Terms & Conditions

SUBSCRIBER TERMS AND CONDITIONS

Thank you for choosing to use the Marketing Coach Toolkit. Please read these terms and conditions carefully, and contact us if you have any questions. By accessing or using Our Service, you agree to be bound by these Terms and by Our Privacy Notice.

The provision of Marketing Coach Toolkit is governed solely by these subscriber terms and conditions, which is an agreement made between you (“You” or “Customer”) and Soul Garden Limited. (“Soul Garden Ltd.”, “Us”, “Our”, “We”) and sets out Our commitments to You and Your commitments to us (“Agreement”).

YOUR AGREEMENT WITH SOUL GARDEN LIMITED

This Agreement is important. Please read this Agreement carefully and in its entirety as it sets out Our commitments to You (“Customer” or “You”) and Your commitments to Us. You must read, accept and thereafter adhere to this Agreement in order to use the Services. This Agreement may be updated from time to time. The latest version of this Agreement can be accessed in our T+C’s section of the website and any material change to this Agreement will be notified to You via email a minimum of 30 days before any changes come into force.

This Agreement should be read in conjunction with Our Privacy Policy which is available at

www.marketingcoach.ie/help/privacy.

Our Privacy Policy forms part of this Agreement.

1 The definitions and rules of interpretation in this clause apply in this Agreement.

• Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
• A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assignees.
• A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
• Words in the singular shall include the plural and vice versa.
• The words “including” or “includes” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
• A reference to one gender shall include a reference to the other genders.
• A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
• References to clauses and schedules are to the clauses and schedules of this Agreement.

2 COMPANY subscriptions

• Subject to the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, We hereby grant You a non-exclusive, non-transferable right to permit Authorised Users to access and use the Service during the Subscription Term solely for Your internal business operations.
• In relation to the Authorised Users, You undertake that, where applicable:
  • each Authorised User shall keep a secure password for their use of the Service, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential;
  • You shall permit Us to audit the Service. Such audit may be conducted no more than once per quarter, at Our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Your normal conduct of business;
  • if any of the audits referred to in Clause 3.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Our other rights, You shall promptly disable such passwords and We shall not issue any new passwords to any such individual (unless such individual later becomes an Authorised User).
• You shall use reasonable endeavours to procure that Authorised Users do not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
  • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  • facilitates illegal activity;
  • promotes unlawful violence;
  • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
  • causes damage or injury to any person or property,

and We reserve the right, without liability to You, to immediately disable Your access to any material that breaches the provisions of this Clause 2.

• You shall not:
  • 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 this Agreement, attempt to:
    • copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service (as applicable) in any form or media or by any means; or
    • reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service;
  • access all or any part of the Service in order to build a product or service which competes with the Service;
  • use the Service to provide services to third parties; or
  • subject to Clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorised Users, or
  • attempt to obtain, or assist third parties (except for Authorised Users) in obtaining, access to the Service, other than as provided under this Clause 2.
• You shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Service via the Company Subscriptions and, in the event You become aware of any such unauthorised access or use, You will promptly notify Us upon becoming aware of such unauthorised access or use of the Service.
• The rights provided under this Clause 2 are granted to You (and associated Authorised Users) only, and shall not be considered granted to any subsidiary or holding company of Yours.

