Part A – Introduction
1 These Terms govern Our recruitment Services, to the exclusion of any other terms or conditions. Provided we have sent You a copy of these Terms, You will be deemed to have accepted these Terms if You do any of the following: ask Us to perform any Services, use any information We provide to You relating to a Candidate, ask Us to introduce a Candidate to You, or You engage a Candidate that We have introduced. 2 For the purposes of these Terms: 2.1 We will be deemed to have “introduced” a Candidate to You where any of the following apply (whether directly or indirectly): We provide You with the Candidate’s details, We facilitate You being able to identify that Candidate by cross- referring to Your own or third party sources, or We can be reasonably considered to be the effective cause of an engagement. This will apply even if the Candidate is already known to You (including through any social media channels) unless that Candidate is already being actively progressed by You (and, if requested, You can provide Us with reasonable evidence of this) and You inform Us of this within 2 business days of Our introduction. Please note it is Your sole responsibility for checking whether a Candidate has been previously Introduced by another party. 2.2 You will be deemed to have “engaged” a Candidate where there is any engagement or employment (or any offer of engagement or employment) under which that Candidate is to provide Services to You, either directly or through a third party. 2.3 If You engage a Candidate within 12 months of Our introduction, we will be entitled to a Fee calculated on an equivalent basis to an introduction under Part B below. Please note We are entitled to Our Fee for an Introduction regardless of whether the role or tasks to be performed or undertaken by the Candidate are different from the target role or tasks communicated to Us. 3 If We introduce a Candidate and You then choose to proceed with him/her under an Assignment, then We will send You a Confirmation Schedule, which will reference these Terms and set out Candidate details, the Fee chargeable by Us, other relevant details and any Special Terms.
￼Part B – Terms applying to permanent recruitment Services (where We are acting as an “Employment Agency”)
4 Your obligations 4.1 You will be solely responsible for the decision to hire any Candidate and for the contractual arrangements between You and the Candidate. 5 Our obligations 5.1 We will use Our reasonable endeavours to identify and introduce suitable Candidates to You from time to time or following Your request. 6 Our Fee 6.1 You will pay Us a Fee in respect of any Candidate introduced by Us and engaged by You (unless, in the case of an offer to engage, it is withdrawn due to the Candidate being wholly unsuitable). The Fee will be calculated as follows: Candidate’s Remuneration — Our Fee Up to £29,999 — 22.5% of Remuneration From £30,000 to £64,499 — 30% of Remuneration Over £65,000 — 35% of Remuneration 6.2 If You do not provide Us will full details of a Candidate’s Remuneration within 7 days of the Candidate’s engagement then Remuneration shall be deemed to be an amount calculated as the higher of either: 6.2.1 the annualised rate payable under the most recent temporary Assignment, or if there has not been any such 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; or 6.2.2 the highest amount We reasonably determine (based on appropriate evidence) which would be achievable in the market place for a person of similar experience to work in the filled position. 6.3 We will issue an invoice for Our Fee upon engagement (and at any time thereafter if the Remuneration is increased during the first year of engagement) 6.4 Where a Candidate is engaged for a fixed term of less than 1 year, if You inform Us of the applicable fixed term and the associated amount payable, prior to engagement, then We may agree (which must be in writing) that the Fee will be calculated on the Remuneration for the fixed period rather than an annualised equivalent. The percentage applicable under the Fee scale in clause 6.1 will however be that relating to the Remuneration as if it were annualised. 7 Rebate 7.1 If a Candidate leaves Your employment within the first 6 weeks of starting, then, subject to clause 7.2, We will pay back a percentage of Our Fee based on the following scale: If Candidate leaves — We will repay You in first 2 Weeks — 75% of our Fee in third or fourth Week — 50% of our Fee in fifth or sixth Week — 25% of our Fee 7.2 We will only repay the percentage of the Fee if all of the following conditions are satisfied: 7.2.1 You have paid Our Fee, in line with our payment terms 7.2.2 the Candidate has not been previously engaged by You (for example, he/she wasn’t previously a contractor) 7.2.3 the Candidate was a permanent Candidate (for example, he/she isn’t changing from contract to perm) 7.2.4 You provided appropriate information to Us concerning the position 7.2.5 the Candidate is not leaving because of a redundancy 7.2.6 the Candidate is, in Your reasonable opinion, wholly unsuitable for the position; 7.2.7 You notify Us that the Candidate has left within 3 business days of You first becoming aware 7.2.8 You have allowed Us a reasonable opportunity (without further charge to You) to introduce a suitable replacement for the same position and We have been unable to do so within 28 days of Your notice to Us 7.3 If You re-engage the Candidate in any a capacity within 12 months of them leaving, then You must re-pay to Us any rebate paid to You under clause 7.1.
