Terms and Conditions
Last updated: 18 November 2019
Welcome to nthuse! Thank you for visiting www.nthuse.com (the 'Site').
What is nthuse? nthuse enables employers to:
- create content-rich job ads quickly and simply using your own online materials
- publish job ads on a free-standing web page
- distribute job ads simultaneously on selected job boards and social media sites
- analyse the performance of your recruitment advertising
nthuse Terms & Conditions
You should only accept these terms if you agree with them in their entirety. Note particularly the limitation of liability as regards your use of nthuse and our liability to you at clause 13.
Our Terms and Conditions: These terms and conditions (and any documents referred to in them and any additional terms on the Site) (Terms or agreement) set out the basis on which we provide nthuse and any associated materials and services via www.nthuse.com (Site). Any capitalised terms used in these Terms are more fully defined below. You should print a copy of these Terms for future reference.
These Terms apply to any user of the Site together with any person or entity for whose benefit the Site is used (e.g. your employer). By using the Site, you are agreeing to be legally bound by these Terms. By using our Site for the benefit of someone else, you promise to us that you have their full permission to do so and that they have agreed to such use and to be bound by these Terms.
About us: The Site is operated by Madgex Limited (us, we, our or nthuse). We are a private limited company incorporated in England and Wales under company number 04095107 with our registered office at One, Gloucester Place, Brighton, East Sussex, BN1 4AA.
The Site may incorporate functionality or integrate with Site provided by our international group of companies and/or third-party service providers (Network Partners).
Who can use nthuse: The Site is provided on a commercial basis for creating and publishing employer-branded job ads (nthuse Job Ads). It may also be utilised by agencies acting on behalf of their employer clients. The Site is not intended for individual personal use.
Setting up an nthuse Account: It is free to register for an nthuse account (Account). You should set up your Account in the name of the organisation placing the nthuse Job Ads and follow the online instructions. You will be asked to nominate a lead individual to control the account (Account Administrator), who will be able to invite additional individuals into the Account. Each individual user given access to the Site (Authorised User) will have their own login details. Logins are non-transferable and may not be shared. If we find out that logins have been shared, we shall at our sole discretion be entitled to either suspend or terminate your use of the Site and/or delete you’re Account. You can downgrade or delete your account at any time.
1.1 The definitions and rules of interpretation in this clause apply in this licence.
Advertising Rules: the rules which apply to use of the Site including the creation of nthuse Job Ads as set out at clause 2.3 and any other rules or acceptable use policies including of any Network Partners or third parties as amended from time to time.
Account: the user account made available to the Client and its Authorised Users to allow access to and use of the Site.
Active Jobs: any job that you write, design or promote is considered an active job and will count towards your Subscription Plan limits as an nthuse Job Ad. When you create a new job, whether that’s via an import or manually, we automatically assume it’s an active job. An active job can be incomplete, ready, published, or unpublished. Archived jobs are not counted in your plan limit, but can be reviewed, duplicated and maintain their usage data for analysis. Premium Job Board Listings are an exception: you can post as many Premium Job Board Listings as you want, without eating into your plan’s active job limit.
Authorised Users: those employees, third parties, agents and independent contractors of the Client who are authorised by you to use the Site and the Documentation.
Background IP: all Intellectual Property in pre-existing Software code or other forms of IPR owned and developed by us in the Software or Site (including, for the avoidance of doubt, in the non-bespoke elements of the Site used in support of other client projects) together with any additional software code or other IPR created by us for you which further develops, enhances or refines the Background IP, and other IPR owned by or licensed to us and which may be accessible by you or Authorised Users through use of the Site, except for the Foreground IP, Input Material or Open Source Software;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client Library: the library provided to Clients through the Site into which they may place, store and archive Input Material and non-active nthuse Job Ads.
Client Support: the standard Site support made available to Clients within Normal Business Hours and as set out in the Documentation.
Commencement Date: the date on which we accept in writing (usually by mail) your order for use of and access to the Site.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.6 or Clause 11.7.
