Terms & Conditions
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions
Actual Vacancies: the Client's vacant positions as the Client informs the Agency from time to time in accordance with this agreement.
1.2
VAT: value added tax chargeable in the UK. Vulnerable Person: has the meaning given in regulation 2 of the Conduct Regulations 2003. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.3
The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules. Candidate: any person introduced by the Agency to the Client for an Engagement Commencement Date: means the date on which this agreement is signed.
1.4
Engagement: at any time within 12 months of an Introduction. the employment or engagement, whether part-time or full time. directly or indirectly through any Agency or the Agency as a direct result of any Introduction or Assignment to the Client by the Agency.
1.5
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Holding company: has the meaning given in clause 1.5. A reference to a company shall include any company. corporation or other body corporate, wherever and however incorporated or established.
1.6
A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:
(a) another person (or its nominee) by way of security or in connection with the taking of security, or
(b) its nominee.
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 this agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8
Introduction: an introduction will be deemed to have taken place where the Agency has provided a Client with any information concerning a Candidate, or where a Client interviews a Candidate following an instruction from a Client to locate a Candidate:.
1.9
Introduction Fee: the fee payable by the Client to the Agency in accordance with these Terms and Conditions, on the introduction of a Candidate to a Client which results in the Engagement of a Candidate Remuneration: means any salary, fees, bonuses, commission, allowances, or any other financial benefit payable to, or received by a Candidate for services to a Client Subsidiary: has the meaning given in clause 1.5.
1.10
Specification: the details of the agreement with the client. A reference to writing or written includes fax and email. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11
A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time. 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.
2. The Contract
2.1
Any and all business entered into by the Agency is subject to these Terms and Conditions and in the event of any conflict with any other Terms and Conditions these terms shall prevail unless agreed otherwise in writing by Adam Butler of the Agency. Where the terms in the Proposal contradict the standard Terms and Conditions, the terms in the proposal shall prevail. The Agency cannot guarantee to find a suitable Candidate for each vacancy and gives no warranties as to the suitability of any Candidate.
2.2
No modification or change to these Terms and Conditions will be valid unless the details of any such changes are in writing. signed on behalf of the Agency and the Client, and state the date on or after which such new terms will apply.
2.3
In the event that any part(s) of these Terms and Conditions or part thereof is declared to be invalid, unlawful, void or unenforceable then such terms or parts shall be severed and the remaining terms and conditions shall continue to be valid and enforceable to the fullest extent of the law.
2.4
The Engagement or interviewing of a Candidate, by or on behalf of the Client, or the commencement of work or provision of services by a Candidate for the Client shall be deemed acceptance of these Terms and Conditions.
2.5
These Terms and Conditions supersede all previous terms of business.
3. Agency's Obligations
3.1
The Agency shall use its reasonable endeavors to find suitable and willing Candidates to fill such vacancies as are notified to the Agency by the Client or to notify the Client if the Agency believes it is unable to assist with the Client's requirements.
3.2
The Agency will endeavor to ensure that all Candidates introduced to the Client have the experience, qualifications, and authorizations which are required by the Client, by law or by any professional body, for the position(s) that the Client wishes to fill, and will also endeavor to verify the identity of Candidates prior to introducing them to the Client.
3.3
At the same time as proposing a Candidate to the Client the Agency will inform the Client of such matters as detailed in sub-Clause 4.3 that the Agency has obtained confirmation of. The Agency will endeavor to take all reasonable steps to ensure that Clients and Candidates are aware of any requirements imposed by law or any professional body on the vacancy/vacancies that the Client seeks to fill.
3.4
The Client warrants that it shall immediately, and in any event within 24 hours of the Agency's first provision of information relating to the Candidate's identity, inform the Agency if the Client believes that it is aware of the identity of the Candidate other than via information supplied by the Agency. The Client agrees that it will be deemed not to have been aware of the identity of the Candidate prior to the Agency's provision of the information relating to the Candidate's identity if the Client fails to provide such a notice within the aforementioned 24 hours.
3.5
The Client acknowledges that the Agency is under no obligation to provide the Services until all required information has been provided by the Client in accordance with sub-Clause 4.1. The Client shall inform the Agency immediately in the event that any relevant information changes following the submission of that information to the Agency.
