1.1 The definitions and rules of interpretation in this clause apply in these Terms.
Business Administrator: the User and person who acts as business administrator on behalf of an entity in relation to the Services and who has authority to represent the Business, administer the Services and manage the Business Team’s usage of the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
Business Team: the cohort or grouping of Users of which the Users is declared a Member.
Codes of Conduct: means Kmend’s codes of conduct, as amended from time to time, and available here.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or treated as Confidential Information in accordance with clause 10.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: each as defined in the Data Protection Legislation.
Data Protection Legislation: the General Data Protection Regulations Regulation (EU) 2016/679, including any applicable national implementing legislation as amended or replaced from time to time and any similar legislation in other jurisdictions in force from time to time.
Members: individual entities who are members of a Business Team created by a Business Administrator.
Services: the professional endorsement and review platform services provided by Kmend under these Terms.
Subscription Fees: the subscription fees payable to Kmend as notified to the Business Administrator from time to time.
User: the individual user or entity which engages Kmend to provide the Services or any individual or entity who is authorised by the Business Administrator and/or creates an account with Kmend, to use the Services.
User Data: the data provided by the User to Kmend for the purpose of using the Services.
Virus: 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 re-arranging, 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.
2. Use of the Services
2.1 Subject to the payment of the Subscription Fees (where applicable), the User is granted a non-exclusive, non-transferable and limited licence to access and use, (and in the case of the Business Administrator invite other Users to access and use), the Services.
2.2 Users shall comply with and use the Services in accordance with these Terms and shall be responsible for their acts and omissions.
2.3 The Services shall not be used by the User to access, store, distribute or transmit any Viruses, or any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) infringes, or potentially infringes, any third party’s intellectual property rights;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(g) the User does not have the right to disclose (such as confidential information of others);
(h) interferes with the proper workings of the Services; or
(i) is otherwise illegal or causes damage or injury to any person or property;
and Kmend reserves the right, without liability or prejudice to its other rights , to disable the User’s access to the Services as a result of a breach or suspected breach of this clause.
2.4 The User shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
(b) access all or any part of the Services in order to build a product or service which competes with or is similar in functionality the Services; or
(c) use the Services to provide services to third parties other than as permitted by Kmend; or
(d) subject to clause 20.1 (Assignment), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party (except where Business Administrators are entitled to invite other Users to benefit from the Services), or
(e) make known to another their password or attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and/ or
(f) introduce or permit the introduction of, any Virus into Kmend’s network and information systems.
2.5 The User shall use all reasonable endeavours to prevent any unauthorised or inappropriate access to, or use of, the Services and, in the event of any such unauthorised or inappropriate access or use, promptly notify Kmend and provide Kmend with sufficient details of the unauthorised and inappropriate access to the Services.
2.6 Kmend may temporarily suspend access to the Services for operational purposes including maintenance or to install upgrades.
2.7 To use the Services, each User must be at least eighteen (18) years old and must use their real name. Creating an account with false information is a violation of our Terms.
2.8 Business listing ratings use the NPS net promoter system.
3. Access To The Services
3.1 Users may be authorised by Kmend and must provide their email address and any other information reasonably requested by Kmend in order to access the Services.
3.2 Each User shall have a unique username and password. Each username may only be used by the User to whom it is assigned and may not be shared or used by any other person.
3.3 Kmend shall have the authority to administer the Services for the User. Each Business Administrator shall be the main contact for the respective Business Team.
3.4 The User consents to Kmend being informed by a Business Administrator if the User is no longer a Member of the relevant Business Team and that User may instead request access to the Services through Kmend or through another Business Team.
3.5 Kmend reserves the right to limit your use of the Services.
4. User Data
4.1 The User shall own all right, title and interest in and to all of the User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such User Data.
4.2 In the event of any loss of, corruption or damage to User Data, the User’s sole and exclusive remedy against Kmend shall be for Kmend to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by Kmend. Kmend shall not be responsible for any loss, corruption, destruction, alteration or disclosure of User Data caused by any third party except as otherwise set out in these Terms.
