These are the terms and conditions (the "Conditions") which regulate the use by Advertisers (including the placing of advertisements) of the website www.JobTonic.com (the "Website") offered by Alcuda Limited, a company registered under the Companies Acts (Company Number SC297304) which has its registered office at 23 Manor Place, Edinburgh, EH3 7XE and which trades as JobTonic.com ("JobTonic.com", "we", "us", "our").
In these Conditions, the following terms shall have the following meanings:
1.1 "Advertisement" means a vacancy advertisement with a maximum of 3000 characters of inserted text to advertise a single vacancy;
1.2 "Advertiser" means a person who purchases a job vacancy advertisement from JobTonic.com pursuant to the Contract;
1.3 "Advertising Agency" means an Advertiser who is receiving the Services on behalf of an end client or is directly or indirectly providing the Services to an end client;
1.4 "Contract" means the contract for the supply of any Services by JobTonic.com to the Advertiser comprising these Conditions, the general Terms and Conditions of the Website and the Online Contract;
1.5 "Fees" means the fees and charges (exclusive of VAT) payable by the Advertiser to JobTonic.com as specified in the Online Contract;
1.6 "Online Contract" means the agreement entered into between the Advertiser and JobTonic.com on the Website in respect of individual Advertisements;
1.7 "Recruitment Agency" means an Employment Agency or Employment Business, as such terms are defined in the Employment Agencies Act 1973 (and all regulations made thereunder); and
1.8 "Services" means the services which JobTonic.com has agreed to provide pursuant to the Contract.
2.1 These Conditions shall apply to the exclusion of all previous terms and conditions issued by JobTonic.com (except for the general Terms and Conditions of the Website and shall apply to any Online Contract entered into after the date on which these Conditions were posted on the Website. In the event of any conflict between these Conditions and the general Terms and Conditions, in relation the relationship between the Advertiser and JobTonic.com, these Conditions shall prevail.
2.2 These Conditions together with the general Terms and Conditions are deemed to be fully read, understood and accepted by the Advertiser upon the Advertiser clicking on the "Accept" button on the Website. No variation or alteration to these Conditions or any representations about the Services shall have any effect unless expressly agreed and confirmed in writing by a director of JobTonic.com.
2.3 Each order for Services by the Advertiser from JobTonic.com shall be deemed to be an offer by the Advertiser to purchase the Services subject to these Conditions and the general Terms and Conditions. No order placed by the Advertiser shall be deemed to be accepted by JobTonic.com until JobTonic.com has sent an acknowledgement of order to the Advertiser. Such acknowledgement of order will be sent to the Advertiser electronically.
3.1 JobTonic.com shall not be responsible for any failure to provide the Services, or unavailability of the Website, as a result of circumstances beyond its reasonable control but the Advertiser accepts that it shall still be responsible for the payment of the Fees as if the Services had been properly provided.
3.2 The Advertiser accepts that JobTonic.com shall not be liable for any failure to provide the Services (or any part thereof) as a result of the Advertiser's failure to comply with the Contract and that it shall still be responsible for the full payment of the Fees as if the Services had been properly and fully provided.
4.1 JobTonic.com will only make available or supply copies of the CVs which have been received by it for distribution to Advertisers solely for the purpose of securing suitable employment for the Candidates and the Advertiser accepts that JobTonic.com makes no warranty whatsoever as to the availability of the Candidates.
4.2 JobTonic.com may, at its discretion and without notice, report improper or illegal use of CVs or the Services by the Advertiser to the relevant legal and/or bodies including the Department of Employment, the Office of the Information Commissioner and the Recruitment and Employment Confederation.
5.1 The Advertiser shall create a user account for the Website when registering for the first time. The Advertiser shall be responsible for ensuring that its login details, password and all other details in relation to its account remain confidential at all times. The Advertiser is responsible for preventing unauthorised persons from using its password and other details.