4.0 The Client's Obligations
4.1
The Client shall provide to the Agency all information which is reasonably required for the Agency to provide the Services. The Client shall use its best and reasonable endeavors to ensure that such information is complete, accurate and up-to-date.
4.2
The Client shall ensure that all information provided to the Agency does not contain any material which could be regarded as offensive, indecent, obscene, illegal, dishonest, untruthful, defamatory or discriminatory. The Client shall ensure that all information provided to the Agency does not contain any material which infringes the rights of any third parties (including, but not limited to, intellectual property rights).
4.3
The Client must provide the Agency with details of the vacancies. that the Client wishes to fill, which must include the type of work required, the date of commencement, the duration, the hours, rates of pay and location as well as the training, qualifications and other authorizations required by law, the Client and any professional body for the position(s).
4.4
The Client must inform the Agency of any Health and Safety risks or requirements of the vacancies the Client wishes to fill, as well as the action taken by the Client to minimize and control such risks.
4.5
The Client must not seek to employ any member of the Agency's staff, but in the event that any member of staff accepts an Engagement with the Client, at any time either during the term of this agreement or after its termination, the Client must pay an Introduction Fee in accordance with Clause 5.
4.6
It shall be the sole responsibility of the Client to ensure that Candidates are suitable for the relevant vacancies and to obtain any references required. It shall be the sole responsibility of the Client to obtain any required permits (including, but not limited to, work permits).
4.7
It shall be the sole responsibility of the Client to arrange for any required medical examinations or investigations.
4.8
The Client must notify the Agency immediately of any offer of an Engagement that it makes to a Candidate. The Client must notify the Agency immediately of the acceptance of any offer of Engagement that is made to a Candidate and provide details of the Candidate's remuneration.
4.9
The Client must notify the Agency immediately if, following the Engagement of a Candidate, the Candidate's remuneration increases at any time during the first 12 months of the Engagement, and the introduction fee detailed in clause will be increased accordingly.
4.10
The Client must within 2 days of offering an Engagement to a Candidate provide the Agency with a copy of the job offer or contract given to the Candidate.
4.11
Notwithstanding sub-Clauses 4.3 and 4.7 above the Client must satisfy itself as to the suitability of a Candidate for any vacancy. and the Client must be responsible for taking up references and checking the validity of qualifications. The Client is responsible for payment of remuneration to the Candidate.
5. Fees and Payment
5.1
The Client may agree to any of the four fee arrangements listed in clauses 5.2, 5.3, 5.4. 5.5 and 5.6
5.2
If the client agrees to the Partnership Agreement model, the following terms apply:
(a) The Introduction Fee payable by the Client to the Agency shall be calculated as the amount equal to the percentage stated in the Proposal of the Candidate's remuneration during the first 12 months of the Engagement exclusive of VAT subject to a minimum fee of £10.000 exclusive of VAT:
(b) The Introduction Fee shall be payable in two instalments for each role as stated in the proposal. the first instalment shall be paid upon commencement of the work. The final instalment shall be payable when the Candidate is made an offer of engagement, or when the Candidate commences the Engagement, whichever is earlier:
(c) If any of the Engagements are less than 12 months, the Introduction Fee shall be calculated based on the Candidate's pro-rata remuneration:
5.2
If the Client agrees to the Contingency Agreement model, the following terms shall apply: (a) The Introduction Fee payable by the Client to the Agency upon the commencement of an Engagement by a Candidate shall be calculated as to the amount equal to the percentage stated in the proposal of the Candidate's remuneration during the first 12 months of the Engagement, exclusive of VAT: (b) The Introduction Fee shall be payable in full when the Candidate is made an offer of Engagement, or when the Candidate commences the Engagement, whichever is earlier: (c) If the Engagement is less than 12 months, the Introduction Fee shall be calculated based on the Candidate's pro-rata remuneration:
5.3
If the Client agrees to the Multi-hire Agreement model, the following terms shall apply: (a) The Introduction Fee payable by the Client to the Agency shall be calculated at the agreed percentage of the Candidate's remuneration during the first 12 months of the Engagement or fixed fee stated in proposal, based on the number of vacancies being sought, any fee will be exclusive of VAT: (b) The Introduction Fee shall be payable in two installments for each role as stated in the proposal. the first installment shall be paid upon commencement of the work. The final installment shall be payable when the Candidate is made an offer of engagement, or when the Candidate commences the Engagement, whichever is earlier:
5.4
(c) If any of the Engagements are less than 12 months, the Introduction Fee shall be calculated based on the Candidate's pro-rata remuneration: If the Client agrees to the Subscription Agreement model. the following terms apply: (a) The Subscription Fee payable by the Client to the Agency in the amount and periods specified in the Proposal: (b) The Subscription Fee shall be calculated based on the number of vacancies the Agency is instructed to obtain as specified in the proposal and shall be paid quarterly in installments: (c) The Agency reserves the right to increase the quarterly installments should the Client exceed, or is likely to exceed, the number of Vacancies listed in the Proposal: (d) The term of the subscription shall be for a fixed period of 12 months and shall continue, unless terminated in writing by giving no less than 3 months' notice.
