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GENERAL TERMS & CONDITIONS
FOR GRAPHITE HRM LIMITED
(HEREINAFTER REFERRED TO
AS “GRAPHITE”), INCLUDING
ORGANISATIONAL HEARTBEATS
Please read these
conditions carefully before using any Graphite products or services or accessing
the Graphite HRM website or any of our other websites including Organisational
Heartbeats. By using Graphite
services, you signify your agreement to be bound by these conditions. In
addition, when you use any current or future Graphite service, you will also be
subject to the guidelines and conditions applicable to that service.
Section A: General Conditions
1. Your Web Account
If you use our
website, you are responsible for maintaining the confidentiality of your account
username and password and for restricting access to your computer to prevent
unauthorised access to your account. You agree to accept responsibility for all
activities that occur under your account or password. You should take all
necessary steps to ensure that the password is kept confidential and secure and
should inform us immediately if you have any reason to believe that your
password has become known to anyone else, or if the password is being, or is
likely to be, used in an unauthorised manner.
Please ensure that
the details you provide us with are correct and complete and inform us
immediately of any changes to the information that you provided when
registering.
Graphite reserves
the right to refuse access to the websites, terminate accounts, remove or edit
content, or cancel orders at its discretion.
Graphite will do
its utmost to ensure that availability of the websites will be uninterrupted and
that transmissions will be error-free. However, due to the nature of the
Internet, this cannot be guaranteed. Also, your access to the websites may also
be occasionally suspended or restricted to allow for repairs, maintenance, or
the introduction of new facilities or services. Graphite will attempt to limit
the frequency and duration of any such suspension or restriction.
3.
Restricted Uses
Graphite grants you
a licence to access and make personal use of all client materials in hardcopy,
softcopy and on-line formats. This does not allow you to download (other then
where specifically provided for) or modify materials, or any portion thereof,
except with prior express written consent of Graphite.
Materials may not
be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited
for any economic gain and/ or commercial purpose without Graphite’s prior
express written consent.
You may not frame
or use framing techniques to enclose any trademark, logo, or other proprietary
information (including images, text, page layout, or form) of Graphite and its
affiliates without express written consent. You may not use any meta tags or any
other "hidden text" utilising Graphite's or its affiliates' names or trademarks
without the express written consent of Graphite. Any unauthorised use terminates
the permission or license granted by Graphite.
You are granted a
limited, revocable, and non-exclusive right to create a hyperlink to the Welcome
page of Graphite or Organisational Heartbeats as long as the link does not
portray Graphite, its affiliates, or their products or services in a false,
misleading, derogatory, or otherwise offensive matter. You may not use any
Graphite logo or other proprietary graphic or trademark as part of the link
without Graphite’s prior express written consent.
4. Your conduct
You must not use
the websites in any way that causes, or is likely to cause, the websites or
access to them to be interrupted, damaged or impaired in any way.
You understand that
you, and not Graphite, are responsible for all electronic communications and
content sent from your computer to us and you must use the websites for lawful
purposes only.
5.
Intellectual Property including Copyright and database rights
All content
included in any written materials, including the websites, such as text,
graphics, logos, button icons, images, audio clips, digital downloads, data
compilations, and software, is the property of Graphite, its affiliates or its
content suppliers and is protected by
Republic of Ireland
United Kingdom
and international
copyright and database right laws. The compilation of all content on this
website is the exclusive property of Graphite and its affiliates and is
protected by
Republic
of
Ireland
,
United Kingdom
and international
copyright and database right laws. All software used on the website is the
property of Graphite, its affiliates or its software suppliers and is protected
by
Republic of
Ireland
,
United Kingdom
and international
copyright laws.
You may not
systematically extract and/or re-utilise parts of the contents of any written
materials without Graphite's prior express written consent. In particular, you
may not utilise any data mining, robots, or similar data gathering and
extraction tools to extract (whether once or many times) for re-utilisation of
any substantial parts of the websites, without Graphite's express written
consent. You also may not create and/or publish your own database that features
substantial (eg prices and product listings) parts of these websites without
Graphite's express written consent.
6.