5.2 The Advertiser shall be nominate a key administrator when creating its user account. The key administrator shall be given a unique password and shall be permitted increased levels of access to the Website. The key administrator shall be able to set the maximum level of Reward that can be offered for vacancies on behalf of the Advertiser and add new users who can upload advertisements on behalf of the Advertiser.
5.3 The Advertiser's nominated users of its account with JobTonic.com shall be provided with a unique login name and password and shall be permitted to upload new Advertisements to the Website and set the level of the Reward applying to each Advertisement.
5.4 The Advertiser and its users must use every effort to keep passwords safe and should not disclose it or permit them to be used by an unauthorised person. The Advertiser shall contact JobTonic.com immediately if it suspects that the security of its user accounts is at risk.
5.5 The Advertiser is solely responsible for entering Advertisements onto the Website and for the content of Advertisements uploaded onto the Website by its users, together with the level of Reward advertised as being available. The Website will only reject the level of Reward set for an Advertisement if it exceeds the maximum level set from time to time by the Advertiser's key administrator.
5.6 Advertisements will remain live on the Website and available for searching via the internet for the period defined in the Online Contract. However, Advertisements placed on the Website may be removed by the Advertiser. The Advertiser will be charged for the full period defined in the Online Contract, as if the Advertisement had not been removed.
5.7 JobTonic.com may edit, remove or refuse to publish any Advertisement:
5.7.1 containing unnecessarily repeated words or phrases which cause a false positioning in the search results seen by a Candidate.
5.7.2 advertising products, services, businesses or websites, including, but not limited to, franchises, pyramid selling, network marketing, multi-level marketing and 'get rich quick' schemes.
5.8 Advertisements shall contain the details of a single vacancy.
5.9 JobTonic.com may refuse, withdraw, or require to be amended, any Advertisement which is illegal, immoral, obscene offensive or otherwise prejudicial to the interests of JobTonic.com or its clients or users of its services so as to comply with the legal or moral obligations placed upon JobTonic.com or the Advertiser or to avoid infringing a third party's rights or any statutory or regulatory requirements.
5.10 The Advertiser agrees not to do or permit to be done any of the following:
5.10.1 defame, abuse, harass, stalk threaten or otherwise violate or infringe the rights of any person or entity (including, but not limited to, rights of intellectual property or rights of privacy);
5.10.2 upload or transmit through the Website any material which is unlawful, indecent, defamatory, hateful or racially, ethnically or otherwise offensive or objectionable, or of an obscene or menacing character, or that may cause annoyance, inconvenience or needless anxiety;
5.10.3 upload files that contain software or other material protected by intellectual property laws (or by rights of confidentiality or privacy of publicity, where applicable) unless the Advertiser owns or controls the rights thereto or has received all necessary consents;
5.10.4 use the Website (or any part thereof) for any illegal purpose and agrees to use it in accordance with all relevant laws;
5.10.5 upload or transmit through the Website any computer viruses, macro viruses, Trojan horses, worms, corrupted files or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer;
5.10.6 use the Website (or any part thereof) in a way that may cause the Website to be interrupted, damaged, rendered less efficient or such that the effectiveness or functionality of the Website is in any way impaired;
5.10.7 upload files which contain an active hypertext link to another website;
5.10.8 delete any author attributions, legal notices or proprietary designations or labels in any file that is uploaded;
5.10.9 falsify the origin or source of software or other material contained in a file that is uploaded;
5.10.10 impersonate any person or entity nor attempt any unauthorised access to any part or component of the Website; and agree that in the event that it has have any right, claim or action against any other User arising out of that User's use of the Website, then it will pursue such right, claim or action independently of, and without recourse to JobTonic.com.
5.11 JobTonic.com shall use all reasonable endeavours to ensure that the Website operates properly at all times, but makes no warranties as to the availability or accessibility of the Website and reserves the right to alter any part of the Website at any time and to suspend or withdraw the Website at any time and for any reason. Save as otherwise set out in these Conditions or the general Terms and Conditions, JobTonic.com shall not be liable for any damages, loss, costs or expenses incurred by the Advertiser as a result of lack of availability or accessibility of the Website and any event beyond JobTonic.com's reasonable control.
