Profound Digital: Terms of Use for Candidates and Clients

1. Introduction

The BeProfound website and any associated mobile application (the Site) is owned and operated Profound Digital Limited, a company registered in England and Wales with registered number 10413805 and with its registered office at HJP, Audley House, Northbridge, Berkhamsted, HP4 1EH (we, us). By using the Site you agree to be bound by these terms of use (the Terms) together with the privacy policy and cookie policy accessible in the Site (the Privacy Policy and the Cookie Policy respectively). These Terms and the Privacy Policy and Cookie Policy affect your legal rights and obligations so please read them carefully. If you do not agree to be bound by these Terms and/or the Privacy Policy, do not use the Site. If you have any questions, you can contact us by email at [email protected].
We reserve the right to update these Terms from time to time at our discretion. We may do so for technical or legal reasons, or because the needs of our business have changed. You agree that if you do not accept any amendment to our Terms then you shall immediately stop accessing and/or using the Site. If we reasonably believe that the change to the Terms is significant, we shall notify all registered users by email. Otherwise, updated Terms will be effective as soon as they are accessible. You are responsible for regularly reviewing these Terms so that you are aware of any changes to them.
The Site allows Clients to post information about vacancies they are trying to fill, and Candidates to post a profile. The Candidates can search the vacancies and apply; and the Client can view Candidates who apply for a vacancy and request that the Candidate attends an interview. Candidates and Client can contact each other directly through the Site.
We are an intermediary platform, and we are not bound in any way by any contract that may arise at any time between Candidates and Clients.

2. Definitions

In these Terms, words defined in Condition 1 shall have the same meaning when used throughout these Terms. In addition, the following words have the following meanings:

Candidate: an individual who registers on the Site to search for Vacancies;

Client: a business or other entity who registers on the Site in order to recruit an individual;

Engagement: the employment, hire or other use, directly or indirectly and whether under a contract of service or contract for services or otherwise, and on a permanent, temporary or other basis, of a Candidate by or on behalf of the Client;

Fees: the fees due from the Client as described in Condition 7 below;

Site Content: all materials on the Site, including all information, data, text, images, recordings and software excluding any content posted by a Client and/or a Candidate;

Terms: these terms and conditions;

Vacancy: the employment opportunity, whether permanent or temporary, posted on the Site by a Client;

you: any user of the Site, including a Client and/or a Candidate.
In these Terms (a) headings are for convenience only and do not affect interpretation; (b) words in the singular include the plural; and (c) including means including but not limited to.
Any reference to a statutory provision shall be a reference to such provision as may be updated or amended from time to time.

3.Registering on the Site and Use of the Site

Whether you are a Client or a Candidate, when you register with the Site you will create a username and password or you may be provided a username and password by us. You are responsible for keeping your username and password confidential and you are responsible for any activity under your account. Please take precautions to protect your password and contact us immediately by email at [email protected] if you believe there has been any unauthorised use of your account.
When you use the Site you must comply with all applicable laws. In particular, but without limitation, you agree not to:

(a) try to gain unauthorised access to the Site or any networks, servers or computer systems connected to the Site;

(b) harvest or otherwise collect non-public information about another user obtained through the Site (including without limitation email addresses), without the prior writ-ten consent of the holder of the appropriate rights to such information;

(c) add a Site user to your email or physical mailing list without their consent after ad-equate disclosure, or use their email address or contact details for antisocial, disruptive, or destructive purposes;

(d) transmit spam, chain letters or other unsolicited emails; and/or

(e) reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble all or part of the Site save to the extent expressly permitted by law not capable of lawful exclusion.
You may not have more than one account on the Site.

4. Candidates

If you wish to register as a Candidate on the Site, you must:

(a) be at least 18 years old;

(b) be legally capable of entering into a contract;

(c) not have any criminal conviction anywhere in the world, excluding an offence under road traffic legislation in the United Kingdom or elsewhere for which you are not sentenced to any term of imprisonment whether immediate or suspended;

(d) have all appropriate qualifications necessary for the sort of work you are seeking; and

(e) be legally entitled to work in the territory where you are seeking employment.

