TERMS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT OR CONTRACT STAFF (TO BE DIRECTLY ENGAGED BY THE CLIENT)

1. DEFINITIONS

1.1. In these Terms of Business (“Terms”) the following definitions apply:

“Agency” means Nter Talent Limited of c/o Montacs, International House, Kingsfield Court, Chester Business Centre, Chester, CH4 9RF (“the Agency”);

“Cancellation Fee” means the fee payable by the Client to the Agency when the Client withdraws an offer of Engagement made to the Candidate before the Candidate has accepted the offer and which is calculated in accordance with clause 3.11;

“Candidate” means the person Introduced by the Agency to the Client for an Engagement including any officer, employee or other representative of the Candidate if the Candidate is a corporate body, and members of the Agency’s own staff;

“Client” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to which the Candidate is Introduced;

“Engagement” means the engagement, employment or use of the Candidate by the Client or any third party on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement, or any other engagement, or through a limited company of which the Candidate is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;

“Introduction” means (i) the passing to the Client of a curriculum vitæ or information which identifies the Candidate or (ii) the Client’s interview of a Candidate (in person, by telephone or by any other means), following the Client’s instruction to the Agency to search for a Candidate or to arrange an interview; and in either case which leads to an Engagement of that Applicant; and “Introduces” and “Introduced” shall be construed accordingly;

“Introduction Fee” means the fee payable by the Client to the Agency when the Candidate accepts an offer of Engagement following an Introduction by the Agency;

“Remuneration” includes gross base salary or fees, guaranteed bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Candidate for services rendered to or on behalf of the Client or any third party.

“Replacement Candidate” means any new Candidate Introduced by the Agency to the Client to fill the Engagement following the Introduction of previous Candidate whose Engagement either did not commence or was terminated during the agreed free replacement period of the relevant Engagement and as detailed in clause 5.1 (“Free Replacement Period” selected depending on the relevant Nter Model);

1.2. Unless the context requires otherwise, references to the singular include the plural and the masculine includes the feminine and vice versa.

1.3. The headings contained in these Terms are for convenience only and do not affect their interpretation.

2. THE CONTRACT

2.1. These Terms constitute the contract between the Agency and the Client for the supply of permanent or contract staff (to be engaged directly by the Client) and are deemed to be accepted by the Client by virtue of an Introduction or the Engagement of a Candidate, or the passing by the Client of any information about a Candidate to any third party following an Introduction.

2.2. These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a director the Agency, these Terms prevail over any other terms of business or purchase conditions (or similar) put forward by the Client.

2.3. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director the Agency and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.

2.4. The Agency acts as an employment agency (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for direct Engagement by that Client.

2.5. The agency reserves the right to transfer the benefit and burden of these terms to a third party.

3. NOTIFICATION AND FEES

3.1. The Client agrees to:

3.1.1. notify the Agency immediately of the terms of any offer of an Engagement which it makes to the Candidate;

3.1.2. notify the Agency immediately that its offer of an Engagement to the Candidate has been accepted and to provide details to the Agency of the Remuneration agreed with the Candidate together with any documentary evidence as requested by the Agency; and

3.1.3. pay the Introduction Fee to be calculated in accordance with the provisions of this clause 3.

3.2. The Introduction Fee shall be payable within 21 days of the date of the Agency’s invoice.

3.3. For circumstances where search fees may be more appropriate, the fee shall be paid in the following instalments:

3.3.1 One third of the fee upon acceptance of Client’s instructions, payable within 7 days of invoice;

3.3.2 One third of the fee upon delivery by the Company of a short-list of candidates, payable within 7 days of invoice; and

3.3.3 The final third upon commencement of the Engagement the Applicant’s acceptance of the offer of Engagement payable within 7 days of invoice.

3.3.4 Where the precise Remuneration is not known in advance, the Remuneration will be estimated for the purposes of the first two instalments of the fee. The final instalment of the fee will be based on the actual Remuneration and any necessary adjustments will be made and no entitlement to refunds of any paid instalments arises, where the Client decides not to proceed with the search or appointment of the Applicant.

3.4. The Introduction Fee payable to the Agency by the Client for an Introduction resulting in an Engagement is calculated in accordance to the Fee Structure as below on the Remuneration applicable during the first 12 months of the Engagement (subject to minimum fee value of £2000). Where Equity is offered as part of Remuneration, a notional £3000 shall be added to the Introduction Fee.

3.5. 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 (minimum 3 months), a fee will be calculated at 25% of pro rata remuneration. If the Engagement is (a) extended beyond the initial fixed term or (b) if the Client re-engages the Candidate within 6 calendar months from the date of termination of the first or any subsequent Engagement, then the Client shall be liable to pay a further 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. Should the Client wish to Engage the Candidate on a permanent basis at any time during a fixed term Engagement or within 6 calendar months from the end of a fixed term Engagement, the Client shall be liable to pay an Introduction Fee as set in 3.4.

3.6. If the Client Engages the Candidate within the period of 6 calendar months from the date of (a) the Introduction, (b) the Client’s withdrawal of an offer of Engagement, (c) the Candidate’s rejection of an offer of an Engagement or (c) the final day of a Fixed Term Engagement, (whichever is the later), then the full Introduction Fee calculated in accordance with clause 3.4 above becomes payable, unless the parties agree that the subsequent Engagement is for a fixed term in which case clause 3.5 will apply.

