These are the terms and conditions (Conditions) upon which Geek Talent Limited supplies its Geek Talent services to its clients. If you want to make use of our services, you will have to accept these Conditions by agreeing to and signing our proposal document. That proposal shall be attached to, and shall be subject to, these Conditions. If you are an agency making use of the Geek Talent services on behalf of your client, just so as we’re clear, it’s you that is our client. That means it’s you entering into a contract with us in your own name. You are responsible for meeting our payments and for complying with these Conditions. However, please ensure that you have your client’s permission to post and download content using your online account.
1.1 It makes things a lot easier if we define at the outset what certain words will mean when we use them in these Conditions. That means, for the words listed below, from this point on when you see them used in this document With Apparently Inappropriate Use of Capital Letters, the words will have the meanings you see in this section of our Conditions
1.2 When you see the words “includes” or “including” used in these Conditions, it means without limitation to what then follows, which may be an example of what went before.
1.3 You can take it that when we refer to legislation, we refer also to all subordinate legislation (rules and regulations) that are set down under or pursuant to that legislation. Those references also include instances where the original legislation is replaced by new legislation that does the job of the legislation to which we refer.
1.4 When we refer to something being “in writing” or “written”, this includes emails or other forms of electronic communication, including messages or notifications sent to your account.
2.1 Should we use our discretion to provide a Free Trial to you, we shall provide the Services to you (with temporary Credentials) in accordance with these Conditions for seven days. After seven days you will be asked whether you wish to purchase the Services from us and, if so, a Proposal shall then be prepared in accordance with this clause 2.
2.2 The Proposal constitutes an offer to purchase Services from us in accordance with these Conditions.
2.3 The Proposal and these Conditions shall be deemed accepted when either the Proposal has been signed by you or you make a payment in relation to the Fees, whichever is earliest. At that point, and on which date, the Contract shall come into existence (Commencement Date).
2.4 The Contract constitutes the entire agreement between us both. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us that is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.1 Subject to you complying with your obligations as set out under these Conditions, we shall supply the Services to you over the Term.
3.2 We hereby grant to you a non-exclusive, non-transferable licence during the Term to access your Account solely for the purpose of accessing and using the Database in accordance with these Conditions and for no other purpose whatsoever.
3.3 You may decide to set up Operators who are not employed by you but who are operating on your behalf. In such a situation, you remain liable for the acts and omissions of your Operators as if they were your own employees and you will remove their access to the Credentials as soon as they cease to act on your behalf.
4.1 No Fees are payable in relation to a Free Trial. After a Free Trial we will provide the Services to you subject to you paying our Fees in advance.
4.2 On the Commencement Date, and thereafter on an annual basis, we shall forward our invoice to you setting out the Fees payable and any applicable VAT (or other applicable sales tax). You will have 21 days to discharge our invoices in full.
4.3 We will not activate your Account until all of our Fees payable under our initial invoice have been discharged. If you fail to discharge any future invoices within the payment dates, we reserve the right to suspend your access to your Account or terminate the Contract immediately in accordance with clause 8.
4.4 If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 6% per cent per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
4.5 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting our other rights or remedies, set off any amount that you owe to us against any amount payable by us to you.
4.6 If we change the Fees during the Term, we shall notify you in advance of your annual invoice so that you have a chance to consider the new Fees. The new Fees will take effect from the date specified in the notification, which will be not less than one month after the date that we send that notification to you. If you do not accept the new Fees, you may terminate the Contract in accordance with clause 8 by giving us one month’s written notice.
5.1 The security of our Database is of paramount importance to us. You agree to take all measures necessary to ensure that you and your Operators access the Services securely and in accordance with these Conditions. You will provide them, at your expense, with any training that is necessary for that purpose. In particular, you will ensure that all Credentials are stored securely and that passwords chosen are sufficiently strong to withstand social hacking techniques.
5.2 You will co-operate with any investigation relating to security that is carried out either by Geek Talent Limited or by some third party authorised to do so either by us or under applicable law.
