SECTION 1 - TERMS & CONDITIONS

our agreement and capacity

1.  It is agreed that these Terms of Business, which are subject to the definitions in Section 2, apply to all dealings between you and us relating to Introductions (but not the supply) of Candidates by us to you or any other services referred to herein and we will operate as an Agency (as referred to in the Regulations).

our general obligations

2.  We agree to use our reasonable endeavours to locate Candidates for you in accordance with your Requirements, to make Introductions, to arrange Assignments, and to provide any agreed Additional Services.

your agreement

3.  You agree to accept our Candidate introduction services and you acknowledge and agree the following:

(a)  the Regulations require us to provide specific information to each Candidate in relation to any Requirement, accordingly to enable us to comply with our obligations

(i)  upon issuing a Requirement or as soon as possible thereafter you shall provide to us sufficient and accurate information to enable us to seek Candidates that may be suitable for you including the Information, and provide us with answers to any additional questions that we may raise in that regard

(ii)  prior to an Assignment you shall notify us of any additional information that may affect the information already provided or be relevant to the decision of a Candidate to accept work proposed in the Requirement

(b)  you warrant and/or undertake that all information provided under clause 3(a) is/shall be, full and accurate

(c)  in the case of each Requirement and Assignment, regardless of any statutory obligation we may have to take various steps, it is your responsibility to check that the Candidate is suitable for your purposes and that you are satisfied with the information and confirmations we have provided to you, and you agree in particular

(i)  regardless of references or information that we provide, to take up such references for the Candidate as you think fit and verify the curriculum vitae supplied

(ii)  to ensure that the Candidate has any necessary permit or authority to work for you and comply with asylum and immigration requirements relevant to an employer

(iii)  to explain your requirements to the Candidate promptly on commencement if you have not already done so

(d) you warrant that if you have interviewed the Candidate prior to commencement of the Assignment you have explained to the Candidate your requirements and satisfied yourself that the Candidate is suitable for those requirements

(e)  by reason of your acceptance of clauses 3(a) to (d) we shall not be liable for any loss or damage arising out of any representation made by us in good faith that may have induced you to accept an Assignment, or for any breach of contract, negligence or tort of the Candidate and you will fully indemnify us and keep us so indemnified against any claim or action, including the costs thereof (on an indemnity basis), brought by a Candidate, or another business (of any kind) with which we have been dealing in relation to a Requirement, arising from incorrect or incomplete information provided by you to us

(f)  you will keep us promptly informed of your intentions in relation to an Engagement of a Candidate throughout an Assignment and/or the Fee Period, but this requirement shall not apply if you have engaged the Candidate under an Assignment unless we have paid to you any Rebate under that Assignment

(g)  in relation to any Engagement you shall within 48 hours of our written request provide to us information to enable us to identify the Remuneration and term of the Engagement including details of any renewal or extension of an Engagement or of any new Engagement relating to a Candidate effected within the Fee Period

(h)  where you directly hire a Candidate you are responsible for the health and safety of the Candidate and for ensuring that the conditions of work are at all times suitable for the Candidate and for payment to the Candidate

(i)  unless you have notified us otherwise prior to the commencement of an Assignment you warrant that there are no circumstances relevant to the work, or any aspect of an Assignment, which may result in the Candidate suffering a detriment of any kind

fees, rebates and remuneration

4.  In relation to fees and rebates the following shall apply:

(a)  wherever there is an Engagement within the Fee Period, or there is an Additional Service, you shall pay the Fee in accordance with the Payment Terms without any deduction, set off or counterclaim, subject only to any entitlement to a Rebate

(b)  where you are entitled to a Rebate we agree to make payment to you within 28 days of the date on which all of the Rebate Conditions have been complied with

(c)  you shall promptly repay any Rebate

(i)  which is either not properly due to you or

(ii)  if you re-Engage the relevant Candidate within 12 months of the termination which entitled you to a Rebate

