Employment Agency Candidate Terms and Conditions
Background
These Terms and Conditions shall apply to the provision ofServices by the Agency to the Client.
In the event of conflict between these Terms and Conditionsand any other terms and conditions (of the Client or otherwise), the formershall prevail unless expressly otherwise agreed by the Agency in writing.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless thecontext otherwise requires, the following expressions have the following meanings:
“Agency”
means Counted Recruitment LTD a company registered in England under number 11471294 whose registered office is at 10c Peckingham Street, Halesowen, UK, B63 3AW
“Candidate”
means any person introduced by the Agency to the Client for an Engagement;
“Client”
means any person, firm or company including any associates or subsidiaries to whom a Candidate is introduced;
“Confidential Information”
means any information concerning either Party and relating to its business methods, plans, systems, finances or projects; its trade secrets; its products or services; or any other information which is expressly described as confidential;
“Engagement”
means any employment, engagement or use by a Client of an Candidate whether part or full time, with or without a contract;
“Introduction”
an introduction will be deemed to have taken place where the Agency has provided a Client with any information concerning a Candidate, or where a Client interviews a Candidate following an instruction from a Client to locate a Candidate;
“Introduction Fee”
means the fee payable by the Client to the Agency in accordance with these Terms and Conditions, on the introduction of a Candidate to a Client which results in the Engagement of a Candidate;
“Remuneration”
means any salary, fees, bonuses, commission, allowances, or any other financial benefit payable to, or received by a Candidate for services to a Client; and
“Services”
means the employment agency services provided by the Agency to the Client as set out in these Terms and Conditions.
1.2 Unless the context otherwise requires, eachreference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includesa reference to any communication effected by electronic or facsimiletransmission or similar means;
1.2.2 a statute or a provision of a statute is areference to that statute or provision as amended or re-enacted at the relevanttime;
1.2.3 “these Terms and Conditions” is a reference tothese Terms and Conditions and each of the Schedules as amended or supplementedat the relevant time;
1.2.4 a Schedule is a schedule to these Terms andConditions; and
1.2.5 a Clause or paragraph is a reference to a Clauseof these Terms and Conditions (other than the Schedules) or a paragraph of therelevant Schedule; and
1.2.6 a “Party” or the “Parties”refer to the parties to these Terms and Conditions.
1.3 The headings used in these Terms and Conditionsare for convenience only and shall have no effect upon the interpretation ofthese Terms and Conditions.
1.4 Words imparting the singular number shall includethe plural and vice versa.
1.5 References to any gender shall include the othergender.
2. The Contract
2.1 Any and all business entered into by the Agencyis subject to these Terms and Conditions and in the event of any conflict withany other Terms and Conditions these terms shall prevail unless agreedotherwise in writing by a Director of the Agency.
2.2 No modification or change to these Terms andConditions will be valid unless the details of any such changes are in writing,signed on behalf of the Agency and the Client, and state the date on or afterwhich such new terms will apply.
2.3 In the event that any part(s) of these Terms andConditions or part thereof is declared to be invalid, unlawful, void orunenforceable then such terms or parts shall be severed and the remaining termsand conditions shall continue to be valid and enforceable to the fullest extentof the law.
2.4 The Engagement or interviewing of a Candidate,by or on behalf of the Client, or the commencement of work or provision ofservices by a Candidate for the Client shall be deemed acceptance of theseTerms and Conditions.
2.5 These Terms and Conditions supersede allprevious terms of business.
3. Vacancies and Advertisements
3.1 The Agency shall have the right to decline,cancel or otherwise remove any vacancy advertisement provided by the Client tothe Agency at any time, for any reason and without giving prior notice to theClient.
3.2 If any vacancy advertisement appears todemonstrate that the Client intends to discriminate on the grounds of gender, sexualorientation, race, religion or age, it will be declined unless the vacancy isexempted from the provisions of the Sex Discrimination Act 1975; the EmploymentEquality (Sexual Orientation) Regulations 2003; the Race Relations Act 1976;the Employment Equality (Religion and Belief) Regulations 2003; or the EmploymentEquality (Age) Regulations 2006. In thecase of any applicable exemptions, the vacancy advertisement must beaccompanied by a written statement explaining those exemptions and how theyapply to the vacancy.
