Terms and Conditions of Business
For Clients (“Terms”)
Prior to JDE
Senior Positions Limited trading as Erpjobboard (the “Manager”) permitting use
of this website by a Client an application/registration form shall be submitted by the
Client. On agreement for the provision of Services and as to related Fees, the
Client together with the Manager shall be subject to these Terms as updated on
this site from time to time.
1. Definitions
In these Terms the following words and phrases shall have the following
meanings unless the context otherwise requires:
‘Advertising’
any advertising material or promotional material
supplied by or on behalf of the Client for downloading via the Internet from
the Manager’s Site (including without limitation, job adverts, and advertising
banners being electronic advertising whose dimensions and delivery format are
agreed) that are placed on pages of the Manager Site, customised links and sponsorship logo display;
‘Agreement’
the agreement for the purchase and supply of the
Services which shall be subject to these Terms;
‘Candidate’
the individual to whom the relevant Candidate Personal Data
or Candidate CV refers;
‘Candidate CV’
summary information which may include details of the
qualifications, education, skills and work experience as well as Candidate
Personal Data provided to the Client in relation to a Candidate;
‘Candidate Personal Data’
the name, address and contact
details, and other private information (including without limitation “personal
data” as defined in the Data Protection Act 1998) and provided to the Client
for the purpose of the Agreement;
‘Client’
the person(s) firm or company to whom the Services
are provided and whom enters into the Agreement with the Manager;
‘Commencement Date’
the later of the date specified in writing by the
Manager and the date on which the Manager places the Advertising on the Manager
Site;
‘Confidential Information’
any information relating
to either the Client’s or the Manager’s business gained as a result of their
business dealings with each other in respect of the provision of the Services
and including without limitation Candidate Personal Data and Candidate CVs;
‘Fees’
the fees and charges payable by the Client in
relation to the provision of the Services as agreed in the Agreement or
otherwise agreed in writing from time to time;
‘Intellectual
Property’
all intellectual property rights
howsoever arising and in whatever media, whether or not registered or capable
of registration, including (without limitation) copyright, database rights,
patents, service marks, trade names, trade marks, service marks, registered or
unregistered designs, domain names and any applications for the protection or
registration of these rights and all renewals and extensions thereof throughout
the world;
‘Internet’
the global computer network comprising interconnected
networks using standard set of rules that regulate the manner in which data is
transmitted between computers;
‘Licence’
the licence granted under clause 2.9 to the Client;
‘Manager’
JDC Senior Positions Limited
(trading as Erp Senior Positions) being, the owner and operator of the Manager Site;
‘Manager Site’
[SPECIFY URL] or other website operated and
maintained by or on behalf of the Manager;
‘Services’
the service of permitting the
publishing by the Client of Advertising by the Client on the Manager Site
and/or supplying or facilitating the supply of Candidate CVs and Candidate
Personal Data to the Client for the purposes of the engagement of employees or
workers, granting the Licence to the Client, and any other services agreed to
in writing by the Manager;
and
‘Term’
the period from
the Commencement Date for the agreed period(as agreed in writing between the
Manager and the Client) for which the Advertising is to be placed on the
Manager Site until terminated in accordance with the Agreement.
2. Services and obligations
2.1 In
consideration of the payment of the Fees the Manager agrees to perform the
Services in accordance with the provisions of the Agreement all subject to
these Terms. The Agreement shall apply to the provision of the Services to the
exclusion of all other agreements and the Client agrees that the full execution
or other completion of the Agreement and/or the uploading of the Advertising on
to the Manager Site shall be deemed acceptance of the Agreement and these Terms
by both the Client and the Manager.