5.3 If we become aware that you are making deliberate use of the Services for any purpose that endangers the security, safety or wellbeing of Potential Candidates, we may, at our discretion, suspend the delivery of the Services or terminate the Contract with immediate effect and without notice.
5.4 You agree to remain alert to any security breaches and to inform us promptly if you become aware of the same.
6.1 This clause sets out the various promises you make when forming this Contract with us and defines your obligations under these Conditions. You will;
6.1.1 not attempt to replicate or reproduce the Database or the Services whether during the Term or for a period of one calendar year from the Termination Date;
6.1.2 set up as Operators only those individuals with whom you have a contractual arrangement (whether as employees, self-employed contractors or employees of contractors);
6.1.3 not remove, suppress or modify (or attempt to any of those things) any proprietary markings including any trade marks or legal notices concerning the ownership of Intellectual Property Rights that appear on the Website or the System. You also agree not to alter or post any notes or create any material outside the System for the purpose of promoting your deployment of the Services that might confuse Possible Candidates or third parties as to the ownership of the System and Website or that might affect the distinctiveness of our trade marks, trade dress or other indicia, whatever that might be;
6.1.4 be solely responsible for providing and maintaining any equipment or network connectivity that you use to access the Services. You acknowledge that we will not be liable for your failure to access the Services where that failure can be attributed in whole or in part to any error, fault or failure that is not within our ownership or control;
6.1.5 not resell, remarket or otherwise distribute the Services or any part of them, other than where you are an agency providing services to your own client (as referenced in the Introduction);
6.1.6 at your own cost, obtain and maintain all necessary permissions, consents and licences to enable your Operators to use the Services in the countries in which they are based; and
6.1.7 at your own cost, comply with all applicable conventions and codes of practice and all applicable laws, regulations, and other similar forms of legislation and be responsible for obtaining all regulatory approvals (or relief from the need for regulatory approval) in all relevant jurisdictions that may relate to your use of the Services.
6.2 You warrant that any communication that you or your Operators have with Potential Candidates further to accessing the Content on our Database will not infringe the Intellectual Property Rights of us or any third party, nor will that communication contain anything that is offensive, obscene, abusive, libellous, false, deliberately misleading, or is otherwise illegal, nor will you make use of the Services for the distribution of unsolicited commercial mailings (otherwise known as ‘spam’). In order to mitigate the damage done by the posting of such a breach (whether such communication has been given deliberately or accidentally) we shall, as soon as we become aware that there may be an issue, immediately suspend your Account whilst we investigate. We may also, in more serious cases, at our discretion terminate this Contract with immediate effect and delete your Account.
7.2 We will:
7.2.1 process Personal Data and other information supplied by you solely to provide the Services under these Conditions and in accordance with your lawful and reasonable written instructions;
7.2.2 comply with our obligations under the Data Protection Act 1998 concerning the implementation of appropriate organisation and technical security measures to safeguard the Personal Data supplied by you;
7.2.3 not disclose the Personal Data or other information supplied by you to any third party other than on your written instructions or as required by law;
7.2.4 maintain suitable back-up facilities for the Personal Data you provide at no cost to you; and
7.2.5 immediately forward to you communications from data subjects, regulatory bodies and other third parties concerning the Personal Data that you have supplied and not respond to or act on such communications without your prior agreement.
8.1 This Contract will commence on the Commencement Data and will continue until terminated in accordance with these Conditions.
8.2 Without limiting any other rights or remedies, either of us may terminate the Contract by giving the other one month’s written notice.
8.3 Without limiting any other rights or remedies, either of us may terminate the Contract with immediate effect by giving written notice to the other if:
8.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
8.3.2 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
8.3.3 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 (where a company) 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;
8.3.4 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 (being a company) 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;
8.3.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
8.3.6 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 its assets and such attachment or process is not discharged within 14 days;
8.3.7 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 (being a company);
8.3.8 the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
8.3.9 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;
8.3.10 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 8.3.1 to clause 8.3.9 (inclusive);
8.3.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
8.3.12 the other party's financial position deteriorates to such an extent that in the reasonable opinion of the party seeking to terminate the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
8.3.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.4 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under this Contract on the due date for payment and fail to pay all outstanding amounts within 14 days after being notified in writing to do so.