3 YOUR data

• You shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
• We shall, in providing the Service, comply with Our Privacy Policy relating to the privacy and security of the Customer Data where such Customer Data includes Personal Information. Our Privacy Policy is available at or such other website address as may be notified to You from time to time, as such document may be amended from time to time by Us at Our reasonable discretion.
• If we collect, use, disclose or store any Personal Information on Your behalf when performing Our obligations under this Agreement:
  • You acknowledge and agree that the Personal Information may, where necessary, be transferred or stored outside Ireland, including in the European Union and the USA, in order to carry out the Services and Our other obligations under this Agreement;
  • You acknowledge and agree that Customer Data (including Personal Information) may be used by Us to provide welcome materials and/ or courtesy calls as part of an introduction to the Services and to provide on-going information regarding Marketing Coach Toolkit. Certain communications form a core part of the Service including information relevant to Your business and tutorial material to help You make the most of the Service. You may unsubscribe to these service communications at any time should You wish to do so. For the avoidance of doubt this shall not include marketing any services to which You are not subscribed. You may ‘opt in’ to receive such marketing communications during activation of the Service.
  • You shall ensure that You are entitled to transfer the relevant Personal Information to Us so that We may lawfully use, process and transfer the Personal Information in accordance with this Agreement on Your behalf;
  • You shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer of their Personal Information as outlined above, in Our Privacy Policy and as required by all applicable data protection and privacy legislation;
  • We shall not pass any customer information, including Customer Data, to third parties (excluding third parties necessary for provision of the Service) without Your prior express consent;
  • We shall process the Personal Information only in accordance with the terms of this Agreement and Our Privacy Policy available at www.marketingcoach.ie/help/privacy and any lawful instructions reasonably given by You from time to time; and
  • each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Information or its accidental loss, destruction or damage.

4 OUR obligations and Warranties

• We warrant to You that the Services will be performed with reasonable skill and care; and
• The warranties above shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Our instructions, or modification or alteration of the Service by any party other than Us. Notwithstanding the foregoing, We:
  • do not warrant that Your use of the Service will be uninterrupted or error-free; nor that the Service, or the information obtained by You through the Service will meet Your requirements; and
  • are 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 You acknowledge that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
• We warrant that We have and will maintain all necessary licenses, consents, and permissions necessary for the performance of Our obligations under this Agreement.
• The warranties in this Clause 4 shall not apply, and We shall not be under any obligation to provide the Service, in the event that You do not perform Your responsibilities under this Agreement in a timely and efficient manner, and such lack of performance directly impacts upon any of Our supplier warranties or Our obligations under this Agreement

5 YOUR obligations

• You shall:
  • provide Us with such information as may be reasonably required by Us in order to render the Service, including but not limited to Customer Data, security access information and configuration services;
  • submit Customer Data that is accurate and truthful;
  • comply with all applicable laws and regulations with respect to Your activities under this Agreement;
  • use reasonable endeavours to procure that the Authorised Users use the Service (as applicable) in accordance with the terms and conditions of this Agreement and You shall be responsible for any Authorised User’s breach of this Agreement;
  • notify Us promptly of any changes to Your details (including without limitation personal, contact and banking details) to allow Us, amongst other things, to comply with applicable laws and ensure that any relevant payments, where applicable under this Agreement have been made;
  • be solely responsible for procuring and maintaining Your network connections and telecommunications links from Your systems to Our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet.

6 Proprietary rights

• We confirm that We have all the rights in relation to the Service that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement.

7 Confidentiality

• Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
  • is or becomes publicly known other than through any act or omission of the receiving party;
  • was in the other party’s lawful possession before the disclosure;
  • is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  • is independently developed by the receiving party, which independent development can be shown by written evidence.
• Each party shall hold the other’s Confidential Information in confidence and (unless and to the extent any disclosure is required by law, by any court of competent jurisdiction or by any regulatory or administrative body) not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
• Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
• Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
• This Clause 7 shall survive termination of this Agreement, however arising.

8 Indemnity

You agree to defend, indemnify, and hold us, our subsidiaries, parent and other affiliated entities and our respective officers, directors, agents, advisors and employees harmless from any loss or liability or third party claim or lawsuit (including reasonable attorneys fees and court and investigational fees and expenses) resulting from or arising out of (a) your breach of this Agreement, (b) your violation of applicable laws or regulations, or (c) any allegation that you have furnished us with information or data in violation of a third party’s rights in that information or data.

9 WARRANTY DISCLAIMER

We do not promise that the Services or their availability will be error-free or uninterrupted, or that you will obtain specific results from your use of the Services. Marketing Coach Toolkit and the Services are delivered on an “AS IS” and “AS AVAILABLE” basis. When you access the Services, you do so at your own risk. We do not warrant or represent that materials you download from our sites will be free of Viruses or other harmful features.

