You are the recipient of these terms and 'you', 'your' and 'yours' refer to you and any Associate or subsidiary of yours. We are Zubka Limited of Harben House, Harben Parade, Finchley Road, London, NW3 6LH, and 'we', 'our', 'ourselves' and 'us' refer to Zubka Limited. Following receipt or sight of these Terms of Business ("the Contract") any act by you of asking for, or accepting the provision of, our services, or using any Candidate Information in any way, constitutes your acceptance of the Contract. In acceptance of the mutual benefits set out within the Contract it is agreed as follows:
1. Definitions
1.1 'Act' means The Employment Agencies Act 1973.
1.2 'Advertisement Fee' means the fee payable by you to us (plus VAT), for employment vacancies that you advertise upon Our Website, chargeable according to the following advertisement fee matrix detailed in the customer order form on Our Website which can be found here.
1.3 'Agency' means an employment agency as defined in the Act.
1.4 'Assignment Information' means all information concerning the role or position to be filled including: (i) the identity and the nature of whom it is intended will employ the Candidate, (ii) the nature of the work required from the Candidate, (iii) the date upon which the Candidate is required to commence work, (iv) the period for which the services of the Candidate are required, (v) the conditions and location in which the work will be conducted, (vi) any risks to the Candidates health & safety and steps taken to prevent or control these, (vii) details of the experience, qualifications, legal or professional requirements or authorisations that the Candidate is required to have to work in the position, (viii) any expenses payable by or to the Candidate, (ix) the remuneration payable to the Candidate and the notice of termination of employment they are required to give and entitled to receive.
1.5 'Associate' means an associate as defined in s.435 of the Insolvency Act 1986.
1.6 'Engagement' means any engagement of the Candidate, whether direct or indirect, by you or by a third party to whom you have provided Candidate Information for the purposes of the Candidate providing services for the benefit of you or a third party.
1.7 'Fee' means any Placement Fee, Advertisement Fee or other fee that you agree to pay to us.
1.8 'Our Website' means the website www.zubka.com.
1.9 'Placement Fee' means the fee payable by you to us (plus VAT), being calculated according to the placement fee scale, which can be found here.
1.10 'Payment Terms' are that you will pay the Placement Fee to us within 14 days from our invoice having been sent, it being agreed that in the event of late payment interest shall be paid by you to us at the rate of 5% above the base rate of Barclay's Bank from the date the invoice fell due.
1.11 'Candidate' means any person (a 'person' being defined by the Interpretation Act 1978) whose details a Connector provides to you, via Our Website, or any person through whom the Candidate supplies their services or whose services are supplied through the Candidate.
1.12 'Candidate Information' means information concerning the Candidate relating to their identity, skills, experience or qualifications which you consider necessary for the Candidate to undertake work, or which are required by law or a professional body for the Candidate to work upon an Engagement, and the willingness of the Candidate to undertake work upon an Engagement.
1.13 'Rebate Terms' are that: (i) in the event that the Engagement is terminated within 4 weeks of the commencement of the Engagement you will be entitled to a full rebate of the Placement Fees paid by you provided that: (a) you have not previously engaged the Candidate (whether via ourselves or otherwise), and (b) the termination of the Engagement was not due to redundancy, and (c) you are not in breach of any of the terms of the Contract, and (d) you have notified us of such termination within 2 working days of the termination, and (e) the Engagement was not an Engagement that was to be of a fixed period, of specified duration, of less than one calendar year; (ii) in the event that you have paid an Advertisement Fee and Our Website does not work for a continuous period of 10 days during which time the advertisement to which the Advertisement Fee relates is not displayed upon Our Website, then you will be entitled to a pro-rata refund of the Advertisement Fee provided (a) you are not in breach of any of the terms of this contract, and (b) you notified us that your advertisement was not being shown upon the first of the 10 days, and (c) you requested the refund to which you were entitled within 30 days of such entitlement arising.
1.14 'Connector' means a third party, who may wish to remain anonymous, who has contracted with us, who may provide information concerning Candidates whom they believe would be of interest to you.
1.15 'Remuneration' means the basic base salary payable to the Candidate in respect of the Engagement calculated on an annualised basis.
1.16 'Requirement' means your requirements in respect of the Candidate sought, including the characteristics of the Candidate affecting their suitability for undertaking work upon an Engagement.