4.4 Usage of Kmend and its Services is at the user’s own risk. Kmend does not monitor inputs to Kmend by others and the User agrees that Kmend is not responsible for such inputs whether true or false or whether entered maliciously or in error.
4.5 Both Kmend and the User shall comply with all applicable requirements of the Data Protection Legislation.
4.6 The parties acknowledge that:
(a) if Kmend processes any personal data on the User’s behalf when performing its obligations under these Terms, the User is the controller and Kmend is the processor for the purposes of the Data Protection Legislation; and
(b) Schedule 1 sets out the scope, nature and purpose of processing by Kmend, the duration of the processing and the types of personal data and categories of data subject; and
(c) the personal data may be transferred or stored outside the EEA or the country where the User is located in order to carry out the Services and Kmend’s other obligations under these Terms provided such transfer complies with the Data Protection Legislation.
4.7 Without prejudice to the generality of clause 4.5, the User will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of personal data to Kmend for the duration and purposes of these Terms so that Kmend may lawfully use, process and transfer the personal data in accordance with these Terms on the User’s behalf.
4.8 Without prejudice to the generality of clauses 4.5 and 4.6, Kmend shall, in relation to any personal data processed in connection with the performance by Kmend of its obligations under these Terms:
(a) process that personal data only on the documented instructions of the User, including with regard to transfers of personal data to a third country or an international organisation unless Kmend is required by the laws of any member state of the European Union or by the laws of the European Union applicable to Kmend to process personal data (“Applicable Laws“). Where Kmend is relying on Applicable Laws as the basis for processing personal data, Kmend shall promptly notify the User of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Kmend from so notifying the User;
(b) not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled:
(i) the User or Kmend has provided appropriate safeguards in relation to the transfer;
(ii) Kmend complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iii) Kmend complies with reasonable instructions notified to it in advance by the User with respect to the processing of the personal data;
(c) assist the User, at the User’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the User without undue delay on becoming aware of a personal data breach;
(e) ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(f) at the written direction of the User, delete or return personal data and copies thereof to the User on termination of these Terms unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for and contribute to audits, including inspections, conducted by the User and or another auditor mandated by the controller. Kmend shall immediately inform the User if, in the opinion of Kmend, an instruction infringes the Data Protection Legislation or other Member State data protection provisions
4.9 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
4.10 The User consents to Kmend appointing the following third-party processors as a third-party processor of personal data under these Terms in the provision of the Services:
|Third party processor||Description of Processing|
|Amazon Web Services EMEA SARL
One Burlington Plaza, Burlington Road, Dublin 4, D04 RH96, Ireland.
|Backup of User Data for service assurance|
4.11 Kmend will enter into a written agreement with each sub-processor containing data protection obligations that provide at least the same level of data protection in all material respects for personal data as set out in these Terms. As between the User and Kmend, Kmend shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.
4.12 By accepting these Terms the User grants to Kmend general authorisation to appoint new sub-processors, provided that Kmend shall notify the User from time to time of the identity of any new third-party processor engaged. If User (acting reasonably) objects to a new third-party processor then either party may terminate these Terms on 30 days’ written notice to the other party. If User does not object within 30 days of receipt of notice it is deemed to have accepted the appointment of the new third-party processor.
5 . Third party providers
6. Kmend’s obligations
6.1 Kmend shall provide the Services to the User on and subject to these Terms.
6.2 Kmend undertakes that the Services will be performed with reasonable skill and care.
(a) does not warrant that:
(i) the User’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services and/or the information obtained by the User through the Services will meet the User’s requirements.
(b) 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 internet, and the User acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 These Terms shall not prevent Kmend from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.
6.5 Users acknowledge and agree that, as part of the Services, they may encounter information that might be inaccurate, incomplete, misleading, offensive or otherwise harmful. Users agree that Kmend is not responsible for others’ (including other Users) content or information.
