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Will Miscampbell

Will Miscampbell Estate Agency Partner

Online Licence Agreement

(Updated 11th April 2017)

INTRODUCTION

(A) IN&M owns and operates a jobs portal (“nijobfinder.co.uk”) and backend management system (“iRecruit”) (hereinafter referred to as the “Site”) containing certain proprietary text, photographic and graphic content and has the right to license and promote the Site.

(B) The Customer is in the recruitment business or has a HR requirement within its business and wishes to deliver information or subsets thereof pertaining to jobs and jobseekers via electronic delivery mechanisms for inclusion in the Site.

(C) IN&M agrees to display the information on nijobfinder.co.uk and provide access to the service via iRecruit to the Customer for use in providing services to its customers in accordance with the terms of this Agreement herein and to each party’s mutual benefit.

IT IS AGREED:

Definitions

“Agreement” means the agreement for Services entered into between the Customer and IN&M comprising the Online Agreement Form and this Online Licence Agreement.

“Customer” means the firm or company set out on the Online Agreement Form who has purchased Services from IN&M.

“Data Controller” has the meaning set out in section 1(1) of the Data Protection Act 1998 (as amended or replaced from time to time).

“Data Processor” has the meaning set out in section 1(1) of the Data Protection Act 1998 (as amended or replaced from time to time).

“Data Subject” has the meaning set out in section 1(1) of the Data Protection Act 1998 (as amended or replaced from time to time).

“Fees” means the charges payable by the Customer to IN&M for the supply of Services as set out in the Online Agreement Form.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“IN&M” means Independent News & Media Ltd, a company registered in the United Kingdom, Company No. 1908967 whose registered office is at 2 Derry Street, Kensington, London.

“Online Agreement Form” means the order form issued by IN&M to the Customer, setting out the Customer’s order for Services, the Fees payable by the Customer and any other relevant terms.

“Personal Data” has the meaning set out in section 1(1) of the Data Protection Act 1998 (as amended or replaced from time to time).

“Services” means the service to be provided to the Customer by IN&M to advertise the Customer’s recruitment requirement and any other relevant information on the nijobfinder.com website.

1. Basis of Contract

1.1 This Agreement shall come into existence upon the earlier of the following:

(a) the Customer signing the Online Agreement Form;

(b) the Customer agreeing to purchase the Services from IN&M via telephone, email or in person; or

(c) the Customer using the login details provided by IN&M to access all or part of the Site.

2. Licence of Site

2.1 In consideration of payment of the Fees, IN&M hereby grants to the Customer a non-exclusive licence to:

(a) post relevant and related information to the Site in accordance with this Agreement; and

(b) use iRecruit to upload and manage the information being posted to the Site in accordance with this Agreement;

2.2 The Customer shall keep IN&M informed of any amendments or improvements that may serve all parties to provide a better service to our mutual benefit.

2.3 The Customer may not grant any sub-licences of the Site or allow or permit the use of this Site, either directly or indirectly, by any third party without the prior written consent of IN&M.

2.4 The rights granted to the Customer to reformat, edit and amend their content on the Site are limited to a right to undertake only such reformatting, editing and amending as may be necessary or appropriate to configure their information without destroying the integrity or meaning of the Site, and subject to any restrictions set out in the Online Agreement Form.

The Customer may not reformat, edit, amend or otherwise post content that in any manner affects the literary copyright of IN&M.

2.5 IN&M reserves the right, in its absolute discretion, to remove any material or postings that are abusive, illegal, disruptive, duplicative or that may create liability for IN&M or damage its reputation.

3. IN&M’s Rights and Obligations

3.1 IN&M:

3.1(a) shall provide the Customer with a unique username and password so as to ensure the smooth operation and transfer of information between the parties, and to allow the Customer to upload its recruitment requirements in accordance with this Agreement;

3.1(b) shall use reasonable endeavours to ensure that the Site is fully functional and free from technical errors at all times and to ensure that the Site is accurate, complete and error free;

3.1(c) may at any time remove, edit or refuse to publish, any content it deems to be; inappropriate; not in keeping with the spirit of this Agreement; not furthering the best interests of both parties; contravenes the Data Protection Act 1998 (as amended or replaced from time to time) or any other legislative or regulatory laws in force.

