Subscription Agreement Terms & Conditions
These are terms and conditions are for a corporate subscription to the Jobzooma Recruitment Technology Platform supplied by:
Jobzooma Ltd (The Licensor) whose Registered Office is 1 Vicarage Lane, Stratford, London, England, England, E15 4HF
This Agreement sets out the terms under which access and use of the online recruitment platform known as Jobzooma will be provided by The Licensor to the Client and covers the licence of the software and services supplied by The Licensor to the Client to manage various aspects of the recruitment process including.
From the Effective Date the following Commercial Terms apply:
1.1 If any provision of this Agreement or any part of any such provision is held to be invalid or unenforceable, such provision or part (as the case may be) shall be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise prejudicing or affecting the remainder of such provision or any other provision of this Agreement.
1.2 The Licensor and The Client acknowledge and agree that this Agreement shall not establish or constitute any partnership or joint venture.
1.3 Software, Solutions and Support may be provided to The Client pursuant to and as described in a Supplemental Licence Agreement(s) executed by both parties. Each Supplemental Licence Agreement shall incorporate this Agreement. Any conflict between this Agreement and any Supplemental Licence Agreement will be resolved in favour of the latter and any conflict between Supplemental Licence Agreements covering the same subject matter will be resolved in favour of the most recent.
1.4 The Client acknowledges that the Software, Solutions and Support are generic and have not been constructed to meet the specific needs of the Client.
2 LICENCES AND PROVISION OF SERVICES
2.1 The Licensor grants to The Client a non-exclusive, non-transferable licence to use The Solutions. Any upgrade or new version is provided subject to the provisions of this Agreement.
2.2 During the hours 0900 to 1700 (‘Normal Working Hours’) Mondays to Fridays inclusive and excluding UK Public and Bank holidays (‘Working Days’) The Licensor will provide a User Support Service by telephone or email and use reasonable endeavours to correct or rectify errors or defects of The Solutions.
2.3 The Services provided by The Licensor are intended for the use of The Client, other wholly owned subsidiaries whose principal business operations are recruitment and their respective licensed employees. The Client warrants that it shall only use the Services for its own internal recruitment purposes and will not sublicense, distribute or otherwise make The Solutions available to any unrelated third party.
3 FEES, PAYMENT AND TAXES
3.1 The Fees payable by The Client are set out on the table above. The Licensor shall be entitled to submit invoices in accordance with this Agreement and invoices shall be due upon presentation. Unless otherwise agreed, Licence fees will be invoiced up to thirty (30) days prior to the due date and The Client agrees to make payment to The Licensor on or before the payment due date. In the event that any payments are not received within seven (7) days of the payment due date The Licensor shall be entitled at its sole discretion to apply interest at the rate of four (4) percent above Barclays Bank Base Rate which shall accrue on a daily basis and/or suspend the provision of the services without additional notification.
3.2 The first License fee shall be invoiced on the Effective Date and due upon presentation.
3.3 If during the term of this Agreement, Support Fees or any other fees become payable, then The Client agrees to make payment within 7 days of receipt of an invoice subject to clients prior agreement of a written proposal of works submitted by CV Profile.
4 INTELLECTUAL PROPERTY & DATA OWNERSHIP
4.1 Each Party acknowledges and agrees that, except for the rights expressly provided for in this Agreement and to the extent so provided, neither Party shall acquire any rights, title or interest in or to any pre-existing Intellectual Property Rights of the other Party including without limitation any and all know-how and proprietary technology, copyright, patents, trademarks, tools, software, materials, documentation and methodologies.
4.2 All Intellectual Property Rights in The Solutions and Services are and shall continue to be vested in The Licensor.
4.3 All documents, CVs and otherwise, passed to The Licensor by The Client in connection with this Agreement remain the sole property of The Client and the CV shall remain the sole property of the Applicant hosted on their behalf by The Licensor.
4.4 Intellectual Property Rights in the information in the CVs remain the property of the Applicant. The Client obtains a licence from the Applicant to use the Intellectual Property Rights in the information in the CVs supplied by that Applicant to The Client and grants to The Licensor a licence to use the Intellectual Property Rights for the purpose contemplated in this Agreement.