At our request, you shall provide evidence of your compliance with this Condition 4.1 and you agree that we may accept or reject your application to be a Candidate at our discretion.
Candidates are encouraged to create a profile and to keep their profile up-to-date. You warrant and represent all content included in a profile must not:

(a) breach the provisions of any law, statute or regulation including any data protection laws and/or regulations;

(b) infringe the copyright, database rights, trade mark rights or other intellectual property rights of any third party;

(c) be made in breach of any legal duty owed to any third party, such as a contractual duty or a duty of confidence;

(d) be deliberately or knowingly false, inaccurate or misleading;

(e) include any content which promotes fraudulent, obscene, pornographic, inappropriate or illegal activities; promotes violence or hatred; is or discriminatory of any group of people; is sexually explicit; or is obscene, offensive, hateful or inflammatory; and/or

(f) give rise to any cause of action against us.
We do not monitor or review any content uploaded to the Site by a Candidate. How-ever, we may remove any such content at any time and without notice to you if we reasonably believe that such content infringes any of the provisions of Condition 4.2.
If you apply for a Vacancy, the Client may view your profile and you may receive an interview request. You are not obliged to accept the interview request, but we do ask that you respond promptly. You agree that if you do attend an interview, we may receive feedback, including personal data about you, from the Client. We shall process such personal data in accordance with our Privacy & Cookie Policy.
If you are no longer looking for a job, you can set your profile to ‘not looking’ or re-move your profile from the Site.

5. Clients

If you wish to register as a Client on the Site, you must:

(a) have the authority to bind the Client to these Conditions; and

(b) be based in a territory covered by our services.

At our request, you shall provide evidence of your compliance with this Condition 5.1.
We shall consider your registration, and if we accept you as a Client on the Site, you shall be entitled to create Vacancies and a company profile.
Clients warrant and represent that all content that they post on the Site, including within their profile and within a Vacancy, must not:

(a) breach the provisions of any law, statute or regulation including the Equality Act 2010 and the General Data Protection Regulation 2016;

(b) infringe the copyright, database rights, trade mark rights or other intellectual property rights of any third party;

(c) be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;

(d) be illegal, dishonest, false, inaccurate or misleading;

(e) include any content which promotes fraudulent, obscene, pornographic, inappropriate or illegal activities; promotes violence or hatred; is or discriminatory of any group of people; is sexually explicit; or is obscene, offensive, hateful or inflammatory; and/or

(f) contain content that is not in keeping with the intention of the Site, such as containing content solely to promote goods or services; and/or

(f) give rise to any cause of action against us.
We may at our sole discretion:

(a) require you to amend any such content; and/or

(b) remove any such content at any time and without notice to you if we reasonably believe that such content infringes any of the provisions of Condition 5.3.
We shall host the Vacancy in accordance with these Terms on the Site for a period of 90 days from receipt. If the Vacancy relates is filled within such 90 day period, you agree to promptly remove the Vacancy from the Site unless otherwise agreed.
If a Candidate applies for a Vacancy you have posted, you can view that Candidate’s profile, and request an interview. You agree that the Candidate does not have to at-tend an interview at any time.
Clients shall comply with all applicable laws relating to the processing of personal data in respect of the personal data of a Candidate including the Data Protection Act 2018 and the General Data Protection Regulations 2016. In particular, Clients shall only contact the Candidate in respect of the relevant Vacancy and shall take appropriate security measures (including physical, electronic and procedural measures) to help safeguard such personal data from unauthorised access, loss and destruction.
Clients agree that we shall be entitled to reproduce and use the Client’s name and associated logos within publicity for the Site and our business.

6. Vacancies

We operate as an employment agency as defined by the Employment Agencies Act 1973 (as amended). Accordingly, we shall comply with all applicable laws, including the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended). For the avoidance of doubt, we are not and shall not be the agent, partner or joint venture partner of any Candidate or Client. The Candidate is em-ployed or engaged – if at all - by the Client.
In order to comply with applicable laws, we require Clients to provide the following information to us within the Vacancy description:
(a) the nature of the Client’s business;

(b) the date on which the Client requires a Candidate to commence work and the du-ration, or likely duration of the work;

(c) the position which the Client seeks to fill, including the type of work a Candidate in that position would be required to do, the location at which and the hours during which he would be required to work and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;

(d) the experience training, qualifications and authorisation which the Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position;

(e) any expenses payable by or to the Candidate;

(f) the minimum rate of remuneration and any other benefits which the Client would offer to the Candidate, and the intervals at which the Candidate would be paid; and

(g) where applicable, the length of notice which the Candidate in such a position would be required to give, and entitled to receive, to terminate the employment with the Client.
All Candidates must provide evidence or other confirmation of their experience, train-ing, qualifications and any authorisation that may be necessary or required by law. Before a Candidate attends an interview, the Candidate must further confirm to us that the Candidate is willing to work in the position that the Client seeks to fill. We shall review the information you provide to us, together with any other information that is publicly available.
Notwithstanding any other provision of this Agreement, the Client shall satisfy itself as to the suitability of any Candidate for a Vacancy. All normal, prudent checks should be carried out including identity checks, checking qualifications, experience and references.

