T E R M S O F B U S I N E S S
Terms and Conditions for the Supply of Permanent Staff
1) Definitions
Applicant - Any person Introduced by the Company to the Client for an Engagement (including any officer or employee of the Applicant if the Applicant is a limited company).
Client - The person, firm or corporate body to whom an Applicant is Introduced, as identified and named in the signatory section in these terms and conditions.
Client Group - Any subsidiary or associated company of the Client as defined by s1159 of the Companies Act 2006.
Direct Contract An Engagement of an Applicant by the Client on a direct contract assignment basis (whether or not on a fixed term or on-going basis).
Engagement - The engagement, employment or use of an Applicant, whether under a contract of service, contract for services, agency, license, franchise, partnership agreement, or in any other capacity, whether directly or indirectly through a third person or other legal entity; Engages and Engaged shall be construed accordingly.
Fee - The fee payable by the Client tor an Introduction resulting in the Engagement of the Applicant, based upon a percentage of the Remuneration set out in Clause 5 or as agreed in the Specific Terms.
Individual - The Engagement of an Applicant by the Client on a Direct Contract.
Introduction - (i) the Client’s interview of an Applicant in person or by telephone, following the Client’s instruction to the Company to search for an Applicant; or (ii) the passing to the Client of a curriculum vitae or information which identifies the Applicant or from which the Client may deduce the identity of the Applicant; and leads to an Engagement of that Applicant, whether the Applicant was known to the Client previously or not. “Introduces” and “Introduced” shall be construed accordingly.
Offer - An offer of an Engagement (whether orally or in writing) by the Client to an Applicant
Permanent - An Applicant Engaged on a permanent basis whether full-time or part time.
Remuneration - The aggregate gross annual taxable emoluments payable to or receivable by the Applicant in the first year of their Permanent Engagement, which includes base gross salary, allowances (including car allowance), inducement payments, relocation expenses, bonuses and or commission earnings, the benefit of a company car (which shall be assumed to have a notional value of £3,500 for this calculation), and any other identifiable benefits (whether contractual or not, and whether guaranteed or not) or the annualised gross fees (including but not limited to any bonus, commission, expenses, allowances, and shift allowances) payable to or receivable by the Applicant Engaged as an Individual or in any other capacity; and whether Engaged by the Client, the Client Group or a Third Party.
Specific Terms - The special terms and conditions agreed in writing between the parties in addition to the terms and conditions herein.
Third Party - Any third party (whether a person or other legal entity) to whom the Client has introduced the Applicant.
2) The Contract
(a) These terms and conditions herein (and any Specific Terms) constitute the entire contract between the
Company and the Client for the Introduction of Applicants for Engagements (“the Agreement”), and are deemed to be accepted by the Client upon the Client signing this Agreement and or any Specific Terms, upon the Introduction of an Applicant, the interview of or Engagement of the Applicant, or by the Client authorising the Company to commence work on a permanent vacancy, whichever event occurs the earlier. If there is any conflict between these terms and conditions and the Specific Terms, these terms and conditions shall prevail. This Agreement shall prevail over any other terms of business, purchase order or other purchase conditions put forward by the Client.
(b) The Company is an “Employment Agency” for the purposes of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
(c) Subject to Clause 10)(b), the terms of this Agreement can be varied only by written Agreement between a director of the Company and the Client.
3) Commitments
(a) To enable the Company to Introduce suitable Applicants, the Client must provide the Company with all relevant information on its permanent vacancies including the anticipated start date, the position and type of work required, the experience, training and qualifications necessary for the position, the anticipated salary and benefits package, employee/employer notice period requirements and any known risks to health and safety.
(b) The Client is responsible for checking an Applicant's references relating to his/her qualifications, skills, character, experience and ensuring that the legal (including the right to work) and medical requirements relating to an Applicant have been met (including undertaking any medical examinations required), and including obtaining a work permit and undertaking any criminal record checks when necessary. The Company provides an introductory service only, and does not carry out pre-screening checks on Applicants and neither does the Company provide any assurances as to an Applicant's suitability both technically or otherwise.
(c) The Client commits to ensuring that it only uses, processes, and retains an Applicant’s personal information as is reasonably necessary to evaluate an Applicant Introduced for an Engagement and shall at all times comply with the Data Protection Act 1998 (as amended). The Client shall keep the Applicant’s personal information confidential and will not approach the Applicant’s current employer, contact the Applicant directly, or disclose the contents of the Applicant’s CV to any Third Party without the Company’s prior written consent.
(d) The Client shall provide feedback to the Company at all stages of the recruitment process from the point of Introduction of an Applicant. In particular, the Client shall notify the Company immediately of any Offer it makes to an Applicant and of any acceptance of such an Offer by the Applicant and in any event within 7 days of making an Offer and receiving an acceptance of Offer. The Client shall also provide details of the terms of the Offer and details of the Remuneration to the Company.