5.5
Where the Client has made an offer of Engagement to a Candidate but withdraws it before the Candidate commences. the Engagement the Client must pay the Agency an amount equal to not less than 50% of the estimated Introduction fee the Agency would have been entitled if the Engagement had proceeded.
5.6
If Agency Introduces a candidate for an opening on a contingent speculative basis and the candidate is subsequently hired, then the following terms shall apply: (a) The Introduction Fee payable by the Client to the Agency shall be calculated at the amount equal to 30% of the Candidate's remuneration during the first 12 months of the Engagement, exclusive of VAT If applicable: (b) The Introduction Fee shall be payable in full when the Candidate is made an offer of Engagement, or when the Candidate commences the Engagement, whichever is earlier: (c) If the Engagement is less than 12 months, the Introduction Fee shall be calculated based on the Candidate's pro-rata remuneration;
5.7
In the event that an Engagement for a fixed term of less than 12 months is extended then a fee based on the Candidate's remuneration for the period up to 12 months from the original Engagement will become payable by the Client. Should the Candidate's engagement be terminated within 8 weeks of the commencement of the engagement, for any reason other than redundancy, the Agency will source a replacement free of charge. Under no circumstances will a refund be given.
5.8
Where the Agency introduces to the Client a Candidate but does not make an offer, and the Candidate is subsequently hired within the following 6 months through a different means than the Agency, then the Client must pay the Agency an amount to not less than 50% of the estimated Introduction Fee the Agency would have been entitled if the Engagement had proceeded.
5.9
Where the Agency introduces to the Client a candidate, but fills the vacancy through any other means, or cancels the vacancy. the Agency will be entitled to charge an amount not less than 50% of the Introduction Fee the Agency would have been entitled.
5.10
The Client must pay the Agency's fees within 14 days of receiving the invoice. The Agency reserves the right to charge interest at the rate of 8% above Bank of England Bank rate of interest per annum on any invoiced fees that remain unpaid by the Client from the due date to the date of payment.
5.11
Candidate ownership shall remain with the Agency for a period of 12 months from the date of the introduction, such that if the Client engages or employs a Candidate within 12 months of the introduction by the Agency then the Client shall be responsible for an introduction fee calculated in the same way as in clause 5.3.
5.12
Where the Client has made an o¡er of Engagement to aCandidate but withdraws it before the Candidate commencesthe Engagement the Client must pay the Agency an amountequal to not less than 50% of the estimated Introduction feethe Agency would have been entitled if the Engagement hadproceeded.
5.13
Where the Agency introduces to the Client a Candidate butdoes not make an o¡er, and the Candidate is subsequentlyhired within the following 6 months through a di¡erent meansthan the Agency, then the Client must pay the Agency anamount to not less than 50% of the estimated Introduction Feethe Agency would have been entitled if the Engagement hadproceeded.
5.14
Where the Agency introduces to the Client a candidate, but fillsthe vacancy through any other means, or cancels the vacancy,the Agency will be entitled to charge an amount not less than50% of the Introduction Fee the Agency would have beenentitled.
6 Exclusivity
6.1
The client will exclusively engage with the Agency on any Engagement for which the Agency is instructed without written permission.
7 Survival
7.1
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
7.2
Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or Expiry.
8 Limitation of Liability
8.1
During the term of this agreement (and for a period of 3 years thereafter), the Agency shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £1 million and shall on the Client's request, produce both the insurance certificate giving details of the cover and the receipt for the current year's premium.
