1.1 The following definitions apply to these Conditions:
“Agency” means FiveThree7 Recruitment Limited (registered in England and Wales with company number 09785078);
“Breach of Retainer Fee” means the fee payable by the Retained Client to the Agency when the Retained Client breaches the Exclusivity Term and which is calculated in accordance with clause 7.4.
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Cancellation Fee” means the fee payable by the Client to the Agency when the Client withdraws an offer of Engagement made to the Worker before the Worker has accepted the offer and which is calculated in accordance with clause 4.8;
“Client” means any person, firm or company who instructs the Agency to bring about the Introduction of a Worker;
“Conditions” means the terms and conditions set out in this document, as amended from time to time in accordance with clause 18;
“Conduct Regulations 2003” means the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319);
“Contract” means the contract between the Agency and the Client for the provision of services by the Agency, being the Introduction of a Worker to the Client, in accordance with these Conditions;
“Engagement” means the Client’s direct employment or engagement of a Worker as a direct or indirect result of the Agency’s Introduction, and the terms Engage and Engaged shall be construed accordingly;
“Exclusivity Term” means the agreed duration of exclusivity for a Retained Client which shall commence on the date agreed with the Agency and continue until terminated in accordance with clause 7;
“Introduction” means the provision of information to the Client by the Agency, which identifies a Worker and allows the Client to Engage the Worker, and Introduce and Introduced shall be construed accordingly;
“Introduction Fee” means the percentage of the Worker Fee that is to be paid to the Agency in the event of an Introduction, which shall be calculated in accordance with clause 5;
“Retained Client” means a Client who has agreed for the agency to be its exclusive employment agency for the Introduction of permanent and fixed term contract Workers for the duration of the Exclusivity Term;
“VAT” means value added tax chargeable under the Value Added Tax Act 1994;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen.
“Worker” means an individual Introduced to the Client by the Agency to be directly employed by the Client and Workers shall be construed accordingly;
“Worker Fee” means the annual remuneration package paid to the Worker by the Client, which shall include, without limitation, any and/or all of salary, bonus, commission, overseas premium, living and accommodation allowances, value of either any provided car at a rate of £2,500 per annum or any car allowance provided and any other benefit or remuneration received by the Worker during the Engagement; and
1.2 The following rules of interpretation apply to these Conditions:
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or provision, as amended or re-enacted;
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 a reference to writing or written includes fax and emails.
2 AGENCY’S OBLIGATIONS
2.1 The Contract sets out the agreement between the Agency and the Client for the Introduction of Workers by the Agency to the Client and is deemed to be accepted by the Client by virtue of an Introduction or the Engagement of a Worker, or the passing by the Client of any information about a Worker to any third party following an Introduction. For the purposes of the Conduct Regulations 2003, the Agency acts as an employment agency in relation to the Introduction of Workers, pursuant to the Contract.
2.2 Prior to the Introduction, the Agency will inform the Client, so far as the Agency has the information available to do so, of:
2.2.1 the identity of the Worker;
2.2.2 the Worker’s experience, training, qualifications and authorisations necessary for an Engagement; and
2.2.3 the Worker’s willingness to carry out an Engagement.
2.3 The Agency shall, where relevant, inform the Client whether it holds a Valid Opt-Out for each Worker whom it Introduces to the Client.
2.4 The parties shall conduct meetings regularly to review the services provided by the Agency. Any changes that occur as a result of such meetings shall be confirmed in writing by the Agency.
3 CLIENT’S OBLIGATIONS
3.1 When making a request for the Agency to Introduce a Worker, the Client shall give the Agency details of:
3.1.1 the date on which the Client requires the Worker to commence the Engagement and the duration, or likely duration, of the Engagement;
3.1.2 the position which the Client seeks to fill, including the type of work the Worker in that position would be required to do, the location at which, and the hours during which, the Worker would be required to work, and any risk to health and safety, as well as what steps the Client has taken to prevent or control such risks; and
3.1.3 the experience, training, qualifications and any authorisation which the Client considers to be necessary, or which are required by law or any other professional body for the Worker to possess to undertake the Engagement.