8.5 Without limiting our other rights or remedies, we may suspend provision of the Services under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 8.3, or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract on the due date for payment.
8.6 We will delete your Account following termination, however it comes about. We will retain in full the Fees that you have paid to us and you will remain liable for any and all sums accrued and which are due prior to, on or after the effective date of termination. If you have cancelled your credit card mandate when we attempt to make collection, we will forward you an invoice for the outstanding sum, payable within 14 days.
9.1 You acknowledge that all Intellectual Property Rights in the Services including the Database, System and Website are and shall at all times belong to us or our licensors. No rights to or property in the Services shall pass to you and you are not permitted to modify, adapt or create derivative works from the Services or any part of them save where we provide functionality through the System for just such a purpose. We grant to you a licence to use the Account and System only to the extent required to enable you to benefit from the Services according to these Conditions and we warrant that we are entitled to grant that access.
9.2 If any action or proceeding is brought by a third party;
(a) against you in respect of any alleged infringement of any Intellectual Property Right arising as a result of your use of the Services, or
(b) against us in respect of any alleged infringement or any Intellectual Property Right in respect of the Content,
then the threatened party shall be indemnified by the other party from and against all costs, damages, liabilities, and losses agreed to be paid by way of settlement or compromise by, or finally awarded against the threatened party as a result of or in connection with such claims of infringement provided that:
9.2.1 the indemnified party shall notify the other party in writing of any such allegation or claim within seven days of becoming aware of the same;
9.2.2 the indemnified party shall make no verbal or written admission relating to the claim without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed; and
9.2.3 the indemnifying party (or any person nominated by it) shall at its own expense be entitled to conduct and/or settle all negotiations and litigation so arising and the indemnified party shall at the other party's expense give to the other party (or any person nominated by it) such reasonable assistance in connection therewith as the indemnifying party from time to time may reasonably request.
9.3 The exclusions and limitations under condition 11 shall not apply to the indemnity under condition 9.2. The indemnity under clause 9.2 shall constitute the entire remedy available to the indemnified party as a result of the breach by the indemnifying party of any warranty it has given under this clause 9.
9.4 In the event of any claim or allegation in respect of breach of any Intellectual Property Rights being made in respect of the delivery of the Services or the use of the System, we may:
9.4.1 obtain the right for you to continue using the Services and/or System in the manner permitted under these Conditions; or
9.4.2 modify the Services and/or System so as to avoid the alleged infringement provided that such modification shall not materially detract from the overall performance of the Service; or
9.4.3 terminate the Contract with immediate effect.
10.1 We warrant that the Services will comprise of the facilities and functionality described in the Proposal and on the Website. Should you come across an element of functionality that is not operating correctly, you may inform us of this by contacting us by email addressed to firstname.lastname@example.org pointing out the nature of the error and the time and date at which it was encountered. We shall use reasonable endeavours to replicate the error and, should we be able to isolate and identify the cause of the error, we will fix it as soon as reasonably practicable.
10.2 We will not be liable for any deficiency in the Services attributable to operator error, deficiencies or errors relating to any third party component not provided by us or third part connectivity needed by you to connect to the System and access the Services, nor shall we have any obligation under this condition where difficulties you have encountered are as a result of your use of the Services and the System for a purpose for which they are not intended or in a manner that is not consistent with these Conditions or as a result of the negligence or wilful misconduct either of yourself or your Operators.
10.3 You understand and accept that to consolidate Content into the Database, we access the public social media accounts of Potential Candidates. We do not have any direct contact with the Potential Candidates nor do we provide them with any information relating to our Services. On that basis we do not warrant that the Content will be accurate, up to date or a true reflection of each Potential Candidate. We provide the Database to you free from any recommendations and you accept that it is your responsibility to search the Content for Potential Candidates who may be suited to a particular job role.
10.4 From time to time, it is necessary to carry out planned maintenance on the System, which may result in the Services being unavailable for a period of time. We will try to give you at least three days’ notice of planned maintenance, informing you of the likely period of the interruption, and we shall endeavour to ensure that such interruptions take place at the quietest times, but we reserve the right to make interruptions on short notice in order to remedy significant problems that are impacting the delivery of the Services or giving rise to security risks.
