Terms for Executive Search Access to the GatedTalent Portal

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this Clause apply in these Terms.

Agreement: the contract between GatedTalent and the Customer consisting of the Order Form and these Terms.

Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Portal, Services and the Documentation.

Authorized User Terms: the terms of use for an individual Authorized User are described in Clause 4.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.6.

Connection Request: an invitation on behalf of Customer to a Data Subject to connect with the Customer via the Portal.

Customer: the customer identified in the accompanying Order Form who is purchasing subscriptions to the Portal from GatedTalent.

Customer Data: any data input by the Customer or an Authorized User, or GatedTalent on the Customer’s behalf for the purpose of using the Portal or the Services or facilitating the Customer’s use of the Services but excluding any Portal Content.

1.2 Data Protection Legislation: means the Data Protection Act 1998, and from 25 May 2018, the General Data Protection Regulations (EU 2016/679) and any national implementing legislation, as amended or update from time to time in the appropriate jurisdictions.

Data Subject: as defined by the prevailing Data Protection Legislation

GatedTalent: GATEDTALENT Limited, company number 10660451, whose registered office is at 50 Leman Street, London E1 8HQ.

Documentation: any of the user documentation, including the Authorized User Terms, or archiving policy service specifications made available to the Customer, or available via the Portal from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of the Agreement.

Member: an individual who has a profile on the GatedTalent portal

Member Data: information about a Member, including Personal Data, that could be used to identify potential suitability for an executive role.

Portal: the GatedTalent portal

Portal Content: content, including Member profiles and corporate data, made available by GatedTalent to all authorized users that has not been input specifically for the Customer.

Privacy Information Notice: a notice outlining the information requirements necessary to be given by the Controller to a Data Subject under the Data Protection Legislation in the form agreed between the parties from time to time.

Search Data: a data look-up or Member search of data accessible via the Portal including Member Data or Company Data.
Software: the online software applications provided by GatedTalent as part of the Services.

Terms: these terms and conditions.

Virus: anything 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.

1.3 Capitalised words defined in the Order Form and used in these Terms have the meaning set out in the Order Form.

1.4 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.

1.5 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.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa, and a reference to one gender includes all 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 the Agreement, and includes all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.

2 APPLICATION OF THESE TERMS

2.1 These Terms shall apply to and be incorporated into the Agreement and shall prevail over any inconsistent terms or conditions contained in or referred to in the Order Form, confirmation of order, or implied by law, trade, custom practice or any course of dealings.

2.2 No addition to, variation of, exclusion or attempted exclusion of any provision in the Agreement shall be binding on GatedTalent, unless it is in writing, signed by a duly authorized representative and expressly overriding the relevant provision in these Terms. GatedTalent may vary any of the Documentation or the Authorized User Terms from time to time by publishing a notice on the Portal.

2.3 The Customer’s signature, or electronic confirmation of the Order Form constitutes an offer by the Customer to purchase the service specified in it on these Terms; accordingly, the execution and return of the acknowledgement of the Order Form (by email or otherwise) or acceptance of an Authorized User Account, establishes a contract for the supply and purchase of those Services on these Terms. No other terms and conditions attached to, enclosed with, or referred to in, the Order Form shall apply to this Agreement.

3 SERVICES

3.1 GatedTalent shall, during the Subscription Term, provide the Services to the Customer on and subject to these Terms.

3.2 GatedTalent shall use commercially reasonable endeavours to make the Portal and Services available 24 hours a day, seven days a week, except for planned maintenance carried out on reasonable notice. The Customer acknowledges that unplanned maintenance may be required to respond to a specific issue, and where the unplanned maintenance is likely to suspend access for period of more than 2 hours, GatedTalent shall use reasonable efforts to give the Customer reasonable notice in advance of the Portal or Services being unavailable.

3.3 The Customer acknowledges that any Search Data returned via the Services may include information sourced by GatedTalent from third parties, and that GatedTalent has no control over the quality or accuracy of such Search Data and does not warrant or make any representation or commitment that any Search Data is complete, accurate or up to date. Such data may not be available for downloading.

3.4 GatedTalent warrants that the Services will be provided with reasonable skill and care in accordance with accepted industry practices.