2.2 The
Client undertakes and warrants to the Manager that:
(a) in
relation to any Advertising the Client enters into the Agreement as a principal
notwithstanding any relationship that the Client may have with any third party
and no relationship of agent and principal shall come in to being by virtue of
its provisions or these Terms;
(b) the
reproduction and/or publication of the Advertising by the Manager as originally
submitted or as amended pursuant to clause 3 will not breach any agreement or
infringe or violate any Intellectual Property rights, or any other personal or
property rights of any person or render the Manager liable to any proceedings
in any jurisdiction whatsoever;
(c) any
information supplied at any time by the Client in connection with the provision
of the Services is accurate, complete and true in all respects;
(d) in
respect of any Advertising which contains the name or pictorial representation
(photographic or otherwise) of any living person and/or any part of any living
person and/or any copy by which any living person is or can be identified the
Client has obtained the authority of such living person to make use of such
name, representation and/or copy;
(e) the
Advertising complies with the requirements of all relevant legislation
(including subordinate legislation, the rules of statutory regulatory
authorities and any law or regulations of the European Economic Area) for the
time being in force or which may be applicable in such jurisdiction as the
Advertising shall be made available;
(f) the
Advertising is legal, decent, honest and truthful and complies with the rules
of English national law and international codes and all other such relevant
codes relating to advertising as may be appropriate;
(g) the
Advertising shall not contain any data, image or other material which:
(i) is
offensive, obscene or indecent;
(ii) is
defamatory, sexist, threatening or racially, ethnically or otherwise
objectionable;
(iii) is
designed or likely to cause annoyance, inconvenience, unwanted attention or
needless anxiety to any person;
(iv) is
designed to or is likely to cause disruption to any computer system or to any
network;
(v) is
illegal or in breach of any regulations or is likely to induce an illegal act;
and
(h) it
has authority to enter into and implement the Agreement.
2.3 The
Client shall provide to the Manager the Advertising in the format expressly
specified (if any) by the Manager (‘the Required Format’).
2.4 Where
the Client is an Employment Agency or Employment Business as defined in s.13 of
the Employment Agencies Act 1973 (a “Recruiter”) (such act and any regulations
made under it shall be referred to in these Terms as the “Act”) it warrants that it is authorised by its client to place the
Advertising with the Manager, has and will comply with all applicable
legislation and regulations governing it, and the Client will indemnify the
Manager against any claim made by the client against the Manager arising from
the publication of the Advertising Material and/or provision of the Services.
2.5 The
Manager shall be entitled at any time without notifying the Client to make
changes to the Services which are necessary to comply with any applicable
security or other statutory requirements and shall determine the manner in
which the Services are provided.
2.6
The Manager
shall bear any and all costs of supplying, updating, owning and operating the
Manager Site save where caused directly or indirectly by the Client. The
Manager shall use reasonable commercial efforts to maintain the availability of
the Manager Site twenty-four (24) hours per day, seven (7) days per week.
2.7
If
the Services include the provision of Candidate CVs and Candidate Personal
Data, the Manager may without obligation supply the Client with Candidate CVs
(at the Manager’s sole discretion). If a Candidate has required that his or
her Candidate CV and/or Candidate Personal Data not be made available to the
Client, then the Manager shall not be obliged to provide such information to
the Client. The Manager cannot guarantee the response to any Advertising.
2.8
Subject
to the Client’s compliance with the provisions of the Agreement and these
Terms, the Manager will use reasonable endeavours to provide the Services in
accordance with these Terms.
2.9
The Client is hereby granted a non-exclusive licence
to use the Candidate CV and Candidate Personal Data supplied under the
Agreement and these Terms for the purposes of engaging (or in the case of
Recruiters, assisting its clients to engage) employees or workers. The Licence
is granted on these Terms and in the case of a Recruiter on the condition that
it is providing “work-finding services” on the basis and as defined in clause
7.8.
2.10
The Licence is granted to the Client (to the exclusion
of any third party) and the Client may not assign, issue any sub-licence or
otherwise deal with the Licence in any way, whether in whole or in part.
3. Acceptance
The
Manager:
3.1 shall upon receipt of the Fees and the Manager’s
acceptance of the Advertising perform the Services for the Term subject to the
provisions of the Agreement (unless otherwise provided for in the Agreement,
each advertisement accepted by the Manager shall be published on the Web-Site
for a period of 30 days, all subject to these Terms and Conditions);
3.2 has the right and sole discretion to decline to
publish or to omit, suspend or change the location of any Advertising accepted by it;
3.3 may,
without derogation from the warranties and obligations set out in clause 2
above refuse or require to be amended any artwork, materials or copy for or
relating to an Advertising so as to comply with the legal or moral obligations
placed upon the Manager or the Client or to avoid infringing a third party’s
rights or any statutory or regulatory requirements; and
3.4 reserves
the right at any time during the Term to remove the Advertising from the
Manager Site in the event that the Manager considers the Advertising breaches
any applicable laws or regulations or the rights of any third party or is prejudicial
to the interests of the Manager and/or its business.