5.12 Without limiting our other remedies, JobTonic.com reserves the right to suspend or cancel the Advertiser's right to use the Website and/or the Services at any time and for any reason, including without limitation, where the Advertiser is in breach of these Conditions or where we have reasonable grounds to believe that the Advertiser has breached the Conditions.
6.1 The Advertiser hereby undertakes and warrants to JobTonic.com that:
6.1.1 in relation to any Advertisement the Advertiser enters into the Contract as a principal notwithstanding that the Advertiser may be acting directly or indirectly for another;
6.1.2 the reproduction and/or publication of the Advertisement by JobTonic.com as originally submitted or as amended will not breach any agreement or infringe or violate any right of any person or render JobTonic.com liable to any proceedings whatsoever and the Advertiser indemnifies JobTonic.com against all costs, claims, damages, loss, expenses and liabilities suffered or incurred by JobTonic.com as a result of this undertaking and warranty being incorrect;
6.1.3 any information supplied by the Advertiser in connection with the provision of the Services is accurate, complete and true;
6.1.4 in respect of any Advertisement 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 Advertiser has obtained the authority of such living person to make use of such name, representation and/or copy;
6.1.5 each Advertisement is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to advertising as may be appropriate;
6.1.6 it shall process any personal data passed to it by JobTonic.com in accordance with the Data Protection Act 1998;
6.1.7 no Advertisement contains any data, image or other material which:
(a) is offensive, obscene or indecent, or capable of being resolved into obscene or indecent images or material;
(b) is defamatory, threatening or racially, ethnically or otherwise objectionable;
(c) is designed or likely to cause annoyance, inconvenience, unwanted attention or needless anxiety to any other person;
(d) infringes the rights (including, without limitation, the intellectual property rights) of another person;
(e) is designed or likely to cause disruption to any computer system or to any network;
(f) is illegal or designed or likely to induce an illegal act.
6.2 The Advertiser acknowledges and agrees that:
6.2.1 the Advertiser and JobTonic.com may agree that JobTonic.com can accept instructions in relation to the Services (without having to refer to the Advertiser ) from any of the following persons:
(a) any person agreed between JobTonic.com and the Advertiser to be acting on behalf of the Advertiser; and
(b) any person to whom the Advertiser provides passwords to or is set up to make use of the Services by using facilities offered by JobTonic.com for such purposes;
6.2.2 it will procure that it and its authorized personnel and sub-contractors shall keep confidential and shall not disclose to any person any passwords used by them in relation to the Services and that it will be responsible for any misuse of all such passwords.
6.3 The Advertiser accepts that JobTonic.com shall not be responsible for any breach of this Agreement, any delay in performance of the Services or defect or error in the Services which arises as a result of JobTonic.com accepting instructions from an authorized representative of the Advertiser or any person using the Advertiser's passwords; and the Advertiser shall be responsible for all acts and omissions of its personnel and any person using the Advertiser's passwords as if they were acts or omissions of the Advertiser.
6.4 The Advertiser shall:
6.4.1 where it is a Recruitment Agency, comply with the Employment Agencies Act 1973 (and all regulations made thereunder) and all statutes, rules, regulations, codes of practice and legal requirements to which the Advertiser is ordinarily subject in respect of its receipt and processing of CVs and related matters;
6.4.2 where it is an Advertising Agency, ensure that the Services provided are solely utilised for its end clients, with their express permissions;
6.4.3 make use of all CVs supplied pursuant to the Contract and the Services for the sole purpose of endeavouring to provide or locate suitable employment on behalf of Candidates;
6.4.4 ensure that it is notified under the Data Protection Act 1998;
6.4.5 keep confidential the CVs and all other information supplied by JobTonic.com or Candidates to the Advertiser or its employees or agents and shall only use such information for such agreed purpose if endeavouring to seek or provide employment opportunities for Advertisers with their express consent in respect of the CVs;
6.4.6 obtain the express consent of a Candidate prior to submitting his or her CV to any person;
6.4.7 not submit, copy, supply, re-sell, distribute or make available in any way any CVs or other information received from JobTonic.com to any person provided that where the Advertiser is a Recruitment Agency it may make CVs available to its genuine customers who intend to recruit such Candidates for their own employment;
6.4.8 not discriminate between persons endeavouring to secure employment and shall not engage in any illegal discriminatory practices whether by reason of race, sex or disability;
6.4.9 be responsible for selecting only suitable Candidates and taking up references and satisfying itself as to the suitability of any Candidate for any particular vacancy;
6.4.10 be responsible for all reasonable costs, claims, damages, loss, expenses and liabilities incurred by JobTonic.com arising out of the Advertiser's misuse of information on CVs.
