1.1 In these Terms of Business (the “Terms”) the following definitions apply:
"Additional Services" means any recruitment related service as agreed between Ortolan and the Client;
"Advertisement" means a notice designed to attract Applications from Candidates in relation to a Client's Requirement;
"Application" means a written or verbal request by a Candidate to have their CV considered for a Client's Requirement;
"Candidate" means a person who applies for an Ortolan advertised vacancy on any job board site, affiliated job board site or online site or through any electronic communication;
"CV" means the curriculum vitae or any other document which outlines the details of a Candidate's education, training, skills and employment experience which is provided to Ortolan by a Candidate for distribution to Clients with a view to securing a Requirement;
"CV Search" means the process of searching CV databases for relevant Candidates;
"Client" means the person; firm or corporate body together with any subsidiary or associated Company as defined by the Companies Act 2006 which has requested the provision of the Services;
"Fee" means the fee agreed between the Client and Ortolan for the provision of the Services (including any amount payable in accordance with Clause 4.2 below) and in the absence of any other written agreement between the parties it shall be the fees as stated on the current edition of the Ortolan Connect Rate Card;
"Filtering" means an automated and/or manual process of filtering and ranking Candidate Applications to provide a shortlist for a Requirement.
"Intellectual Property" means patents, trademarks, registered designs, design rights, service marks, applications for any of the foregoing, trade and business names, copyright and know-how;
"Ortolan" means Ortolan Group Ltd (Company No 6363107) registered at c/o Haworths Chartered Accountants, Settle Town Hall, Market Place, Settle BD24 9EJ;
"Requirement" means a request from the Client in any form for Ortolan to introduce a Candidate or provide any other advertising, searching or filtering service;
"Services" has the meaning ascribed to it in Clause 3.1 of these Terms.
1.2 Unless the context requires otherwise, references to the singular include the plural.
1.3 The headings contained in these Terms are for convenience only and do not affect their interpretation.
2. THE CONTRACT
2.1 These Terms constitute the contract between Ortolan and the Client.
2.2 These Terms contain the entire agreement between the parties and the Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ortolan which is not set out in these Terms.
2.3 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between Ortolan and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
3. THE SERVICES
3.1 Ortolan agrees:
(a) to use its reasonable endeavours to locate Candidates for the Client to directly hire in accordance with the Client's Requirements via an Advertisement and/or CV Search;
(b) to provide such Additional Services as may be agreed from time to time;
3.2 Ortolan gives no guarantee or warranty that it will be able to locate any suitable Candidates, or that any Candidate is suitable for the Client's purposes at any time. Refunds are not available in the event that no suitable Candidates are found
3.3 For the avoidance of doubt Ortolan is not acting as an employment agency as defined in the Employment Agencies Act 1973. Ortolan facilitates introductions between employers and Candidates and is not involved in any transaction between Clients and Candidates.
3.4 The Client warrants and agrees:
(a) Upon issuing a Requirement or as soon as reasonably practicable thereafter it shall provide to Ortolan sufficient and accurate information to enable it to locate Candidates;
(b) Its Requirement shall be legal, decent, honest and truthful and not infringe the rights of any third party;
(c) It will act in good faith and in a business-like and courteous manner to Ortolan and Candidates;
(d) it is the Client's responsibility to verify and satisfy itself with the information provided to it by Ortolan to ensure that any Candidate is suitable for its purposes and to take up such references for Candidates as the Client thinks fit;
(e) it is solely responsible for ensuring that the Candidate is eligible to work in the UK.
3.5 Ortolan shall not be liable for any loss or damage arising out of any representation made by Ortolan in good faith that may have induced the Client to accept a Candidate, or for any misrepresentation, breach of contract, or tort of the Candidate. The Client agrees and undertakes to fully indemnify and keep Ortolan so indemnified against any claim or action (including the costs thereof on an indemnity basis) brought by a Candidate or another business (of any kind) with which Ortolan has been dealing in relation to a Requirement arising from incorrect or incomplete information provided by the Client to Ortolan.
4.1 The Client agrees to pay the Fees prior to Ortolan providing the Services. If Ortolan agrees to commence provision of the Services prior to receipt of the Fees from the Client then the Client agrees to make payment in full within 14 days of the date of Ortolan's invoice which Ortolan may submit immediately on receipt of a Requirement.
