Partner means the company owning or providing the Software or Professional Services, other than I Am Here.
- Confidential Information means any information that is designated as ‘Confidential’ or that the Receiving Party should reasonably ought to believe to be confidential, given the circumstances. Confidential information excludes any information that:
- Is known by the Receiving Party prior to disclosure.
- Becomes publicly available through no fault of the Receiving Party.
- Is disclosed to the Receiving Party by a third party with the legal right to make such disclosure, or
- Is independently developed by the Receiving Party without use or reference to the Discloser’s Confidential Information.
- Team Members means all of the directors, employees and contractors of the Customer including its successors and permitted assigns.
- Start Date means the start date specified in the section Contract Key Points in the I Am Here Contract, which shall be the period from which invoicing begins for year one.
- Contract Term is the period from Contract Commencement Date to Contract End Date.
2. DUTIESDuties of I Am Here to the Customer When Providing the Services
- I Am Here will endeavour to deliver the Services with a reasonable level of skill, integrity and professional competence at all times.
- Availability of the Services. I Am Here cannot guarantee the continuous availability of the Services and there may be temporary shutdowns or interruptions. If this occurs, I Am Here will notify the Customer as soon as is reasonably possible.
- Modifications or Discontinuation of the Services. I Am Here reserves the right to modify or discontinue the features, functionality and other attributes of the Services at any time and at its sole discretion. Reasonable notice will be given to the Customer, should either occur. The Customer acknowledges and agrees that I Am Here will not be liable in connection with its modification or discontinuation of the Services.
- Additional Support for the Services. I Am Here may at its sole discretion subcontract the performance of any part of the Services or related services. At no time may the Customer appoint any other party to assist or fulfil any part of the Services without the written consent of I Am Here.
- For clarity, the duties outlined are provided for the benefit of the Customer only.
- Customer Account. The Customer Account will be for the Customer’s use only. The Customer will be responsible for all other Users that it has given access to and must ensure that they comply with these Standard Terms and Conditions. It is also the Customer’s responsibility to ensure that it, as well as its Users, abide by the terms associated to the Services and that the Services are used properly. Furthermore, it is the Customer’s duty to prevent unauthorised access to or use of the Services. Alternatively, the Customer must notify I Am Here should there be any unauthorised use of the Services. I Am Here reserves the right to charge the Customer for unauthorised Users.
- The Customer will appoint one or more of its Team Members of the program as the Champion of I Am Here. This individual will own driving the adoption and engagement internally. They will work with I Am Here’s Client Success Manager to identify methods of promoting I Am Here throughout the term, including, but not limited to, events, social media campaigns, etc.
- The Customer will be responsible for any necessary hardware, software and connectivity required to access the World Wide Web and use the Services, including without limitation, any fees associated with establishing and maintaining such access.
- It is the Customer’s responsibility to notify I Am Here as soon as possible of any problems that occur in or from the Services. I Am Here will assist the Customer as far as possible in remedying such problems if the problem has been directly caused by I Am Here’s Services under this agreement.
- I Am Here has no obligations in relation to Team Members, Tribe Members or Ambassadors who do not follow the guidelines provided within the content. The Customer understands and agrees that it has read Clause 12 and no warranties are made in relation to the Services.
- Providing Information. The Services or any portion thereof are dependent on information supplied by the Customer. I Am Here shall be entitled to assume that all the data and information provided by the Customer is accurate and complete. I Am Here will not be liable to the Customer or any third party for any damages suffered as a result of the Customer providing information that is incorrect or incomplete or where the Customer fails to disclose any relevant information to I Am Here, and the Customer indemnifies I Am Here against any claims or expenses relating thereto. It is the Customer’s duty to update and notify I Am Here of any changes in its data applicable to the operation of the Services.
- Third-Party Services. Third-Party Services (including data, information, applications and other services) may be provided to the Customer. The Customer acknowledges and agrees that I Am Here shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. I Am Here does not assume and shall not have any liability or responsibility to the Customer or any other person or entity for any Third-Party Services. Third-Party Services and links thereto must be accessed and used entirely at the Customer’s own risk and subject to such third parties’ Terms and Conditions. This includes, but is not limited to, any End User License Agreements that the Customer could be party to.