4.5 The Licensor grants to The Client a licence to use the Intellectual Property Rights in additional information in an Applicant’s CV whether supplied by the Applicant directly to The Licensor or by another Jobzooma Client.
4.6 In circumstances where The Client does not have sufficient right to process and share an Applicant’s personal data or CV information The Client agrees to make available as specified by The Licensor all such data items necessary to enable The Licensor to create a CV Profile for that Applicant but will not make that CV Profile available to the Applicant unless expressly authorised by the terms of this Agreement nor make that CV Profile available to any third party.
4.7 The Client shall be entitled to collect a copy of all CV Profiles and CV Profiles held for The Client by The Licensor which have been captured through The Client’s use of the CV Profile system via the CV Profile API. This right shall remain during any notice period given to The Licensor to terminate this Agreement.
5 CONFIDENTIALITY AND DATA PROCESSING
5.1 The Client acknowledges and accepts that a copy of the processed CV data (the CV Profiles) provided under 4.3 above, will be passed into the CV Profile Exchange and may be accessed by other recruitment company clients of The Licensor.
5.2 Save as provided in Clause 4, each Party shall treat and keep confidential all proprietary and confidential information of the other Party supplied under this Agreement.
5.3 Each Party agrees to treat as confidential all information, which may at any time come into the possession of the other Party, and which relates to any actual or proposed business activities, financial affairs, solutions, developments, trade secrets, customers or suppliers or other information which may reasonably be regarded as confidential, obtained from or made available by one Party to the other, in whatever form whether paper, electronic or digital.
5.4 Confidential information for the purposes of this Clause shall not extend to information which is already public knowledge or becomes so at a future date (otherwise than as a result of breach of this Agreement).
5.5 Each Party warrants to the other that it complies and will comply with its obligations under the The Data Protection Act 1998 and each Party agrees to indemnify the other against any liabilities, claims or damages arising from any breach of the Act resulting from the proper performance of the Agreement.
5.6 The Licensor shall take appropriate technical and organisational measures in order to secure the confidentiality of the Personal Data, to prevent unauthorised or unlawful use of Personal Data, and to protect against accidental or unlawful destruction, accident loss, alteration or unauthorised disclosure or access of Personal Data.
5.7 Each Party shall, subject to the Agreement, unless otherwise directed by the other Party:
5.7.1 use the Personal Data in accordance with the instructions of The Licensor, The Client or Applicant as the case maybe as set out in this Agreement;
5.7.2 take reasonable steps to procure that each of its employees and/or agents and temporary contractors, engaged in processing the Personal Data will be informed of the confidential nature of the Personal Data; and take reasonable steps to ensure that it and any of its employees or agents does not publish, disclose or divulge Personal Data to any third party, except as anticipated in the Agreement and where the Applicant is aware of such possible publication or disclosure and The Client or The Licensor, as the case may be, has not agreed to the contrary.
5.7.3 The Licensor may disclose Personal Data to those of its employees, agents and temporary contractors or professional advisors as it considers necessary for the administration of this Agreement.
6 TRADEMARKS AND USE OF TRADE NAME
6.1 The Client shall not obtain any rights in or to the logos, trade names or trademarks of The Licensor.
6.2 The Licensor may use the trade names and trademarks of The Client for the purpose of delivering the Services and any subsequently licensed Software or Solutions and for the purpose of general marketing, such disclosure of which may include The Clients trade names or trademarks.
7.1 The Licensor warrants that:
7.1.1 it has the right, power and authority to enter into this Agreement;
7.1.2 it has rightful ownership or licensed access to the applications, technology and trademarks (including logos) which are the subject of this Agreement (excluding any content provided by The Client or any third party) and will use reasonable endeavours not to infringe any third party Intellectual Property Rights or patent and have permission to license any third party material;
7.1.3 shall process any data provided by The Client in accordance with this Agreement and The Client’s instructions, provided that the processing of such data does not infringe any person’s rights or any law or regulation;
7.1.4 it shall discharge its obligations in the development and provision of The Solutions with all reasonable skill and care using appropriately qualified and experienced personnel and in accordance with good industry practice; and
7.1.5 it shall have routine back ups of its systems and data for the purposes of disaster recovery and that it shall use all reasonable endeavours to ensure the continued provision of the service in the event of a disaster suffered by either Party.