Part C – Supply Terms which relates to our Services for the supply of Contractors
NOTE: If we tell You that a Candidate is providing his/her Services through a company, then that Candidate and their company has chosen to Opt-Out unless We tell You otherwise. 8 Our Obligations 8.1 We will: 8.1.1 search for Candidates meeting Your requirements to fill vacancies about which You may inform Us from time to time; 8.1.2 use reasonable endeavours to, introduce only those Candidates who meet Your minimum requirements, who have an interest in those positions and who are suitable for the position; 8.1.3 engage the Candidate under a contract for services to provide Service for the Assignment; 8.1.4 take reasonable steps to source a replacement Candidate if You inform Us within 1 business day of the start of the Assignment that the Candidate is, in Your reasonable opinion, wholly unsuitable; if We are unable to source a replacement Candidate then We will credit You with an amount based on the difference between the amounts payable by You in respect of the Candidate and the amounts We pay the Candidate. Such credit will be applied against Our invoice in respect of that Candidate, or if already paid, a future invoice from Us to You. 9 Your Obligations 9.1 You will: 9.1.1 comply with all applicable law, including any requirements under the Health and Safety at Work Act 1974, the Working Time Regulations 1998 and the AWR; 9.1.2 ensure the health and safety of the Candidate as if the Candidate’s had been engaged directly by You including; undertaking risk assessments, providing the results to Us and the Candidate and otherwise in accordance with applicable law; 9.1.3 provide such assistance, information, and facilities to the Candidate as are reasonably required to enable the Candidate to properly and safely perform the Candidate’s services, including making the Candidate aware of any policies applying to external contractors, subject always to clause 9.1.5; 9.1.4 subject to clause 9.1.5, be responsible for directing and supervising and monitoring the Candidate; 9.1.5 without prejudice to clause 9.1.1, not treat the Candidate as an employee of Yours or do anything in respect of the Candidate which may be regarded as the act of an employer towards an employee; 9.1.6 ensure that You maintain adequate insurances, including but not limited to, Employer’s and Public Liability Insurance, which provides cover for Candidates supplied by US 9.1.7 notify Us promptly of any dissatisfaction with the Services performed by the Candidate, providing sufficient details, and allow Us a reasonable opportunity to discuss any issues with the Candidate and You, to remedy the problem and if the Candidate continues to be unsatisfactory in Your reasonable opinion, You will allow Us a reasonable opportunity to source and provide a replacement in accordance with clause 8.1.4; 9.1.8 allow the Candidate leave of absence for holidays, sickness, other statutory leave or other unavoidable commitments (You will not be liable for any Fees during such absences); 9.1.9 ensure that timesheets approved by You are provided to Us and co-operate with Us in relation to any queries on the timesheet (timesheets approved by You will be conclusive as to the time spent and for which We will charge Fees accordingly) but You acknowledge that You may not decline to approve a timesheet due to dissatisfaction with ￼￼￼the work performed by the Candidate and failure to approve the timesheet does not absolve You from Your obligation to pay the Fees in respect of hours actually worked; 9.1.10 keep all records applicable to the Assignment for 6 months following Assignment; 9.1.11 where We have reason to believe that the AWR apply or may apply to a Candidate supplied for an Assignment, then if the Assignment exceeds or looks likely to exceed 12 weeks, provide to Us the terms and conditions of