(d)  Remuneration shall be calculated on an annualised basis. If you have not informed us of the full projected sum within 24 hours of enquiry from us, or by any later date we raise an invoice, Remuneration shall be deemed to be an amount calculated on the basis of either the rate payable under the last previous Assignment of any kind that was temporary, or where there has been no such previous Assignment, the highest amount or rate indicated by either you or us as payable for the services sought by you at the time of the Introduction of the relevant Candidate

(e)  we shall issue an invoice to you for the relevant Fee under each Engagement upon, or as soon as is appropriate after, the commencement of the Engagement, or at any intervals agreed for payment in an Assignment, or at the time agreed in respect of Additional Services, as the case may be, but any delay in issue shall not affect our entitlement to payment in any event

(f)  where an Assignment is for a fixed period of less than one year, we may as a concession and at our sole discretion accept that Remuneration shall be calculated at 75% of annualised remuneration in the event the Assignment is intended to last for six months or over, or 50% of Remuneration in the event the Assignment is intended to last less than six months, provided that,

(i)  you have first notified us in writing prior to the commencement of the Assignment of the term of the fixed period and the full amount payable for that period, and

(ii)  prior to the commencement of the Assignment we have accepted in writing that the Remuneration will be calculated only on the basis of the fixed period, and not on an annualised basis, and

(iii)  you pay the concessionary sum within 14 days of the date of our invoice

(g)  if clause 4(f) applies we shall be entitled to raise a further invoice for a fee calculated on the balance of one year’s Remuneration (taking into account the calculation for the fixed period) if there is any extension of the Assignment beyond the term notified under clause 4(f)(i) or if you re-engage the Candidate within 12 months of the beginning of the Assignment, and you undertake to notify us if either of those events occur within 14 days of the occurrence

(h)  an Offer shall be deemed to be an Engagement unless the Offer is rejected by the Candidate or unless you withdraw the Offer for the reason that you have since come into possession of information which you have provided to us that the Candidate is not suitable for the position offered by you, and Remuneration in this event shall be calculated on the projected sum contained within the Offer – this means that if you withdraw an Offer before it is accepted for any reason, other than suitability, we shall nevertheless be entitled to our Fee.

fees, rebates and remuneration

5.  It is also agreed that

(a)  for the avoidance of doubt, because at all times we are acting as an Agency unless otherwise stated, where any Additional Service comprises a requirement to advertise, whether for permanent or for contract or temporary workers, we may specify in any such advertisement that we are acting in our capacity as an Agency, but if we are subsequently asked to supply contract or temporary workers such supply shall be on separate terms to these Terms of Business

(b)  we are authorised by you to advertise in any medium we deem appropriate to source Candidates where you have issued a Requirement to us

(c)  where a person we Introduce is provided by or through a company and we have informed of the existence of the company, we will normally have received an Opt Out Notice; accordingly you acknowledge that we have received an Opt Out Notice unless we inform you otherwise

(d)  whilst at all times we shall act in good faith we give no guarantee or warranty that we will be able to locate any suitable Candidate, or that any Candidate we Introduce is suitable for your purposes at any time

(e)  the date of an Engagement shall in all cases be the earlier of the date of an agreement to Engage or the date of commencement of any services under an Engagement

(f)  we shall advise you of the terms of each Assignment unless you have concluded negotiations with the Candidate direct

(g)  for the avoidance of doubt, during period (a) of the Fee Period there is no implied term that an Introduction be the effective cause of an Engagement

(h)  all fees are subject to value added tax which will be charged in addition and, for the purpose of calculating our Fee, Remuneration in foreign currency will be calculated at the Bank of England Sterling exchange rate applicable on the date of our invoice

(i)  an Assignment does not comprise any variation to these Terms of Business, and where times are referred to herein such times are of the essence