3.3 If, in the opinion of the Agency, any vacancyadvertisement indicates any illegal purposes on the part of the Client, theAgency may, without notice, report the vacancy and the Client to the relevantauthorities. Such authorities mayinclude, but are not limited to, the Department for Work and Pensions, ACAS,the Information Commissioner’s Office; and the Recruitment and EmploymentConfederation.
3.4 Vacancy advertisements shall remain open andviewable by prospective Candidates for a period of 3 months or otherwise asagreed between the Agency and the Client.
3.5 All vacancy advertisements shall contain detailsof no more than one single vacancy unless otherwise agreed in writing betweenthe Agency and the Client.
4. The Agency’s Obligations
4.1 The Agency shall use its best and reasonableendeavours to find suitable and willing Candidates to fill such vacancies asare notified to the Agency by the Client or to notify the Client if the Agencybelieves it is unable to assist with the Client’s requirements.
4.2 The Agency shall use its best and reasonableendeavours to ensure that all vacancy advertisements are published on the dateagreed with the Client or, where no date is agreed, within 3 working days ofreceiving details of the vacancy.
4.3 The Agency will endeavour to ensure that allCandidates introduced to the Client have the experience, qualifications, andauthorisations which are required by the Client, by law or by any professionalbody, for the position(s) that the Client wishes to fill, and will alsoendeavour to verify the identity of Candidates prior to introducing them to theClient.
4.4 At the same time as proposing a Candidate to theClient the Agency will inform the Client of such matters as detailed in sub-Clause4.3 that the Agency has obtained confirmation of.
4.5 The Agency will endeavour to take all reasonablesteps to ensure that Clients and Candidates are aware of any requirementsimposed by law or any professional body on the vacancy / vacancies that theClient seeks to fill.
4.6 The Agency cannot guarantee to find a suitableCandidate for each vacancy and gives no warranties as to the suitability of anyCandidate.
5. The Client’s Obligations
5.1 The Client shall provide to the Agency allinformation which is reasonably required for the Agency to provide the Services. The Client shall use its best and reasonableendeavours to ensure that such information is complete, accurate andup-to-date.
5.2 The Client shall ensure that all informationprovided to the Agency does not contain any material which could be regarded asoffensive, indecent, obscene, illegal, dishonest, untruthful, defamatory ordiscriminatory.
5.3 The Client shall ensure that all informationprovided to the Agency does not contain any material which infringes the rightsof any third parties (including, but not limited to, intellectual propertyrights).
5.4 The Client must provide the Agency with detailsof the vacancies that the Client wishes to fill, which must include the type ofwork required, the date of commencement, the duration, the hours, rates of payand location as well as the training, qualifications and other authorisationsrequired by law, the Client and any professional body for the position(s).
5.5 The Client must inform the Agency of any Healthand Safety risks or requirements of the vacancies the Client wishes to fill, aswell as the action taken by the Client to minimise and control such risks.
5.6 The Client must not seek to employ any member ofthe Agency’s staff, but in the event that any member of staff accepts anEngagement with the Client, the Client must pay an Introduction Fee inaccordance with Clause 6.
5.7 The Client warrants that it shall immediately,and in any event within 24 hours of the Agency’s first provision of informationrelating to the Candidate’s identity, inform the Agency if the Client believesthat it is aware of the identity of the Candidate other than via informationsupplied by the Agency. The Clientagrees that it will be deemed not to have been aware of the identity of theCandidate prior to the Agency’s provision of the information relating to theCandidate’s identity if the Client fails to provide such a notice within theaforementioned 24 hours.
5.8 The Client acknowledges that the Agency is underno obligation to provide the Services until all required information has beenprovided by the Client in accordance with sub-Clause 5.1.
5.9 The Client shall inform the Agency immediatelyin the event that any relevant information changes following the submission ofthat information to the Agency. TheAgency reserves the right to charge the Client for any work required to makealterations to vacancy advertisements or other relevant information it holds.