1.17 'Unacceptable Materials' include
(i) any advertisement that does not genuinely reflect an employment vacancy that you have at the time of placing the advertisement, or
(ii) any advertisement which discriminates, whether directly or indirectly, upon any unlawful grounds, or
(iii) any materials that are placed upon Our Website which you have not made adequate efforts to ensure are accurate, or which are misleading, abusive, offensive, pornographic, immoral, infringing of legal obligations, or intended to harm the reputation of our business or Our Website,
(iv) any data, programme, or other device, which contains viruses, Trojan horses, worms or any other such harmful implements intended to cause damage to or interfere with Our Site or intended to obtain personal information or data.
2. Our Capacity & Services
2.1 Without prejudice to the content of any representations that we may seek to make to any competent court or tribunal, in respect of our legal status, the applicability of legislation to our services, or otherwise, to the extent that the Act applies to us (or to a Connector), but not further or otherwise, the Connector and ourselves are an Agency.
2.2 We agree to provide you with the opportunity to advertise employment vacancies that you may have with us for an Advertisement Fee. We may refuse to advertise any employment vacancy at our sole discretion, the exercise of which need not be reasonable, if we consider that the advertisement could put any person in conflict with their legal obligations, or if we believe the advertisement is immoral, distasteful or potentially injurious to any person. Should we refuse to advertise a vacancy, in respect of which payment has already been made, we shall refund such portion of the Advertisement Fee pro rata to the period for which we refused to advertise the vacancy, subject to clause 1.13(ii)(a).
2.3 A Connector may provide to information to you in respect of Candidates that a Connector believes would be suitable for employment. Whilst we shall at all time act in good faith we make no guarantee as to the conduct of a Connector or the suitability of a Candidate that they recommend to you. We make no guarantee as to likelihood of our services resulting in a suitable Candidate being identified for employment.
2.4 We agree to invoice you in respect of any Fees.
2.5 We agree to pay you any rebates that are lawfully due to you in accordance with the Rebate Terms. For the avoidance of doubt a rebate will not be payable until Placement Fees have been paid and late payment of any Placement Fee will void your entitlement to a rebate.
3. Your Responsibilities
3.1 You agree to pay our Placement Fee, without deduction, set off, or counterclaim, within the Payment Terms in the event of an Engagement. You acknowledge that in the event that you do not pay our invoice within the Payment Terms we will be taking a reasonable step in mitigating our loss by instructing solicitors to take appropriate legal action to recover the debt from you. You confirm that you agree to incur additional contractual liability to pay to us such legal costs as we may incur, as would be assessed on an indemnity basis.
3.2 You acknowledge that in order that the Connector may provide a Candidate with information, which would enable them to consider the suitability of an Engagement, they require information including the Assignment Information and Requirement from you; which you consent to being provided to the Connector and Candidate.
3.3 You undertake to provide the Assignment Information upon detailing the Requirement, or as soon as possible after ourselves advising you that a Connector has suggested a Candidate in respect of a vacancy of yours of which you have not previously notified us. You will notify the Connector (and ourselves if you are advertising the vacancy with us) immediately if at any time prior to the Engagement, the Assignment Information, or the Requirement, change.
3.4 You agree to provide the Connector and us with any further information that either we or the Connector may reasonably request.
3.5 You confirm that the Connector has your authority to notify a Candidate of the Requirement, the Assignment Information and any further information that you may provide.
3.6 You acknowledge that we do not verify the suitability of a Candidate and that you are responsible for ensuring that the Candidate is suitable for your needs, and your agreement to an Engagement is your warranty that you are satisfied that the Candidate is suitable for the Requirement.
3.7 You undertake to explain the Requirement, and the Assignment Information, to the Candidate on the first occasion that you liaise with them and to advise the Candidate as to any changes to the Assignment Information, or the Requirement, prior to allowing the Candidate to commence an Engagement. You undertake to obtain the Candidate Information prior to an Engagement.
3.8 You will provide to us full and complete information as to the Remuneration at the earliest opportunity and in any event prior to the commencement of an Engagement.
3.9 You agree that, prima facie, the effective cause of an Engagement will, in all circumstances, be deemed to be the introduction of the Candidate via Our Website unless you can provide evidence clearly demonstrating that this was not the case. You warrant that you will immediately (by emailing legal@zubka.com), and in any event within 24 hours of the initial provision of information relating to the Candidate's identity, inform us if you believe, or suspect, that you are aware of the identity of the Candidate other than via information supplied by a Connector. In the event that you fail to make such notification within 24-hours there will be an irrefutable presumption that the effective cause of an Engagement is the introduction of the Candidate via our Website.