3.2 The Client agrees to provide the information set out above in clause 3.1 in writing and in good time before the commencement of any Engagement.
3.3 The Client agrees to:
3.3.1 notify the Agency immediately of the terms of any offer of an Engagement which it makes to the Worker;
3.3.2 notify the Agency immediately that its offer of an Engagement to the Worker has been accepted and to provide details to the Agency of the remuneration agreed with the Worker together with any documentary evidence as requested by the Agency; and
3.3.3 pay the Introduction Fee.
3.4 The Client shall:
3.4.1 be responsible for obtaining any work or other permits required by the Worker for the Engagement;
3.4.2 ensure that the Worker satisfies any medical requirements or other qualifications that may be appropriate or required by law;
3.4.3 comply with all obligations, duties and regulations, whether statutory or otherwise (including those relating to the place, nature or system of work), in anyway arising from, or directly or indirectly connected with, the services rendered by the Worker;
3.4.4 assist the Agency in complying with the Agency’s duties with all statutes, byelaws and other legal requirements or codes of practice to which the Agency is ordinarily subject to in Introducing Workers by supplying any relevant information about the Engagement requested by the Agency;
3.4.5 supply any other relevant information requested by the Agency about the Worker, the Engagement; and
3.4.6 do nothing to cause the Agency to be in breach of any statutes, byelaws and other legal requirements or codes of practice to which the Agency may be subject to from time to time through its position of Introducing the Worker.
3.5 The Client shall:
3.5.1 in all respects, comply with all statutes, byelaws and other legal requirements or codes of practice to which the Client is ordinarily subject to in respect of its own staff, including, without limitation, the Health and Safety at Work Act 1974;
3.5.2 treat the Worker with due respect and dignity; and
3.5.3 take all steps within its control to avoid any Illegal discriminatory conduct against them.
3.6 The Client:
3.6.1 confirms that it is not aware of anything which will cause a detriment to the interests of the Worker in any Engagement; and
3.6.2 shall inform the Agency immediately if it becomes aware of any circumstances which would render any Engagement detrimental to the interests of the Worker.
3.7 Where the Worker is Introduced for a position which involves working with, caring for or attending a Vulnerable Person the Agency shall, in addition to the obligations already set out in this clause 3, take reasonably practicable steps to:
3.7.1 obtain confirmation of the Worker’s identity;
3.7.2 obtain confirmation that the Worker has the experience, training, qualifications and any authorisation which the Client considers necessary or which may be required by law or by any professional body; and
3.7.3 obtain and offer to provide copies to the Client of two references from persons who are not relatives of the Worker and who have agreed that the references they provide may be disclosed to the Client; and any relevant qualifications or authorisations of the Worker. If the Agency has taken all reasonably practicable steps to obtain such information and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event.
4.1 The Client shall pay the Worker Fee directly to the Worker and the relationship, once the Engagement has commenced, shall be directly between the Client and the Worker.
4.2 The Client shall pay to the Agency the Introduction Fee, which shall be invoiced on the Worker’s acceptance of the Engagement and paid within 14 days of the date of invoice.
4.3 The Introduction Fee shall be payable if the Client Engages the Worker within the period of 12 months from the date of (a) the Introduction, (b) the Client’s withdrawal of an offer of Engagement or (c) the Worker’s rejection of an offer of Engagement, whichever is the later. This clause shall apply in all circumstances including where, subsequent to the date of the
Introduction, the Worker applies directly to the Client for employment or otherwise directly offers his or her services to the Client whether such application or offer is in response to a general advertisement or other form of recruitment media placed by the Client or on the Client’s behalf or otherwise.
4.4 Introductions of Workers are confidential. If a Client discloses a Worker’s details to a third party, including any subsidiary, parent, holding, affiliate or otherwise associated company of the Client, that will be deemed to be a ‘Third Party Introduction’. If that Third-Party Introduction results in an Engagement of the Worker by the third party within 12 months of the Agency’s Introduction of the Worker to the Client, then the Client will be liable to the Agency for payment of an Introduction Fee calculated in accordance with clause 5. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under clause 6.2.4 in any circumstances.
