TERMS OF BUSINESS FOR THE INTRODUCTION OF APPLICANTS
- DEFINITIONS & INTERPRETATION
- In these Terms of Business (Terms), the following definitions apply:
Agency means Blaymires Recruitment Limited (Registered in England & Wales No. 12438316) of Unit 4 Basepoint, Andersons Road, Southampton, SO14 5FE;
Applicant means a person (including a legal person) who is Introduced by the Agency to the Client;
Client means the person, firm, organisation, partnership, entity, business or company to which the Recruitment Services are provided by the Agency;
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
Connected Party means any holding, subsidiary, associated or connected company of the Client;
Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation;
Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the Data Protection Act 2018 or the GDPR insofar as it is applicable to the United Kingdom;
Engagement means the engagement, employment, hire or use of the Applicant by the Client or any Connected Party pursuant to any agreement or arrangement whatsoever, whether directly or through any third party and whether on a permanent, fixed term or any other basis. “Engage,” “Engaged” and “Engages” shall be interpreted accordingly;
Fee Scale means the scale of fees set out in the Schedule;
Fixed Term Contract means an Engagement for a fixed period of less than 12 months;
Introduction has the meaning in clause 3.2 and “Introduce”, “Introduces” and “Introduced” should all be interpreted accordingly;
Introduction Fee means the fee payable by the Client upon Engaging an Applicant;
Introduction Period means the 6 month period from the most recent Introduction of the Applicant;
Payment Terms means 14 days from the date of the Agency’s invoice;
Recruitment Services means the Introduction of Applicants to the Client by the Agency;
Refund means a full or partial refund or rebate of the Introduction Fee;
Refund Period means the period during which a Refund may be available to the Client, as specified in the Refund Scale;
Refund Scale means the scale of refund set out in the Schedule;
Remuneration means (i) the gross annualised remuneration package payable to the Applicant including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances and all other emoluments and benefits in kind. £5,000 shall be added to the Remuneration in respect of any company vehicle provided to the Applicant or (ii) if the Applicant is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable in respect of the Applicant’s services;
Third Party Engagement means the engagement of an Applicant by a party other than the Client following a Third Party Introduction; and
Third Party Introduction means the disclosure of an Applicant’s details to a third party by the Client following an Introduction.
- A reference to a party shall mean either the Agency or the Client as applicable and a reference to the parties shall mean both the Agency and the Client.
- The headings in these Terms are for convenience only and do not affect the interpretation of any clause.
- In these Terms, unless the context requires otherwise (i) references to the singular include the plural and vice-versa (ii) references to the masculine include the other genders and vice-versa.
- Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those words.
- Any reference to legislation includes any amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.
- In these Terms of Business (Terms), the following definitions apply:
- FORMATION & BASIS OF AGREEMENT
- These Terms shall be deemed to have been accepted by the Client (i) signing them or otherwise expressly indicating acceptance in writing (ii) instructing the Agency to Introduce Applicants (iii) interviewing or meeting with an Applicant who has been Introduced (iv) using the Agency to facilitate any Engagement or (v) making a Third Party Introduction, whichever occurs first.
- These Terms form the entire agreement between the parties for the provision of the Recruitment Services to the exclusion of any terms or conditions of purchase proposed or issued by the Client unless otherwise agreed in writing by a director of the Agency.
- No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of the Agency and the Client, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which the varied Terms shall apply.
- The Agency shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Applicants from time to time who (i) meet the criteria specified by the Client under clause 4.1 where applicable or (ii) the Agency believes may otherwise be of interest or relevance to the Client.
- An Introduction shall take place upon any of the following occurring (i) the Agency providing a CV or other information to the Client which expressly or impliedly identifies an Applicant (ii) the Agency arranging an interview or meeting between the Client and an Applicant whether face to face, by telephone, by web conference or by any other means or (iii) the parties conducting any negotiations or discussions, whether verbal or written, in respect of the potential Engagement of a specific Applicant.
- An Introduction by the Agency shall be deemed to be the effective cause of any Engagement of the Applicant within the Introduction Period, entitling the Agency to charge an Introduction Fee unless all three of the following conditions apply: (i) within the 6 month period prior to the initial Introduction, the Applicant had applied directly for a position with the Client or instructed a third party to introduce the Applicant to the Client for a specific position (ii) the Client provides reasonable evidence of such prior application or introduction within five working days of the Agency initially Introducing the Applicant and (iii) the Client has not arranged to interview the Applicant through the Agency or otherwise used the Agency to facilitate the Engagement of the Applicant.
- PROVISION OF INFORMATION
- The Client shall provide to the Agency all such information as the Agency shall reasonably require regarding the position which the Client is seeking to fill including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.
- The Agency may advertise the position which the Client is seeking to fill in such format and including such information about the position as the Agency considers appropriate, unless the Client notifies the Agency in writing that it may not advertise such position or otherwise specifies the information about the position which may not be advertised.