4. Privacy
4.1 Whilst we have implemented appropriate technical and organisational measures to secure data, including the use of encryption, that is transferred to Our Website, you understand that we cannot guarantee the security of our systems and you acknowledge that we are not to be held liable for any loss, whether direct or indirect, arising from the interception of data relating to you by a third party.
4.2 Any payments made by credit card are routed via a third party service company who is responsible for ensuring the security of the data. You acknowledge that we are not liable for any neglect on behalf of the third party service company.
4.3 At your request we shall delete any data relating to you from our files, save that when we have entered into a transaction with you in respect of which it is conceivable that legal liabilities could arise we reserve the right to archive such data until the expiry of legal liability in respect of matters to which the data relates. Notwithstanding the reservation of this right you confirm that your request for such data to be deleted is your waiver of any legal rights, to such extent as is possible at law, in respect of any matters in relation to which the data you have asked to be deleted may be relevant.
4.4 Our Website makes use of cookies. Cookies make it easier for us to log you onto Our Website and also enable us to monitor website traffic and personalise the content of the site for you. You understand that you may reject the use of cookies although this may mean that certain features of our site will no longer be available to you.
4.5 In the event that there is an actual or proposed: (i) joint venture between our business and another business, or (ii) a merger between our business and another business, or (iii) an acquisition of our business, by another business then your personal data (personal data is defined in the Data Protection Act 1998) may be transferred to another party as part of the process of considering the joint venture, merger or acquisition. Any such transfer of personal data will be made subject to express conditions of confidentiality. You acknowledge that where the party who is considering the merger, acquisition or joint venture is outside the EEA this may result in your personal data being transferred outside the EEA and you confirm that you give your consent to such transfer. You may withdraw, or limit, this consent at anytime by providing us with notice at legal@zubka.com.
4.6 You understand that any data that you provide to us may be transferred outside the European Economic Area and you specifically confirm that you agree to such transfer. You may withdraw, or limit, this consent at anytime by providing us with notice at legal@zubka.com.
5. Liability
5.1 Whilst we always endeavour to ensure that the contents of Our Website are correct and accurate (subject to clause 8.11) we accept no liability for any inaccurate or misleading data upon Our Website.
5.2 You agree to indemnify us in respect of any loss we may suffer that is consequential to, or which might have been avoided but for your failure to respect the terms of the Contract; such indemnity is to include reasonable legal costs that we may incur in the circumstances as set out in this clause 5.2, such legal costs to be assessed on an indemnity basis.
6. Website Use
6.1 You agree not to submit, try to submit, or encourage any third party to submit, Unacceptable Materials onto Our Website.
6.2 In order to register to use Our Website you must choose a password. You warrant that you will use best endeavours to ensure that this password remains confidential between you and us. You will notify us immediately if the security of your password is prejudiced in order that we make take the appropriate steps to endeavour that your account is not used for purposes outside the terms of the Contract.
6.3 You specifically confirm that you will not: (i) place, cause to be placed, or induce another person to place any link upon another website that connects to Our Website, without written permission from a Director of ours, save that you may link to the front page of Our Website, at the address of Our Website without requiring any permission, or (ii) remove, distort or otherwise adapt our logo or any aspect of Our Website, imply that you, your products, services, or reputation as an employer, are in anyway endorsed by us, (iii) suggest that you are in partnership or party to a joint venture with us, or (iv) otherwise misrepresent your relationship with us.
6.4 You understand that we may, in some circumstances and at our sole discretion, allow third parties to place links upon Our Website. You acknowledge that the provision of such links upon Our Website does not provide any endorsement by us of such websites or the products or services promoted upon them, nor is the provision of any link upon Our Website indicative of any particular business relationship with the party to whose website the link is attached.
6.5 You are permitted to download materials from Our Website for your personal use only, subject to the following restrictions: (i) your express acknowledgement that we retain the copyright in any material that you download, and (ii) you will not modify, publish, transmit or transfer any of the content of Our Website except in accordance with The Designs Patents & Copyright Act 1998.
6.6 You acknowledge that 'Zubka' and the logo(s) on Our Website are our property and may not be used by you except with the written, revocable, consent of a Director of ours.
7. Termination
7.1 We may, at our sole discretion, which need not be exercised reasonably, terminate the Contract, or prevent or limit your use of Our Website.