7.2 The Client warrants that:
7.2.1 it has the right, power and authority to enter into this Agreement;
7.2.2 it shall use its reasonable endeavours in the execution, delivery and performance of its obligations under this Agreement and The Client’s use of the Services and any subsequently licensed Software or Solutions shall not violate any law or regulation or any order or decree of any governmental agency or any other agreement, arrangement or understanding to which The Client is a party;
7.2.3 it shall not violate any third party rights.
8.1 Without prejudice to any other exclusion including Clause 8.6, limitation or specific obligation contained within this Agreement, neither Party has liability to the other in contract (save to the extent anticipated in this Agreement), tort (including negligence or breach of statutory duty) or otherwise for any indirect, special or consequential losses or exemplary damages or for any loss of profit, contract, revenue, turnover or bargain which arises in any way from use of the Services.
8.2 No provision of this Agreement shall exclude or limit the liability of either Party in respect of death or personal injury caused by negligence, and the provisions of this Agreement shall be read and construed and shall have effect subject to any limitations imposed by any applicable law.
8.3 The aggregate liability of either Party in respect of any loss or damage arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way shall not exceed £50,000 or 125% whichever is the greater of the sums payable hereunder by The Client to The Licensor.
8.4 Neither The Licensor nor any of The Licensor's agents, employees and customers shall be liable for any liability, loss, cost, claim or damage arising out of or resulting from:
8.4.1 any product sold by The Client, its agents, employees or assigns;
8.4.2 the Client’s recommendation of (or failure to recommend) Applicants for employment.
8.5 The Licensor does not have any responsibility for accuracy, correctness or validity of any of the information contained in CV Profiles nor the conduct, acts or omissions of any Applicant nor does it have any responsibility to supervise the performance of any services provided by any Applicant.
8.6 Each Party shall indemnify the other Party and hold the other Party harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, that may be incurred by the other arising out of or related to the indemnifying Party’s breach of any of the warranties contained in Clause 7, subject to the limits of indemnity in Clause 8.3.
8.7 Neither Party has any right to an indemnity in respect of any breach of a Clause 7 warranty if it fails in any material respect.
9.1 Notwithstanding any other provisions of this Agreement, each Party shall take out at its own cost and maintain in force, for as long as it has obligations under this Agreement, Employer’s Liability insurance.
10 TERM OF AGREEMENT AND TERMINATION
10.1 This Agreement shall have effect on the Agreement Date. The Initial Term shall commence on the Effective Date set out in the table above and shall continue thereafter unless terminated in accordance with the any of the following:
10.1.1 Either Party shall be entitled to terminate this Agreement at the end of the Initial Term by giving no less than 7 days written notice before the expiry of the Initial Term. The contract will renew every month thereafter unless terminated by either party.
10.1.2 Either Party shall be entitled to terminate this Agreement forthwith by written notice to the other Party if the other Party materially breaches this Agreement and which in the case of a breach capable of remedy shall not have been remedied within thirty (30) days of receipt of notice from the first Party specifying the breach and requiring the breach to be remedied. For the avoidance of doubt neither party shall spuriously exercise this right of termination.
10.1.3 Either Party shall be entitled to terminate this Agreement forthwith by the giving of written notice to the other Party if the other Party passes a resolution for winding up (otherwise than a voluntary winding up for the purposes of a bona fide amalgamation or reconstruction).; or a court of competent jurisdiction shall make a winding-up order.
10.2 Any termination of the Agreement shall be without prejudice to all accrued rights or obligations of either Party to the other. For the avoidance of doubt, any provision of the Agreement which expressly or by implication is to continue beyond termination of the Agreement shall not be affected by termination and shall survive termination of this Agreement.
11 HANDOVER CO-OPERATION ON TERMINATION
11.1 Save for termination by The Licensor under sub-clause 10.1.2 or 10.1.3, Client will be entitled to collect a copy of The Client’s CV Profiles from the CV Profile API at no further cost to The Client.