- The Client must (i) notify the Agency without delay of any offer of an Engagement which it wishes to make to an Applicant and provide the relevant terms of such offer (ii) notify the Agency without delay upon the acceptance of an offer of Engagement by an Applicant and (iii) provide to the Agency the details of the Remuneration agreed with the Applicant and, if requested by the Agency, a copy of the Applicant’s contract of employment.
- RESPONSIBILITY FOR APPLICANT CHECKS
- The Agency shall comply with its obligations under the Conduct Regulations by (i) taking all reasonably practicable steps to ensure that the Applicant and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Applicant to enable the Applicant to work for the Client in the position which the Client seeks to fill (ii) making all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Applicant or the Client for the Applicant to work in the position which the Client seeks to fill and (iii) ensuring that the Applicant is willing to work in the position that the Client is seeking to fill.
- Where required to do so under the Conduct Regulations, the Agency shall take all reasonably practicable steps to (i) obtain copies of any relevant qualifications or authorisations of the Applicant and offer to provide copies of those documents to the Client (ii) obtain two references from persons who are not relatives of the Applicant and who have agreed that the references may be disclosed to the Client and (iii) confirm that the Applicant is suitable for the relevant position.
- Notwithstanding the Agency’s obligations under clause 5.1 and, where applicable, clause 5.2, the Client acknowledges that the Client is exclusively responsible for determining whether to Engage an Applicant and the Client must therefore make such enquiries and carry out such checks as are reasonably necessary to ensure that the Applicant meets the Client’s requirements including, without limitation (i) verifying the Applicant’s work history (ii) taking references upon the Applicant (iii) ensuring the Applicant’s right to work in the relevant jurisdiction; and (iv) checking any other qualifications, certifications, permissions or requirements for the Applicant to be Engaged by the Client in the relevant position.
- The Client must not and must ensure that its employees, subcontractors and representatives do not unlawfully discriminate against, harass or victimise any Applicant.
- INTRODUCTION FEES
- Where the Agency is the effective cause of an Engagement under clause 3.3, the Client will pay an Introduction Fee to the Agency in respect of each Applicant who is Engaged within the Introduction Period, irrespective of the position in which the Applicant is Engaged or any similar liability which the Client may have to a third party.
- The Introduction Fee shall be an amount equivalent to a percentage of the Remuneration as set out in the Fee Scale. If the Applicant’s Remuneration is not paid in Pounds Sterling, for the purposes of calculating the Introduction Fee, the Agency shall convert the Remuneration to Pounds Sterling using the exchange rate published by the Bank of England on the invoice date and shall submit the invoice in Pounds Sterling. The Client shall bear any bank charges and currency exchange costs when paying the Agency’s invoice.
- If the precise Remuneration is not known, if the Client fails to provide details of the Remuneration to the Agency or if it is impracticable to calculate the Remuneration, the Agency will calculate the Introduction Fee using the Remuneration which, in the Agency’s reasonable opinion, is the market rate for the Engagement.
- The Agency shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged at the standard rate on the Agency’s invoices.
- The Client shall settle the Agency’s invoices within the Payment Terms. Time for payment shall be of the essence.
- If the Client disputes any amount shown on the Agency’s invoice, the Client must notify the Agency within seven working days of the invoice being sent by the Agency. If the Client fails to raise any dispute within this period, the Client shall be deemed to have accepted the invoice as correct.
- The Client must not deduct or set off against any sum due to the Agency under these Terms, any sum which is owed or which the Client alleges or claims is owed by the Agency to the Client, whether under these Terms or under any other agreement between the Agency and the Client.
- If the Client does not pay the Agency’s invoice within the Payment Terms, the Agency may (i) charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment together with statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (ii) submit a further invoice in accordance with clause 6.9 where applicable and (iii) refer the collection of such payment to a collection agency or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by the Agency in recovering payment from the Client.
- Any discount or reduction in the Introduction Fee which is agreed between the parties is contingent upon (i) the Client complying with clause 4.3 in all respects and (ii) the Client paying the Agency’s invoice for the Introduction Fee within the Payment Terms.
- Where, prior to commencement of the Engagement, the Client has notified the Agency that the Applicant shall be Engaged under a Fixed Term Contract, the Introduction Fee shall be charged on a pro-rata basis of 1/12 of a full Introduction Fee for each full or partial month of the Fixed Term Contract, subject to a minimum fee of 25% of the full Introduction Fee. If such Fixed Term Contract is extended, or if the Client otherwise Engages the Applicant within 12 months of the termination of a Fixed Term Contract, the Client shall pay (i) an additional fee in respect of the extension to the Fixed Term Contract or (ii) the balance of the full Introduction Fee as appropriate. For the avoidance of doubt, the aggregate fee payable by the Client in respect of a series of Fixed Term Contracts shall not exceed the Introduction Fee that the Client would have been liable to pay for an Engagement of 12 months or longer.
- If the Client makes a Third-Party Introduction which results in a Third-Party Engagement within the Introduction Period, the Client shall be liable to pay an Introduction Fee which shall be calculated in accordance with clauses 6.2 and 6.3. The Client shall not be entitled to a Refund if the Third-Party Engagement terminates for any reason.