4. Liability
4.1 Neither
party excludes or limits its liability to the other for death or personal
injury resulting from the proven negligence of either party, its employees or
agents.
4.2 The
Manager accepts no responsibility for any mistakes or errors whatsoever that
arise during the course of publication of any Advertising and will not be
liable for any loss of copy, artwork, photographs, data or other materials
which the Client supplies to it and the Client shall be responsible for
retaining in its possession sufficient quality and quantity of such materials
for whatsoever purposes it may require.
4.3 In
no event shall the Manager be liable to the Client whether arising under these
Terms or in tort (including negligence or breach of statutory duty),
misrepresentation or however arising, for any Consequential Loss. For the
purposes of these Terms ‘Consequential Loss’ shall mean (i) pure economic loss
(ii) losses incurred by any client of the Client or other third party (iii)
loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption
(v) loss of business revenue, goodwill, anticipated savings (vi) losses whether
or not occurring in the normal course of business, wasted management or staff
time (vii) loss or corruption of data.
4.4
Subject to
clauses 4.1, 4.2 and 4.3, the Manager’s total liability (whether in contract,
tort or otherwise) under or in connection with these Terms or based on any
claim for indemnity or contribution shall not exceed one hundred and ten (110)
per cent of the total Fees (excluding any VAT, duty, sales or similar taxes)
paid or payable by the Client to the Manager during the preceding twelve (12)
month period or, if the duration of the Agreement has been less than twelve
(12) months, such shorter period, as applicable.
4.5
Levels
of Fees are agreed as between the Manager and the Client so as to reflect the
risk, liabilities, exclusions and limitation of liabilities as defined in these
Terms and the Client shall obtain insurance cover it deems appropriate in
relation to commercial risk relating to the Services and the Agreement.
5. Payment provisions
5.1 The Manager will charge the Client the Fees
based on the payment structure agreed in the Agreement or otherwise in writing.
5.2
Additional fees
may be charged by the Manager for delivery of additional value added services
such as tracker, trafficking or other fees. These will be set out in the
Agreement or otherwise in writing.
5.3
The Manager may
invoice the Client for the Fees for the Term upon the Managers acceptance of
the Advertising prior to commencement of the Services.
5.4 The
invoice for the Fees shall be payable in full without counterclaim, set-off or
deduction prior to the Advertising being published on the Manager’s Site unless
otherwise agreed by the Manager in writing.
5.5 All
sums due in respect of the Fees are exclusive of Value Added Tax or other
applicable sales tax, for which the Client shall be additionally liable. All
sums due from the Client which are not paid on the due date (without prejudice
to the Manager’s other rights under these Terms) shall bear interest at the
annual rate of three (3) per cent over the prevailing base rate of Barclays
Bank plc on such date. Such interest shall accrue from the due date until
payment is made in full.
6. Intellectual property
6.1 Except as provided in these Terms, the
Manager retains all right, title and interest in and to the content of the
Manager Site, including without limitation Intellectual Property rights.
6.2 The
Client retains all rights, title and interest in and to the Advertising,
including without limitation Intellectual Property rights contained in the
Advertising (subject to third party rights and the Client hereby warrants it
shall have obtained the requisite consents and licences in
respect of such third party material).
6.3 Any
ideas concepts know-how or techniques developed by the Manager or obtained
during the execution of the Services will be owned exclusively by the Manager.
7. Client obligations
7.1 It
is the responsibility of the Client to check the accuracy of the Advertising
and, without prejudice to the provisions of clause 4, the Manager assumes no
responsibility for the repetition of an error in any Advertising.
7.2
For the purpose
and duration of the Advertising the Client grants to the Manager a royalty-free
non-exclusive
licence to use, publish
and reproduce the Advertising, the Client’s name, logo, trade marks and brands
to the extent necessary to enable the Manager to comply with its obligations
under the Agreement.