7.1 JobTonic.com will not be liable (whether in contract or delict) for:
7.1.1 any loss of copy, artwork, photographs, data or other materials that the Advertiser supplies to JobTonic.com and the Advertiser shall be responsible for retaining in its possession sufficient quality and quantity of such materials for whatsoever purposes it may require;
7.1.2 any mistakes or errors whatsoever that arise during the course of publication of any Advertisement or any loss of information or data or any damage thereto in each case as a result of circumstances beyond its reasonable control or which arise as a result of the acts or omissions of the Advertiser;
7.1.3 any loss of profit, loss of revenue or contracts or any indirect, special, economic or consequential loss (whether caused by the negligence of JobTonic.com, its employees or agents);
7.1.4 any delay, costs, expense, loss (including loss of profit), damage or liability (including without limitation as a result of any hardware failure, provision or use of software, virus, deletion, corruption, loss or removal of data) howsoever caused arising from any matter beyond the reasonable control of JobTonic.com or as a result of the acts or omissions of the Advertiser;
7.1.5 any loss or damage whatsoever (including loss of profits) howsoever caused arising out of the negligence, dishonesty, misconduct, breach of faith, incompetence, lack of, suitability of or the wrongful disclosure of confidential information by, any Candidate. It is for Advertiser to satisfy itself as to the availability, suitability, standard of skill, integrity and reliability of all Candidates for any particular job.
7.2 In no event shall JobTonic.com's liability to the Advertiser under or in relation to the Contract (whether in contract or delict) exceed the amount of the Fees.
7.3 Nothing in this Contract will restrict or exclude JobTonic.com's liability for death or personal injury caused by its own negligence.
7.4 The Advertiser agrees and acknowledges that save as expressly provided in the Contract no condition, warranty or representation of any kind is, has been, or will be, given by or on behalf of JobTonic.com in respect of or in connection with the Services or the Contract and accordingly the Advertiser confirms that it has not, in entering into the Contract, relied on any condition, warranty or representation by JobTonic.com or any person on its behalf, express or implied, whether arising by law or otherwise in relation to or in connection with the Services or the Contract. The benefit of any such condition, warranty or representation by JobTonic.com is hereby irrevocably and unconditionally waived by the Advertiser.
8.1 Advertisers may pay for advertisements to be posted by any of the means listed on the Website. Advertisements cannot be posted on the Website until JobTonic.com is in receipt of payment in full (in cleared funds) of the fee for the relevant advertisement.
8.2 When payment in full for an advertisement has been received by JobTonic.com, JobTonic. com will send a confirmation email to the Advertiser advising that the Advertiser is now authorised to post the relevant advertisement onto the Website. This email shall contain the text of the draft advertisement and the Advertiser will be asked to confirm and accept the text or edit as necessary, before posting the advertisement onto the Website.
8.3 All sums due in respect of the Fees (including the Reward) are inclusive of any value added tax or other applicable sales tax, for which the Advertiser shall be additionally liable. JobTonic.com reserves the right to charge interest on unpaid invoices at the rate of two per cent above the base rate from time to time of The Royal Bank of Scotland plc.
8.4 Refunds are given at the discretion of JobTonic.com management.
9.1 The Advertiser shall nominate a referral fee applicable to each vacancy advertised on the Website ("the Reward"). The Advertiser is solely responsible for nominating an appropriate Reward for each vacancy, and JobTonic.com shall not be responsible for any errors made in the amount of Reward nominated.