- If the Client employs or engages any employee of the Agency, directly or indirectly, within 6 months of such individual leaving the Agency’s employment, the Client shall pay a fee to the Agency, which shall be a sum equivalent to 25% of the employee’s gross annualised remuneration in the last year of the employee’s service with the Agency. The fee shall be payable by the Client within the Payment Terms and the Client shall not be entitled to a refund if the employment or engagement terminates for any reason.
- If the Client withdraws an accepted offer of Engagement for any reason other than the Applicant’s suitability for the position, the Client will be liable to pay a Cancellation Fee equivalent to 50% of the Introduction Fee. Such Cancellation Fee shall be payable by the Client within the Payment Terms.
- REFUNDS & REBATES
- If the Engagement terminates within the Refund Period, the Client may be entitled to a Refund in accordance with the Refund Scale, provided that (i) the Client paid the Introduction Fee within the Payment Terms (ii) the Client complied with clause 4.3 in all material respects (iii) the Client notified the Agency in writing within 5 working days of the termination of the Engagement, giving the reasons for such termination (iv) the Applicant’s position was not redundant or otherwise no longer required due to any internal reorganisation or restructure (v) the Applicant was not dismissed for reasons which were automatically unfair and (vi) the Engagement was not a Fixed Term Contract.
- Before giving any Refund to the Client, the Agency shall have the option of an exclusivity period of 30 days (Exclusivity Period) to Introduce a replacement Applicant (Replacement) for the same position and (i) if the Agency Introduces a Replacement who is Engaged by the Client (ii) if the Client decides not to replace the original Applicant or (iii) if the Client replaces the original Applicant as a result of any third party’s introduction during the Exclusivity Period, the Client shall have no entitlement to a Refund. For the avoidance of doubt, there shall be no entitlement to a Refund in respect of a Replacement.
- Subject to clauses 7.1 and 7.2, the Agency shall give a Refund to the Client in accordance with the Refund Scale.
- For the purposes of calculating the Refund, the date of termination of the Engagement shall be the last day on which the Applicant is legally employed or engaged by the Client rather than the date on which notice of termination is given.
- If the Client receives a Refund and subsequently engages the Applicant again within 6 months, the Client must repay the Refund to the Agency without delay. The Client shall have no further right to a Refund if this Engagement then terminates for any reason.
- CONFIDENTIALITY, DATA PROTECTION & ANTI-CORRUPTION
- The Client shall treat all information relating to an Applicant which is provided by the Agency with the utmost confidentiality and, in particular, must (i) not use such information for any other purpose without the prior consent of the Agency and the Applicant and (ii) ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information.
- The Client must not apply for a reference from the Applicant’s current employer without the express consent of the Applicant.
- The Agency and the Client understand that they will be acting as independent data controllers in respect of any Data relating to an Applicant and the Client shall (i) control and process such Data in accordance with the Data Protection Legislation and (ii) provide to the Applicant the information specified under Article 14 of the GDPR.
- The parties warrant that they shall (i) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and (ii) promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with these Terms.
- Either party may terminate the provision of Recruitment Services by the Agency at any time by notifying the other party in writing.
- Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by the Agency prior to such termination and the Agency’s right to charge an Introduction Fee in respect of any Engagement of an Applicant within the Introduction Period.
- LIABILITY & INDEMNITY
- Whilst the Agency will use reasonable endeavours to ensure that any Applicant Introduced to the Client meets the requirements specified by the Client under clause 4.1, the Agency offers no warranty as to the ability or character of the Applicant.
- The Agency shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, loss of business, loss of anticipated savings or loss of reputation howsoever arising.
- Subject to clause 10.4, the aggregate liability of the Agency to the Client in respect of any claim or series of claims arising out of or in connection with these Terms and whether arising in contract, tort (including negligence) or otherwise, is limited to the Introduction Fee paid or payable by the Client to the Agency in respect of the relevant Engagement or, if there was no Engagement or if the claim does not relate to a specific Engagement, the sum of £5,000.
- The Agency does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
- All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
- Any claim which the Client may bring against the Agency in connection with these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
- The Client shall indemnify and keep indemnified the Agency against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by the Agency as a result of the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.
- GENERAL PROVISIONS
- The Client shall not assign any of its rights or obligations under these Terms without the written consent of the Agency.
- The Agency may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company and, if relevant, these Terms may be enforced by such third party.
- Subject to clause 11.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
- If any part of these Terms is determined by any competent authority to be unenforceable to any extent, such part shall, to that extent, be severed from these Terms, which shall continue to be valid to the extent permitted by law.
- No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Neither party shall be in breach of these Terms nor liable for any delay in performing or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
- For the purposes of the Conduct Regulations, the Agency shall act as an employment agency when providing Recruitment Services under these Terms.
- These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation or performance of these Terms.
|Remuneration Introduction||Introduction Fee|
|Up to £24,999||15%|
|£25,000 – £49,999||20%|
|£50,000 and above||25%|
|Week of Termination||Refund|
|Weeks 1 and 2||75%|
|Weeks 3 and 4||50%|
|Weeks 5 and 6||25%|