- The Customer agrees not to, and it will not permit others to:
- License, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Services or make the Services available to any third party, other than to authorised parties as permitted herein.
- Copy, modify or use the Services for any purpose other than as permitted in this Agreement.
- Modify, make derivative works of, disassemble, decrypt, reverse-compile or reverse-engineer any part of the Services.
- Remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of I Am Here or its affiliates, partners, suppliers or the licensors of the Services.
- Injunctive Relief. The Parties acknowledge that in the event of a breach of any of the provisions of this Clause 3, the non-breaching Party may not have an adequate remedy at law. The non-breaching Party shall, therefore, be entitled to seek an injunction against such breach from any court of competent jurisdiction immediately upon request. The non-breaching Party’s right to obtain injunctive relief shall not limit its right to seek further remedies.
- All additional costs and expenses reasonably incurred by I Am Here by reason of any delay, variation, interruption or suspension of the Services arising from any act or omission of the Customer will be reimbursed to I Am Here by the Customer. Such additional costs and expenses will be due and payable when they have been calculated by I Am Here and invoiced to the Customer.
3. CUSTOMER DATA
- I Am Here will use industry-standard efforts to maintain and protect the confidentiality of the Customer Data it receives. Despite these efforts, the Customer acknowledges that I Am Here cannot guarantee unauthorised access to this information and it is therefore provided at the Customer’s own risk. I Am Here, however, will use strict procedures and security features to try to prevent unauthorised access as far as possible.
- The Customer is the owner of all Customer Data. Upon termination of the Services, the Customer may reclaim any confidential data accumulated through the Services within 15 days of such termination or such other period of time mutually agreed by the parties.
4. INTELLECTUAL PROPERTY RIGHTS
- Services and Technology. The Customer acknowledges that I Am Here and/or its particular Vendor Partner retains all right, title and interest in and to the Services, as well as to any and all proprietary software, materials, formats, interfaces, information, data and content used by I Am Here or provided to the Customer in connection with the Services and that in certain circumstances, the Services are protected by intellectual property rights owned by or licensed to I Am Here and/or the Vendor Partner. Other than as expressly set forth in this or subsequent agreements, no license or other rights in the Services are granted to the Customer and all such rights are hereby expressly reserved by I Am Here.
- Customer Data. The Customer retains all right, title and interest in and to the Customer Data. The Customer will be solely responsible for providing and obtaining the rights to provide all Customer Data required for the proper operation of the Services.
5. FEES AND PAYMENT TERMS
- Overdue Amounts. I Am Here reserves the right to suspend the provision of the Services on 5 days’ prior written notice in the event of late or non-payment by the Customer.
- All quotations provided by I Am Here exclude applicable taxes, which will be added to its charges where applicable.
6. HOSTING SERVICES (IF APPLICABLE)
- I Am Here shall engage a Hosting Provider to provide the Hosting Services in accordance with the Service Level Agreement set out in Clause.
- I Am Here reserve the right to:
- Change the Hosting Provider upon notice to the Customer
- Change, discontinue, modify or remove features or functionality from the Hosting Services upon notice to the Customer
- The legitimacy and correctness of customer data stored is the sole responsibility of the Customer.
- To the maximum extent permitted by applicable law, I Am Here makes no warranties of any kind in respect of the Hosting Services under this Agreement or appendices, whether express, implied, statutory or otherwise, and specifically disclaims the implied warranties of noninfringement, title, merchantability or fitness for a particular purpose.
- The Customer shall defend I Am Here against any claim, demand, suit, governmental action or proceeding (a ‘Claim’) made or brought against I Am Here by a third party arising out of or in connection with (i) the Customer’s use of the Hosting Services in violation of this Agreement or any applicable law, or (ii) any Customer data posted, uploaded, distributed, transmitted or disseminated by the Customer via the Hosting Services and shall indemnify I Am Here for any damages, fines, legal fees and costs incurred by I Am Here as a result of such a Claim.