7.3 The Client shall use Candidate CVs and
Candidate Personal Data received from the Manager under the Licence for the
sole purpose of considering the Candidate for work or employment with the Client
(or in the case of a Recruiter, its client) in accordance with the Candidate’s
wishes and these Terms.
7.4 The
Client will not use any Candidate CV or Candidate Personal Data to market the
services of any other company or business, or any other services that the
Client or any third party may offer from time to time.
7.5 The
Client shall not be entitled to copy, reproduce or otherwise use any banner
advertisement or other advertising material created or produced by the Manager
for the Client and incorporated on the Manager’s website.
7.6 The
Client shall keep confidential any “personal data” (for the purposes of these
Terms “personal data” shall have the meaning defined in the Data Protection Act
1998) or other information contained in Candidate CVs or Candidate Personal
Data.
7.7 If
required by the Manager, following breach of these Terms, the Client will
within seven (7) days of such request deliver to the Manager or delete in
relation to electronic data, all originals and copies of documents (including
Candidate CVs), records (including electronic records), original and copy
documents relating to Candidate CVs and all Intellectual Property provided or
made available to the Client pursuant to these Terms. Prior to returning any
such documents and records, the Client will remove from such documents and
records the details (including names, phone numbers, email address, other
personal data and mail address) of all Candidates.
7.8 Subject
to these Terms, the Client (save in respect of an authorised Recruiter
legitimately providing services to its client in respect of an existing and
identifiable position in relation to which the Client has been engaged to
provide “work-finding services” (as defined in the Act) and where the
provisions of the Act have been fully complied with by the Client and such
third party client) shall not submit, copy, re-sell, transfer, or make
available in any way any Candidate CVs or any Candidate Personal Data contained
therein or other Candidate information received from the Manager or otherwise
to any third party and shall only make contact with a Candidate for the
legitimate purposes of the Agreement.
7.9
The
Client shall be responsible for providing to the Manager in a timely manner and
in the Required Format, all materials, including content and/or copy, as the
Manager shall in its sole opinion require to enable the Manager to provide the
Services.
7.10 The
Client acknowledges that it is fully responsible for the acts or omissions of
its employees, contractors or agents, and that the Manager is entitled to
charge for the uploading of any Advertising to the Manager Site which are made
on behalf of or apparently on behalf of the Client by such person.
7.11 The
Client may be issued with its own password for the purposes of accessing the Manager
Site or for any other purpose in relation to the Services. The Client
acknowledges its responsibility for the security of any such password and
undertakes to advise the Manager immediately if it becomes aware that the
password may be liable to misuse in any way. The Client acknowledges that in
the event of unauthorised use of any password it shall still be liable for the
cost of the Services.
7.12 The
Client shall satisfy itself as to the accuracy of information supplied in
respect of Candidates, and shall take up such references as are necessary for
this purpose. The Manager shall not be liable for any loss, damage or expense,
whether direct or indirect (including but not limited to legal or other
professional fees or costs, loss of profit or other consequential loss or
damage), arising out of inaccuracy or ambiguity in relation to Candidate CVs or
other Candidate Personal Data or in relation to any deliberate provision of
misinformation.
7.13 The
Client shall satisfy itself as to the content of all Candidate CVs or
information provided by a Candidate or otherwise including as to the identity,
suitability, skill, qualifications, authorisations, integrity and reliability
of any Candidate , and shall take up such references as are necessary for this purpose.
The Manager is not liable for any loss or damage arising out of any
misstatement or negligence, dishonesty, misconduct or inadequacy of any
Candidate.
7.14 The
Manager is not responsible in any way for any Candidate CV, Candidate Personal
Data, information, material, data, or property relating to a Candidate,
received by the Client from the Manager, the Candidate or any third party
including but not limited to Intellectual Property, inaccurate or false
information or destructive or malicious code.
7.15 The
Manager is entitled to monitor all communications, Advertising, data or
information relating to the Manager Site and the Services for the purposes of
ensuring legal and regulatory compliance, security and full compliance by the
Client with these Terms. Related information may be passed to any third party
as may reasonably be expected to receive such information for legitimate
purposes.