employment of comparable employees to the Candidate (“comparable employment terms”) and details of why those employees are comparable. If the comparable employment terms are more favourable than those in place between the Candidate and Us, requiring Us to engage the Candidate on more favourable Terms, You agree to pay increased Fees which reflect the increased cost to Us of having to improve Our terms with the Candidate as required under the AWR. 9.2 You warrant that the Candidate will not be used to perform duties normally performed by a worker who is taking part in any official industrial action, or normally performed by any person who has been assigned to replace the worker taking part in the industrial action. 10 Termination of Assignment 10.1 We may terminate any Assignment immediately by written notice to You if: 10.1.1 You are in breach of, or We reasonably believe that You may not be able to meet, Your obligations to Us or any Candidate under these Terms; 10.1.2 You have failed to pay any amount owing under any Assignment then in force within 30 days of the final due date for payment, provided We have issued a written reminder in respect of such amount; 10.2 Either You or We may Terminate any Assignment by written notice to the other if: 10.2.1 the Assignment provides for Termination on notice; 10.2.2 the other is in material breach of any of these Terms and has failed to remedy such breach within 14 days of being required to do so; 10.2.3 the other suffers any insolvency event (being an administration, liquidation, winding up or any other event suffered as a consequence of being unable to pay debts as they fall due); 10.2.4 We have attempted to provide a suitable replacement under clause 8.1.4, but have been unable to do so within the required period; 10.3 In the event of termination, You shall pay Us any Fees owing up to the date of termination and, where the Assignment is an extended Assignment and has been Terminated by Us under clauses 10.1, 10.2.2 or 10.2.3, You will also pay Us the greater of the balance of the Transfer Fee or the charges We would have been entitled to for the remainder of the extended Assignment. 11 Fees 11.1 You will pay Us an amount which represents the total cost to Us of supplying the Candidate (including any statutory payments We are required to make) which will be calculated according to the number of hours or days (or part thereof) worked by the Candidate and as recorded on the Candidate’s timesheet plus Our administration and handling fee. This amount will be expressed as an aggregated hourly/daily/weekly rate in the Confirmation Schedule. We will invoice You in accordance with the Confirmation Schedule. 11.2 You acknowledge that We may withhold payment to Candidates who have Opted Out where We have not received the corresponding payments from You. 11.3 If You engage a Candidate introduced by Us in connection with an Assignment in any capacity other than through Us, either before supply by Us has started or during the Transfer Period, then You will be liable to either to pay Us a Transfer Fee or You may (subject to clause 11.4) elect to have the Candidate supplied through Us for a period of 12 months (“extended Assignment”) after such time the Candidate can be engaged by You without payment of a Transfer Fee. 11.4 You must provide written notice prior to any engagement by You in order to elect for the extended Assignment. If there is no Opt-Out and the election occurs after the supply had commenced, then the extended Assignment will be on terms no less favourable than those relating to the immediately preceding Assignment. Our charges will be the same as the most recent temporary Assignment, unless Our costs of supplying the Candidate have increased due to the fact that the Candidate has increased the Candidate’s fees. If this is the case, We will notify You of the new charges.