(e) The Company will only Introduce Applicants that it has previously spoken to about the vacancy and confirmed the Applicant’s interest in the vacancy the Client seeks to fill, however, the Client acknowledges and agrees that the Company is not under a duty to disclose the name of the Client to the Applicant prior to any Introduction.
4) Introduction
(a) A Fee calculated in accordance with Clause 5) is payable by the Client if an Applicant is Engaged by the Client or the Client Group within 12 months of the Introduction of that Applicant, the Client’s withdrawal of an Offer to the Applicant or the Applicant’s rejection of an Offer (whichever occurs the later).
(b) An Introduction is strictly confidential. If the Client passes on the details of an Applicant to a Third Party which results in an Engagement of that Applicant by the Third Party within 12 months of that Introduction, the Client agrees to pay the Company a Fee for that Engagement. No refund or rebate provisions shall apply in this case.
(c) If, upon Introduction, the Client believes that the Applicant has already been introduced to the Client for the same Engagement that the Applicant has been Introduced by the Company (whether directly or indirectly through another employment agency or other party) the Client shall notify the Company in writing within 24 hours of the Company’s Introduction and where requested provide evidence of the previous introduction. If the Client does not provide written notification as required under this Clause (or such previous introduction was for a different Engagement) the Client will be deemed to have accepted that the Company has introduced the Applicant and the Client liable to pay a Fee upon the Applicant’s Engagement.
5) Fees
(a) The Fee payable to the Company for an Engagement arising from an Introduction shall be calculated based on a % of the yearly remuneration. The breakdown of % fee is detailed below. If an Engagement is part-time, a pro rata Fee will be invoiced. VAT will be charged in addition to the Fee where applicable.
Fee Structure:
18% - Care staff
18% - Nursing Staff
18% - Deputy Manager / Clinical Lead / Unit Manager
25% - Home Manager / Regional Manager / Operations Manager
(b) The Fee shall be invoiced on the commencement of the Engagement of an Applicant (including any Engagement under Clauses 7 or 8) or 45 days after the Applicant has accepted an Offer, whichever occurs the earlier. An Engagement takes place whether or not such Engagement is conditional upon the passing of a probationary period.
(c) All invoices must be paid within 30 days of the date of invoice, without deduction, set off and/or counterclaim by the Client. The Company reserves the right to raise and issue invoices electronically.
(d) If, after an Applicant has accepted an Offer of Engagement, the Client retracts the Offer prior to the commencement of the Engagement (irrespective of the reason), then the Client shall be liable to pay an administration Fee of £1,000.
(e) If the value of the Remuneration is not known, whether due to the Client failing to comply with clause 3)(d) or otherwise, the Company shall be entitled to determine the Remuneration applicable based on current market rates for the position in which the Applicant has been engaged and charge a Fee calculated accordingly.
(f) In the event of late-payment the Company reserves the right to add a monthly interest charge at a rate of 8% above the Bank of England base rate to the outstanding balance due for each complete month such invoice is overdue, until payment is received in full. The Company shall be entitled to recover compensation in the amount of £150 for each month that an invoice remains unpaid, which shall be added on the 1st of each calendar month until payment of the invoice is received in full. The parties agree that this is a substantial remedy for the purposes of the Late Payments of Commercial Debts Act 1998 (as amended).
(g) If the Client fails to notify the Company of an Offer or acceptance of an Offer as required under clause 3)(d) following an Introduction by the Company, the Client shall be liable to pay an additional fee of 10% of the Remuneration in addition to the Fee due, representing a fair and reasonable pre-estimate of the Company’s additional time and expense incurred as a result of the Client’s breach of the Agreement. Any and all refund guarantees are voided if the client fails to notify the company of an offer or acceptance in line with clause 4C.
(h) The Client will be liable for any and all administrative, collection agency and legal costs incurred as a result of the Client’s non-payment of any invoice by the due date.
(i) The director(s) of the Client (where the Client is a corporate body) or owner(s), principal(s), or partner(s)
(where the Client is not a corporate body) who enter into this Agreement will be personally liable, jointly and severally with the Client, for any due invoices in the event of non-payment of such invoices by the Client.
(j) If the Client has not settled any invoice in full in accordance with clause 5)(c), the Company reserves the right to revert back to the standard terms and conditions herein, from any preferable terms agreed as Specific Terms.
6) Refund Guarantees
(a) Any refund guarantee is conditional upon (i) the Client having paid the Fee in accordance with clause 5)(c) and (ii) the Client having notified the Company in writing of the termination of the Engagement within 7 days of its termination.
(b) Where the Applicant terminates the Engagement before the expiry of 8 weeks from the commencement of the Engagement the Company shall provide a rebate of the Fee calculated in accordance with the following structure:
Termination Date Fee Rebated %
1 week 100%
2 weeks 80%
3 weeks 70%
4 weeks 60%
5 weeks 50%
6 weeks 40%
7 weeks 30%
8 weeks 20%
(c) The refund guarantee in this clause 6) shall only apply once in respect of each Applicant.