3.1(d) shall promptly correct any errors or inaccuracies in the Site after it becomes aware of them (and provide such corrections to the Customer if necessitated); and

3.1 (e) shall give the Customer one month prior written notice of any change to the specification which would require the Customer to make substantial modifications to its equipment and software to post to the Site. If the Customer is unable, for bona fide reasons, to modify its equipment and software and use or resume using the Site, the Customer shall be entitled to terminate this Agreement on 30 days written notice to IN&M.

4. The Customer’s Rights and Obligations

4.1 The Customer shall:

a) provide free and unencumbered access to a feed of the appropriate content covered by this Agreement;

b) supervise and control the use of the Site by the Customer’s employees and any other authorised third party in accordance with the terms of this Agreement and the terms and conditions of the Site as set out therein;

c) be solely responsible for the information placed on the Site, and shall use best endeavours to ensure that the information placed on the Site does not contain any errors or inaccuracies and is delivered in a timely manner;

d) ensure that access to iRecruit is limited to its authorized personnel only and accepts that it is fully responsible for all and any access by any persons whatsoever; and

e) in any press disclosure, or publication of the Service by the Customer display an attribution to IN&M and/or its licensors. IN&M hereby grants the Customer a non-exclusive, revocable, royalty-free licence for the term of the Online Agreement Form, to use its trade mark solely for this purpose.

5. Fees & Term

5.1 The Fees for the Services shall be as set out in the Online Agreement Form and shall be paid annually in advance.

5.2 All fees are non-refundable should the Customer wish to cancel the Service or in the event that clause 3.1(c) is effected. Fees quoted are valid for one month only and are only valid for the duration for the Online Agreement Form.

5.3 If the Customer fails to make a payment due to IN&M under the Agreement by the due date, then, without limiting IN&M’s remedies under this Agreement, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.3 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.4 In the event that any of the fees due to IN&M are outstanding for a period in excess of 30 (thirty) days, IN&M reserves the right to suspend the Service under this Agreement until such amount is discharged in full.

6. Intellectual Property Rights

6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by IN&M. The Customer recognises IN&M’s and/or its licensors’ title to and Intellectual Property Rights in the Site and shall not claim any right, title or interest in the Site or any part of it save as it granted by this Agreement.

6.2 The Customer grants IN&M a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials, including any trade marks and logos, provided by the Customer to IN&M for the term of this Agreement for the purpose of providing the Services to the Customer.

6.3 The Customer shall not at any time, either during or after the expiry or termination of this Agreement, without the prior written consent of IN&M, use or adopt any trade mark, service mark, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used or owned by IN&M. For the avoidance of doubt, all goodwill arising from or in connection with any trademarks, service marks, trade name or commercial designations of IN&M that form part of the Services shall accrue to IN&M.

7. Termination

7.1 Either party may terminate this Agreement immediately by giving written notice to the other in any of the following events:

(a) if the other party commits any breach of any of the terms and conditions of this Agreement and fails to remedy that breach (if capable of remedy) within 30 days after receiving notice from the other party giving full particulars of breach and requiring it to be remedied; or

(b) if the other party enters into liquidation whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation with the prior approval of the other party), or compounds with or makes any arrangements with its creditors or makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets, or if it ceases or threatens to cease to carry on its business, or if it suffers any analogous process under any foreign law.

7.2 The Customer shall be entitled to terminate the Agreement in accordance with clause 14.3.

7.3 In the event of any termination or expiry of this Agreement:

(a) IN&M shall remove from the Site all content pertaining to the Customer as soon as reasonably practicable and in any event within 30 days of such termination; and

(b) all licences granted under this Agreement shall cease.

8. Confidentiality/Data Protection

8.1 Each party undertakes that it shall not at any time disclose to any person, except as permitted by clause 8.2, any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, including for the avoidance of doubt any Fees payable by the Customer.

8.2 Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 8; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

8.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments, including but not limited to, the Data Protection Act 1998 (as amended or replaced from time to time).

8.5 IN&M will not be liable for any claim brought by a Data Subject or any other third party arising from any action or omission by IN&M, to the extent that such action or omission resulted directly from the Customer’s instructions or the Customer’s failure to comply with the Data Protection Act 1998 (as amended or replaced from time to time).