8. Term and termination
8.1 Subject
to the provisions of clauses 3 and 7.2 the Advertising shall be included in the
Manager’s Site for the Term or as otherwise expressly agreed by the Manager.
8.2 The
Manager may terminate these Terms by notice in writing to the Client in the
event that:
(a) the
Client fails to pay any amount to the Manager due under these Terms and does
not make that payment within seven (7) days after receiving notice requiring
the Client to do so;
(b) the
Client fails to perform any of the obligations on its part to be observed or
performed pursuant to these Terms and such failure is not remedied by the
Client within seven (7) days after receipt by it of a notice in writing
requiring the default to be remedied; or
(c) any
of the warranties or representations made by the Client contained in these
Terms, the Agreement and/or any application form submitted by the Client to the
Manager are false or inaccurate in any material way; or
(d) the
Advertising breaches any applicable laws or the rights of any third party or is
prejudicial to the interests of the Manager.
8.3 Either
party shall be entitled to terminate these Terms immediately by notice in
writing to the other if the other party shall:
(a) commit
any material breach of any of its obligations under these Terms which (in the
case of a breach capable of being remedied) shall not have been remedied within
fourteen (14) days after receipt of a written request so to do;
(b) pass
a resolution for winding-up (otherwise than for the purpose of a bona fide
scheme of solvent amalgamation or reconstruction) or a court of competent
jurisdiction shall make an order to that effect;
(c) make
any voluntary arrangement with its creditors or become subject to an
administration order or an administrator is appointed in respect of that party
or documents are filed with the court for the appointment of an administrator
or notice is given of an intention to appoint an administrator by that party or
its directors or by a qualifying floating charge holder as defined in the
Insolvency Act 1986, paragraph 14 Schedule B1;
(d) have
a receiver, encumbrancer, administrative receiver or similar official
appointed;
(e) cease
or threaten to cease to carry on business; or
(f) have
any similar event occur under the law of any other relevant jurisdiction in
respect of it.
8.4
Any termination
of these Terms or the Agreement shall automatically act to terminate the
Agreement, these Terms and the License but shall not affect any then existing
financial obligations or any warranties, terms or conditions of a continuing
nature.
9. Indemnity
9.1 The
Client undertakes to the Manager that the Client will, without prejudice to any
other right of action which the Manager may have, at all times keep the Manager
fully and effectively indemnified against any liability (which liability shall
include, without limitation, all losses, costs, claims, demands, actions,
damages, legal and other professional fees and expenses on a full indemnity
basis) which the Manager may suffer or incur as a result of any Advertising,
the infringement of any Intellectual Property rights of any third party, or by
reason of any breach of warranty or of any breach or non-fulfilment of any of the Client’s obligations
in respect of the Agreement.
10. Confidential Information
10.1 Each
party may use the Confidential Information of a disclosing party only for the
purposes of these Terms and must keep confidential all Confidential Information
of each disclosing party except to the extent (if any) the recipient of any
Confidential Information is required by law to disclose the Confidential
Information.
10.2 Either
party may disclose Confidential Information of the other party to those of its
employees and agents (including professional advisers) who have a need to know
the Confidential Information for the purposes of these Terms but only if the
employee or agent executes a confidentiality undertaking in a form approved by
the other party.
10.3 Both
parties agree to return all documents and other materials containing
Confidential Information and/or Intellectual Property belonging to the other
party immediately upon completion of the Services.
10.4 The
obligations of confidentiality under these Terms do not extend to information
that:
(a) was
rightfully in the possession of the receiving party before the negotiations
leading to these Terms;
(b) is,
or after the day these Terms apply to the relevant party, becomes public
knowledge (otherwise than as a result of a breach of these Terms); or
(c) is
required by law to be disclose
11. Data protection
11.1 Each
party undertakes to comply with its obligations under the Data Protection
Act 1998.
12. Third parties
12.1 Nothing
contained in these Terms or in any instrument or document executed by any party
in connection with the Services is intended to be enforceable pursuant to the
Contracts (Rights of Third Parties) Act 1999. Each party shall promptly
notify the other of any breach of any of its obligations under the Data
Protection Act 1998.