7.2 Without prejudice to clause 7.1 we may terminate the Contract, limit, or prevent, your use of Our Website in the event that you breach any provision in the Contract or you become insolvent or there are indications that you may soon become insolvent (insolvent is defined in the Insolvency Act 1986).
8. General Terms
8.1 We may provide you with other services as detailed in a schedule to the Contract.
8.2 You agree that you will bear sole responsibility for any banking charges.� You will ensure that we receive the full Fee and that you will not cause there to be any reduction in the Fee due to us, by virtue of any charges which may be incurred in the course of making such a payment to us.
8.3 Time is of the essence to the Contract.
8.4 In the Contract the use of masculine terms shall include the feminine, and the singular shall include the plural, and vice versa.
8.5 All Candidate Information is strictly private and confidential and must not be supplied to any party by you without the written permission of a director of ours and may only be used for purposes directly relating to employing the Candidate or considering the Candidates suitability for employment. You agree to pay us liquidated damages in the sum of the Placement Fee for any breach of this provision unless you have otherwise paid a Placement Fee in respect of an Engagement of the Candidate to whom the information relates.
8.6 You shall not directly or indirectly induce any Candidate, or any employee of ours, to terminate their contract with us. You agree to pay us liquidated damages in respect of any breach of this provision in the sum of �15,000.
8.7 You agree that the damages in clauses 8.5 and 8.6 are a reasonable approximation of our loss.
8.8 Each clause in the Contract and each portion thereof, whether defined by punctuation or numbering is distinct and severable, and to give effect to the common intention of you and us the court may sever any part of the Contract, and the remaining part will have continuing effect.
8.9 Without prejudice to the fact that the nature of our services are such that we could never incur liability for the actions or neglect of a Candidate or Connector; in view of your acceptance of responsibility for ensuring the suitability of the Candidate, as set out in clause 3.6, and your obligations under clause 3.7, we are not liable for any acts or omissions of the Candidate in respect of any services that they provide or fail to provide. We are not liable to you for acts or omissions of ours, whether negligent or otherwise. You agree to fully indemnify us in respect of any claims brought against us, whether by you, the Candidate, or any third party, including legal costs (assessed on an indemnity basis) incurred in the defence of claims arising out of an Engagement where such liability arises due, in part or whole, to a failure by yourself to honour your legal obligations.
8.10 Our liability to you shall be limited to the lower of the Placement Fees that you have paid to us, or the sum of �5,000.
8.11 Nothing in the Contract shall be taken exclude or limit our liability in respect of personal injury, death, fraud or when an exclusion of liability is otherwise not permitted by law.
8.12 Our invoice is deemed received on the first working day following the date upon which it was posted, or, in the event of it being sent by email or facsimile, at the time of successful transmission if this before 4pm on a working day, or if this is after 4pm, or not on a working day, receipt will be deemed to occur on the next working day.
8.13 You agree that, without prejudice to your obligation to pay us a Placement Fee, whenever the provision of Candidate Information is the effective cause of an Engagement, the effective cause of an Engagement will be deemed to be our provision of Candidate Information if an Engagement occurs within six months from the latest date upon which we provided Candidate Information to you.
8.14 In the event that you arrange for free travel for the Candidate to their place of work you shall pay the cost of their return journey. You warrant that you will not lend money to the Candidate to meet their travel or other expenses on terms that may require them to repay a greater sum than that loaned.
8.15 The Contract represents the sole and entire agreement between you and us in respect of which we may provide services to you. No other terms shall be deemed to apply to the contractual relationship between you and us unless a director of ours has agreed them in writing. We do not have authority to enter into contracts on your behalf.
8.16 You confirm that you are aware of, and will comply with, all of your legal obligations and you confirm that, if you are an individual, you are over the age of 18 years and have legal standing to enter into a contractual relationship with us. If you are an Agency then, for the purposes of regulation 23 of The Conduct of Employment Agencies and Employment Businesses Regulations 2003, you confirm that you are an Agency.
8.17 The headings in the Contract are provided for convenience only and do not affect the interpretation of the any clause in the Contract.
8.18 The Contracts (Rights of Third Parties) Act 1999 specifically does apply to this Contract, for the benefit of the Candidate and the Connector.
8.19 You consent to our provision of information about any product or services that we may, from time to time, offer and you consent to the provision of such information by the medium of email. You can withdraw this consent at anytime, including now, by notifying us at legal@zubka.com.
8.20 The Law of England governs this contract and the English Courts shall have non-exclusive jurisdiction.