Documentation: the user documents made available to you by us via the Help Hub at https://nthuse.com/help-hub or such other web address notified to you from time to time, and which set out a description of the Site, user and help instructions.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Fee: the Subscription Price payable by you to us and any other fees payable or as agreed by us and you.
Foreground IP: all Intellectual Property Rights in the bespoke elements of the Site created by us exclusively for use by you and any Input Material provided by you or any Authorised Users but excluding any rights in Third Party IP and Open Source Software.
Free Subscription: the lowest tier of access to the Site with limited functionality and as further set out at https://nthuse.com/pricing or as amended from time to time.
Initial Subscription Term: the initial month’s subscription term from the Commencement Date taken by the Client under this agreement.
Input Material: all documents, diagrams, images, drawings and information and materials provided by the Client, or Authorised Users, relating to the Site (including any third party materials or Third Party IP) or as part of the Client’s use of the Site (including materials stored in the Client), including any information derived from such information, computer programs, data, reports and specifications and such other material applicable and necessary to the proper provision of the Site or stored in the Client Library.
Intellectual Property Rights (IPRs): patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
IPR Claim: any claim made against the Client and/or any Authorised User for actual or alleged infringement of a third party's Intellectual Property Rights, and/or breach of confidentiality arising out of, or in connection with, the supply of the Site and/or the use of the Background IP, and/or any Foreground IP, Template materials and/or Third Party IP introduced by us.
Network Ad Posting: the distribution channels available via the Site which enable nthuse Job Ads to be posted to Network Partner websites, digital or social media channels.
Network Partners: the third party entities which agree to accept and distribute nthuse Job Ads.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
nthuse Ad Posting: the hosting and hyperlinks created by the Site which allow nthuse Job Ads to be accessed by third parties.
nthuse Job Ads: the job ads created and published by Clients and Authorised Users via the Site.
Open Source Software: open-source software comprised in the Site which is not owned or controlled by us but which is freely available for redistribution (such as source libraries or plugins).
Output Material: the materials created by the Client or Authorised Users as a result of using the Site and which may comprise Input Material, Background IP, Foreground IP, Templates, Third Party IP and Open Source Software.
Site: the nthuse job ad design and management subscription service enabling Authorised Users of a Client to manage nthuse Job Ads including for nthuse Ad Posting and Network Ad Posting, and access to Writing Coach and the Client Library, provided by us under this agreement via https://nthuse.com or such other website or gateway as notified to you from time to time and as more particularly described in the Documentation.
Software: the online software applications provided by us as part of the Site.
Source Code Material: the source code of the Software.
Subscription Level: the subscription and user level under which the Client is given access to the Site, setting out the permitted number of Active Jobs and Authorised Users a Client may have at any one time, as set out at https://nthuse.com/pricing or as amended from time to time.
Subscription Price: the Subscription Price payable by you to us under a Subscription Level, as set out at https://nthuse.com/pricing or as amended from time to time.
Subscription Term: has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Templates: the design templates made available to you by us for use with the Site, which may incorporate Input Material and which we licence you to use under this agreement as nthuse Job Ads.
Third Party IP: any Intellectual Property Rights in any third-party materials, including fonts, images or data required as dependencies for the Client’s use of the Site, or provided by you or Authorised Users in the form of Input Material or incorporated in Output Material.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Writing Coach: the natural language processing and machine learning made available to Clients via the Site to help employers write more engaging and inclusive advert copy.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 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 assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. User Subscriptions
2.1 Subject to the Client obtaining the Subscription Level in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this agreement, we hereby grant to the Client:
2.1.1 a non-exclusive licence to use the Site and the Documentation; and
2.1.2 a non-exclusive, non-transferable right, to sub-licence the Site and the Documentation to the Authorised Users to use the Site and the Documentation;
during the Subscription Term solely for the purposes of the Client’s business and commercial operations.
2.2 In relation to the Authorised Users, the Client undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Site and the Documentation shall not exceed the number of Authorised Users it has purchased under a Subscription Level;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Site and/or Documentation, and
(c) each Authorised User shall keep a secure password for his use of the Site and Documentation and that each Authorised User shall keep his password confidential.