8.2
The Agency gives no indemnity and accepts no liability for any damage, loss or otherwise, either in tort or contract incurred by the Client arising from any act of omission of the temporary worker at any time either during or after the completion of the assignment.
8.3
Neither party shall under any circumstances whatever be liable to the other, whether in contract, fort (including negligence). equity (including restitution), breach of statutory duty, or otherwise, for:
(a) any loss of profit, sales, revenue, or business:
(b) less of anticipated savings:
(c) loss of or damage to goodwill:
(d) loss of agreements or contracts:
(e) loss of use or corruption of software, data or information:
(f) any loss arising out of the lawful termination of this agreement or any decision not to renew its term; or
(g) any ex gratia payment or sum paid in settlement of a claim paid by one party without the prior written approval of the other: The total liability of either party to the other in respect of all loss or damage arising under or in connection with this agreement. whether in contract, tort (including negligence), equity (including restitution), breach of statutory duty, or otherwise. shall in no circumstances exceed 100% of the individual assignment fees payable, for the entire term of this agreement.
8.4
The total liability of either party to the other in respect of all lossor damage arising under or in connection with this agreement,whether in contract, tort (including negligence), equity(including restitution), breach of statutory duty, or otherwise,shall in no circumstances exceed 100% of the individualassignment fees payable, for the entire term of this agreement.
8.5
The provisions of this clause 8 shall survive termination of this agreement.
9 Confidentiality
9.1
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 9.2.
9.2
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 9: and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3
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.
10 Data protection
10.1
The following definitions apply in this clause 10:
Agreed Purposes: the placing of temporary and/or permanent workers and employees
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement, and the parties accountants and advisers.Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared PersonalData shall be confined to the data set out in each parties respective staff privacy notice.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU)2016/679); the Data Protection Act 2018; the Privacy andElectronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and ElectronicCommunications Regulations 2003 (SI 2003/2426) as amended.
10.2
This clause 10 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
10.3
Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.
10.4
Each party shall:
(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that. on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees:
(c) process the Shared Personal Data only for the Agreed Purposes:
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients:
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement:
(f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data outside of the European Economic Area unless the transferor:
(i) complies with the provisions of Article 26 of the General Data Protection Regulation (in the event the third party is a joint controller); and
(ii) ensures that (1) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the General Data Protection Regulation; (ii) there are appropriate safeguards in place pursuant to Article 46 of the General Data Protection Regulation: or (iii) one of the derogations for specific situations in Article 49 of the General Data Protection Regulation applies to the transfer.
10.5
Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to theData Discloser on termination of this agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of SharedPersonal Data to ensure that there is no lack of accuracy resulting from personal data transfers;(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 10;
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.
10.6
Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
11 Warranties and undertakings
11.1
The Agency warrants that it has the necessary expertise to provide the services contemplated in this agreement and will perform them in keeping with the highest professional business standards by using appropriately qualified, experienced and trained personnel.
11.2
Each party warrants that it does and it shall comply with the all relevant statutes, laws, regulations and codes of practice from time to time in force in the relevant Territory.
11.3
Each party warrants that it has full capacity and authority to enter into and perform this agreement.
12 Assignment and other dealings
12.1
Neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
12.2
The Agency shall not subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent without the prior written consent of the Client. It shall be a condition of such consent that the subcontractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, the Agency shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised or unauthorised subcontractors and the Agency shall be liable for the acts and omissions of any subcontractor (of any tier and authorised and unauthorised) or any intermediaries whatsoever as if they were the acts and omissions of the Agency itself.
13 Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14 Entire agreement
14.1
This 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.
14.2
Each party acknowledges that in entering into this 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 this agreement.
14.3
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.4
Nothing in this clause shall limit or exclude any liability for fraud.
15 Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment. if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate this agreement by giving 7 days written notice to the affected party.
16 Severance
16.1
If any provision or part-provision of this agreement 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.
16.2
If any provision or part-provision of this agreement is deemed deleted under clause 15 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.
17 Third party rights
17.1
Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18 Governing law
This agreement 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.
19 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 this agreement or its subject matter or formation, The agreement has been entered into on the date stated at the beginning of the accompanied proposal.