Last updated: 29 March 2021
1.1 In these Terms the following definitions will apply:
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges the charges payable by the Customer for the supply of the Services in accordance with clause 7.
Conditions these terms and conditions as amended from time to time in accordance with clause 16.4.
Contract the contract between EFP and the Customer for the supply of Services in accordance with these Conditions.
Contract Period subject to clause 8, the period during which the Services are to be provided to the Customer as set out in the Order Confirmation, or in the absence of such period being specified, a period of 12 months from the earlier of: (i) the date of the first sales invoice sent by EFP to the Customer relating to the Services; (ii) the date that the first payment is made by the Customer to EFP for the Services; or (iii) the date all or part of the Services were first used by the Customer.
Customer the business or organisation who purchases the Services from EFP.
Customer Default has the meaning set out in clause 4.3.
Customer Material any material that the Customer uploads to the Website(s) or provides to EFP in relation to the Contract.
EFP Embracing Future Potential Ltd incorporated and registered in England and Wales with company number 12406305 whose registered office is at The Courtyard Oakwood Park Business Centre, Fountains Road, Harrogate HG3 3BF.
EFP Material all materials produced by EFP in relation to the Contract (including materials expressed in any form of report, database, design, document, technology, information, know how, system or process);
Extension Period has the meaning given in clause 8.1.
Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade marks. business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights.
Losses all losses, liabilities, damages, costs, expenses (including legal fees), disbursements, costs of investigation., litigation, settlement, judgement, interest and penalties whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation, or otherwise.
Order the Customer’s submission of the order for Services via the Website(s) or by correspondence with a representative of EFP via telephone or email or the Customer’s written acceptance of EFP’s quotation.
Order Confirmation the confirmation submitted by EFP to the Customer confirming the Services to be provided, generally via email (and which may be in the form of an invoice) but may be oral or by other means.
Services the services provided by EFP to the Customer as set out in the Order Confirmation.
Virus any thing 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 device
Website(s) www.embracingfuturepotential.com, www.refreshingacareer.com, www.employinganapprentice.com www.developingastudent.com, www.careerswithdisabilities.com, www.aspiringtoinclude.com
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted, and includes all subordinate legislation made under that statute or statutory provision.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 In these Terms, a reference to writing or written includes email, and a reference to signed includes signed by electronic means.
2. The Contract
2.1 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when EFP issues an Order Confirmation at which point and on which date the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any quotation given by EFP shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue, subject to withdrawal at any time.
2.5 For the avoidance of doubt, these Conditions apply during any free trial or similar in respect of any of the Service(s) which EFP may agree to provide to the Customer from time to time.
3. Supply of Services
3.1 If the Services have not been supplied by EFP by the end of the Contract Period or any Extension Period due to the Customer’s failure to request such Services in a timely manner, the Customer shall lose the right to request the Services and EFP shall not be obliged to supply the Services.
3.2 EFP reserves the right to:
3.2.1 add to, remove, or amend the Services (including features of each level of a Service), prices or offers at any time;
3.2.2 amend the Services if necessary to comply with any applicable law or regulatory requirement; and
3.2.3 alter, moderate, add to, remove or replace any Customer Material at its sole discretion, including by the additional or removal of any links contained therein. The exercise of such rights shall not entitle the Customer to terminate the Contract or receive any refund. However, EFP shall be under no obligation to actively monitor the Customer Material for any purpose and shall not be liable for choosing not to exercise its rights under this clause.
3.3 EFP warrants to the Customer that the Services will be provided using reasonable care and skill.
3.4 EFP does not warrant that the Customer’s use of the Services will be uninterrupted or error free, that the Websites will always be available, or that the Services will be free from Viruses.
3.5 EFP 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.
3.6 EFP may as part of its Services provide its views on content suitability for publication on to the Website(s). Such views will be based on EFP’s experience only and shall not constitute or be deemed to constitute legal, financial or other professional advice, and the Customer agrees not to rely upon such views as if they were such.