THE WARRANTIES SET FORTH IN CLAUSE 4 ARE THE ONLY WARRANTIES PROVIDED BY US FOR THE SERVICES. TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, WE DISCLAIM, ON BEHALF OF US AND OUR AFFILIATIES, (i) ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITAITON ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE OR NON-INFRINGEMENT; (ii) ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, OR LEGALITY OF INFORMATION AVAILABLE THROUGH THE SERVICES; AND (iii) ANY RESPONSIBILITY OR LIABILITY FOR HARM RESULTING FROM DOWNLOADING OR ACCESSING INFORMATION THROUGH THE SERVICES, INCLUDING HARM CAUSED BY VIRUSES OR SIMILAR DESTRUCTIVE FEATURES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.

10 Limitation of liability

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL BCSG BE LIABLE FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THE SERVICES OR YOUR USE OF THEM. OUR TOTAL LIABILITY FOR DAMAGES OR CLAIMS IN ANY WAY RELATED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY USED, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE THREE (3) MONTHS PRECEDINGTHE DATE ON WHICH THE CLAIM ARISES.

11 Term and termination

• This Agreement shall commence on the Subscription Date and shall continue on a monthly basis until terminated by either party pursuant to Clause 11.2 the (“Subscription Term”).
• Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
  • that party provides the other party with at least 30 days prior written notice of termination;
  • an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
  • an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by any other party Authorised to do so;
  • a receiver, or a receiver and manager, is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
  • the other party ceases to pay its debts or suspends payment generally or would cease or threaten to cease to carry on its business or become insolvent
  • the other party has an administrator, trustee, liquidator or provisional liquidator appointed for all or any part of its assets or undertaking;
  • the other party makes or resolves to enter into any arrangement or composition or compromise with, or assignment for the benefit of its creditors generally or any class of creditors or proceedings are commenced to sanction such an arrangement, composition or compromise other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation;
  • the other party ceases, or threatens to cease, to trade; or
• On termination of this Agreement for any reason:
  • all licences granted under this Agreement shall immediately terminate;
  • We may destroy or otherwise dispose of Your Confidential Information in Our possession unless We receive, no later than ten (10) days after the date of the termination of this Agreement, a written request for the delivery to You of the then most recent back-up of the Customer Data. In such case, We shall use reasonable commercial endeavours to deliver the back-up to You within thirty (30) days of Our receipt of such a written request, provided that You have, at that time, paid all fees and charges outstanding, where applicable, at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Us in returning Customer Data; and
  • the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

12 payment and subscription charges

• The Service is currently free of charge to all Authorized Users, however We reserve the right to commence subscription charges on thirty (30) days’ prior notice to You.

13 Force majeure

We shall have no liability to You under this Agreement if We are prevented from or delayed in performing Our obligations under this Agreement, or if You are prevented from or delayed in performing Your obligations under this Agreement or from carrying on Your business, by acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (provided such does not involve Our workforce or any other party over which We have control), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, breakdown of plant or machinery, fire, flood, or storm, provided that You are notified of such an event and its expected duration as soon as reasonably practicable.

14 Waiver

• A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
• Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

15 Severance

• If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
• If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

16 Entire agreement

• This Agreement, and any documents referred to in it, including but not limited to the Privacy Policy, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
• Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

17 Assignment

• You shall not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement.
• We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under this Agreement.

18 No partnership or agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

19 Third party rights

Save where expressly provided otherwise (and, in particular, in respect of Authorised Users), this Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assignees)

20 Notices

• Except where expressly stated in this Agreement, any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, by email in accordance with Clause 20.3 or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or in the event that another address has been notified by a party hereunder in accordance with and making specific reference to this Agreement, then to that other address.
• A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
• A notice delivered by email shall be deemed to have been received by:
  • You, to the email address notified to Us on the Site, or as otherwise notified in accordance with this Clause 20; or
  • Us, to [email protected]

on the first Business Day following transmission.

21 Governing law and jurisdiction

• This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the Republic of Ireland.