7. Fees

No fees are due from Candidates in relation to the registration and use of the Site.
Fees due from Clients are either:

(a) a monthly subscription Fee which entitles the Client to post as many Vacancies as they wish in accordance with their subscription . This will be agreed with the clients Account Manager. ; or

(b) a success Fee due in accordance with Condition 7.3.

We reserve the right to change the calculation of the success fee due at our sole discretion and on notice to Clients.
If a Candidate attends an interview and is subsequently offered Engagement in any capacity with the Client or any associated company of the Client within 12 months of applying for the Vacancy on the Site, both the Candidate and the Client shall inform us accordingly within 24 hours, and shall provide us with the signed job offer or the de-tails of the engagement including the scope of the role, duration if a temporary Vacancy, remuneration, notice of termination required and other conditions of employment as soon as possible. On the first date of the Engagement, we shall be entitled to invoice the Client 8% of the annual salary (calculated pro-rata where appropriate) or other fee to be paid to the Candidate. For the avoidance of doubt, the Fee shall be due even if the Candidate is engaged in another position that is not the Vacancy and/or within a group company of the Client; and/or details of the Candidate have already previously been viewed by the Client.
For a permanent role, the Client and the Candidate will promptly notify us if the Candidate’s employment does not commence or is terminated early by a Candidate or lawfully by the Client within eight (8) weeks days from the start date. In such circumstances, we shall refund the Client the fee calculated in accordance with Clause 7.5 provided that:

(a) no outstanding sums are due from the Client;

(b) the Engagement has not been terminated unlawfully;

(c) the Client has not entered into the Engagement with a view to obtaining a short-term benefit from the Engagement and then securing a refund by terminating it within 8 (eight) weeks;

(d) the Client notifies the Agency in of the termination of the Engagement and its claim for a rebate within 14 days of such termination; and

(e) the Candidate has not previously been engaged in any capacity by the Client.
Subject to the provisions of Condition 7.4, we shall refund the Client a proportion of the success fee paid as follows:

(a) 100% if the termination occurs within 2 weeks from the start date;

(b) 75% if the termination occurs more than 2 weeks but fewer than 4 weeks from the start date;

(c) 50% if the termination occurs more than 4 weeks but fewer than 6 weeks from the start date; and

(d) 25% if the termination occurs more than 6 weeks up to 8 weeks from the start date.

For the avoidance of doubt, no refund of a monthly subscription Fee shall be due in the event of early termination of a Candidate’s Engagement.
For a temporary role, the Client and the Candidate will promptly notify us if the Candidate’s employment does not commence or is terminated early by a Candidate or lawfully by the Client. In such circumstances, we shall refund the Client a percentage of the Fee equal to the percentage of the duration of the Vacancy not completed by the Candidate provided that:

(a) no outstanding sums are due from the Client;

(b) the Engagement has not been terminated unlawfully;

(c) the Client notifies the Agency in of the termination of the Engagement and its claim for a rebate within 14 days of such termination; and

(d) the Candidate has not previously been engaged in any capacity by the Client.
Any refund paid under this Condition 7 shall be repaid to us in full if the Client sub-sequently re-engages the Candidate in any capacity.
The Client shall pay all invoices in full and cleared funds within 30 days of the date of the invoice. If the Client fails at any time to pay any sum on the due date for payment, we shall be entitled to:

(a) charge interest on any outstanding sum at the rate of 4% per annum above the base rate from time to time of the Bank of England for the period from and including the due date to and including the date of receipt (whether before or after judgment); and/or

(b) cease to allow the Client to upload Vacancies, and remove any current Vacancies.
All payments made by the Client under this Agreement shall be made in full without any deductions.

