Terms and conditions
STANDARD TERMS AND CONDITIONS
A signed Order Confirmation from both parties will constitute acceptance of this Agreement. Any changes or additions to an Order Confirmation or these Standard Terms and Conditions must be agreed in writing by both parties. Gorkana reserves the right to determine whether or not such changes are included within the Charges.
Charges mean the charges payable by the Client to Gorkana for the Services as set out in the Order Confirmation;
Client means the person or persons named as the Client in the Order Confirmation for whom Gorkana has agreed to provide the Services in accordance with this Agreement;
CV Database means the database maintained by Gorkana on curriculum vitae uploaded onto Gorkana Jobs Website by candidates;
Commencement Date shall have the meaning set out in the Order Confirmation;
Confidential Information means any information or materials of any kind and in any form (whether disclosed before or after the date of this Agreement) relating to amongst others the disclosing party or any associated company of the disclosing party including information or materials (or copies thereof) relating to the disclosing party’s business plans, intellectual property (to the extent that the same are not in the public domain), customers or suppliers lists, formats, plans or proposals or any other information whose confidential nature can be reasonably ascertained or presumed by the receiving party;
Force Majeure means in relation to either of the parties hereto any circumstances beyond the reasonable control of that party;
Gorkana Content means any and all content, software and other information or materials owned or licensed by Gorkana and provided by Gorkana to Client for use or otherwise used by Gorkana pursuant to this Agreement, the Gorkana Jobs Website;
Gorkana Jobs Website means “Gorkana Jobs” website located at url: http://www.gorkanajobs.com/;
Intellectual Property Rights: means all present and future rights associated with works of authorship including patent rights and other industrial property rights, trade marks, designs, trade or business names, domain names, copyright and moral rights, database rights, topography rights, rights in know-how, trade secrets, rights of confidence and any other intellectual property rights or right of a similar nature anywhere in the world, whether arising by operation of law or otherwise, registered or unregistered, now known or hereafter invented and including applications for such rights and all extensions, renewals and reversions of such rights;
Job Postings means all advertisements for employment or contracting opportunities with Client or its affiliates posted to the Gorkana Jobs Website;
Order Confirmation means the written order confirmation between Gorkana and the Client, confirming the products and/or services that are to be provided by Gorkana to the Client;
Services means the services to be provided by Gorkana under this Agreement as selected in the Order Confirmation;
Term shall have the meaning set out in the Order Confirmation; and
Territory means the United Kingdom.
2.1 This Agreement shall commence on the Commencement Date and continue for the Term, unless terminated sooner as provided in this Agreement or extended by mutual agreement of the parties in writing.
3 SUPPLY OF THE SERVICES
3.1 Gorkana shall provide the Services from the Commencement Date in accordance with this Agreement. Gorkana shall not be considered to be in breach of any of its obligations under this Agreement to the extent that performance of its obligations is prevented or delayed by any act or omission of Client nor shall Gorkana be liable for any losses sustained or incurred by the Client that arise from (a) such prevention or delay, (b) the Client's fraud or negligence, or (c) any Job Postings or instructions provided by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form. Without prejudice to the generality of the foregoing, the Client agrees and acknowledges that in the event that the Client fails to provide or delays in providing Gorkana with access to such data, information and/or materials necessary for the performance of Gorkana's obligations pursuant to this Agreement, any applicable timescales to be achieved by Gorkana pursuant to the terms of this Agreement will be extended by such period as is reasonable and commensurate to the failure or delay caused by the Client.
3.2 Gorkana shall be entitled to assume that individuals employed by the Client have the necessary expertise and full authority to contractually bind the Client, request and approve changes or additions to the Services or this Agreement and otherwise act on Client's behalf in relation to the Services, unless advised in writing to the contrary by the Client.
4 CLIENT OBLIGATIONS
4.1 The Client shall co-operate with Gorkana in all matters relating to the Services; provide, in a timely manner, the Job Postings and such other material, information and data as Gorkana may reasonably require to perform its obligations under this Agreement, and ensure that such material, information and data is accurate in all material respects.
4.2 The Client shall ensure that all Job Postings and all interactions between the Client and/or any contractors performing employment services on behalf of Client are in full compliance with applicable laws and regulations and the Client shall indemnify Gorkana, its affiliates, suppliers, and their respective directors, managers, officers, and employees from and against any damages, fines, penalties, and costs (including reasonable fees and costs of attorneys) resulting from a third-party claim that arises in whole or in part from the Client’s breach of its obligation set forth in this Clause 4.2.
4.3 The Client is prohibited from making any permanent copy of any software used in the delivery of the Services or reverse engineering or decompiling any such software, or making derivative works incorporating any of the elements of it, or modifying or adapting it in any way, or extracting or re-utilising any data, save as is provided for in this Agreement.
5.1 In consideration of Gorkana providing the Services, the Client shall pay to Gorkana the Charges as specified in the Order Confirmation, and any additional sums that are agreed in writing between Gorkana and the Client for the provision of the Services.
5.2 Where the Client requests that the Services are provided to and/or invoiced to a third party, the Client shall remain liable for the payment of any Charges that relate to these Services.
