Terms and Conditions of Service - Premier Life Employer Education Courses
This terms and Conditions of Service (the "Terms") is a contract between the user of the Services (the "End User") and PCS Financial Services (Kerry) Limited trading as Premier Financial, a private company limited by shares registered in Ireland (registerted number 395969) having its registered office at Beechgrove House, Strand Street, Tralee, Co. Kerry (the "Licensor"). The Licensor and the End User together shall be referred to as the "Parties" and individually shall be referred to as a "Party".
Please read these Terms carefully. By using the Services, the End User accepts all of the terms and conditions set out in this Agreement. If the End User does not wish to be legally bound by the terms and conditions of this Agreement, do not use the Services.
The Parties agree as follows:
- Definitions. Unless otherwise provided in the main body of this Agreement, capitalised terms shall have the meaning given to them in the attached Exhibit A, which forms part of this Agreement as if set out here.
- Licence. Subject to the provisions of these Terms, the Licensor grants to the End User a non-transferable, non-sub-licensable, and non-exclusive licence to use the Services and Materials.
- Reservation of rights. Except for the licence explicitly granted by Clause 2.1, the Licensor reserves all its rights. The End User acknowledges and agrees that the End User is licensed to use the Services and Materials only in accordance with the express provisions of these Terms and not further or otherwise.
- No support, etc. Unless otherwise agreed by the Parties in writing, the Licensor shall have no obligation to upgrade, update, to provide support or maintenance services, or to provide assistance or consultancy services in relation to the Services.
- Use of Services and Materials
- Restrictions. Except to the extent permitted by applicable mandatory law, the End User shall not:
- 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 Materials (as applicable) in any form or media or by any means;
- use the Services and/or Materials to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Materials available to any third party;
- access all or any part of the Services and Materials in order to build a product or service which competes with the Services and/or the Materials;
- attempt to obtain, or assist third parties in obtaining, access to the Services and/or Materials; or
- disassemble, decompile, or reverse engineer the Software, or otherwise attempt to derive the source code of the Software.
- Obligations. The End User shall at all times: (a) effect and maintain adequate security measures to safeguard the Services and Materials from unauthorised access, use, and disclosure; and (b) supervise and control access to and use of the Services and Materials in accordance with the provisions of these Terms. The provisions of this Clause 3.2 are without prejudice to the provisions of Clause 7.1.
- Variation. The Licensor may at its sole discretion and at any time without prior notice alter the content contained in the Services and/or Materials or vary the End User’s access to the Services and Materials.
- Restrictions. Except to the extent permitted by applicable mandatory law, the End User shall not:
- Confidential Information
- Confidentiality Obligations. As between the Parties, all Confidential Information belongs to the Licensor. At all times during the term of these Terms and at all times subsequently, the End User shall: (a) maintain all Confidential Information securely and in the strictest confidence and shall respect the Licensor’s rights therein; (b) not disclose or otherwise make available any Confidential Information to any third party; and (c) not use any Confidential Information for any purpose, except for the purpose of using the Software in accordance with the provisions of these Terms.
- Exceptions to obligations. The provisions of Clause 4.1 shall not apply to Confidential Information which the End User can demonstrate by reasonable, written evidence: (a) is subsequently disclosed to the End User without any obligations of confidence by a third party who has not derived it directly or indirectly from the Licensor; or (b) is or becomes generally available to the public through no act or default of the End User.
- Return of Confidential Information Upon any termination of these Terms for any reason, the End User shall: (a) return to the Licensor any documents and other materials that contain any Confidential Information including all copies made, except for one (1) copy as may be necessary to be retained for the purpose of compliance with any continuing obligations under these Terms; and (b) make no further use, copy, or disclosure thereof.
- Data Protection
- Roles of Licensor and End User. The Parties acknowledge that, for the purposes of any Personal Data provided by the End User in connection with the provision of the Services, the Licensor is a Data Controller and the End User is a Data Subject. Accordingly, each of the Licensor and the End User have those rights and obligations as relate to their respective roles as Data Controller and Data Subject as set out under Data Protection Law.
- Personal Data of End User. The Licensor shall use best endeavours to protect the End User's right to privacy in accordance with the Data Protection Law, GDPR and any other relevant legislation. Any information obtained by the Licensor may be accessed and used by the Licensor for the purposes of performing its obligations under these Terms and for administration, risk assessment, market research, marketing and efficient performance of the Services. The End User acknowledges the use of such information for such purposes. Without prejudice to the generality of the foregoing provisions, the End User acknowledges that:
- the Licensor collecting and Processing the Personal Data of the End User for the purposes of and in connection with the provision of the Services and the Materials. All Personal Data Processing is undertaken in accordance with our Data Protection Statement, which can be accessed at [*]1; and
- the transfer of Personal Data by the Licensor to Third Party Processors including the transfer of Personal Data outside of the European Economic Area to assist it in the provision of the Services.