5.10 Subject to the provisions of sub-Clauses 4.3, theAgency shall not verify or otherwise check any Candidate details, howsoeverthey may be provided to the Client.
5.11 It shall be the sole responsibility of theClient to ensure that Candidates are suitable for the relevant vacancies and toobtain any references required.
5.12 It shall be the sole responsibility of theClient to obtain any required permits (including, but not limited to, work permits).
5.13 It shall be the sole responsibility of theClient to arrange for any required medical examinations or investigations.
5.14 The Client must notify the Agency immediately ofany offer of an Engagement that it makes to a Candidate.
5.15 The Client must notify the Agency immediately ofthe acceptance of any offer of Engagement that is made to a Candidate andprovide details of the Candidate’s remuneration.
5.16 The Client must notify the Agency immediatelyif, following the Engagement of a Candidate, the Candidate’s remunerationincreases at any time during the first 12 months of the Engagement, and theintroduction fee detailed in clause will be increased accordingly.
5.17 The Client must within 5 days of offering anEngagement to a Candidate provide the Agency with a copy of the job offer orcontract given to the Candidate.
5.18 Notwithstanding sub-Clauses 4.3 above the Clientmust satisfy itself as to the suitability of a Candidate for any vacancy, andthe Client must be responsible for taking up references and checking thevalidity of qualifications.
5.19 The Client is responsible for payment ofremuneration to the Candidate.
6. Fees and Payment
6.1 The Introduction Fee payable by the Client to
the Agency upon the commencement of an Engagement by a Candidate shall be
calculated as the amount equal to
6.1.1
20% of the candidate’s remuneration
during the first 12 months of the Engagement exclusive of VAT for candidates
earning less than £40,000
6.1.2 21%
of the candidate’s remuneration during the first 12 months of the Engagement
exclusive of VAT for candidates earning £40,000 – £70,000
6.1.3 22.5%
of the candidate’s remuneration during the first 12 months of the Engagement
exclusive of VAT for candidates earning £70,000 or more.
6.1.4 Remuneration
of a car allowance will be treated as either the cash amount given to the
candidate or where a physical car is offered, £5000.
6.2
If the Engagement of a Candidate is for a fixed
term of less than 12 months then fee will be calculated pro rata as above.
6.3
In the event that an Engagement for a fixed term
of less than 12 months is extended then a fee based on the Candidate’s
remuneration for the period up to 12 months from the original Engagement will
become payable by the Client.
6.4
The Client will not be liable for any fees until
a Candidate commences an engagement when the Agency will render an invoice to
the Client. Unless otherwise agreed.
6.5
The Client must pay the Agency’s fees within 7
days of receiving the invoice.
6.6
The Agency reserves the right to charge interest
at the rate of 3% above Bank of England rate of interest per annum on any
invoiced fees that remain unpaid by the Client from the due date to the date of
payment.
6.7 Rebate
Guarantee. For a placement period of less than 4 weeks, the Agency will
endeavour to find a suitable replacement candidate on an exclusive arrangement for
4 weeks at no extra cost to the Client. Should the client cancel the replacement
recruitment process or procure a candidate via another method, Counted will
leave 50% of the fee on account, against future recruitment.
6.8 Where a Client has made an offer of Engagement
to a Candidate but withdraws it before the Candidate commences the Engagement
the Client must pay the Agency an amount equal to not less than 25% of the
annual remuneration to which the Candidate would have been entitled if the
Engagement had proceeded.
Confidentiality
7.1 Each Party undertakes that, except as providedby sub-Clause 7.2 or as authorised in writing by the other Party, it shall, at all times:
7.1.1 keep confidential all Confidential Information;
7.1.2 not disclose any Confidential Information to anyother party;
7.1.3 not use any Confidential Information for anypurpose other than as contemplated by and subject to these Terms and Conditions;
7.1.4 not make any copies of, record in any way orpart with possession of any Confidential Information; and
7.1.5 ensure that none of its directors, officers,employees, agents or advisers does any act which, if done by that Party, wouldbe a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 above.