8.6 Subject to clause 8.5, each party agrees to indemnify the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under clause 8.4.

9. Warranty and Indemnity

9.1 The Customer warrants that:

(a) it is entitled to enter into this Agreement which is a valid Agreement binding on it and enforceable in accordance with its terms, and that the entry into this Agreement by it will not constitute a breach of any agreement or arrangement to which it is already a party;

(b) it will use all reasonable skill and care in performing its obligations under this Agreement;

(c) all information supplied for publication on the Site is true and accurate and all relevant and necessary consents from third parties for the publication of any personal information and material, including photographic or similar such material.

9.2 IN&M warrants that:

(a) it is entitled to enter into this Agreement which is a valid Agreement binding on it and enforceable in accordance with its terms, and that the entry into this Agreement by it will not constitute a breach of any agreement or arrangement to which it is already a party;

(b) it will use all reasonable skill and care in performing its obligations under this Agreement;

10. Limitation of Liability/Indemnity

10.1 IN&M shall endeavour to ensure that the Site is available to users at all times but shall have no liability of any sort, in the event of any inaccessibility to the Site.

10.2 Neither party seeks to limit its liability for death or personal injury resulting from its own negligence.

10.3 The Customer hereby indemnifies IN&M and its agents, servants, affiliates, associates and employees free from any and all loss, damage, expense or liability including but not limited to any costs incurred by IN&M, which may arise from the Customer’s publication or placement of any information on the Site.

10.4 Except as set out in clauses 10.1, 10.2 and 10.3 (to which this clause shall not apply) the total liability of either party in respect of any breach of its obligations under this Agreement or any representation, statement, negligent act or omission arising under or in connection with this Agreement will be limited in total to the greater of £70,000 or the Fees paid or payable by the Customer to IN&M in the previous 12 months.

11. Notices

Any notice given under this Agreement shall be in writing and may be delivered to the other party or sent by pre-paid post to the address of that party specified in this Agreement or such other address as may be notified under this Agreement by that party from time to time for this purpose and any such notice should be marked for the attention of the respective Relationship Manager (with a copy sent to the Finance Director, Independent News and Media (NI), 33 Clarendon Road, Clarendon Dock, Belfast, BT1 3BG).

12. Force Majeure

A party will not be liable for any failure/delay in performing its obligations under this Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 4 weeks, the other party may terminate this Agreement immediately by written notice.

13. Assignments

Neither party may assign, sub-contract or delegate any or all of its rights or obligations under this Agreement without the consent of the other party, which consent shall not be unreasonably withheld, except that either party may transfer its rights and obligations to any single Affiliate or to a successor in interest of substantially all of its business.

14. General

14.1 This Agreement constitutes the entire agreement between IN&M and the Customer. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of IN&M which is not set out in this Agreement and that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

14.2 IN&M may change these terms:

(a)to reflect changes in relevant laws and regulatory requirements; and

(b)to implement minor technical adjustments and improvements, for example to address a security threat.

14.3 In addition, IN&M may periodically amend the terms of this Agreement, but if it does, IN&M will provide at least 30 days’ notice of any changes to the Customer and the Customer shall be entitled to terminate this Agreement before the changes take effect and receive a refund for any Services paid for but not received. If the Customer fails to terminate this Agreement in accordance with this clause 14.3, the Customer will be deemed to have accepted the amended terms of this Agreement.

14.4 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.

14.5 No failure or delay by any party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either party preclude any further exercise of any other right.

14.6 If any provision or part-provision of this Agreement is found to be illegal, void or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

15. Law and Jurisdiction

15.1 Each party agrees to respond promptly to any issues referred to it by the other party relating to this Agreement and shall seek to resolve any disputes arising through its Account Manager as quickly and effectively as possible.

15.2 If the parties cannot satisfactorily resolve any dispute within 14 days of referral to the Account Managers then that dispute shall be escalated to the Finance Director, (or equivalent) of both parties. If the parties cannot satisfactorily resolve any dispute within 14 days of referral to the Finance Directors then either party may seek its legal remedies.

15.3 This clause shall not restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights.

15.4 This Agreement shall be governed by and construed in accordance with Northern Ireland law and the parties submit to the exclusive jurisdiction of the Northern Ireland courts.

Part of the Independent News and Media group