- The Customer shall not at any time prior to the expiration of 12 months from finalisation of the Services, without the prior written consent of I Am Here, which consent I Am Here may withhold in its sole discretion:
- Attempt in any manner to deal directly or indirectly with any of the contact persons or other individuals or companies related to the Services in any way possible, including by having any part of or deriving any benefit from the Services or any aspect thereof.
- Bypass, compete, avoid, circumvent or attempt to circumvent I Am Here relative to the Services, including by utilising any of the Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
- The Customer acknowledges that I Am Here provides a variety of other services to a large and diverse range of Customers. The provision of the Services to the Customer will not prevent I Am Here from providing the same or similar services to other parties, some of whom could be competitors of the Customer or who may be in conflict with the Customer.
- The Customer also acknowledges that I Am Here may already have provided the same or similar services to other parties.
- Whilst I Am Here will be bound by the confidentiality clauses mentioned below, I Am Here shall have the right to use the name of the Customer and a description of the Services as a reference in seeking to provide services to other parties, unless the Customer expressly forbids this.
- Each Party shall, during the full term of this Agreement, keep secret and confidential all information and know-how disclosed to it by the other party or otherwise belonging to the other party and shall procure that its employees, agents and/or sub-contractors are similarly bound, which by its nature is clearly confidential and/or relates to the business of the other party and shall not disclose the same to any person, save as expressly approved in writing to be disclosed by the other party.
10. LIMITATION OF LIABILITY
- To the extent permitted by applicable law, in no event shall I Am Here be liable for any indirect, incidental, consequential, special or other damages resulting from or in connection with the Contract, whether in an action based on contract or tort, including negligence or strict liability, and shall under no circumstances be liable for the cost of substituted Services, wasted management or staff time or the loss of data. I Am Here’s maximum aggregate liability to the Customer for any damages is limited to the price paid by the Customer for the Services for the previous 12-month period at the time of the event giving rise to the liability.
- The Customer will indemnify, defend and/or settle, and pay damages of any kind (including reasonable legal fees) arising from or related to any third-party claim brought against I Am Here arising out of or related to the Customer’s use of the Services including by any party acting on behalf of the Customer, any breach of the Customer’s obligations set out in this Agreement or violation of any law, or infringement on or misappropriation of any intellectual property right, publicity or privacy rights or any other third party’s rights.
12. DISCLAIMER OF WARRANTIES
- No Warranties. The Services are provided ‘as is’ and ‘as available’ and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, I Am Here expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, including all implied warranties of merchantability, performance, fitness for a particular purpose, title and non-infringements. I Am Here does not warrant that the Services will be provided error-free, uninterrupted, completely secure or virus-free. Furthermore, the Customer acknowledges that I Am Here shall not be responsible for and does not control any third-party services. The Customer confirms that all data, information or other material placed on these third-party services are solely the Customer’s responsibility.
- I Am Here is not responsible for any loss of data or harm done to the Customer’s computer, systems or other equipment arising out of or relating to the use of the Services. The Customer also expressly disclaims any warranty that the Services will meet the Customer’s requirements. The Customer assumes responsibility for selecting the Services to achieve the Customer’s intended results and for the results obtained from the Customer’s use of the Services. The Customer shall bear the entire risk as to the quality and performance of the Services. This disclaimer applies to any expenses, damages or injury, regardless of the cause, whether for breach of contract, strict liability, negligence or for any other cause of action.
- No Third-Party Representations or Warranties. No third party is authorised by I Am Here to make any representation or warranty to a Customer regarding the Services.
13. TERM AND TERMINATION
- These Terms and Conditions shall govern the Services for the duration applicable to the particular products purchased by the Customer, unless mutually agreed in writing by the Parties or terminated in accordance with this Agreement.
- I Am Here may terminate this Agreement:
- In the event of the Customer being in breach of any of the terms as set out herein. I Am Here may, by written notice, require the Customer to remedy such breach. If this has not been remedied within 14 calendar days of receipt of such notice, or if the breach is incapable of being remedied, I Am Here may terminate the Services.
- In the event the Customer becomes the subject to any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Upon 15 days’ prior written notice to the Customer if the Customer fails to pay the fees for the Services and does not cure such failure within the 15-day notice period.