6.6 Kmend warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
7. User’s obligations
7.1 The User shall:
(a) comply with all applicable laws and regulations with respect to its activities under these Terms;
(b) ensure that it uses the Services and any documentation provided in accordance with these Terms and any acceptable usage policy made available from time to time;
(c) obtain and shall maintain all necessary licences, consents, and permissions necessary for Kmend, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
(d) be responsible for obtaining and maintaining any equipment, third party software and services needed to connect to, access or otherwise use the Services;
(e) ensure that its network and systems comply with the relevant specifications provided by Kmend from time to time;
(f) comply with the Codes of Conduct; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Kmend’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.
8.1 The Subscription Fees or other charges and payment terms for the Services shall be as notified from time to time by Kmend to the Business Administrator and/or the User.
8.2 The Services may be made available to a User in accordance with Clause 15 (Trial and Beta Kmend Services) from time to time, provided that the Business Administrator acknowledges that Kmend in its sole discretion from time to time may notify the User of the introduction of Subscription Fees or other charges for the Services which shall take effect from a specified date.
8.3 In the event that the Business Administrator does not agree to the introduction of Subscription Fees or other charges, it must immediately, and procure that any Users invited by it, cease using the Services.
8.4 If you buy, use or access any of Kmend’s paid Services, then you agree to pay the applicable fees and taxes and to comply with any additional terms specific to those paid Services, that are notified to you by Kmend. Failure to pay these fees will result in the termination of any paid Services.
9. Proprietary rights
The User acknowledges and agrees that Kmend and/or its licensors own all intellectual property rights in the Services. Except as otherwise expressly stated herein, these Terms do not grant the User any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10. Confidentiality and Publicity
10.1 The User agrees that information which it may enter onto the Kmend platform is not Confidential Information and acknowledges that it will or may be published or otherwise displayed by Kmend in the provision of the Services.
10.2 Kmend may identify the User for marketing purposes with the User’s consent. The User may be asked to give such consent when subscribing to or otherwise accessing the Services.
11.1 The User shall defend, indemnify and hold harmless Kmend against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Services provided that:
(a) Kmend provides the User with prompt notice of any such claim;
(b) Kmend provides reasonable co-operation to the User in the defence and settlement of such claim, at the User’s expense; and
(c) the User is given sole authority to defend or settle the claim provided that the User may not settle any claim without Kmend’s prior written consent (which shall not be unreasonably withheld) if settlement would require Kmend to admit fault or take or refrain from taking any action.
11.2 Subject to Clause 12.3(b), Kmend shall defend the User, its officers, directors and employees against any claim that the User’s use of the Services in accordance with these Terms infringes any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify the User for any amounts awarded against the User in judgment or settlement of such claims, provided that:
(a) Kmend is given prompt notice of any such claim;
(b) the User provides reasonable co-operation to Kmend in the defence and settlement of such claim, at Kmend’s expense; and
(c) Kmend is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Kmend may procure the right for the User to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these Terms immediately on notification to the User without any additional liability or obligation to pay liquidated damages or other additional costs to the User.
11.4 In no event shall Kmend, its employees, agents and sub-contractors be liable to the User to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Kmend; or
(b) the User’s use of the Services in a manner contrary to the instructions given to the User by Kmend; or
(c) the User’s use of the Services after notice of the alleged or actual infringement from Kmend or any appropriate authority.
11.5 The foregoing and clause 12.3(b) state the User’s sole and exclusive rights and remedies, and Kmend’s (including Kmend’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 Except as expressly and specifically provided in these Terms:
(a) the User assumes sole responsibility for results obtained from the use of the Services by the User, and for conclusions drawn from such use. Kmend shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kmend by the User in connection with the Services, or any actions taken by Kmend at the User’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 by Kmend (including but not limited to any warranties that the Services will meet the User’s requirements, that the Services will be available at any particular time, uninterrupted or secure, that any defects or errors will be corrected or that the Services will be free from viruses or other harmful components); and
(c) the Services are provided to the User on an “as is” and “as available” basis. Use of the Services is at the risk of the User.