- Transfer of Personal Data to third parties. The Licensor shall use commercially reasonable efforts to minimize the Personal Data obtained to that which is necessary for purposes of the provision of the Services. The End User acknowledges and understands that where the Licensor receives Personal Data under this Agreement from the End User, it may Process such Personal Data for the performance of the Services or as otherwise expressly permitted under this Agreement, including the transfer or making available of the End User’s Personal Data to third parties, including (but not limited to) Third Party Processors and any third party investors or bona fide third parties who have made an offer to purchase some or all of the shares in the capital of the Licensor and their advisors. The transfer of Personal Data by the Licensor to a third party shall comply with the requirements of applicable Data Protection Law.
- Safeguards to Personal Data. The Licensor shall ensure that it takes all reasonable steps necessary to implement physical, technical, administrative and other organizational measures, including such measures required under applicable Data Protection Law to safeguard the End User’s Personal Data against loss, theft, damage or unauthorized or unlawful access or Processing, including in the event of a disruption, disaster or failure of its primary systems or operational controls and the Licensor shall use commercially reasonable efforts, including through the use of rigorous systems security measures in accordance with industry standards, to guard against, identify and promptly terminate the unauthorized access, alteration or destruction of the End User’s Personal Data.
- Acknowledgements, disclaimers etc.
- Acknowledgements. The End User acknowledges and agrees that software in general is not error-free and agrees that the existence of any errors in the Software shall not constitute a breach of these Terms by the Licensor.
- Viruses, etc. The Licensor does not warrant that the Software supplied under these Terms shall be free from all viruses. The End User acknowledges and agrees that it is solely the End User’s responsibility to conduct appropriate virus scanning of the Software prior to installation and use.
- No implied warranties, etc. The express undertakings and warranties given by the Licensor in these Terms are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or in any other way, including any implied warranty of merchantability, satisfactory quality, fitness for any particular purpose. All of these are excluded to the fullest extent permitted by applicable law. Without limiting the scope of the preceding sentences, the Licensor:
(a)does not warrant that the accuracy of any of the information and documentation contained in the Materials or provided by the Licensor through the Services to any End User and all such information and documentation is for informational and educational purposes only;(b)gives no warranty or guarantee that the End User’s use of the Services will be error-free nor that the Services, Materials and/or the information obtained by the End User through the Services will meet the End User’s requirements;(c)is not required to check or verify the accuracy, contents or validity of all data and information (including personal data) provided to the Licensor by End Users in connection with the provision of the Services or otherwise. Accordingly, the Licensor has no liability or responsibility howsoever arising directly or indirectly to the End User in respect of the Services and Materials provided to such End User;(d)has no liability or responsibility howsoever arising directly or indirectly in respect of the End User’s use of the Services or any Materials provided as part of the Services or any actions taken by such End User on foot of any information provided to such End User as part of the Services; and(e)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Kajabi Platform or the internet, and the End User acknowledges that the Services and Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- Indemnity. The End User shall indemnify the Licensor from and against any and all losses, damages, claims, demands, liabilities, costs, and expenses of any nature whatsoever that may be asserted against or suffered by the Licensor and which relate to: (a) any use by the End User of the Software, Services and Materials; and/or (b) the development, manufacture, use, supply, or any other dealing in any products or services that were generated from the use of the Services and Materials, including any claims based on intellectual property laws.
- No Professional Advices given. All information or documentation provided to each End User during any Initial Information Discussion is solely for informational and educational purposes only. The Initial Information Discussion does not constitute Professional Advices and the Licensor does not represent the Initial Information Discussion as being Professional Advices. The Initial Information Discussion is not to be used by an End User as a substitute or replacement for Professional Advices. An End User should obtain Professional Advices specific to their circumstances and should not rely on the Initial Information Discussion as a substitute for Professional Advices.
- Limit of liability The cumulative maximum liability of the Licensor to the End User under or in connection with these Terms, irrespective of the basis of the claim (whether in contract, tort, negligence, or otherwise), shall be limited in accordance with the provisions of this Clause 6.6:
(f)The Licensor does not seek to exclude or limit liability where such exclusion or limitation is precluded from applicable law, including any liability that may arise in respect of (i) death or personal injury resulting from the Licensor’s negligence, or (ii) fraud.(g)Subject to the rest of the provisions of this Clause 6.5, the cumulative liability of the Licensor in respect of any and all claims made under or in connection with these Terms shall not exceed an amount that is equal to €100.(h)Subject to Clause 6.5(f), the Licensor shall in no circumstances be liable for any type of special, indirect or consequential loss, for any loss of profit, revenue, or anticipated saving, lost, incorrect or spoilt data, loss of use, loss of contracts with third parties, loss of business or loss of goodwill, even if such loss was reasonably foreseeable or the Licensor had been advised of the possibility of the same arising.