3.7 Each Service is specific to the Website(s) specified in the Order Confirmation only; the Customer is not entitled to require EFP to provide a Service in respect of a different Website(s), or to transfer a credit between Websites.
4. Customer’s Obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order are complete and accurate;
4.1.2 promptly co-operate with EFP in all matters relating to the Services;
4.1.3 promptly provide EFP with such information and materials as EFP may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all respects; and
4.1.4 not store, distribute or transmit any Virus via the Website(s).
4.2 The Customer shall ensure that it is legally entitled to use, reproduce or publish all Customer Material, and shall ensure that Customer Material:
4.2.1 does not infringe any copyright or other rights of any other person;
4.2.2 is not unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.2.3 does not facilitate illegal activity;
4.2.4 does not depict sexually explicit images;
4.2.5 does not promote unlawful violence;
4.2.6 is not discriminatory based on race, gender, colour, religious belief, sexual orientation or disability;
4.2.7 is not otherwise illegal; and
4.2.8 does not cause damage or injury to any person or property,
and EFP reserves the right, without liability or prejudice to its other rights, to disable the Customer’s access to the Services if it is in breach of the provisions of this clause 4.2.
4.3 If EFP’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or delay or failure by the Customer to perform any relevant obligation (Customer Default):
4.3.1 without limiting or affecting any other right or remedy available to it, EFP shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations;
4.3.2 EFP shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default; and
4.3.3 the Customer shall reimburse EFP on written demand for any Losses sustained or incurred by EFP arising directly or indirectly from the Customer Default.
5. Scope of Services
5.1 The Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. In particular, EFP shall have no responsibility for the Customer’s recruitment process and/or be responsible for, or have any liability in connection with, any candidate which the Customer may or may not employ or engage.
5.2 EFP does not guarantee that the Customer will derive any particular result(s) from its use of the Services, including in respect of the number or quality of job applications that the Customer may receive.
5.3 EFP offers no exclusivity to the Customer, and may provide the Services (or services which are similar to the Services) to a competitor of the Customer. EFP makes no guarantee as to where material relating to the Customer may appear on a webpage or how many views it will receive. The Customer agrees that EFP may re-post material including job adverts on any number of third party websites, and/or may re-post material including job adverts from any number of third party websites on its Website(s).
5.4 EFP is not responsible for the moderation of any content relating to the Customer appearing on its Website(s) or otherwise, nor for any comments or reactions made to such content.
6. Service-Specific Provisions
(the following provisions apply to the extent that the Services consist of the applicable service type)
6.1 Job Credit: all job credits expire after 12 months. An amendment to a job advert uses one credit. All job adverts use one credit regardless of how long they appear on the Website(s) (the default duration is 45 days). Any jobs offered on an unlimited basis entitles the Customer to 1,000 job credits per year.
6.2 Company Profile: free listings may be removed by EFP at any time.
6.3 News articles: all articles will be of no more than 400 words in length (unless otherwise agreed). EFP may agree (at its discretion) to a maximum of one back-link per article. EFP will provide a maximum of two drafts per article; EFP will charge extra for any additional iterations. EFP will only draft article(s) when requested by the Customer.
6.4 Social media: all posts will be of no more than the lower of 150 words or the applicable platform’s limit in length (unless otherwise agreed). The timing of posts will be at EFP’s discretion. EFP makes no commitment as to which or how many channels it will make posts to.
6.5 Advert inclusivity screening: EFP will only review not re-write adverts. Screening is for diversity and inclusion aspects only (and not, for example, for spelling or grammar).
6.6 RSS: EFP does not guarantee that it can create a feed or that it will be economically viable to do so. EFP may pause, remove or change a link at its discretion.
6.7 Levy transfer: EFP acts as a conduit only, EFP offers no guarantee that the transfer process will be successful, and offers no warranty as to how the recipient may use the levy. EFP does not facilitate movement of monies.