12.2 Nothing in these Terms excludes the liability of Kmend:
(a) for death or personal injury caused by Kmend’s negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) liability for any matter for which it would be unlawful for Kmend to limit or exclude its liability.
12.3 Subject to clause 12.1 and clause 12.2:
(a) Kmend shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, wasted expenditure, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with the Services or these Terms; and
(b) Kmend’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to €100.
13 . Term and termination
13.1 These Terms shall take effect when the first User logs into the Services and continue until terminated using the functionality provided in the Services or as otherwise expressly provided for in these Terms. Either Kmend or the User can terminate these Terms using the applicable functionality of the Services.
13.2 Kmend may terminate these Terms for convenience upon breach (in the sole opinion of Kmend) of Clause 4.1), immediately without notice.
13.3 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts.
13.4 On termination of these Terms for any reason:
(a) the User shall have seven (7) days to remove all User Data from the Services after which period Kmend is authorised to delete and destroy all User Data stored on the Services;
(b) any assistance requested by User in connection with the termination of these Terms shall be performed on a time and materials basis at Kmend’s prevailing rates; and
(c) 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 these Terms which existed at or before the date of termination shall not be affected or prejudiced.
14. Force majeure
Kmend shall have no liability to the User under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Kmend or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, cyber-attacks, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or risk of pandemic or default of suppliers or sub-contractors, provided that the User is notified of such an event and its expected duration.
15. Trial and Beta Kmend Services
From time to time, User may have the option to use alpha or beta Services, products, features or documentation offered by Kmend free of charge for testing purposes (“Beta Services”) or for User’s product evaluation purposes (“Purposes”) (Beta Services and Purposes, together “Free Kmend Services”). Any use of the Free Kmend Services is at User’s sole risk. The Free Kmend Services are provided “as is”, “as available” and without warranty of any kind. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, EXCEPT TO THE EXTENT AGREED BY THE PARTIES IN WRITING, KMEND PROVIDES NO WARRANTY OR INDEMNITY FOR FREE KMEND SERVICES AND ITS LIABILITY FOR FREE KMEND SERVICES WILL NOT EXCEED ONE EURO. For clarity, User is under no obligation to use any Free Kmend Services, and any such use by User will remain at User’s sole discretion.
No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
18. Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
19. Unenforceability and Severance
If a court of competent jurisdiction determines that any provision or part-provision of these Terms is invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
20.1 The User shall not, without the prior written consent of Kmend, assign, transfer, charge, sub¬contract or deal in any other manner with all or any of its rights or obligations under these Terms.
20.2 Kmend may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
21. Entire Agreement
These Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
22. Governing law and Jurisdiction
These Terms will be governed by the laws of Ireland. The existence, formation, interpretation, operation and termination of these Terms and all matters or disputes (whether contractual or non-contractual) arising out of or in connection with these Terms or its subject matter is governed by and interpreted in accordance with the laws of Ireland. The parties irrevocably and unconditionally agree that the courts of Ireland have exclusive jurisdiction to settle all matters or disputes (whether contractual or non-contractual) arising out of or in connection with these Terms or their subject matter.
Schedule 1 Processing, Personal Data and Data Subjects
Processing by Kmend
- Subject matter and duration
As set out in these Terms.
- Nature and Purpose of processing
The processing of personal data shall be for the purpose of providing the Services to the User and any other purpose related to the provision of the Services or as specified in these Terms. The following processing is intended: collection, storage, transmission, analysis and deletion.
- Types of personal data
Names, email address, phone number, username, occupation, employer, password.
- Categories of data subject
Users and any category of data subject in respect of whom the User loads personal data onto the Services.
Last updated: [ 21/4/2023 ]