2.3 The Client shall not, and shall not allow any Authorised Users to, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Site that, in our reasonable opinion:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(f) is otherwise illegal or causes damage or injury to any person or property;
(g) otherwise conflicts or contradicts with any acceptable use policy made known to you in relation to the Site or by our Network Partners,
and we reserve the right, without liability or prejudice to our other rights, to disable the Client’s access to any material that breaches the provisions of this clause.
2.4 The Client shall not and shall not allow:
(a) 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:
(i) any attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) any attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) any access to all or any part of the Site and Documentation in order to build a product or service which competes with the Site and/or the Documentation; or
(c) to use the Site and/or Documentation to provide any similar site or services to third parties; or
(d) subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Site and/or Documentation available to any third party except the Authorised Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Site and/or Documentation, other than as provided under this Clause 2, or
(f) remove or seek to disable any proprietary branding or statements embedded into any part of the Site including incorporated into any Active Jobs.
2.5 The rights provided under this Clause 2 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client.
3. Additional User Subscriptions
3.1 Subject to Clause 3.2 and Clause 3.3, the Client may, from time to time during any Subscription Term, request a new or higher Subscription Level, or reduce their Subscription Level, and we shall grant access to the Site and the Documentation and to the permitted number of Authorised Users and Active Jobs in accordance with the provisions of this agreement.
3.2 If the Client wishes to elevate or reduce its Subscription Level, the Client shall make such request via the Site. We shall respond to the Client with approval or rejection of the request. Where we approve the request, we shall activate the relevant Authorised Users and Active Jobs under the relevant Subscription Level as soon as possible.
3.3 If we approve the Client’s request to reduce or elevate its Subscription Level, the Client shall pay the relevant Fees and, if such elevation occurs part-way through an Initial Subscription Term or any Renewal Period (as applicable), such Fees shall be pro-rated from the date of activation by us for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 We shall, during the Subscription Term, provide the Site and make available the Documentation to the Client and Authorised Users on and subject to the terms of this agreement.
4.2 We shall use commercially reasonable endeavours to make the Site available 24 hours a day, seven days a week, except for:
(a) planned maintenance, and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give the Client reasonable notice in advance, unless the issue requires immediate response when it will be performed as needed.
4.3 We will, as part of the Site, provide the Client with Client Support.
5. Client content and data protection
5.1 The Client shall own all right, title and interest in and to all of the Input Material and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Input Material, including that stored in the Client Library or incorporated into any Templates as part of the Site (Client Content).
5.2 The Client and any Authorised Users shall be responsible for:
5.2.1 the backup of any Output Material exported from the Site;
5.2.2 the use of any Third Party IP it introduces to the Site, including obtaining the necessary permissions or licences for such use (including any third party fonts used) and any materials uploaded or used with the Site by Authorised Users, and
5.2.3 ensuring that all Client Content, Input Material, and Third Party IP provided by the Client complies with the Advertising Rules and does not infringe any third party IPRs.
5.3 We shall follow our standard backup procedures for the Site, which includes the back-up of Client Content.
5.5 If we process any personal data on the Client’s behalf when performing our obligations under this agreement, the parties agree that the Client shall be the data controller and we shall be a data processor and in any such case:
(a) the Client shall ensure that the Client is entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf, and
(b) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage in line with the Data Protection Legislation.
6. Third party providers
6.1 The Client acknowledges that the Site may enable or assist it to access the website content of, correspond with, and purchase products and Site from, third parties include Network Partners and that it does so solely at its own risk.
6.3 In accordance with Clause 5.2 and 8.1:
6.3.1 the Client and any is entirely responsible for its own or any Authorised Users input or use of any Input Material or Third Party IP with the Site, including obtaining the necessary permissions or licences for such use, and
6.3.2 ensuring that the same does not infringe any third party rights.
7. Our obligations
7.1 We undertake that the Site will perform substantially in accordance with the Documentation.
7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Site contrary to our written instructions, or modification or alteration of the Site by any party other than us or our duly authorised contractors or agents. If the Site does not conform with the foregoing undertaking, we will, at our own expense and without prejudice to the other rights of the Client accrued under this agreement, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance.