4.2 Ortolan reserves the right to charge interest on invoiced amounts unpaid for more than 14 days at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
4.3 All credits for the Services must be used within 12 months from date of purchase, upon which date they shall lapse. No refunds will be given for unused credits or for an unsatisfactory response
4.4 VAT will be charged on the Fees if applicable.
4.5 The Client shall pay all amounts due under these Terms in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against Ortolan in order to justify withholding payment of any such amount in whole or in part. Ortolan may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Ortolan to the Client.
5. CONFIDENTIALITY AND IPR
5.1 All intellectual property rights in or arising out of or in connection with Ortolan Connect shall be owned by Ortolan. All Ortolan materials are the exclusive property of Ortolan. For the avoidance of doubt, this includes (without limitation) all Advertisements which remain the copyright of Ortolan and the Client shall not copy, reproduce or otherwise use this work without Ortolan's prior written consent
5.2 The Client acknowledges and agrees that:
(a) it shall keep any information relating to a Candidate confidential and not use it for any purpose other than the purpose disclosed to Ortolan at the time the information is requested;
(b) in relation to a Candidate's information it will act in accordance with the Data Protection Act and all other relevant privacy laws;
(c) it shall not directly or indirectly pass Candidate information on to a third party;
(d) it shall not divulge to any other party, or use for its own benefit, any information capable of being confidential relating to the affairs of Ortolan's business or business methods, or confidential information, received from Ortolan, except that which is in the public domain or is trivial or obvious or authorised to be released or required by Court Order to be disclosed.
5.3 The Client gives Ortolan permission to disclose this business relationship to other parties to promote Ortolan's business. This includes (but is not limited to) use of the Client's company logo, testimonials and any written or verbal communication.
6.1 The Client acknowledges and agrees that:
(a) Ortolan may advertise a Requirement on any website or on any other media controlled by Ortolan or any affiliated third party, or enter into any agreement for the provision of services for the purpose of filling the Requirement;
(b) Ortolan may change websites on which it advertises Requirements without notice;
(c) Ortolan makes no guarantee that an Advertisement will be accepted by certain websites;
(d) Ortolan is under no obligation to supply proof that a Requirement has been advertised;
(e) the Requirement can be viewed by anyone with internet access throughout the world;
(f) Ortolan may need to modify the Advertisement in order to optimise results for job board searching and to attract suitable Candidates;
(g) Ortolan may be unable to make any amendments to an Advertisement once processed;
(h) Advertisements will be branded ‘Ortolan Connect’ and will not carry the Client’s brand or name. No active email addresses or web links may be shown;
(i) Advertisements will be published for up to 28 days after which time they may expire;
(j) Any Requirement which indicates, or could reasonably be understood as indicating, an intention to discriminate in a manner prohibited by current legislation will not be accepted unless it is exempted from the requirements of the appropriate legislation in which case the Client shall provide to Ortolan a statement at the time the Requirement is placed or Service used stating which of the exemptions in the relevant legislation is considered to apply. Ortolan reserves the right to refuse any Advertisement it considers illegal or inappropriate.
7. LIMITATION OF LIABILITY
7.1 Nothing in these Terms shall limit or exclude Ortolan's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to Clause 7.1:
(a) Ortolan shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Terms; and
(b) Ortolan’s total liability to the Client in respect of all other losses arising under or in connection with the Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Fee paid for the Requirement in relation to which any such liability arises.
7.3 Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Terms.
7.4 This clause 7 shall survive termination of the Terms.
8.1 A person who is not a party to the Terms shall not have any rights under or in connection with them.
8.2 Nothing in these Terms is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
8.3 If a court or any other competent authority finds that any provision of the Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Terms shall not be affected. If any invalid, unenforceable or illegal provision of the Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
8.4 The Client acknowledges that the internet and/or Ortolan's systems, services and equipment may from time to time be inoperative in full or in part as a consequence of but not limited to, mechanical breakdown, maintenance, hardware or software upgrades, communication connectivity problems or other factors beyond the control of Ortolan and that Ortolan will not be liable for any loss arising from any failure or inability to provide continuous, error free, uninterrupted services under these circumstances.
9.1 These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.