- Duration and termination
- Commencement and termination. These Terms, and the licence granted hereunder, shall come into effect on the Start Date and shall continue in force unless and until terminated in accordance with Clause 7.2 or Clause 7.3.
- Rights of the LIcensor to terminate.
(a)The Licensor may terminate these Terms, and the licence granted hereunder, at any time by notice in writing to the End User, such termination to take effect as specified in the notice.(b)In addition, these Terms, and the licence granted hereunder, shall terminate automatically if the Customer’s agreement with the Licensor in respect of the Services is terminated for any reason. In such circumstances, the Licensor shall give prompt written notice thereof to the End User.
- Consequences of termination.
In the event of any termination of these Terms for any reason:(a)any licence granted by the Licensor under these Terms shall automatically terminate without further notice, and the End User shall make no further use of, or carry out any other activity in relation to, the Software; and(b)any instalments of the Licence Fee due to be paid after the date of termination shall forthwith become due and payable by the End User, and the Licensor shall be under no obligation to reimburse the whole or any part of the Licence Fee.
- Accrued rights. Termination of these Terms for any reason shall not affect the rights and obligations of the Parties accrued before termination, including any right to claim damages. The rights and obligations of the Parties set out in Clauses 4, 6.4, 6.5, 7.3, 7.4, and 8 shall survive any termination of these Terms for any reason.
- Amendments. These Terms may only be amended in writing signed by duly authorised representatives of the Licensor and the End User.
- Invalid clauses. If any provision or part of these Terms is held to be invalid, amendments to these Terms may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of these Terms to the maximum extent permissible under applicable law.
- No agency. Nothing in these Terms shall create, evidence, or imply any agency, partnership, or joint venture between the Parties. Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf.
- Interpretation. In these Terms:
(a)references to persons include incorporated and unincorporated persons and references to the singular include the plural and vice versa;(b)references to Clauses and Exhibits mean clauses of, and exhibits to, these Terms;(c)references in these Terms to termination include termination by expiry; and(d)where the word "including" is used it means "including without limitation".
- Governing law and jurisdiction. The validity, construction, and performance of these Terms shall be governed by and construed in accordance with the laws of the Republic of Ireland and shall be subject to the exclusive jurisdiction of the courts of the Republic of Ireland to which the Parties hereby submit.
- No use of names, etc. The End User shall not use the names, marks, trade names, trade marks, crests, logos, or registered images of the Licensor without the Licensor’s prior written consent.
- Entire agreement. These Terms, including the attached Exhibit, sets out the entire agreement between the Parties relating to its subject matter and supersedes all prior oral and written agreements, arrangements, or understandings between them relating to such subject matter.
|Confidential Information||In respect of the Services and Materials means information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain and which: (i) either party has marked as confidential or proprietary; (ii) either party, orally or in writing, has advised the other party of the confidential nature of the information; or (iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement and under like circumstances, would treat as confidential|
|Data Controller||has the meaning given thereto in Data Protection Law|
|Data Protection Law||all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts (as amended, revised, modified or replaced from time to time), the GDPR and all other statutory instruments, industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commissioner relating to the processing of personal data or privacy or any amendments and re-enactments thereof|
|Data Subject||has the meaning given thereto in Data Protection Law|
|GDPR||the General Data Protection Regulation ((EU) 2016/679)|
|Initial Information Discussion||means a discussion between an End User and a representative of the Licensor pursuant to or in connection with the Services whereby a representative of the Licensor provides information to the End User for educational and informational purposes only and includes any educational documentation or general information provided to an End User during such discussion|
|Kajabi Platform||the online business platform operated by Kajabi, LLC|
|Materials||the documentation and information made available to the End User by the Licensor as part of the Services via the Software or such other web address notified by the Licensor to the End User from time to time|
|Personal Data||has the meaning given thereto in Data Protection Law|
|Processing||has the meaning given thereto in Data Protection Law and the word "Process" shall be construed accordingly|
|Professional Advices||any professional financial advices, consultations or other professional financial advisory services provided by any authorised representative of the Licensor to an End User|
|Services||the various financial information, guidance and education services provided by the Licensor to the End User under these Terms via the Software, and any Initial Information Discussion provided by a representative of the Licensor to the End User.|
|Software||the [“Premier Life”] online software applications provided by the Licensor as part of the Services which are hosted on the Kajabi Platform|
|Start Date||the earlier of:
(a)the date upon which the End User executes, or otherwise assents (including (without limitation) by electronic means) to the terms and conditions of, these Terms; or(b)the date upon which the End User first uses the Services.
|Third Party Processors||the Licensor’s third-party processors, who may Process Personal Data on behalf of the Licensor|