7.3 Subject to clauses 7.1 and 7.2 above, and unless specifically set out otherwise in this agreement we:
(a) do not warrant that the Client’s use of the Site will be uninterrupted or error-free; or that the Site, Documentation and/or the information obtained by the Client through the Site will meet the Client’s requirements; and
(b) is 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 the Client acknowledges that the Site and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Site which are similar to those provided under this agreement.
7.5 We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. Other obligations
8.1 Each party shall:
(a) provide the other with:
(i) all necessary cooperation in relation to this agreement; and
(ii) such information as may be reasonably required by the other party;
in order to provide the Site, including but not limited to Input Material, security access information and configuration Site;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all its responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Site and the Documentation in accordance with the terms and conditions of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for it, and its contractors and agents, to perform their respective obligations under this agreement, including (with regards to us only) without limitation the Site;
(f) ensure that its network and systems comply with the relevant specifications to provide the Site from time to time;
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to relevant data centres, and
(h) ensure that sufficient measures, processes and protections are in place to ensure the necessary back up of Input Material and any Third Party IP used by the Client.
8.2 The Client warrants that all Input Material, Third Party IP or other materials it supplies to us shall not infringe the rights of any third party or breach any applicable law and the Client shall fully indemnify us against a breach of this clause.
9. Charges and payment
9.1 The Client shall pay the relevant Subscription Price to us in accordance with this Clause 9.
9.2 The Client shall on or before the Commencement Date provide to us valid, up-to-date and complete bank and/or credit card details or approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
(a) its credit card or bank details to us, the Client hereby authorises us to bill such credit card or bank account:
(i) on the Commencement Date for the Subscription Price payable in respect of the Initial Subscription Term; and
(ii) subject to Clause 14.1, on each monthly anniversary of the Commencement Date for the Subscription Price payable in respect of the next Renewal Period; or
(b) its approved purchase order information to us, we shall invoice the Client:
(i) on the Commencement Date for the Subscription Price payable in respect of the Initial Subscription Term; and
(ii) subject to Clause 14.1, prior to each monthly anniversary of the Commencement Date for the Subscription Price payable in respect of the next Renewal Period,
and the Client shall pay the same as requested by us including as set out in any invoice supplied.
9.3 If we do not receive payment as such payment falls due, and without prejudice to any of our other rights and remedies:
(a) we will downgrade your Subscription Level to a Free Subscription, and may
(b) without liability to the Client, disable the Client’s password, account and access to all or part of the Site and we shall be under no obligation to provide any or all of the Site while the invoice(s) concerned remain unpaid; and
(c) interest shall accrue on a daily basis on any due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and Fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to Clause 14.4, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added at the appropriate rate.
9.5 If, at any time whilst using the Site, the Client exceeds the Authorised User or Active Jobs specified in the Documentation, we may require the Client to elevate to a higher Subscription Level.
9.6 We shall be entitled to increase the Subscription Price, the fees payable pursuant to Clause 3.3, and/or the excess fees payable pursuant to Clause 9.5 at the start of each Renewal Period.
10. Proprietary rights
10.1 The Client acknowledges and agrees that we and/or our licensors own all Intellectual Property Rights in the Site, Documentation and Background IP. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Site or the Documentation.
10.2 We confirm that we have all the rights in relation to the Site, the Documentation and the Background IP that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10.4 We hereby grant the Client and each Authorised Users an unconditional and irrevocable licence to use the Output Material on the terms of this Agreement.
10.5 You permit us to use or display for marketing or publicity purposes in whatever form any nthuse Job Ads you have placed in the public domain via the Site but otherwise we shall not, without the Client's prior written consent, use your Input Material for any other purpose or for the benefit of any person other than the Client.
11.1 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:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to Clause 11.4, each party shall hold the other’s Confidential Information in confidence and 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.
11.3 Each party shall take all reasonable steps to ensure that the other’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.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party unless caused by a third party duly appointed by a party, including but not limited to sub-contractors and agents.
11.6 The Client acknowledges that details of the Site, and the results of any performance tests of the Site, constitute our Confidential Information.