3.5 The Customer acknowledges that appropriate use of the Portal by all Authorized users is necessary to ensure that each Member is able to have a fair opportunity when looking for career prospects. The Customer, and each Authorized User shall ensure that:

3.5.1 where using the Connection Request functionality, that requests are sent to appropriate Members and repeated mis-targeted connections are avoided;

3.5.2 where a Connection Request is rejected or not responded, that the Authorized User acts appropriately and respectful of the wishes of the relevant Member;

3.5.3 the Authorized Users do not act in a manner that is likely to generate complaints from Members or other Authorized users of the Portal and does not bring the reputation of the Portal into disrepute.

Failure to adhere to these fairness principles will be considered a breach of this Agreement, and GatedTalent reserves the right to suspend and/or terminate any individual Authorized User and/or the Customer where these principles are not met.

4 USER SUBSCRIPTIONS

4.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause Error! Reference source not found. and Clause Error! Reference source not found., use by Authorized User in accordance with the Authorized User Terms and the restrictions set out in this Clause 4 and these Terms, GatedTalent hereby grants to the Customer a non-exclusive, non-transferable right, to permit the Authorized Users to access the Portal and use the Services during the Subscription Term solely for the purpose of delivering the Customer’s recruitment service for its own internal recruitment, or clients of the Customer.

4.2 In relation to the Authorized Users, the Customer warrants and undertakes that:

4.2.1 it will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User and the prior Authorized User no longer has any right to access or use the Services;

4.2.2 each Authorized User shall keep a secure password for his use of the Services which shall be changed regularly and kept secure and confidential;

4.2.3 it shall maintain a written, up to date list of current Authorized Users and provide such list to GatedTalent on request, and permit GatedTalent, to audit the use of the Services by Authorized Users from time to time providing that the audit shall not interfere with the Customer’s normal conduct of business. If any audit identifies a password has been provided to an individual who is not an Authorized User, then without prejudice to the rights of GatedTalent that password and username may be temporarily or permanently disabled, and if the Customer has underpaid the Subscription Fees the Customer shall pay to GatedTalent an amount equal to the underpayment within 5 Business Days of receipt of an invoice from GatedTalent; and

4.2.4 it shall be solely responsible for the use and any misuse of the Portal and any Services by any Authorized User.

4.3 The Customer shall not, nor permit any Authorized User to access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property. GatedTalent reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access, or access of an individual Authorized User, to any material that breaches the provisions of this Clause.

4.4 The Customer shall not:

4.4.1 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 the Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services and/or Software; or

4.4.2 access all or any part of the Services in order to build a product or service which competes with the Services or use the Services to provide services to third parties; or

4.4.3 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or

4.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this Clause4.

4.5 The Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use notify GatedTalent as soon as practicable and in any event within 48 hours.

4.6 The rights provided under this Clause 4 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer, or client of the Customer.

5 MEMBER DATA

5.1 In this Clause, the following terms have the meanings set out in the Data Protection Legislation: “Controller”; “Processor”; “Data Subject”; “Personal Data” “Process”.

5.2 The Customer acknowledges that Member Data may include data supplied from third parties, including the Member themselves, and is likely to be confidential information of the Member. The Customer undertakes that it shall, and shall procure that its Authorized Users, only use Member Data for the purpose of recruitment on behalf of itself or its own client where applicable, and not for any speculative contact, or other marketing or promotional activity.
5.3 The Customer acknowledges that:

5.3.1 GatedTalent is the Controller in respect of Personal Data that forms part of the Portal Content (including Member Data);

5.4 The Customer acknowledges that:

5.4.1 where GatedTalent facilitates access to Member Data provided by a Member the Customer may only use such Member Data in accordance with the Privacy Information Notice or the Data Protection Legislation; and

5.4.2 it may only divulge Personal Data of a Member to a third party in accordance with the Privacy Information Notice or in accordance with the Data Protection Legislation.

5.5 The Customer warrants that it will comply with its obligations to provide sufficient and appropriate information to Members or prospective members in accordance with the Data Protection Legislation to enable GatedTalent to provide its Services and any subsequent email communication processed via the Portal, and GatedTalent shall ensure that it complies with the requirements of the Privacy Information Notice given to Members or potential Members by or on behalf of the Customer.