11.1 Where any of the obligations relating to the delivery of the Services are sub-contracted by us to a third party, we will remain liable for the acts and omissions of those contractors as if they were our own.
11.2 OUR LIABILITY TO YOU IN RESPECT OF ALL OTHER CLAIMS, LOSSES OR DAMAGES, WHETHER ARISING FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER OR IN CONNECTION WITH THESE CONDITIONS ARISING IN ANY CALENDAR YEAR COMMENCING ON THE COMMENCEMENT DATE OR AN ANNIVERSARY THEREOF (WHERE, FOR A SERIES OF CONNECTED CLAIMS, THE CALENDAR YEAR IN QUESTION SHALL BE THE FIRST SUCH YEAR OF THE FIRST EVENT GIVING RISE TO A CLAIM), SHALL IN NO EVENT EXCEED THE AGGREGATE OF ALL FEES PAID OR PAYABLE BY YOU IN THAT PERIOD.
11.3 SUBJECT TO CONDITIONS 10.2 AND 10.4, WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; OR ANY LOSS OF PROFITS, TURNOVER, DATA, BUSINESS OPPORTUNITIES, ANTICIPATED SAVINGS OR DAMAGE TO GOODWILL (WHETHER DIRECT OR INDIRECT).
11.4 Nothing in these Conditions shall act or be construed so as to act in any way to limit our liability for; (a) death or personal injury caused by our negligence, or the negligence of our employees, agents or sub-contractors (as applicable); or (b) fraud or fraudulent misrepresentation by us or our employees.
12.1 We will treat as confidential all data that you upload to your Account but which you do not intend to make public, such as information relating to your Account or notes to be accessed by your Operators for the purpose of making use of the Services.
12.2 We will not be liable to you for our failure to deliver the Services for any reason that is beyond our reasonable control.
12.3 We are satisfied that our delivery of the Services will comply with English law. You will ensure that when making use of the Services, you (and your Operators) will comply with all applicable laws and regulations whether under English law or the law of your own jurisdiction, wherever that happens to be. We will not be liable should you (or your Operators) fail, whether directly or indirectly, deliberately or accidentally, to comply with those laws and regulations and you will indemnify us for any loss or expense we incur as a result of dealing with any investigations, claims or other regulatory or civil action that occurs as a result of that failure.
12.4 Geek Talent Limited and you are independent businesses that are not operating in partnership or in any kind of principal/agent or employer/employee relationship, nor in any other relationship of trust to each other.
12.5 In order to have the effect intended for them, some of the provisions of these Conditions will survive the termination of the Contract, however that might come about.
12.6 The unenforceability of any part of these Conditions will not affect the enforceability of any other part.
12.7 Just because we do not insist on your compliance with any one or more of your obligations under these Conditions does not mean that we waive our right to insist on that compliance at some later date.
12.8 There may be occasions when the law requires information that we give you or communications you wish to send us have to be in writing. Where that is the case, you agree that such communications and information may be transmitted electronically. Nevertheless, if you wish to write to us in hard copy, you may address your letter to the registered office address given at the top of these Conditions. For the purpose of these Conditions, you may deem that we have received that letter seven days after the date you have posted it (to give us the chance to collect it).
12.9 You recognise that your breach (or threatened breach) of these Conditions may cause irreparable harm to us and that in such a situation, we are entitled to seek an injunction or other equitable relief to prevent that breach or further occurrences of that breach in future.
12.10 With regard to any indemnity given by you to us or us to you under these Conditions, the party with the benefit of that indemnity will take all reasonable steps to reduce or mitigate the loss covered by that indemnity.
12.11 No person who is not a party to our Contract with you shall have any rights under the Contracts (Rights of Third parties) Act 1999 to rely upon or enforce any of the provisions of these Conditions. However, this does not affect any right or remedy of the third party that exists or is available apart from that Act.
12.13 These Conditions and the Contract are governed by the law of England and Wales and are subject to the exclusive jurisdiction of the English Courts.