(j)  you shall keep any information comprising an Introduction confidential and not use it for any purpose other than that disclosed by you to us at the time the information was requested

(k)  neither we nor our staff shall be liable to you for any loss, damage, delay or compensation of any kind whether in contract or tort, or for breach of the Regulations by any person other than us, arising out of these Terms of Business or an Assignment and you shall indemnify us against any costs claims or demands arising from any claim by you save to the extent prohibited by the Regulations or other operation of law

(l)  without prejudice to clauses 3(e) and 5(k), our liability shall, in any event other than where liability cannot be limited by law, be in respect of direct losses only, not exceed £1million in any case, and be limited to the lower of repayment of our Fee, or £100,000

(m)  you agree that the liability terms and limits set out in clauses 3(e), 5(k) and 5(l) are reasonable

(n)  neither you nor we shall divulge to any other party, or use for your or our own benefit, any information capable of being confidential relating to the affairs of your or our business or business methods, or confidential information, received from each other, except that which is in the public domain or is trivial or obvious or authorised to be released or required by Court Order to be disclosed

(o)  other than for third party rights specifically conferred in or under this agreement or in Special Terms, the Contracts (Rights of Third Parties) Act 1999 is excluded

(p)  each portion of this agreement, defined by punctuation and/or sections or numbering, is separate, distinct and severable and to give meaning to the intention of you and us the Court may modify any portion that may otherwise be void; subject thereto, any void portion may be severed and the remaining provisions shall continue in force

(q)  any notice under this agreement shall be in writing sent to the addressee at the last known address, fax number or electronic mail address either, respectively, by first class post, or by fax or by electronic mail, and shall be deemed to have been received, in the case of post on the postal date following the date of posting, in the case of fax on the date of transmission, and in the case of electronic mail on the date electronic confirmation of receipt is received by the sender

(r)  save for any Special Terms the terms set out in the Terms of Business are the sole and entire agreement between you and us relating to the business described, supersede any previous terms issued by us, and override any terms proposed by you, and you acknowledge that you have not relied upon any representations made by us that are not set out in these terms; these terms may not be varied except either by us in providing you with a general amendment notice, which will be deemed to apply unless you notify us in writing that you do not accept the amendments within 7 days of receipt of the notice, or by agreement (whether orally or otherwise) and confirmed in writing signed by a director of ours; any terms provided by you to us and included within any request for services shall not apply unless we expressly agree the same in writing signed by a director of ours and no other action by us shall imply acceptance by us of any such terms

(s)  the laws of England and Wales govern this agreement and the English Courts shall have sole jurisdiction.

SECTION 2 -DEFINITIONS AND MEANINGS
General Definitions

Additional Fee  - a fee agreed between you and us for an Additional Service provided by us, and any Expenses

Additional Service  - an additional specific service we provide to you, following a request from you, which may be ancillary to or as part of our service as an Agency or which may relate to other business

Assignment  - an Engagement negotiated and agreed through us, and of which you have informed us prior to its commencement – NOTE: an Engagement which you do not tell us about in advance is not an Assignment

Associate  - a person with whom we conduct business, being (a) a subsidiary or associated company (as defined by s.736 and s.309A Companies Act 1985) of yours, or (b) a business (whether corporate or unincorporated)

(i)  which is a member of, director of, or partner in, your company or business, or

(ii)  of which you are a member, or director or partner, or

(iii)  for which either you, or a representative of yours is authorised by you (whether expressly or impliedly) to, undertake work (other than solely in a professional capacity)

Candidate - any person, whether employed or self employed, and/or a limited company through which a person is offering services, or a supplier company, in respect of whom or which, or in respect of whose skills or services, information is provided to you by us

End User - any third party to whom you provide information concerning a Candidate following an Introduction and for whose benefit the Candidate provides any services, and any associate (as defined by s.435 Insolvency Act 1986) of that third party