- With 90 days’ notice for any reason.
- Effects of Termination
- Upon date of termination, the Customer shall promptly discontinue use and access of the Services.
- Termination or expiry of the Agreement does not affect either Party’s rights and obligations that accrued before that termination or expiry.
- Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination, a Party must promptly return to the other Party or destroy all Confidential Information of the other Party that is in the first Party’s possession or control.
- Termination for any reason shall not relieve the Customer of its duty to pay any fees accrued or due and payable to I Am Here, including interest prior to the effective date of termination. Termination for any reason shall not relieve the Customer of the obligation to pay all existing and future amounts due.
14. DISPUTE RESOLUTION
- In the event of any dispute, controversy or claim as to the Parties’ respective rights and obligations or as to any matter arising from or that in any way is related to the Services, including any question as to its existence, validity or termination, both Parties shall attempt in good faith to resolve the dispute between themselves.
- If the Parties are unable to resolve the dispute by mutual agreement within 14 days after the dispute is notified in writing by either Party to the other, or within such further period as mutually agreed to, the dispute shall be submitted to a mediator to be approved by mutual agreement or failing mutual agreement, to be appointed by the Centre for Effective Dispute Resolution of Ireland who shall consider the resolution of the dispute in a prompt manner. It is only if the matter is not resolved following mediation in accordance with this clause that either Party shall have the right to proceed to have the matter resolved by the judgement of a competent court in Ireland under Irish law.
15. GOVERNING LAW
- These terms of engagement and all disputes arising therefrom shall be determined exclusively in accordance with the laws of Ireland and subject to the exclusive jurisdiction of the Irish courts.
16. GENERAL PROVISIONS
- These terms are not intended by the Parties to constitute or create a joint venture, partnership or formal business organisation of any kind, and the rights and obligations of the Parties shall be only those expressly set forth herein and as agreed in writing between the Parties. This Agreement supersedes all previous communications, representations and arrangements, written or oral. Neither Party shall have authority to bind the other except to the extent authorised herein.
- These terms may not be assigned or otherwise transferred by the Customer in whole or in part without the prior written consent of I Am Here.
- Publicity: I Am Here reserves the right to use the Customer’s names and logos in its marketing materials related to the Services.
- If any provision of these Terms and Conditions shall be held invalid by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect.
- Force Majeure. Except for the Customer’s payment obligations, neither Party shall be liable to the other Party for any delay or non-performance of its obligations under these Terms and Conditions arising from force majeure. Subject to the Party so delayed promptly notifying the other Party in writing of the reason for the delay and the likely duration of the delay, the performance of the delayed Party’s obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists, provided that if performance is not resumed within 30 days after that notice, the non-delayed Party may by notice in writing terminate this agreement.
- Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under these Terms and Conditions shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies a Party may have in terms of the law.
- These governing terms may be modified or amended only by the Customer following receipt of written agreement signed by I Am Here. The Customer may not bind I Am Here by unilateral submission of additional or different Terms and Conditions without written consent to such Terms and Conditions by I Am Here.
- Third-Party Rights. Nothing in this agreement shall confer, nor is it intended to confer, any enforceable right on any third party. The Customer shall indemnify and hold I Am Here harmless from any claim brought against I Am Here by any of its employees, contractors or users of the service.
- Fair and Reasonable Restrictions. Each party expressly acknowledges and agrees that the Terms and Conditions of this Agreement including, without limitation, the limitations on liability, have been individually negotiated and agreed and the fees payable by the Customer hereunder have been specifically calculated on the basis of and taken into account such limitations and restrictions.
17. HOSTING SERVICESService Level Agreement
- I Am Here is using the hosting services of Pressidium and terms can be found here: https://pressidium.com/legal/service-level-agreement/
- Acceptable Use Policy See this link for Pressidium’s Acceptable Use Policy: https://pressidium.com/legal/acceptable-use-policy/
- Our hosting provider, Pressidium, provides a high availability environment with multiple replicated servers. Notwithstanding this, the Customer acknowledges that there may be occasions of downtime