5.6 Where GatedTalent processes Personal Data on behalf of the Customer in performing its obligations under these Terms, GatedTalent shall:

5.6.1 only process and use Personal Data in accordance with these Terms and Customer’s instructions for the purpose of providing the Portal and performing the Services;

5.6.2 maintain in place appropriate technical and organisation measures to protect Personal Data against unauthorized or unlawful Processing and against accidental loss or destruction of, or damage to the Personal Data;

5.6.3 ensure that access to Personal Data is restricted, and is not by default available to all personnel of GatedTalent, or any sub-contractor;

5.6.4 ensure that GatedTalent personnel who have access to Personal Data receive appropriate training and are aware of, and understand the risks associated with the management of Personal Data; and

5.6.5 ensure that where it appoints a third party to Process Personal Data for any purpose, that it will ensure that there is a written agreement in place with the subcontractor on equivalent terms to those set out in this Clause 5.

5.7 The Customer acknowledges that Personal Data may be processed outside the European Economic Area or the country where the Customer and the Authorized Users are located in accordance with the requirements of the Data Protection Legislation in order for GatedTalent to carry out the Services and its other obligations under these Terms.

5.8 The parties agree to fully cooperate with each other to enable them to comply in good time with any request by a Data Subject to exercise any of their rights under the Data Protection Legislation, including but not limited to the right of subject access, and/or to respond to any enquiry or investigation or assessment of Processing initial by a regulatory authority in respect of the Personal Data.

5.9 GatedTalent shall promptly notify the Customer if any Personal Data processed under the Agreement is lost, destroyed, damaged, corrupted or accessed by or disclosure to unauthorized third parties or where it reasonably suspects such a breach has occurred. Where known, GatedTalent shall provide details of the nature of the breach or suspected breach, categories of data subjects who may be affected; likely consequence of the breach or suspected breach and measures taken or proposed to be taken to address the breach or suspected breach.

5.10 The Customer shall promptly notify GatedTalent of any actual or suspected breach of confidentiality in respect of an Authorized User’s username or password, or any loss, destruction, corruption or damage to any Member Data, or any unauthorized access or disclosure of Member Data outside the scope of the Privacy Information Notice.

5.11 In the event that a Member does not respond to a Connection Request issued on behalf of the Customer within a period of 60 days, the Customer shall ensure that it deletes all Personal Data held in respect of that Member, save to the extent necessary to ensure that the Member is not contacted again in respect of additional opportunities with the Customer should they be identified in subsequent activities of the Customer within a 12-month period.

6 CUSTOMER DATA

6.1 Subject to Clause 10.3 the Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 Where Customer Data is stored within the Portal, GatedTalent will back up the Customer Data in accordance with its archiving policy from time to time and good industry practice. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for GatedTalent to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by GatedTalent in accordance with the archiving policy. GatedTalent shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by GatedTalent to perform services related to Customer Data maintenance and back-up).

7 GATEDTALENT’S OBLIGATIONS

7.1 GatedTalent undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

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 Services other than in accordance with GatedTalent’s instructions, or modification or alteration of the Services by any party other than GatedTalent. If the Services do not conform to the foregoing undertaking, GatedTalent will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause7.1. Notwithstanding the foregoing, GatedTalent:

7.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the Search Data obtained by the Customer through the Services will meet the Customer’s requirements; and

7.2.2 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3 The Customer acknowledges that this is not an exclusive supply arrangement, and GatedTalent shall be free to provide equivalent services to the Service to third parties, including competitors of the Customer, and that equivalent Search Data results may be obtained by another customer of GatedTalent inputting similar search terms.

7.4 GatedTalent warrants that it has and will maintain the licences, consents, and permissions necessary for the performance of its obligations under these Terms.

7.5 If the Customer notifies GatedTalent of any non-conformity of the Services within 5 Business Days of any failure, subject to Clause 7.2, GatedTalent’s sole obligation shall be to re-perform the affected Services within a reasonable period of time.