(d) No refund guarantee shall apply in the event that an Engagement occurs as a consequence of the Client’s introduction of the Applicant to a Third Party under clause 4)(b) below or in the event that the Client or any member of the Client Group re-Engages the Applicant under clause 7)(a), 7)(b) or does not notify the company of an offer of engagement under condition 3D.
7) Re-Engagement
(a) Should the Client re-Engage the Applicant within 6 months of the date of termination of the Engagement the full fee calculated in accordance with clause 5)(a) above will become due, without entitlement to any rebate.
(b) Without prejudice to clause 4)(a), should the Client withdraw from the recruitment service following an Offer being made (irrespective of whether this was accepted or not), and subsequently approaches the Applicant (directly or indirectly) to re-engage in discussions with the Applicant with respect to an Engagement within 6 months of the Offer being made, the Client shall be liable to pay the Company an introduction fee representing 25% of the Remuneration if an Engagement of that Applicant occurs within the period referred to in this sub-clause.
8) Direct Contracts
(a) Where a Direct Contract is agreed for less than 12 months, the Fee shall be calculated in accordance with Clause 5)(a) above, but applied pro rata to the period of the Direct Contract or as otherwise agreed between the parties in writing, and with no entitlement to any rebate.
(b) Any extension of a Direct Contract or any re-Engagement of the Applicant by the Client within 6 months of the expiry or earlier termination of the Direct Contract shall attract a Fee (calculated under Clause 5)(a)) pro rata for the period of any extension of re-Engagement).
(c) If the Client makes an Offer of Permanent Engagement to the Applicant during a Direct Contract and the Applicant accepts that Offer, an additional Fee will be due for the Permanent Engagement calculated under Clause 5)(a).
9) Liability
(a) The Company and the Client will not unlawfully discriminate against any Applicant whether directly or indirectly, on grounds of sex, sexual orientation, marital or civil partner status, gender reassignment, race, religion or belief, colour, nationality, ethnic or national origin, disability or age. Each Party will ensure that each Applicant is considered and or assessed for roles based on the Applicant’s merits, qualifications and technical abilities to fulfil the role. The Company will not accept instructions from a Client who indicates an intention to discriminate unlawfully.
(b) Except in the case of death or personal injury caused by the Company’s negligence or in any other circumstances in which the Company’s liability cannot be limited in law, the Company shall not be liable to the Client for any loss, liability, damage, costs, claims or expenses (whether direct, indirect or consequential) incurred by the Client whether arising in respect of, contract, tort (including negligence), statute, misrepresentation or otherwise in connection with the Introduction or Engagement of any Applicant to the Client or the failure by the Company to Introduce an Applicant. The Company’s total liability arising under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall be limited to 100% of the Fees paid by the Client in respect of the Introduction under which such liability has arisen or in the event of no Fee having been paid the sum of £5,000.
10) General
(a) This Agreement is governed by and shall be construed in accordance with the laws of England and is subject to the exclusive jurisdiction of the English courts (other than for enforcement proceedings, for which the English courts shall have non-exclusive jurisdiction).
(b) The Company may vary the terms of this Agreement in so far as is reasonable to comply with the introduction of or variance in existing legislation that may affect this Agreement, provided that the Company’s notifies the Client in writing of any such variation.
(c) All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the addressee upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice shall be deemed to have been served: if by hand when delivered; if by first class post 48 hours following posting; and if by email or facsimile transmission, when that email or facsimile is sent.
(d) Each provision of this Agreement (as defined by punctuation) is separate, distinct and severable. If any of the provisions of this Agreement are determined by the English Courts to be unenforceable, to any extent, such provision may be modified or severed from the remaining terms of this Agreement to give meaning to the intention of the parties, and the remaining provisions including any such modified provisions shall continue in force.
(e) The Client may not assign its rights and obligations under this Agreement without the prior written consent of the Company. No person or entity other than the Client and the Company shall have any rights under this Agreement (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
(f) All words and expressions in these terms and conditions expressed in upper case shall have the meanings as set out below. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa. The headings contained in these terms and conditions are for convenience only and do not affect their interpretation. All references to legislation shall include any subsequent amendments or variations and including implementing regulations, codes, and orders made from time to time.
(g) No party to this Agreement shall have (nor represent that they have) any authority to make or enter into any contractual commitments on the other party’s behalf.
I have read, understood and agree to the above term and conditions of business. I confirm that I have authority to enter into these terms and conditions of business.
Signed on behalf of the Client
Details of Signatory:
Name ………………………………………………………..
Signature ………………………………………………………..
Position ………………………………………………………..
Date ………………………………………………………..
Details of Client:
Full Company
Name ………………………………………………………..
Client Address ………………………………………………………..