5.3 All charges quoted to the Client for the provision of the Services are exclusive of any value added tax or applicable local sales tax for which the Client shall be additionally liable at the applicable rate from time to time.
5.4 Unless otherwise agreed, all fees due under the Agreement shall be made by the Client in pounds sterling and the Client shall be liable for any exchange rate fluctuations and currency conversion or other banking charges.
5.5 The Charges shall be paid by the Client within thirty (30) days of the date of Gorkana’s invoice. If payment is not made on the due date, Gorkana shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgement) at the rate of four per cent (4%) above the base rate of Barclays plc from the due date until the outstanding amount is paid in full.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Gorkana hereby grants to the Client during the Term and in the Territory a non-exclusive, revocable, non-transferable licence to access the Gorkana Jobs Website, post Job Postings thereto, and use the Gorkana Content for the Client’s internal business employment purposes.
6.2 All Intellectual Property Rights belonging to a party prior to the signing of this Agreement will remain vested in that party and nothing in this Agreement shall operate to transfer any Intellectual Property Rights from either party to the other party. Gorkana will own all rights (including all Intellectual Property Rights) in the Gorkana Content. The Client will own all rights (including all Intellectual Property Rights) in the Job Postings.
7 ACCESS RIGHTS
7.1 Access to the Gorkana Jobs Website is subject always to Gorkana security control and information protection policies, standards and guidelines as may be modified from time to time.
8 REPRESENTATIONS AND WARRANTIES
8.1 Each party warrants, represents and undertakes to the other that:
8.1.1 it has full power and authority to enter into this Agreement;
8.1.2 it has not entered into (and will not enter into) any agreement with any third party which might conflict with the terms of this Agreement; and
8.1.3 it is able to grant the rights granted or purported to be granted under the Agreement and is able fully to perform its obligations hereunder.
8.2 Gorkana represents and warrants that it shall use reasonable skill and care in providing the Services and maintaining the Gorkana Jobs Website, including using commercially reasonable efforts to maximise the functioning time of the Gorkana Jobs Website.
8.3 The warranties expressly set out in this Agreement are the entire and exclusive warranties made by Gorkana to the Client with respect to the Services and Gorkana Content. Without prejudice to Gorkana's other obligations under this Agreement, to the maximum extent permitted by governing law, all other warranties and representations in respect of the Services and Gorkana Content, whether express or implied, are excluded, and, in particular, Gorkana does not warrant that the operation of the Services and Gorkana Content will be uninterrupted or error-free; or that the Services and Gorkana Content are of satisfactory quality, fit for any particular purpose, accurate or complete; or that use by the Client of the Services and Gorkana Content with any other software unless expressly authorised by Gorkana, or with inappropriate hardware, will not cause any disturbance to the Services and Gorkana Content or to such other software.
8.4 Without limiting the foregoing Clause 8.3 and notwithstanding anything to the contrary in this Agreement, Gorkana shall have no responsibility or liability for the content of Job Postings or any resume or curriculum vitae posted to the CV Database, including, without limitation, for ensuring that such Job Postings or curricula vitae are accurate, genuine, authentic, or in compliance with applicable laws and regulations and the Client expressly acknowledges that Gorkana does not, and has no obligation hereunder, to make any such inquiry or investigation with regard theretoAnchor.
8.5 The Client represents and warrants that:
8.5.1 it shall not upload, post, publish, transmit or transfer to the Gorkana Jobs Website any material other than Job Postings and such Job Postings shall not contain any information or material that: (a) is misleading, inaccurate, defamatory, illegal, obscene, threatening, deceptive, abusive, profane or offensive (or is likely to be perceived as such), including advertisements for employment or contracting services that are illegal; (b) advertises for employment or contracting engagements that are illegal; (c) is in breach of any Intellectual Property Rights, or damaging to data, software or the performance of the Gorkana Jobs Website; (d) contains any unauthorised advertising, promotion or solicitation; or (e) is critical of Gorkana, provided, that Gorkana reserves the right to remove any Job Postings that Gorkana determines in its reasonable discretion contravenes or has a reasonable potential to contravene these prohibitions or is otherwise not consistent with or likely to diminish the reputation of the Gorkana Jobs Website; and
9 LIMITATION OF LIABILITY
9.1 Nothing in this Clause 9 shall limit either party's liability for death or personal injury resulting from such party's negligence or for fraud.
9.2 Neither party shall be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
9.2.1 any loss arising from or in connection with loss of profits (excluding, for the avoidance of doubt, the Charges payable to Gorkana for the Term under this Agreement), contracts or business or failure to realise anticipated savings; or
9.2.2 any loss of goodwill or reputation; or
9.2.3 any indirect or consequential losses,
suffered or incurred by the other party arising out of or in connection with any matter under this Agreement.
9.3 The entire aggregate liability of Gorkana to the Client under or in connection with the Agreement, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise in respect of all claims in any consecutive 12 month period, shall not exceed the amount of the Charges paid by the Client in that period.