4.5 Where applicable, the Agency shall charge VAT to the Client, at the prevailing rate, after the Agency has provided the Client with a VAT invoice.
4.6 If the Client does not make any payment due under this clause 4 by the date stated in an invoice, or as otherwise provided for in the Contract, the Agency shall be entitled:
4.6.1 to charge interest on the outstanding amount at the rate of eight (8) per-cent a year above the base lending rate of the Bank of England plc, accruing daily; and
4.6.2 to require the Client to pay, in advance, for the Introduction of Workers.
4.7 Time shall be of the essence in relation to this clause 4.
4.8 If, after an offer of Engagement has been accepted by a Worker, the Client decides for any reason to withdraw it prior to the Worker commencing the Engagement, the Client shall be liable to pay the Agency a Cancellation Fee equivalent to fifty percent (50%) of the Worker Fee.
4.9 Unless otherwise agreed in writing with the Agency, the Client shall reimburse the Agency for all reasonable travel and subsistence expenses incurred by Workers attending interviews with the Client.
4.10 All amounts due to the Agency by the Client under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5 INTRODUCTION FEE
5.1 In relation to the Introduction Fee:
(a) if the Worker Fee received by the Worker is between £0.00 and £40,000.00, the percentage shall be 22.5%;
(b) if the Worker Fee received by the Worker is between £40,000.01 and £60,000.00, the percentage shall be 25%;
(c) if the Worker Fee received by the Worker is between £60,000.01 and £80,000.00, the percentage shall be 30%; and
(d) if the Worker Fee received by the Worker is above £80.000.01, the percentage shall be 35%.
5.2 Where prior to the commencement of the Engagement the Agency and the Client agree that the Engagement will be on a part time basis the Introduction Fee will apply on a pro-rata basis to the applicable Worker Fee.
5.3 Where prior to the commencement of the Engagement the Agency and the Client agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata to the applicable Worker Fee. If the Client (a) extends the Engagement beyond the initial fixed term or (b) re-Engages the Worker within 6 calendar months from the date of termination of the agreed period of the fixed term Engagement, then the Client shall be liable to pay a further Introduction Fee based on the additional remuneration applicable for (a) the extended period of Engagement or (b) the period of the second and any subsequent Engagement, subject to the Client not being liable to pay a greater sum in Introduction Fees than the Client would have been liable for under clause 5.1 had the Worker first been Engaged for 12 months or more.
5.4 Where the actual Worker Fee is not known, the Agency will charge an Introduction Fee calculated in accordance with clause 5.1 based on its determination of the Worker Fee taking into account the market rate level of remuneration applicable for the position in which the Worker has been Engaged and with regard to any information supplied to the Agency by the Client and/or comparable positions in the market generally.
6 REFUND AND REPLACEMENT
6.1 If, the Engagement does not commence because the Worker withdraws their acceptance, or, within three (3) months of commencement of an Engagement, the Client finds out that the particular Worker is unsuitable for the Engagement or the Worker terminates the Engagement, the Client may be entitled to receive payment under clause 6.2, subject to clauses 6.3 to 6.7.
6.2 If the Engagement does not commence or is terminated in in accordance with clause 6.1 and provided that:
6.2.1 notice of the termination or withdrawal of acceptance by the Worker is received by the Agency within 7 (seven) days of the relevant termination taking place;
6.2.2 all monies due to the Agency from the Client have been received in full by the Agency in accordance with this Contract including, without limitation, clause 4.2;
6.2.3 the Client notifies the Agency, in writing, of its intention to terminate the Engagement prior to or within the first twelve (12) weeks of the Engagement; and
6.2.4 the termination of the Engagement is not related to a redundancy exercise,
the Client shall be entitled to the following if the termination or withdrawal of acceptance:
(a) takes place before commencement or between 0 and 1 week of commencement of the Engagement – 90% of the Introduction Fee;
(b) takes place between 1 and 3 weeks of commencement of the Engagement – 75% of the Introduction Fee;
(c) takes place between 3 and 5 weeks of commencement of the Engagement – 50% of the Introduction Fee;
(d) takes place between 5 and 9 weeks of commencement of the Engagement – 25% of the Introduction Fee;
(e) takes place between 9 and 12 weeks of commencement of the Engagement – 10% of the Introduction Fee; and
(f) takes place after 12 weeks of commencement of the Engagement – no refund.