11.7 Notwithstanding the other terms of this agreement neither party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this Clause 11. shall survive termination of this agreement, however arising.
12. IPR indemnity
12.1 If an IPR Claim is made, or we anticipate that an IPR Claim might be made, we may, at our own expense and sole option, either:
12.1.1 procure for the Client the right to continue using the relevant item which is subject to the IPR Claim; or
12.1.2 replace or modify the relevant item with non-infringing substitutes provided that:
(a) the performance and functionality of the replaced or modified item is, in the reasonable opinion of the Client, at least equivalent to the performance and functionality of the original item;
(b) there is no additional Fee to the Client; and
(c) the terms and conditions of this agreement shall apply to the replaced or modified item, or
12.1.3 terminate this agreement.
12.2 The provisions of clause 12.1 shall not apply in respect of any IPR Claim caused by:
12.2.1 any use by or on behalf of the Client of the relevant item in combination with any item not supplied pursuant to this agreement; or
12.2.2 the use by the Client of the relevant item in a manner not reasonably anticipated by this agreement.
12.3 In no event shall we, our employees, sub-contractors or agents be liable to the Client to the extent that the IPR Claim is based on:
(a) a modification of the Site or Documentation by anyone other than us or duly appointed sub-contractors or agents; or
(b) the Client’s use of the Site or Documentation in a manner contrary to that reasonably anticipated by this Agreement or the Documentation; or
(c) the Client’s use of the Site or Documentation after notice of the alleged or actual infringement from us or any appropriate authority.
12.4 The foregoing and Clause 13.3(b) state the Client’s sole and exclusive rights and remedies, and our (including our employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly and specifically provided in this agreement:
(a) We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by the Client in connection with the Site, or any actions taken by us at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Site and the Documentation are provided to the Client on an “as is” basis.
13.2 Nothing in this agreement excludes the liability of either party for:
(a) death or personal injury caused by negligence; or
(b) fraud or fraudulent misrepresentation.
13.3 Subject to Clause 13.1 and Clause 13.2:
(a) neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses , or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
(b) our total aggregate liability in contract misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the Subscription Price paid by the Client in the 6 months prior to the liability arising, and
(c) all complaints, disputes and claims must be notified to us within 1 month of any alleged liability arising, after which time all liability shall be deemed to have expired.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Date of this Agreement and shall continue for the Initial Subscription Term and, thereafter, unless the Client closes their Account, this agreement shall be automatically renewed for successive periods of one calendar month (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2(d) to Clause 14.2(j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(m) either party does anything which, in the reasonable opinion of the other party, brings or may bring the other party into disrepute, or
(n) we decide, in our sole discretion, that your account is inactive through a lack of use.
14.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Site and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
We shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of nthuse or any other party), 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, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Order Confirmation the provisions of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 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.
20.2 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.
21. Entire agreement
21.1 This agreement including the Order Confirmation constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
The Client shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
23. 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).
24. Third party rights
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 assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
25. Employment rights
The Employment Agencies Act 1973 and/or the Conduct of Employment Agencies and Employment Business Regulations 2003 do not apply to the Site. We are an online advertising intermediary for employers. We are not an employment business or an employment agency. We do not provide any work-finding services to candidates, we do not introduce or supply candidates to you and nor do we have authority to act on your behalf in this respect.
26.1 Applicable laws require that some of the information or communications we send to you should be in writing. When using our Site, you accept that communication with us will be mainly electronic. We shall be entitled to contact you by e-mail or provide you with information by posting notices on our Site.
26.2 For contractual purposes, you agree to this electronic means of communication as being legally effective and binding. All notices given by you to us must be sent to Madgex Limited via firstname.lastname@example.org or in writing by post to our main office address at nthuse, Madgex Limited, One Gloucester Place, Brighton BN1 4AA.
26.3 Notices will be deemed received and properly served immediately when posted by us on our Site, or 24 hours after an e-mail is sent, or three days after the date of posting of any letter via UK Royal Mail. In proving the service of any notice in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
27. Governing law and jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and in which respect the courts of England and Wales shall have exclusive jurisdiction.