13. Force Majeure
13.1 Except
with respect to obligations to pay the Fees or other charges, ‘Force
Majeure’ means anything outside the reasonable control of a party, including
but not limited to, act or omission of any third party, acts of God, fire,
storm, flood, earthquake, explosion, accident, acts of the public enemy, war,
rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, ceasing
to be entitled to access the Internet for whatever reason, server crashes,
deletion, corruption, loss or removal of data, transportation embargo, failure
or delay in transportation, any act or omission (including laws, regulations,
disapprovals or failures to approve) of any government or government agency.
13.2 If
a party is wholly or partially precluded from complying with its obligations
under these Terms by Force Majeure, then that party’s obligation to perform in
accordance with these Terms will be suspended for the duration of the Force
Majeure.
13.3 As
soon as practicable after an event of Force Majeure arises, the party affected
by Force Majeure must notify the other party of the extent to which the
notifying party is unable to perform its obligations under these Terms.
14. Alternative Dispute
Resolution Procedure
14.1 The
Manager and the Client shall attempt to settle any dispute by mediation in accordance
with the CEDR Model Mediation Procedure. Unless otherwise agreed between the
parties, the mediator will be nominated by CEDR. To initiate the mediation a
party must give notice in writing to the other party to the dispute requesting
mediation. A copy of the request should be sent to CEDR. The mediation will
start not later than twenty-one days after the date of the notice. No party may
commence any court proceedings/arbitration in relation to any dispute arising
out of the Agreement or these Terms until it has attempted to settle the
dispute by mediation and either the mediation has terminated or the other party
has failed to participate in the mediation (which failure shall be a breach of
these terms), provided that the right to issue proceedings is not prejudiced by
a delay. Mediation fees shall be shared equally between the parties and each
shall bear the cost of it’s own advisers.
15. General
15.1 The Manager may assign the
benefit of this Agreement, in whole only or in part, to any company or
corporation which is for the time being a holding company or subsidiary of the
Manager, or a subsidiary of any such holding company (in each case, as defined
by the Companies Act 1985).
15.2 The Client may not assign the
benefit or burden of this Agreement in whole or in part without the prior
consent in writing of the Manager. In the event that the Manager shall
give its consent to any such assignment the Client shall remain primarily
liable hereunder in the event of any defaults by the assignee.
15.3 The headings in these Terms do not
form part of the Terms save where the context otherwise requires.
15.4
Unless the context otherwise requires references to the
Client and the Manager include their permitted successors and assigns and
references to statutory provisions include those statutory provisions as
amended or re-enacted.
15.5
In the case of conflict between any provision contained in
the Agreement and these Terms, the provisions of the Agreement shall prevail.
15.6
Any
waiver in respect of rights hereunder shall only take effect by written
agreement between the parties and shall not act as a subsequent waiver of any
kind unless expressly provided.
15.7 Each portion of these Terms,
defined by punctuation and/or sections or numbering, is separate, distinct and
severable and to give meaning to the parties intention the Court may modify any
portion that may otherwise be void or unenforceable; subject thereto, any void
or unenforceable portion may be severed and the remaining provisions shall
continue in force.
15.8 Any notice in respect of these Terms
shall be in writing and sent to the addressee at the last known address, fax
number or electronic mail address either, respectively, by first class post, or
by fax or by electronic mail, and shall be deemed to have been received, in the
case of post on the postal date following the date of posting, in the case of
fax on the date of transmission, and in the case of electronic mail on the date
electronic confirmation of receipt is received by the sender.
15.9 The provisions of the Agreement and
these Terms are the sole and entire agreement between the Manager and the
Client relating to the business described, superseding any previous terms and
representations, and may not be varied except by written amendment signed by
both the Manager and the Client.
15.10The Agreement and these Terms
shall be governed by the laws of England and Wales and, for the benefit of the
Manager, the Client hereby irrevocably agrees to submit to the jurisdiction of
the English courts in relation to any dispute with respect to the subject
matter or construction of this Agreement but without prejudice to the right of
the Manager to institute or enforce proceedings in any other court or tribunal
having jurisdiction.
JDE Senior Positions
Limited Terms and Conditions of Business
1st April,
2005