6.3 A payment under clause 6.2.4 (a) to (e) shall only be made where a suitable replacement Worker (such suitability to be determined at the sole discretion of the Agency) has not been Introduced by the Agency within three (3) months of the Agency’s receipt of the notification of termination or withdrawal of acceptance. If the Client decides not to Engage a suitable replacement Worker, then the Agency shall be entitled to keep the full Introduction Fee for the original Worker and shall have no further obligation to the Client to find a replacement
6.4 The three (3) month period for the Agency to Introduce a replacement Worker pursuant to clause 6.3 will be on an exclusive basis and the Client will not engage any other agency or third party to find a replacement. The Agency shall be entitled to charge an additional Introduction fee in the event that a replacement Worker has been Introduced by the Agency within three (3) months of the Agency’s receipt of the notification of termination or withdrawal of acceptance. Clause 6.2.4 (a) to (e) shall apply to determine the Introduction Fee for the replacement Worker and will be calculated in relation to when that original Worker withdrew their acceptance or their Engagement was terminated. For the avoidance of doubt, the Introduction Fee of the original Worker shall remain payable in full. The Agency shall invoice the Client for the Introduction fee for the replacement Worker on acceptance of the Engagement by the Worker. Payment for such Introduction fee for the replacement Worker shall be payable by the Client within 14 days of the invoice.
6.5 In the event the replacement Worker withdraws their acceptance prior to commencing the Engagement, or the client finds out that the replacement Worker is unsuitable for the Engagement, or the replacement Worker terminates the Engagement, the Client shall be entitled to a refund of any Introduction Fee paid for that replacement Worker, as set out in clause 6.4, and the Agency shall be under no further obligations to find another replacement Worker. The Agency shall be entitled to retain the Introduction Fee for the original Worker in full.
6.6 If the Client terminates an Engagement or the Worker withdraws their acceptance in accordance with clause 6.1 and receives payment under clause 6.2.4 (a) to (e) as a result, or obtains a refund of an Introduction Fee for a replacement Worker pursuant to clause 6.5, and the Client re-engages the Worker in any role or capacity whatsoever within six (6) months of the Engagement being terminated or acceptance being withdrawn, the Client shall immediately pay to the Agency any and all monies received by the Client under clause 6.2 (a) to (e) and/or 6.5.
6.7 The Client shall only be entitled to receive the payment set out in clause 6.2 or refund in clause 6.5 if the Client pays or has paid the Introduction fee in accordance with clause 4.2 and with clause 6.4 for a replacement Worker. If the Client fails to do so, then they shall not be entitled to receive the payment in any circumstances nor receive the benefit of the Agency’s services in finding a replacement Worker pursuant to clauses 6.3 to 6.5.
7 RETAINED CLIENTS AND EXCLUSIVITY
7.1 The Agency agrees to Introduce Workers to the Retained Client for Engagement directly by the Retained Client for the duration of the Exclusivity Term.
7.2 The Retained Client agrees that during the Exclusivity Term it will exclusively use the services of the Agency for the Introduction of permanent or contract staff. The Retained Client will not use the services of any employment agency, directly or indirectly, other than the Agency save in circumstances where the Agency has searched for Workers but is unable to Introduce suitable Workers for Engagement, or in the circumstances set out in clause 7.3.
7.3 Nothing in these Conditions shall preclude the Retained Client from
7.3.1 responding to unsolicited approaches from third party agencies by referring that agency to the Agency to serve as a sub-contractor or consultant for the Agency;
7.3.2 responding to unsolicited approaches from work-seekers directly;
7.3.3 directly approaching work-seekers using its own resources.
7.4 In the event a Retained Client breaches the exclusivity provisions of clauses 7.1 and 7.2 the Agency shall be entitled to charge a Breach of Retainer Fee equivalent to twenty percent (20%) of the first-year annual remuneration package applicable to any individual, howsoever Engaged, not Introduced by the Agency and Engaged by the Retained Client during the Exclusivity Term.