7.2 Either Party may:
7.2.1 disclose any Confidential Information to:
7.2.1.1 anysub-contractor or supplier of that Party;
7.2.1.2 anygovernmental or other authority or regulatory body; or
7.2.1.3 anyemployee or officer of that Party or of any of the aforementioned persons;
to such extent only as is necessary for the purposescontemplated by these Terms and Conditions, or as required by law, and in eachcase subject to that Party first informing the person in question that theConfidential Information is confidential and (except where the disclosure is toany such body as is mentioned in sub-Clause
7.2.1.2 above or any authorisedemployee or officer of any such body) obtaining and submitting to the otherParty a written undertaking from the person in question, as nearly aspracticable in the terms of this Clause, to keep the Confidential Informationconfidential and to use it only for the purposes for which the disclosure ismade; and
7.2.2 use any Confidential Information for any purpose,or disclose it to any other person, to the extent only that it is, or hasbecome, public knowledge through no fault of that Party, provided that in doingso that Party does not disclose any part of that Confidential Information whichis not public knowledge.
7.3 The provisions of this Clause 7 shall continuein force in accordance with their terms, notwithstanding the termination of theseTerms and Conditions for any reason.
8. Data Protection
8.1 In this Clause 8:
8.1.1 “Data Protection Legislation” means 1) unlessand until GDPR is no longer directly applicable in the UK, GDPR and any national implementing laws,regulations, and secondary legislation (as amended from time to time), in the UK andsubsequently 2) any legislation which succeeds GDPR;
8.1.2 “GDPR” means EU Regulation 2016/679 General DataProtection Regulation; and
8.1.3 “personal data” means personal data as defined in the Data ProtectionLegislation.
8.2 All personal data that either Agency or theClient (“First Party”) may use will be collected, processed, and held by thatFirst Party in accordance with the provisions of Data Protection Legislationand the rights under the Data Protection Legislation of the other party being,as the case may be, either the Agency or the Client (“Other Party”) and therights under the Data Protection Legislation of any third party.
8.3 Forcomplete details of the First Party’s collection, processing, storage, andretention of personal data including, but not limited to, the purpose(s) forwhich personal data is used, the legal basis or bases for using it, details ofthe Other Party’s and any third party’s rights and how to exercise them, andpersonal data sharing (where applicable), the Other Party should refer to thePrivacy Notice of the First Party. The respective Privacy Notices of each Partyare attached in the Schedule to these Terms and Conditions.
8.4 Allpersonal data to be shared by the First Party with the Other Party under thisAgreement shall be shared in accordance with the terms of the Data SharingAgreement entered into by the Parties pursuant to this Agreement.
8.5 Allpersonal data to be processed by the First Party on behalf of the Other Partyunder this Agreement shall be processed in accordance with the terms of theData Processing Agreement entered into by the Parties on pursuant to this Agreement.
9. Liability
The Agency shall not be liable or responsible for any loss ordamages of any nature whether direct or indirect including any loss of profitsor any consequential damages suffered or incurred by the Client as a result ofthe Introduction of a Candidate to the Client by the Agency, the Engagement ofa Client Introduced by the Agency or the failure of the Agency to Introduce anyCandidate to the Client.
10. Indemnity
The Client shall indemnify the Agency against any costs,liability, damages, loss, claims or proceedings which may arise out of its useof the Services or out of any breach of any part of these Terms and Conditions.
11. Force Majeure
Neither Party to these Terms and Conditions shall be liablefor any failure or delay in performing their obligations where such failure ordelay results from any cause that is beyond the reasonable control of thatParty. Such causes include, but are notlimited to: power failure, Internet Service Provider failure, industrialaction, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, actsof war, governmental action or any other event that is beyond the control ofthe Party in question.
12. Law and Jurisdiction
12.1 These Terms and Conditions (including anynon-contractual matters and obligations arising therefrom or associatedtherewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
12.2 Any dispute, controversy, proceedings or claimbetween the Parties relating to these Terms and Conditions (including any non-contractualmatters and obligations arising therefrom or associated therewith) shall fallwithin the jurisdiction of the courts of Englandand Wales.