Intellectual Property including Trademarks
GRAPHITE,
THE GRAPHITE LOGO,
GRAPHITE HRM,
THE GRAPHITE HRM LOGO,
ODP,
THE ODP LOGO,
TDP,
THE TDP LOGO,
THE PEOPLE LOGO,
ORGANISATIONAL HEARTBEATS,
THE ORGANISATIONAL HEARTBEATS LOGO
and other marks
indicated on our websites are trademarks or registered trademarks of GRAPHITE,
including Graphite's graphics, logos, page headers, button icons, scripts and
service names are the trademarks or trade dress of Graphite. Graphite's
trademarks and trade dress may not be used in connection with any product or
service that is not Graphite's, in any manner that is likely to cause confusion
among customers or potential customers, or in any manner that disparages or
discredits Graphite. All other trademarks not owned by Graphite that appear on
this website are the property of their respective owners, who may or may not be
affiliated with, connected to, or sponsored by Graphite.
7. Intellectual Property Warranty and Indemnity
Graphite warrants
that it has the right to license its Products without infringing the
Intellectual Property Rights of any third party.
The Intellectual
Property Rights in the Products are reserved to Graphite. Intellectual property
rights arising from any work done by or in association with Graphite in the
course of this Agreement (including all work relating to or incorporated in
future releases or in any parameterisation, modification or translation) shall
automatically vest exclusively in Graphite. Intellectual property rights in the
Products shall, for the purposes of this Agreement, be deemed to vest in and be
reserved to Graphite.
You acknowledge
that all the Intellectual Property Rights vest and shall remain vested
exclusively in Graphite, that your rights in respect of the Products are
confined to the licence expressly granted by this Agreement and that the licence
ceases on termination of this Agreement.
You acknowledge
that the Products contain confidential proprietary know-how of Graphite. You
will not disclose, permit access to or otherwise make available any of the
Products directly or indirectly to any third party except to the extent (if any)
permitted by this Agreement.
You shall ensure
that use of and access to the Products shall not exceed the limitations of this
Agreement and that the know-how of Graphite disclosed hereunder shall not be
disclosed or used other than for the purposes of this Agreement. You shall be
responsible for any unauthorised use of, disclosure of or access to the
Products.
8. Other businesses
Parties other than
Graphite and its subsidiaries provide services, or sell product lines on our
website. In addition, Graphite provides links to the websites of affiliated
companies and certain other businesses. Graphite is not responsible for
examining or evaluating, and Graphite does not warrant or endorse the offerings
of any of these businesses or individuals, or the content of their websites.
Graphite does not assume any
responsibility or liability for the actions, products, and content of any of
these and any other third-parties. You can tell when a third-party is involved
in your transactions, and Graphite may
share customer information related to those transactions with that third-party.
You should carefully review their privacy statements and other conditions of
use.
9. Limitation of Liability
Except for
conditions, warranties and representations expressly stated in this Agreement or
which by Law may not be excluded, all conditions, warranties and representations
howsoever arising are hereby expressly excluded.
Graphite shall not be liable, irrespective of
the basis of claim, for any loss of profit or anticipated saving, lost,
incorrect or spoiled data, loss of use, loss of agreements, loss of goodwill or
(other than in respect of intellectual Property Rights) third party claims.
The cumulative
maximum liability of Graphite under or in connection with this Agreement
irrespective of the basis of claim shall be limited in each successive year of
this Agreement to the fees received hereunder by Graphite in that year (a year
for this purpose is the twelve month period expiring on the anniversary of the
date of this Agreement).
Graphite does not
purport to exclude or limit liability where such exclusion or limitation is
precluded by the law applicable to this Agreement.
The parties agree
that the limitations and exclusions contained herein are reasonable having
regard among other things to their respective businesses, to the nature of the
work involved, to their respective capacities to protect and insure against risk
and to the fees arising hereunder.
10.
Alteration of Service or Amendments to the Conditions
Graphite reserves
the right to make changes to our Products, websites, policies, and these Terms &
Conditions at any time. You will be subject to the policies and Conditions of
Use & Sale in force at the time that you use the website or that you order goods
from us, unless any change to those policies or these conditions is required to
be made by law or government authority (in which case it will apply to orders
previously placed by you). If any of these conditions is deemed invalid, void,
or for any reason unenforceable, that condition will be deemed severable and
will not affect the validity and enforceability of any remaining condition.
11.
Events beyond our reasonable control
Graphite will not
be held responsible for any delay or failure to comply with its obligations
under these conditions if the delay or failure arises from any cause which is
beyond its reasonable control. This condition does not affect your statutory
rights.
12. Waiver
If you breach these
conditions and Graphite takes no action, Graphite will still be entitled to use
its rights and remedies in any other situation where you breach these
conditions.
13.
Governing Law, Mediation and Arbitration
Governing Law
This Contract shall
be governed and construed in accordance with the laws of the Republic of Ireland.