Engagement - any engagement or employment of any description (including as defined by s.13(1) (a) of the Employment Agencies Act 1973) under an Assignment or otherwise, whether direct or indirect, under which a Candidate is due to provide any services for the benefit of you or to an End User including, but not limited in meaning to, an engagement or employment which is temporary or permanent in nature or through the intermediary of a limited company or by contract through a third party and “Engage”, and “Engaged” shall have corresponding meaning

Expenses - any agreed expenses to be paid by you

Introduction - the provision of information by us or by a Candidate that enables you to identify a Candidate or relating to a Candidate, already identified, including all negotiations between you and us relating to a Candidate and “Introduce” shall have corresponding meaning

Offer - an offer, in principle or otherwise, expressing the desire to Engage the Candidate, and communicated by you, or us at your request, to the Candidate

Opt Out Notice - a notice of agreement between a person and a company through which that person is supplied that Regulation 32(1-8) of the Regulations does not apply

Payment Terms - under an Assignment or for any other Additional Service you shall pay the Fee within 14 days of the date of our invoice and that in all other cases you shall pay the Fee within 14 days of commencement of the Engagement, the sum due in respect of the Fee being a debt due to us, whether or not we have submitted an invoice. If payment is late you shall pay interest on any overdue sum calculated at the rate of 8% per month

Regulations - the Conduct of Employment Agencies and Employment Businesses Regulations 2003

Remuneration - the proposed or projected sum (whichever is higher) payable by you or an End User for the benefit of the services of a Candidate under an Engagement calculated in accordance with clause 4(d) together with the value attributable by HM Revenue & Customs of all taxable benefits provided under the Engagement, such value in respect of any motor vehicle being not less than £5,000

Requirement - a request from you in any form for an Introduction or other service

Special Terms  - specific terms, whether or not referred to as a specific additional agreement (SAA), relevant to a stated Requirement, agreed with you and set out in a Requirement confirmation or an Assignment confirmation and which vary terms applicable only to that Requirement

Terms of Business - the terms herein, which comprise our agreement with you

Fees Definitions
Fee -

(a)  the fee you are obliged to pay us in the event of an Engagement, not being a supply by us under different terms relating to the supply of temporary workers or contractors – this is dependent on the type of Engagement as follows:

(i)  for the permanent hire of a Candidate, namely one that is not a temporary direct hire of a Candidate, our fee will be calculated in accordance with the Fee Scale with a minimum fee of £4,000, save and to the extent that any other scale or terms are stated or agreed by us to apply,

(ii)  for an Engagement in any other circumstances, a fee as if the hire were permanent and the Client shall not be entitled to any pro rata reduction for periods of hire of less than 1 year, and

(b  in any event any Additional Fee

Fee Period - any time

(a)  during the later of 9 months after

(i)  an Introduction relating to the Candidate concerned or

(ii  the last Assignment of the Candidate concerned, or

(b)  after an Introduction where the Introduction was the effective cause of the Engagement

Rebate - the proportion of the Fee (but not the Additional Fee) we will rebate in accordance with the Rebate Scale if all of the Rebate Conditions apply and your employment of a Candidate ends within 10 weeks of commencement of the employment (“Timescale”)

Rebate Conditions - 

(i)  the arrangement is an Assignment under which the Candidate is employed by you under a contract of service on a basis intended to be permanent, and

(ii)  the Candidate has not previously been Engaged by you, and

(iii)  the employment ends within the Timescale by reason of the fact that the Candidate is not suitable for the position offered by you and accepted by the Candidate, and

(iv)  you have provided us with full and correct information as to the position sought to be filled in accordance with clause 3(a) in relation to the Candidate, and the position is as described, and

(v)  you have first paid the relevant Fee no later than 14 days after the earlier of date of commencement of the employment or the date of our invoice, and

(vi)  you have notified us in writing of the fact, and date, of termination no later than 3 working days after the earlier of the date of notice of termination given by either party or the date the employment ends