7. Charges and Payment
7.1 The Charges for the Services shall be specified on the Order Confirmation, and shall be payable by the Customer to EFP for the Contract Period. If the Customer wishes to change the scope of the Services after EFP have accepted the Order, and such change is agreed with EFP, EFP may increase the Charges accordingly. EFP reserves the right to charge the Customer for any additional time spent in providing services to the Customer which are outside the scope of the Services at the rate of £75 per hour.
7.2 The Customer acknowledges that if an Order is processed and mistakenly accepted by EFP on the basis of a pricing error of the Services, EFP may charge the Customer the correct amount for the Services if such pricing error could have been reasonably recognised by the Customer as a pricing error.
7.3 If the Order Confirmation permits the Customer to pay the Charges for a Service monthly, such Charges shall be payable monthly in advance, and shall be payable every month of the Contract Period regardless of whether the Customer ceases to use the Services or the Contract is terminated part-way through the Contract Period. No refunds shall be payable to the Customer for any amounts paid in advance where the Services are suspended or the Contract is terminated part-way through the Contract Period.
7.4 If any Services are provided on a ‘cost per click’ or similar basis, the amount which the Customer shall pay shall be based upon the total number of clicks, across all locations in which the applicable advert(s) are displayed, including re-posts. The applicable Charges shall be calculated in accordance with EFP’s statistics relating to the number of clicks, such statistics shall be binding on the parties in the absence of fraud or manifest error.
7.5 The Customer shall pay each invoice submitted by EFP upon receipt in full and in cleared funds to a bank account nominated in writing by EFP. Time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Customer under the Contract and/or stated on any materials of EFP including its website, are exclusive of amounts in respect of VAT chargeable from time to time, which shall be payable by the Customer at the same time as the principal sum to which it relates.
7.7 If the Customer fails to make a payment due to EFP under the Contract by the due date, then, without limiting EFP’s remedies under clause 12 or otherwise, 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 7.7 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Auto-Renewal of Services
8.1 The term for which some Services shall be provided by EFP and paid for by the Customer may be automatically extended at the end of the Contract Period for a further year (or such other period stated on the Order Confirmation) (Extension Period). At the end of an Extension Period the term may be automatically extended again for the same period.
8.2 In such circumstances, EFP will issue an invoice to the Customer before the end of the Contract Period or relevant Extension Period setting out the scope of Services and Charges for the Extension Period (which may differ to those which applied during the Contract Period). Unless the Customer gives notice to EFP within seven days after the date of the invoice that it does not wish the term to auto-renew, such invoice will constitute the Order Confirmation for the applicable Extension Period, and EFP will provide the Services and the Customer will pay the Charges set out therein.
9. Intellectual Property Rights
9.1 All Intellectual Property Rights in all EFP Material will remain the property of EFP, and are licensed to the Customer on a non-exclusive basis for the purposes of it enjoying the benefit of the Services provided by EFP pursuant to, and for the term of, the Contract only.
9.2 All Intellectual Property Rights in all Customer Material will remain the property of the Customer (or its third party licensors), and are licensed to EFP on a non-exclusive basis for the purposes of it providing the Services. EFP may use Customer Material across one or more of the Websites regardless of which Website(s) the Services relate to.
10. Data Protection
10.1 Where EFP is the Customer’s processor in respect of any personal data (such personal data being Protected Data), the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Protected Data to EFP and/or lawful collection of the Protected Data by EFP on behalf of the Customer, for the duration and purposes of the Contract. EFP shall, in relation to its processing of the Protected Data under the Contract:
10.1.1 process that Protected Data only on the documented written instructions of the Customer unless EFP is required by law to otherwise process that Protected Data, in which case EFP shall, unless prohibited by law, promptly notify the Customer of this before performing the processing required by law;
10.1.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Protected Data and against accidental loss or destruction of, or damage to, Protected Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
10.1.3 ensure that all personnel who have access to and/or process Protected Data are obliged to keep the Protected Data confidential; and
10.1.4 not transfer any Protected Data outside of the UK unless permitted by law;
10.1.5 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under data protection law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.1.6 notify the Customer without undue delay on becoming aware of a Protected Data breach;
10.1.7 at the written direction of the Customer, delete or return Protected Data and copies thereof to the Customer on termination of the Contract unless required by law to store the Protected Data; and
10.1.8 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of EFP, an instruction infringes data protection law.
