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Terms of

Business [USA]

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

     

     

    1. DEFINITIONS

     

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

     

    “Agency”                  means Nter Talent Limited (registered company no. 14927084) of C/O Montacs International House Kingsfield Court, Chester Business Park, Chester, United Kingdom, CH4 9RF (“the Agency”);

    “Candidate”                                means the person Introduced by the Agency to the Client for an Engagement;

    “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 annual salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, equity, the benefit of a company car and all other payments payable to or the Candidate for services rendered to the Client or any third party on their behalf. Where the Client provides a company car a notional amount of £12,000 (in local currency) will be added to the salary in order to calculate the Agency’s fee, and the same shall apply to any offer of equity;

    • Unless the context requires otherwise, references to the singular include the plural and the masculine includes the feminine and vice versa.
    • The headings contained in these Terms are for convenience only and do not affect their interpretation.

     

    1. THE CONTRACT

     

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

     

     

    1. NOTIFICATION AND FEES

     

    • The Client agrees to:
      • notify the Agency immediately of the terms of any offer of an Engagement which it makes to the Candidate;
      • 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 pay the Introduction Fee to be calculated in accordance with the provisions of this clause 3.
    • The Introduction Fee shall be payable within 21 days (7 days for contract engagements) of the date of the Agency’s invoice.
    • The Introduction Fee payable to the Agency by the Client for an Introduction resulting in an Engagement is calculated at 35% of the Remuneration.
    • If the Client Engages the Candidate within the period of 12 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, then the full Introduction Fee calculated in accordance with clause 3.3 becomes payable.
    • 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.
    • VAT is charged at the standard rate on all fees where applicable.
    • 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.
    • Where the actual Remuneration is not known, the Agency will charge an Introduction Fee calculated in accordance with clause 3.3 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.
    • If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw it prior to the Candidate accepting the Engagement, the Client shall be liable to pay the Agency a cancellation fee of 20% of the Introduction Fee that would have been applicable.

     

    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 no 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.

     

    1. 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 12 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.

     

    1. 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.

     

    1. 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.

     

    1. 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.

     

    1. 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.