Mediation
Any dispute or
difference of any kind arising out of or in connection with this contract
between the parties may be referred to mediation, subject to the agreement of
the parties.
The mediator is to
be agreed by the parties or in default of agreement to be appointed on the
application of either party to this contract by the Chairman of the Bar Council
of Ireland.
The place of the mediation shall be Dublin, Ireland
.
Arbitration
If the parties fail
to agree to enter into mediation any dispute or difference of any kind arising
out of or in connection with this contract between the parties shall be referred
to arbitration as hereinafter provided.
Either party from
the date that any dispute or difference arises shall by written notice require
that the matter be referred for binding arbitration.
The arbitrator is to be agreed by the parties or in default of agreement to be appointed on the application of either party to this contract by the Chairman of the Bar Council of Ireland.
The place of the arbitration shall be Dublin, Ireland.
The arbitration
shall be conducted in accordance with the provisions of the Arbitration Acts
1954 to 1998.
Section B: Additional Conditions
Relating Specifically to Employment Law and HR Compliance Products and Services
14. Licence Term, Renewal and Termination
Each Licence period
is 1 year. Your licence will be
automatically renewed every year for a further 12 months and an invoice will be
issued at the start of each Licence Year.
Cancellation of the Licence must be notified in writing to Graphite
within 30 days of the renewal invoice
date, otherwise the Invoice will be payable in full.
All content, both electronic and
hardcopy, together with the binding of "Personnel, Policies and Procedures - The Law in Perspective" remains the property of Graphite at all times. Permission to
use this material is given on a Licence basis to Graphite clients.
Should you fail to renew your annual licence in the future, you will be required to return all elements of the publication within 10 working days of cancellation. Graphite reserves the right to recover this material by any legal means.
15. Employment Law and HR Compliance
Telephone Consultations
All Premium Plus
and Premium users are entitled to a given number of Telephone Consultations per
year, a year being a period of twelve months commencing on and including the
date the licence was issued. A Consultation refers to one discreet issue per
call. Additional queries will be treated as additional Consultations.
The number of
Consultations is the maximum that can be made in any one license year. Any
Consultations not used in a year will be cancelled and the maximum number is
reset at the start of the next year.
You can only make
calls during normal working hours which is Monday to Friday, from
9.00am
to
5.30pm
. If a Consultant is
not available immediately you will receive a return call within eight working
hours. All callers must be in possession of their unique licence number when
making a Telephone Consultation.
Telephone
Consultations are in respect of HR policy and procedures and the application of
Irish Labour Law.
Telephone Consultations
do not offer legal advice.
Graphite
may, but shall not be obliged to, record
or monitor telephone conversations for security and training purposes and to
maintain quality service.
A Consultant may
decline to respond to a request for information received through the Telephone
Consultation Service if the Consultant believes that bona fides of the
individual caller are in question. Graphite may
telephone the client organisation and confirm any queries with the appropriate
contact person. Please advise Graphite who the contacts are for your
organisation.
A Consultant may
terminate a telephone Consultation made by a Customer if the Customer becomes
abusive or engages the Consultant in vexatious or frivolous requests.
Section C: Additional Conditions
Specifically Relating to Your Use of Graphite Survey Products
16. Organisational Heartbeats
Start
dates, close dates and feedback dates for Organisational Heartbeats surveys must
be within the parameters as indicated on the Organisational Heartbeats order
form. We will at all times endeavour
to accommodate your feedback consultation date. However this is resource
dependent and where your requested date and time is not available we will
contact you to arrange an alternative time Where possible, Graphite will strive
to accommodate feedback requests in other time zones, however, users should
strive to arrange feedback times in line with Greenwich mean time.
All clients must
confirm their Unique Client ID number at the commencement of a telephone
feedback session. A Consultant may
decline to commence the feedback session if the Consultant believes that bona
fides of the individual caller are in question. Graphite
may telephone the client organisation and
confirm any queries with the appropriate contact person. Please advise Graphite
who the contact is for your feedback session.
Graphite may, but
shall not be obliged to, record or monitor telephone conversations for security
and training purposes and to maintain quality service.
A Consultant may
terminate a feedback session to a Client if the Client becomes abusive or
engages the Consultant in vexatious or frivolous requests.
All invoices in
respect of Organisational Heartbeats surveys must be fully paid prior to the
release of survey reports and any feedback session consultation.
17.
ODP
and
TDP
All usage of ODP and TDP survey products are subject to all terms and
conditions contained herein and are also subject to a separate licensing
agreement.