9.2 The Reward shall only be payable by the Advertiser where the successful candidate for a vacancy is referred to the Advertiser via JobTonic.com by a referrer through the Website, and not where a candidate approaches the Advertiser direct via an advertisement on the Website. JobTonic.com shall maintain records of all referrals made by referrers.
9.3 The Advertiser shall advise JobTonic.com when a vacancy advertised by the Advertiser on the Website has been successfully filled, meaning that a referred Candidate has accepted the vacancy. JobTonic.com will then invoice the Advertiser for the full amount of the Reward, such invoice to be payable with 14 days of its date.
9.4 If the Advertiser fails to advise JobTonic.com that it has hired a referred Candidate and JobTonic.com is informed, either by the referrer or a third party that the Advertiser has hired a referred Candidate, the Advertiser is still liable to pay the Reward in respect of the advertisement.
9.5 Should an Advertiser fill a different vacancy from the one advertised, with a referred Candidate within a 12 month period from the referral date, the Reward set out in the original vacancy will still be payable to the referrer who referred that Candidate.
9.6 JobTonic.com shall hold the Reward amount until it confirms with the Advertiser that the Candidate has remained in the employment of the Advertiser for two months, following which it shall release the referrer's share of the Reward to the referrer.
10.1 The Services shall be provided for the term set out in the Contract unless terminated under this Clause or under the terms of the Contract.
10.2 JobTonic.com reserves the right to terminate any current Contracts with Advertisers if the Advertiser defaults in paying any Fees or Reward due. In the event of cancellation in terms of this Clause,
10.3 Either party may, at its sole discretion, terminate the Contract at any time by notice in writing to the other party (the "Defaulting Party") if the Defaulting Party is in breach of the Contract and fails to remedy such breach within 14 days of notice from the other party requiring it to be remedied.
10.4 JobTonic.com may suspend the Services and/or terminate the Contract by notice in writing to the Advertiser if it believes that any acts or omissions in connection with the Contract of an Advertiser that is a Recruitment Agency constitute or lead to breach of the Employment Agencies Act 1973 or any regulations made thereunder.
10.5 Upon termination of the Contract the provision of the Services shall immediately cease and the full amount of any sums owing to JobTonic.com by the Advertiser in respect of the Services, whether or not provided, shall become payable with immediate effect. In addition, the Advertiser shall remain obliged to pay the Reward in respect of any vacancies successfully filled by JobTonic.com prior to cancellation.
10.6 The Advertiser shall be responsible for all reasonable costs, claims, damages, loss, expenses and liabilities incurred by JobTonic.com arising out of the Advertiser's breach of its obligations under the Contract (including, without limitation, on a solicitor and own client basis, any legal fees and disbursements reasonably incurred by JobTonic.com).
11.1 The Advertiser shall not be entitled to assign the Contract nor any or all of its rights and obligations hereunder.
11.2 If any provision of these Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and Conditions and that provision shall not affect the validity and enforceability of any remaining provisions.
11.3 Any notice required to be given under these Conditions will be sent by JobTonic.com to the email address registered by the Advertiser's email address with the Website.
11.4 No failure or delay by either party in exercising its rights under these Conditions will be deemed to be a waiver of that right, and no waiver by either party of any breach will be considered as a waiver of any subsequent breach.
11.5 All rights not expressly granted in these Conditions are reserved to JobTonic.com.
11.6 These Conditions together with the Online Contract set out the entire agreement between the Advertiser and JobTonic.com in respect of the use the Website and the Services. They supersede any previous agreement or understanding in relation to the subject matter hereof. They may only be varied where separately agreed in writing between the Advertiser and JobTonic.com.
11.7 The interpretation, construction, effect and enforceability of these Conditions shall be governed by Scots Law, and the parties agree to submit to the non-exclusive jurisdiction of the Scottish courts for the determination of disputes.