3.7. The Client’s obligations under this clause 3 shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights.

3.8. VAT is charged at the standard rate on all fees.

3.9. The Agency reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.

3.10. Where the actual Remuneration is not known, the Agency will charge an Introduction Fee calculated in accordance with clause 3.4 based on its determination of the Remuneration taking into account the market rate level of remuneration applicable for the position in which the Candidate has been Engaged and with regard to any information supplied to the Agency by the Client, Candidate and/or comparable positions in the market generally.

3.11. If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw the offer, the Client shall be liable to pay the Agency the full Introduction Fee.

4. REPLACEMENTS

4.1. If, after an offer has been made and accepted, the Engagement is terminated before the expiry of a replacement period agreed in writing prior to the Introduction, (except in circumstances where the Candidate is made redundant) then subject to the terms of clause 4.2 the Agency will provide a Replacement Candidate.

4.2. In order to qualify for the Replacement Candidate set out in clause 4.1, then:

4.2.1. further to clause 3.2 the Client must pay or have paid the Introduction Fee by the due date for payment and must notify the Agency in writing of the termination of the Engagement or the non-commencement of the Engagement within 7 days of its termination or non-commencement; and

4.2.2. the Client must exclusively give the Employment Business reasonable time in which to find one suitable Replacement Candidate based on the original specification given for the position the Client is seeking to fill.

4.3. For the purposes of this clause 4 the date of termination of the Engagement shall be the date on which the Candidate ceases working for the Client.

4.4. In circumstances where clause 3.5 applies, the full Fee is payable and there shall be no entitlement to a Replacement Candidate for the initial or any subsequent Engagements.

4.5. If subsequent to the Client receiving a Replacement Candidate the terminated Candidate is re-Engaged within a period of 6 calendar months from the date of termination, then the full Introduction Fee as calculated in clause 3.3 becomes due. The Client shall not be entitled to any further Replacement Candidates in relation to the Engagement of this Candidate.

5. INTRODUCTIONS TO THIRD PARTIES

Introductions of Candidates are confidential. If a Client discloses a Candidate’s details to a third party that will be deemed to be a “Third Party Introduction”. If that Third Party Introduction results in an offer of Engagement to the Candidate by the third party within 6 months of the Agency’s Introduction of the Candidate to the Client, then the Client will be liable to the Agency for payment of an Introduction Fee in accordance with clause 3. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under clause 4 in any circumstances.

6. SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED

6.1. The Agency endeavours to ensure the suitability of any Candidate Introduced to the Client by obtaining confirmation:

6.1.1. of the Candidate’s identity;

6.1.2. that the Candidate 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

6.1.3. that the Candidate is willing to work in the position which the Client seeks to fill.

6.2. When the Agency Introduces a Candidate to the Client the Agency shall inform the Client of such matters in clause 6.1 as they have obtained confirmation of. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Candidate is being Introduced for an Engagement which is the same as one in which the Candidate has worked within the previous 5 business days and such information has already been given to the Client.

6.3. The Agency endeavours to take all such steps as are reasonably practicable to ensure that the Client and Candidate are aware of any requirements imposed by law or any professional body to enable the Candidate to work in the position which the Client seeks to fill.

6.4. The Agency endeavours to take all such steps as are reasonably practicable to ensure that it would not be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the position which the Client seeks to fill.

6.5. Notwithstanding clauses 6.1 to 6.4 inclusive the Client shall be obliged to satisfy itself as to the suitability of the Candidate for the position they are seeking to fill. The Client is responsible for:

6.5.1. taking up any references provided by the Candidate before Engaging the Candidate;

6.5.2. checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work;

6.5.3. the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and

6.5.4. satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.

6.6. To enable the Agency to comply with its obligations under 6.1 to 6.4 inclusive above the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including the following:

6.6.1. the type of work that the Candidate would be required to do;

6.6.2. the location and hours of work;

6.6.3. the experience, training, qualifications and any authorisation which the Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position;

6.6.4. any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;

6.6.5. the date the Client requires the Candidate to commence the Engagement;

6.6.6. the duration or likely duration of the Engagement;

6.6.7. the minimum rate of Remuneration, expenses and any other benefits that would be offered;

6.6.8. the intervals of payment of Remuneration; and

6.6.9. the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.

7. SPECIAL SITUATIONS

7.1. Where:

7.1.1. the Candidate is required by law, or any professional body to have any qualifications or authorisations to work in the position which the Client seeks to fill;

7.1.2. or the work involves caring for or attending any person under the age of 18, or any person who by reason of age, infirmity or who is otherwise in need of care or attention; the Agency will take all reasonably practicable steps to obtain and offer to provide copies of:

7.1.3. any relevant qualifications or authorisations of the Candidate;

7.1.4. 2 references from persons not related to the Candidate who have agreed that the references they provide may be disclosed to the Client; and

7.1.5. such other reasonably practicable steps as are required to confirm that the Candidate is suitable for the position.

7.2. If the Agency is unable to do any of the above it shall inform the Client of the steps it has taken to obtain this information in any event.

8. CONFIDENTIALITY AND DATA PROTECTION

All information relating to a Candidate is confidential and subject to GDPR and is provided solely for the purpose of providing work-finding services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of GDPR in receiving and processing the data at all times. In addition, information relating to the Agency’s business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.

9. LIABILITY

The Agency shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with the Agency seeking a Candidate for the Client or from the Introduction to or Engagement of any Candidate by the Client or from the failure of the Agency to introduce any Candidate. For the avoidance of doubt, the Agency does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.

10. NOTICES

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 registered office of the party 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.

11. SEVERABILITY

If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by applicable laws.

12. GOVERNING LAW AND JURISDICTION

These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.