9.4 Should the Client's use of the Services be determined to have infringed, or if, in Gorkana's reasonable judgement, be likely to infringe any Intellectual Property Rights, Gorkana may at its option and expense:
9.4.1 procure for the Client the right to continue using the Services or the relevant part thereof; or
9.4.2 replace or modify the Services or the relevant part thereof to make the Client's use non-infringing;
9.4.3 ensure that any such replacement or modification shall not degrade the content, quality or performance of the Services.
If neither option 9.4.1 nor 9.4.2 are or would be available on a basis that Gorkana finds commercially reasonable, then Gorkana may terminate this Agreement, and the Client shall on receipt of written notice from Gorkana to do so immediately cease to use and deliver up (or destroy at Gorkana's option) the Gorkana Content. In such circumstances Gorkana shall refund any Charges paid under this Agreement which relate to a period after the date on which the Client's use of the Services ceased which shall be the Client's sole remedy under this Agreement with respect to such termination.
10.1 The Client shall not, without the prior consent of Gorkana, assign at law or in equity (including by way of a charge or declaration of trust) or sub-license this Agreement or any rights under this Agreement; provided that Gorkana's consent need not be obtained in relation to the assignment of this Agreement in connection with a merger, corporate reorganisation, or sale of all or substantially all of its assets or stock as long as the assignee agrees in writing to be bound by this Agreement.
11.1 Either Gorkana or the Client shall be entitled forthwith to terminate this Agreement by written notice to the other if:
11.1.1 the other party commits any material breach of any of the provisions of this Agreement, and in the case of a breach capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
11.1.2 an encumbrance takes possession or a receiver is appointed over any of the property or assets of that other party; or
11.1.3 the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order; or
11.1.4 the other party goes into liquidation (except for the purposes of amalgamation or reconstruction).
11.2 Without limiting Gorkana’s rights pursuant to Section 11.1.1, Gorkana will be entitled to suspend the Services if any invoice remains unpaid for fifteen (15) days after payment is due.
11.3 Sections 5, 6, 7, 8, 9, 10, 11, 12, 17 and 19 will survive the termination of this Agreement for any reason. The termination of this Agreement will not affect any claims or remedies either party may have for breaches of this Agreement that occurred before its termination. Upon any termination of this Agreement: (a) any licences or rights granted by Gorkana to Client shall immediately cease; and (b) Client will cease using the Services and the Gorkana Jobs Website and will immediately pay Gorkana any Charges due and payable to Gorkana under or in connection with this Agreement.
12.1 The parties shall each at all times during the continuance of this Agreement and after its termination:
12.1.1 use all reasonable endeavours to keep all Confidential Information confidential and not disclose any Confidential Information to any other person except to its officers, employees, representatives and professional advisers and those of members of its group of companies from time to time as strictly necessary to comply with its obligations pursuant to this Agreement, or as required by law, regulation or request of any governmental or regulatory authority, copyright holder or licensing body;
12.1.2 not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement.
12.2 Upon receipt of a written request, the parties undertake to return immediately to the other all copies of the Confidential Information and to expunge all Confidential Information from any device containing it.
12.3 Notwithstanding clause 12.1 above, either party shall be entitled to disclose Confidential Information of the other:
12.3.1 to their respective insurers or legal advisors;
12.3.2 to a third party to the extent that this is required by any court of competent jurisdiction, or by a governmental or regulatory authority,
12.3.3 provided that in the case of sub-clause 12.3.2 where reasonably practicable (and without breaching any legal or regulatory requirement) not less than two (2) business days' notice in writing is first given to the other party.
13 FORCE MAJEURE
13.1 Neither Gorkana nor the Client shall be deemed to be in breach of this Agreement or otherwise be liable to the other by reason of any delay in performance or non-performance by any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure, and the time for performance of that obligation shall be extended accordingly.
13.2 In the event that such delay or non-performance continues for a period of fourteen (14) days, the Client shall be entitled to terminate the Agreement forthwith by written notice to Gorkana.
14.1 All notices to be sent from one party to the other in connection with the Agreement shall be delivered by hand or sent by post to the address of the relevant party or such other address as may be notified by either party to the other from time to time.
The address for Gorkana is as follows:
Gorkana Group Limited
28-42 Banner Street,
14.2 Notices sent by post shall be deemed to have been received two days after posting.
14.3 Gorkana shall also accept notice by e-mail to Client’s dedicated account director, account manager or Client service executive provided that a read receipt is sent by Gorkana.
15.1 No failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Conditions by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
16 ENTIRE AGREEMENT
16.1 This Agreement constitutes the entire agreement between the parties and supersedes any previous agreement or understanding. In the event of any subsequent terms agreed between the parties which appear to conflict with this Agreement then this Agreement shall take precedence unless the subsequent Agreement expressly varies this Agreement.
17 NO PARTNERSHIP
17.1 Nothing in this Agreement shall be construed as constituting a partnership, joint venture, association, or other co-operative entity or agency relationship between the parties and neither party shall have any authority to act on behalf of the other nor to bind the other in any way, except as expressly permitted by the provisions of this Agreement.
18 GOVERNING LAW AND JURISDICTION
18.1 The Agreement shall be construed in accordance with and governed by English Law and shall be subject to the exclusive jurisdiction of the English Courts.