Part D – General Terms and Conditions
12 Your obligations 12.1 You will: 12.1.1 provide the Information and ensure it remains up to date and relevant to Candidate’s decision to take up the engagement; 12.1.2 notify Us promptly on engaging any Candidate or using any Candidate-related information We provide; 12.1.3 whilst We will provide to You in good faith appropriate references and other information made available to Us by Candidates, be responsible for taking up references and verifying curricula vitae, visas and other necessary permissions to work in the UK; You acknowledge that We will not be responsible for checking the validity, accuracy or veracity of any documentation or information provided to Us by the Candidate; ￼￼￼￼ 12.1.4 authorise Us to source and advertise for Candidates as We see fit. 12.2 You warrant that there are no circumstances relevant to the work or any Assignment which may result in the Candidate or Us suffering a detriment of any kind and You will notify Us immediately should You become aware of any such circumstances 13 Liability 13.1 Nothing in these Terms will limit or exclude either Your or Our liability for personal injury or death due to negligence of any employee, or in respect of fraud. 13.2 Whilst We introduce Candidates in good faith We make no representations or warranties concerning the Candidates’ suitability or availability and We will have no liability in respect of any claims made by any Candidate against You or vice versa. 13.3 Subject to clause 13.1 but without affecting the limitations under clause 13.4 and neither You or We shall be liable to the other for: 13.3.1 any loss of business, revenue, profits, anticipated savings or goodwill (whether direct or indirect); or 13.3.2 any loss or corruption of any data, database or software; or 13.3.3 for any indirect, special or consequential loss arising out of or in connection with this Agreement, whether or not that Party had been advised or, or knew of, the likelihood of that loss or type of loss arising. 13.4 Subject to clause 13.1 but without affecting the exclusions under clause 13.3, our maximum aggregate liability to the other under or in connection with the Services will not exceed (a) in respect of any liability related to Candidates introduced under Part B, the lower of an amount equivalent to Our Fee for the relevant Candidate or £100,000; and (b) in respect of any liability related to Candidates introduced under Part C, an amount equivalent to one month’s Fees under the relevant Assignment. 13.5 Except as expressly provided in this Agreement, all representations, conditions and warranties, whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law. 13.6 You shall indemnify Us in respect of any claims against Us from any third party (including any Candidate) resulting from any failure by You to comply with applicable law or where You breach any terms and conditions of engagement in respect of any Candidate We have introduced to You. 13.7 Neither You nor We will be liable to the other for any delay or failure to perform our obligations where caused by any circumstance beyond the performing party’s reasonable control. 14 Non-solicitation 14.1 We will not solicit or attempt to solicit into our service or the service of a third party any Candidate who We have introduced to You and who You have directly engaged, for 12 months following the date of first introduction. 14.2 You will not solicit or attempt to solicit into Your service any of Our employees or contractors with whom You have had dealings during the course of the Services and for 12 months thereafter. If You breach this clause then You will pay Us an amount equivalent to a Transfer Fee for that employee and You acknowledge that such amount represents a genuine and reasonable pre-estimate of Our loss in respect of that breach. 15 Confidentiality 15.1 You and We will each keep any confidential information of the other confidential and not disclose it to any third party without the other’s prior approval (subject to clause 15.2). You and We will only Use the confidential information of the other for the purpose of, respectively, receiving the benefit of or providing the Services. Our confidential information includes these Terms and Our Fees and You will not discuss these with any Candidate. 15.2 We may disclose Your confidential information to Candidates, potential Candidates, Our employees, agents or sub- contractors in order to provide the Services, but We will ensure that such persons are bound by appropriate confidentiality undertakings. 16 Data protection 16.1 You warrant that the processing of any personal data relating to Candidates by You will not breach the Data Protection Act 1998. 16.2 We warrant that We have the legal right to disclose all personal data that We do in fact disclose to You in the course of the Services and that the processing of that Personal Data by Us for the purposes of the Services will not breach the Data Protection Act 1998. 17 Payment Terms 17.1 Any amounts chargeable by Us to You: 17.1.1 are exclusive of VAT; 17.1.2 are payable in pounds sterling to the bank account notified to You from time to time within 14 days of Our invoice date, without any set-off, counterclaim, deduction, abatement, withholding or deferment; 17.1.3 will attract statutory interest and late payment compensation under the Late Payment of Commercial Debts (Interest) Act 1998, as amended (“Late Payments Act”) in respect of any amounts owing from the invoice due date until the date of payment; and 17.1.4 will remain payable not withstanding any termination of the Services. 