7.5 Subject to the provisions for earlier termination set out in clause 7.6 below, the Exclusivity Term shall terminate by either party giving the other 3 months’ written notice.
7.6 Either party may immediately terminate the Exclusivity Term by notice to the other if the other:
7.6.1 commits a breach of these Conditions which in the case of a breach capable of remedy shall not have been remedied within 14 days of the receipt by the other of a notice from the innocent party identifying the breach and requiring its remedy;
7.6.2 is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the party resulting from such reconstruction or amalgamation if a different legal entity shall agree to have the contract assigned to it and to take on all liabilities and obligations thereunder whether actual or contingent).
7.7 For the avoidance of doubt in the event that the Exclusivity Term is terminated by either party, the Retained Client remains obligated to pay any fees owed to the Agency in accordance with these Conditions, irrespective of whether these fees relate to an Introduction made before or after the Exclusivity Term is terminated.
No party shall make, or permit any person to make, any public announcement concerning the Worker or the Engagement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9 WARRANTIES, LIABILITIES AND INDEMNITIES
9.1 Whilst the Agency shall make reasonable efforts to ensure reasonable standards of skills, integrity and reliability in the Worker, the Client accepts and agrees that the Agency gives no warranty as to the suitability of any Worker for any Engagement.
9.2 Neither the Agency nor any of its staff shall be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with the Introduction of the Worker to the Client, unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of the Agency.
9.3 Except in the case of death or personal injury caused by the Agency’s negligence, the liability of the Agency under or in connection with the Contract, whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever, shall not exceed the Introduction Fees paid or due to be paid by the Client to the Agency under the Contract. Save as otherwise provided in the Contract, the Agency shall not be liable for any matter not reported to it within seven (7) days of its occurrence.
9.4 During and after the Contract, the Client agrees to protect, indemnify, defend and hold harmless the Agency from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities or costs whatsoever (including legal fees on a full indemnity basis) arising out of:
9.4.1 any loss, injury, expense or delay suffered or incurred by any Worker, however caused; and
9.4.2 any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Worker whether wilful, negligent, fraudulent, dishonest, reckless or otherwise, that arises directly or indirectly out of, or is in any way connected with the Engagement, any information supplied by the Client to the Agency or the Client’s breach of these Conditions.
9.5 Each party acknowledges that, in entering into the Contract, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the Contract, and any conditions, warranties or other terms implied by statute of common law are excluded from Contract to the fullest extent permitted by law.
9.6 Nothing in the Contract excludes liability for fraud.
9.7 The provisions of clause 9 shall survive termination of the Contract.
10.1 Each party undertakes that it shall not at any time during the Contract, and for a period of one (1) year after termination of the Contract, 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 10.2.
10.2 Each party may disclose the other party’s confidential information:
10.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. 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 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
The parties agree that neither of them will, either on their own account or in partnership or association with any person, firm, company, organisation or otherwise and whether directly or indirectly during or for a period of six (6) months from the end of the term the Contract, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under the Contract at any time during the term of the Contract.
12 ASSIGNMENT AND OTHER DEALINGS
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 the Contract without the prior written consent of the other.
13 NO PARTNERSHIP OR JOINT VENTURE
13.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14 ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15 THIRD PARTY RIGHTS
No one other than a party to the Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
16.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
16.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
16.1.2 sent by fax to its main fax number.
16.2 Any notice shall be deemed to have been received:
16.2.1 if delivered by hand, on signature of a delivery receipt;
16.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
16.2.3 if sent by fax, at 9.00 am on the next Business Day after transmission.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17 DATA PROTECTION
The Client shall comply with the Data Protection Act 1998 or any other applicable data protection Legislation and Regulations, which from time to time are in force in the jurisdiction, in respect of any personal data it may hold relating to the Worker and shall indemnify the Agent in full against any claims and/or losses arising out of any failure to comply with this obligation
Except as set out in these Conditions, no variation to the Contract, including the introduction of any additional terms and conditions, shall be effective unless agreed in writing and signed by both parties.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
20 GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).