8 CUSTOMER’S OBLIGATIONS

8.1 The Customer shall:

8.1.1 co-operate with GatedTalent in relation to performance of these Terms and the Agreement;

8.1.2 comply with all applicable laws and regulations with respect to its activities under these Terms;

8.1.3 carry out all Customer responsibilities set out in these Terms in a timely manner;

8.1.4 ensure that the Authorized Users use the Services in accordance with these Terms and the Authorized User Terms and shall be responsible and liable for any Authorized User’s breach of these Terms and/or the Authorized User Terms;

8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for GatedTalent to perform its obligations under these Terms;

8.1.6 ensure that its network and systems comply with the relevant specifications from time to time; and

8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to GatedTalent’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 The Customer shall not use the Services in any manner that in any way that breaches any applicable local, national or international law or regulation, or in a way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect. In particular, the Customer shall not use the Services to transmit or procure the sending of:

8.2.1 any bulk email communications (spam) or unsolicited promotional email communications in breach of the Data Protection Legislation;

8.2.2 any communications which are likely to harass, upset, embarrass, alarm or annoy any other person, or impersonate any person, or misrepresent the Customer’s identity or affiliation with any person or company;

8.2.3 any data or upload any material that contains Viruses.

8.3 The Customer acknowledges that it is solely responsible for putting place and adhering to the terms of a contract with a third party for the submission of email communications sent via the Portal, and GatedTalent shall not be liable for any delays in sending communications or for any additional costs incurred by the Customer as a result of the Customer’s failure to comply with the terms of such contract or arrangement.

9 CHARGES AND PAYMENT

9.1 All amounts and fees stated or referred to in these Terms are payable in the currency specified in the Order Form and are non-refundable. The Subscription Fees are stated exclusive of value added taxes or other sales taxes which shall be added to the invoice amount at the appropriate rate.

10 INTELLECTUAL PROPERTY RIGHTS

10.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Portal, the Services, the Documentation, Member Data (provided by a Member themselves) and any Search Data are owned by GatedTalent and/or its licensors. Any and all enhancements or modifications to the same shall also be owned by GatedTalent and/or its licensors. Save as set out in these Terms the Customer shall not acquire any rights or ownership of the Portal, the Services the Documentation or the Search Data.

10.2 GatedTalent confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with these Terms.

10.3 GatedTalent hereby grants to the Customer a limited licence to use and copy selected Member Data contained within a connected Member profile for the purpose of its internal recruitment or to provide executive or candidate search services to a client in accordance with the Privacy Information Notice and Data Protection Legislation.

10.4 The Customer warrants that it is the owner or licensor of all Customer data input into the Portal or processed via the Services by the Customer and the Customer grants a licence to GatedTalent to use and process the Customer Data in connection with the provision of the Portal and the Services. To the extent that the provision of any Services incorporates the use of any logos, branding or trademarks of Customer (or a client of the Customer) the Customer grants such licence to use the logos, branding or trademarks as required for the purpose of providing the Services set out in these Terms.

10.5 GatedTalent shall defend the Customer against any claim that the Portal or the Services infringes any Intellectual Property Rights effective as of the Effective Date and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that GatedTalent is given prompt notice of any such claim and given sole authority to defend or settle it and the Customer provides reasonable co-operation to GatedTalent in the defence and settlement of such claim. In the defence or settlement of any claim, GatedTalent may procure the right for the Customer to continue using the Portal or the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay any damages or costs to the Customer.

10.6 In no event shall GatedTalent, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

10.6.1 modification of the Portal, the Services, any Search Data or the Documentation by anyone other than GatedTalent; or

10.6.2 the Customer’s use of the Portal and/or the Services in a manner contrary to the instructions given to the Customer by GatedTalent; or

10.6.3 the Customer’s continued use of the Portal or any Service after notice of the alleged or actual infringement from GatedTalent or any appropriate authority.

10.7 The foregoing states the Customer’s sole and exclusive rights and remedies, and GatedTalent’s (including GatedTalent’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any third party Intellectual Property Rights.

11 CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:

11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2 was in the other party’s lawful possession before the disclosure;

11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.

11.2 Subject to Clause11.4, 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 the 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 these Terms.

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 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.

11.6 The Customer acknowledges that details of the Portal and the Services constitute GatedTalent’s Confidential Information, and that any Member Data is confidential information of the Member.

11.7 GatedTalent acknowledges that the Customer Data is the Confidential Information of the Customer.

11.8 Save that GatedTalent may make a public statement identifying that the Customer is a customer of GatedTalent, neither party shall make, or permit any person to make, any public announcement concerning the 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.