10.2 The Customer consents to EFP appointing any third party processor of Protected Data under the Contract.
11. Limitation of Liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 References to liability in this clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in the Contract limits or excludes any liability which cannot legally be limited or excluded, including liability for:
11.2.1 death or personal injury caused by negligence;
11.2.2 fraud or fraudulent misrepresentation; and
11.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.3 Subject to clause 2, EFP shall not under any circumstances be liable to the Customer in respect of:
11.3.1 any direct loss of profit (whether actual or anticipated);
11.3.2 any direct loss of anticipated savings;
11.3.3 any indirect, economic or consequential loss or damage including:
18.104.22.168 indirect loss of profit (whether actual or anticipated);
22.214.171.124 indirect loss of anticipated savings;
126.96.36.199 loss of contracts;
188.8.131.52 loss of use of money;
184.108.40.206 loss of revenue;
220.127.116.11 loss of goodwill or loss of or damage to reputation;
18.104.22.168 loss of business or business opportunity;
22.214.171.124 loss of operation time;
126.96.36.199 loss of opportunity; or
188.8.131.52 loss of, damage to or corruption of, data.
11.4 Without prejudice to clause 2 or 11.3, EFP’s total liability shall in all circumstances be limited in respect of each claim or series of related claims to an amount equal to the total amount paid by the Customer to EFP in the 12 months prior to the date that the Customer first notifies EFP of the claim(s).
11.5 EFP shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to EFP by the Customer in connection with the Services, or any actions taken by EFP at the Customer’s direction.
11.6 EFP does not endorse or approve any third-party website nor the content of any third-party website made available via the Services (including to which material or job adverts may be re-posted by EFP). EFP makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
11.7 This clause 11 shall survive termination of the Contract.
12. Termination and Suspension
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
12.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
12.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.2 Without affecting any other right or remedy available to it, EFP may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3 Without affecting any other right or remedy available to it, EFP may suspend or terminate the supply of some or all of the Services under the Contract (or downgrade the level of a Service which the Customer has subscribed for) if:
12.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
12.3.2 the Customer becomes subject to any of the events listed in clauses 1.2 to 12.1.4, or EFP reasonably believes that the Customer is about to become subject to any of them.
13. Consequences of Termination
13.1 On termination or expiry of the Contract the Customer shall immediately pay to EFP all of EFP’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, EFP shall submit an invoice, which shall be payable by the Customer immediately on receipt. The Customer shall not be entitled to any refund for amounts pre-paid.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14.1.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 1.2.
14.1.2 Each party may disclose the other party’s confidential information:
184.108.40.206 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights, and carrying out the party’s obligations, under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
220.127.116.11 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.1 Any notice given to a party under or in connection with the Contract shall be in writing and sent to:
15.1.1 EFP at The Courtyard Oakwood Park Business Centre, Fountains Road, Harrogate HG3 3BF marked for the attention of the Managing Director.
15.1.2 The Customer at the postal address or email address listed in the Order Confirmation, or any other email address used by the Customer to communicate with EFP, or which appears on its website, from time to time.
15.2 Any notice may be given, shall be deemed to have been received:
15.2.1 if delivered by hand, at the time the notice is left at the proper address;
15.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
15.2.3 if sent by email to the Customer at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 2.3, business hours means 9.00am to 5.00pm on Business Days.
15.3 This clause 15 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.1 Force majeure. EFP shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16.2 Assignment and other dealings. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of EFP.
16.3 Entire agreement. The Contract 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. Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
16.4 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.7 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
16.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.