8. Site Communications and Availability

All communications between the Clients and Candidates must take place through the Site until the interview. Neither party must attempt to contact each other outside of the Site in order to circumvent the payment of any fees due to us.
All communications between the Clients and Candidates must be fair, honest and appropriate in the context of the Client/potential employee relationship. In particular, you warrant and represent that your communications shall not include content that:

(a) is defamatory, obscene or offensive;

(b) is in breach of applicable laws;

(c) harasses another user;

(d) involves the transmission of junk mail or spam;

(e) engages in commercial activities not relating to the Job Ad in question;

(f) is inciting hatred of any sort; and/or

(g) contains any virus or malicious code.
We shall use our reasonable endeavours to make the Site available at all times. How-ever, there may be occasions when access to the Site may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. We shall use reasonable endeavours to notify all users of any scheduled maintenance or upgrades, and to schedule such maintenance and upgrades outside of normal working hours. However, you agree that we have no liability to you for such interruptions.
For the avoidance of doubt, we shall also not be liable if you are unable to access the Site for any reason within your control, including your failure to use appropriate equipment or insufficient bandwidth.

9.1 Disclaimer – Your attention is particularly drawn to these provisions

Notwithstanding any other provision of these Terms, you agree that we cannot and do not warrant that any Candidate shall find a suitable job, or that a Client shall find a suitable candidate for their Vacancy.
Subject to Condition 9.6, we shall in no circumstances be liable to any user of the Site in contract, tort (including negligence) or otherwise for any:

(a) loss of profit, anticipated profits or business;

(b) loss of data;

(c) loss of opportunity;

(d) loss of revenue or waster expenditure;

(e) loss of goodwill or reputation; and/or

(f) consequential, special or incidental loss or damage (whether or not advised of the possibility of the same).

The provisions of this Condition 9.2 are severable.
Subject to Condition 9.5, our maximum liability to a Client whether in contract, tort or otherwise shall in no circumstances exceed the lower of the total Fees paid by the Client:

(a) for the Candidate or the Engagement that is the subject of the claim; or

(b) otherwise paid to us in the six (6) months preceding the date on which the liability arose.
If you are a Candidate, we shall be liable only for direct losses that you suffer as a result of our breach of these Terms or our negligent act or omission.
Nothing in these Terms shall be construed as excluding or limiting our liability for death or personal injury caused by our negligence, for fraud or fraudulent misrepresentation or for any other liability that cannot be excluded by English law.

10. Indemnity

The Client shall indemnify and keep indemnify and hold us harmless from and against any costs, claims, losses, damages, expenses and liabilities that we may suffer or incur arising as a result of:

(a) any claim or allegation in relation to the content of a Vacancy; and

(b) any claim or allegation from a Candidate or any third party relating to the acts or omission of the Client.
The Candidate shall indemnify and keep indemnify and hold us harmless from and against any costs, claims, losses, damages, expenses and liabilities that we may suffer or incur arising as a result of:

(a) any claim or allegation in relation to their profile content; and

(b) any claim or allegation from a Client or any third party relating to the acts or omission of the Candidate.

11. Intellectual Property Rights

The copyright in all Site Content is owned by or licensed to us. All rights are reserved. You can view, print or download extracts of the Site Content for your own use in order to seek employment or seek employees and for no other purposes. You cannot otherwise copy, edit, vary, reproduce, publish, display, distribute, store, transmit, commercially exploit, disseminate in any form whatsoever or use the Site Content without our permission.

12. Confidential Information

Confidential Information shall mean all confidential information whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, customers, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).
The Receiving Party shall not, and shall ensure that its employees shall not, use copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under the Conditions.
The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.
The provisions of Conditions 12.1, 12.2 and 12.3 shall not apply to any Confidential Information which:

(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;

(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or

(c) is required to be disclosed by any court, government or administrative authority competent to require disclosure.

13. Termination or Suspension

We reserve the right to suspend or terminate the account of a Client or a Candidate at any time and without liability. If the Client pays a monthly subscription Fee, we shall refund pro-rata any sums paid for access to the Site after the termination.
Following termination by us of your account, you must cease to use the Site and you must not re-register on the Site under any other name.
You may contact us at any time to terminate your account and we shall promptly remove your content from the Site.
Termination of this Agreement shall not affect the accrued rights of the parties or the operation of any provision clause which expressly or by implication should continue after termination. In particular, if you are a Client, any obligation to pay Fees due shall continue notwithstanding any termination of your access to the Site.

14. General

These Terms and the Privacy Policy and Cookie Policy (as amended from time to time) constitute the entire agreement relating to your use of the Site.
If any provision of these Terms is held by a court of competent jurisdiction to be in-valid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties and all other provisions shall remain in full force and effect.
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
We may assign or otherwise transfer our rights and obligations in terms of these Terms to third parties.
These Terms shall be governed by and construed in accordance with English law and you agree to submit to the exclusive jurisdiction of the English Courts.

Last updated: October 2020