11.9 The provisions of this Clause 11 shall survive termination of the Agreement.

12 LIMITATION OF LIABILITY

12.1 The Customer acknowledges that GatedTalent is designed to support the handling of personal information in accordance with the principles set out in the Data Protection Legislation but is not in itself sufficient to ensure that the Customer is meeting its obligations as a Controller.

12.2 Except as expressly and specifically provided in these Terms:

12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, including but not limited to any Search Data, by the Customer (and any client to whom the results are provided by the Company where applicable) and for conclusions drawn from such use. GatedTalent shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to GatedTalent by the Customer in connection with the Services, or any actions taken by GatedTalent at the Customer’s direction;

12.2.2 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

12.2.3 the Services and the Documentation are provided to the Customer on an “as is” basis.

12.3 Nothing in these Terms excludes the liability of either party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.

12.4 Subject to Clause 12.1 and Clause 12.3:

12.4.1 GatedTalent shall not 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 loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

12.4.2 GatedTalent’s total aggregate liability in contract (including in respect of the indemnity at Clause 10.5), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

12.5 The Customer shall indemnify defend, indemnify and hold harmless GatedTalent, its directors, employees and licensors, against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customers use of the Portal and Services, providing that GatedTalent gives prompt notice to the Customer of the claim, co-operates with the Customer in the defence and settlement of the claim at the Customer’s expense.

13 TERM AND TERMINATION

13.1 The Agreement shall commence on the Effective Date and shall continue for one month.

13.2 Without affecting any other right or remedy available to it GatedTalent may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement by the due date and remains in default of a period of not less than 30 days after being notified in writing to make the payment.

13.3 Without affecting any other right or remedy available either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

13.3.1 the other party commits a material breach of any provision in these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

13.3.2 the other party repeatedly breaches any provision in these Terms 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 these Terms;

13.3.3 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, or otherwise suspends or ceases or threatens to suspend of cease carrying on a substantial part of its business, or any event or proceedings are taken (in any jurisdiction) that has equivalent effect.

13.4 On termination of the Agreement for any reason:

13.4.1 all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Portal and Services, save that, providing there are no outstanding payments due to GatedTalent, where there are existing, but unresponded, Connection Requests the Customer shall be permitted to continue to access the Portal for the purpose of receiving any responses to such Connection Request, but no further Connection Requests shall be issued, and no Refund Tokens shall be issued;

13.4.2 each party shall return and make no further use of any Documentation, equipment, property, and other items (and all copies of them) belonging to the other party;

13.4.3 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.

14 GENERAL TERMS

14.1 GatedTalent shall be entitled to assume that the individual signing and accepting these Terms and the contract on behalf of the Customer is duly authorized to bind the Customer.

14.2 GatedTalent shall have no liability to the Customer under these Terms to the extent that it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or telecommunications network, act of God, war, riot, malicious damage, compliance with any law or governmental order, rule, regulation or direction.

14.3 If there is any inconsistency between these Terms, the most up to date terms are contained within the privacy policy of the GatedTalent website.

14.4 No failure or delay by a party to exercise any right or remedy provided under these Terms 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. The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

14.5 If any provision (or part of a provision) of these Terms or the 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, and the provision shall be modified to the extent necessary to give effect to the commercial intention of the parties.

14.6 The Agreement constitutes 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.

14.7 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or the Order Form. Nothing in this Clause shall limit or exclude any liability for fraud.

14.8 The Customer shall not, without the prior written consent of GatedTalent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

14.9 GatedTalent may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

14.10 Nothing in these Terms 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.

14.11 These Terms do not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) under the Contracts (Rights of Third Parties) Act 1999.

14.12 Any notice required to be given in accordance with these Terms shall be in writing, and delivered by hand or sent by pre-paid first-class post or recorded delivery post to GatedTalent (at the address set out in these Terms) or to the Customer (at the address set out in the Order Form) or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A notice delivered by first-class post shall be deemed to have been received on the third Business Day after posting. A notice may be sent by email to an address communicated by either party but shall only be deemed be validly received following receipt of a copy of the notice by either method stated above.

15 GOVERNING LAW AND JURISDICTION

These Terms and the Agreement and any dispute or claim arising out of or in connection with them or the subject matter of these Terms, or the formation of this Agreement (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms, this Agreement or their subject matter or formation (including non-contractual disputes or claims).