11.2 In the event of a notice of termination being issued The Licensor shall, during the notice period, continue to provide the Services outlined in this Agreement with professionalism and diligence.
12 ESCALATION AND DISPUTE RESOLUTION
12.1 In the event that either The Client or The Licensor are unable to resolve any service concerns the disaffected party shall be entitled to call in the first instance the Escalation Level 1 contact of the other party. A failure by the level 1 contact to resolve the issue satisfactorily within a reasonable time shall enable the disaffected party to call the level 2 contact.
13.1 This Agreement shall not be varied or amended otherwise than by agreement of the Parties and the issue of an amendment signed on behalf of both Parties by their duly authorised representatives.
14.1 Neither Party may assign or otherwise transfer (or agree to do any similar act) any of its rights or obligations under this Agreement without the prior written consent of the other Party such consent not to be unreasonably withheld and/or delayed.
15 GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with English law. Any dispute which may arise between the Parties concerning this Agreement shall be determined by the Courts of England, and the Parties submit to the non-exclusive jurisdiction of such Courts.
16 ENTIRE AGREEMENT
16.1 The Agreement represents the entire agreement and understanding between The Licensor and The Client with respect to the subject matter and supersedes any previous understandings or agreements. Nothing shall purport to exclude any liability for fraudulent misrepresentation.
16.2 Each Party acknowledges that it has not relied on or been induced to enter into this Agreement by a representation other than those expressly set out in this Agreement and the other documents referred to in this Agreement.
19.1 The Licensor agrees to be bound by the terms of this agreement
19.2 The Client agrees to be bound by the terms of this agreement by acknowledging acceptance by email to the Licensor and/or payment in full of the Initial Invoice.
The following words and expressions, shall unless the context otherwise requires, have the following meanings:
20.1 "Act" means the Data Protection Act 1998 as may be amended from time to time.
20.2 “CV Profile” means a CV which has been processed by The Licensor, which is not an CV Profile.
20.3 "Applicant" is the person applying for a vacancy or submitting their CV to The Licensor or Client and is therefore the “data Subject” as set out within the definitions of the Act.
20.4 “Effective Date” the date in which The Solutions are made available to The Client.
20.5 “Implementation Fee” means the fee payable by The Client to The Licensor for performing the implementation tasks, which includes but is not limited to – project management, systems configuration, data cleansing, data import, and communication with Applicants on behalf of The Client.
20.6 “Initial Invoice” the invoice issued by the Licensor to The Client for the Subscription to the Solutions.
20.7 “Initial Term” the length of the initial agreement before any extensions are agreed as specified on the Initial Invoice relating to this agreement.
20.8 “Intellectual Property Rights” means all patents, topography rights, design rights, trade marks, copyrights, rights in databases, sui generis rights, moral rights, trade secrets and other confidential information, know-how and all other intellectual property rights of a similar nature in any part of the world and all applications and rights to apply for the protection of any of the foregoing.
20.9 “CV Profile” means the online CV or career profile including, but not limited to, contact details, career information, experience, abilities and skills of the Applicant.
20.10 “Jobzooma Client” means a business that has licensed the use of the CV Profile from The Licensor.
20.11 "Personal Data" has the same meaning as set out within the definitions of the Act.
20.12 “Services” collective definition for Solutions and Service Desk.
20.13 “Service Desk” means The Licensor’s service to support The Solutions.
20.14 “Solutions” collective definition for Jobzooma, Multi poster, Search, Advanced Search, ATS, CRM, CVDB Access and any other solutions defined in Supplemental Licence Agreements.
20.15 “The Term” as specified on the Initial Invoice relating to this agreement
20.16 "Training Fee " means the fee payable by The Client to The Licensor for performing training services for The Client.
20.17 “Solution(s)” means Jobzooma: Multi poster, Search, Advanced Search, ATS, CRM, CVDB Access. Excludes Lead Generator unless otherwise specified
20.18 “Effective date” means the date of receipt of initial invoice payment
21.1 This Agreement does not cover any integration with any recruitment system or licence of any additional software, solutions, services or support – which, if relevant will be detailed in one or more Supplemental Licence Agreement(s).