17.2 The time for payment of Our invoices, in accordance with all the provisions of this clause 17, is of the essence. 17.3 You will be responsible for reimbursing all our reasonable expenses, costs and legal costs in respect of any legal action to recover any overdue amounts, regardless of whether any court proceedings are actually issued. 18 Variations 18.1 Variations to these Terms will not be binding on Us unless We have agreed to the variation in writing. 19 Unenforceability 19.1 If any of these Terms is determined by any court to be unenforceable, the other Terms will continue in effect. If any unenforceable Term is capable of deletion without affecting the intention of the parties, then that part only will be deemed to be deleted. 20 Entire agreement 20.1 These Terms and the Confirmation Schedule will constitute the entire agreement between the parties in relation to Services, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. Neither We nor You will have any remedy in respect of any misrepresentation (whether written or oral) made to the other upon which the other relied in entering into the contract for Services. Neither We nor You will have any liability other than pursuant to these Terms and the Confirmation Schedule. 21 Assignment 21.1 Neither You nor Us may without the prior written consent of the other assign, transfer, charge, license or otherwise dispose of or deal in any rights or obligations under these Terms. 22 Disputes 22.1 If any dispute arises between Us in relation to the Services, then each of Us will in good faith promptly discuss the dispute with a view to its resolution. If any dispute cannot be resolved under clause 22.1, then either of Us may request that the dispute be escalated for resolution. 22.2 The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 23 Governing law and jurisdiction 23.1 This Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Assignment – the assignment for temporary contractors as notified to Us by You. For clarity, engagements which are not notified to us prior to the engagement will not be counted as an Assignment and you shall not be entitled to any of the remedies for unsatisfactory performance set out in Part B. AWR – the Agency Workers Regulations 2010 (as amended) Candidate – any person (which may include an individual’s service company) who We introduce to You in the course of the Services Confirmation Schedule – the schedule confirming the details of an Assignment engage or engagement – will be interpreted in accordance with clause 2.2 Employment Agency and Employment Business – have the meanings given in the Employment Agencies Act 1973 End User – any company or client (or any affiliate or associate (as defined by s.435 Insolvency Act 1986) of the same) to whom You in turn provide services or refer any Candidate introduced by Us. For clarity this includes 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 of that third party Fee – any of the fees chargeable by Us in respect of the Services Information – information about Your company, Your business, the nature of the position offered, the expected Terms and conditions, experience required and such other information as We may reasonably require in order to perform the recruitment Services, and/or any information We require in order to comply with Our obligations under the AWR introduce or introduction – will be interpreted in accordance with clause 2.1 Opt Out Notice – a notice of agreement between a Candidate and a company (where a service company) through which that person is supplied that regulation 32 (1-8) of the Conduct of Employment Agencies and Employment Business Regulations 2003 does not apply (as amended from time to time) (the “Conduct Regulations”) Remuneration – the Candidate’s basic gross taxable guaranteed salary for his/her first year, and where the Candidate is part time, then the full time equivalent salary, plus additional performance based payments such as bonuses, contract-closing fee and other bonuses, shift allowances, reimbursement for use of a personal motor vehicle, payments made in the case of a transfer to another place of work, commissions, share packets and all other taxable benefits granted to the Candidate Services – any of the recruitment services provided by Us Special Term – any additional or special Term which add to or vary these Terms as set out in the Confirmation Schedule Terms – these terms and conditions and any Special Terms Transfer Fee – means, in respect of a Candidate engaged by You or End User, a fee calculated on the same basis as if We had introduced the Candidate to You as a permanent Candidate (see Part B) Transfer Period – in respect of any Candidate engaged by You, any time during that Candidate’s Assignment and continuing to the later of:
- where there is an Opt-out, the expiry of 6 months from the date that the Candidate finished his most recent Assignment; or
- where there is no Opt-out, the maximum period permitted under the Conduct Regulations
You or Your – Your company (Our direct client), any of Your affiliates or associates and where the context permits, any End User We or Us or Our – Austin Fraser Limited