TERMS AND CONDITIONS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT STAFF (“CONDITIONS”)
1 : DEFINITIONS
1.1 : In these Conditions the following definitions apply:
“Candidate” means the person Introduced by the Company to the Client for an Engagement including any officer or employee of the Candidate if the
Candidate is a limited company;
“Client” means the person, firm or company to which the Candidate is Introduced, together with any holding company, subsidiary or associated company of the Client;
“Company” means Marble Talent Group Limited (registered company no. 12785494) whose registered office is at Suite 5 One Port Way, Port Solent, Portsmouth, Hampshire, PO6 4TY;
“Data Protection Laws” means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European
Union has legal effect in the UK);
“Engagement” means the engagement, employment or use of the Candidate by the Client or by any third party to whom the Candidate has been introduced to by the Client, 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 or employee; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“Introduction” means (i) the passing to the Client of a curriculum vitæ or other information which identifies the Candidate or (ii) the Client’s interview of a Candidate (in person, by telephone or video call or by any other means), following the Client’s instruction to the Company to search for a Candidate; and, in either case, which leads to an Engagement of the Candidate; and “Introduces” and “Introduced” shall be construed accordingly;
“Introduction Fee” means the fee payable by the Client to the Company for an Introduction resulting in an Engagement, calculated in accordance with clause 3.5 or as otherwise agreed in writing between the parties;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated 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. Where the Client provides a company car, a notional amount of £3,000 will be added to the salary in order to calculate the Introduction Fee.
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 Conditions are for convenience only and do not affect their interpretation.
2 : THE CONTRACT
2.1 : The Company 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.
2.2 : These Conditions together with any special conditions agreed between the parties in writing relating to the Introduction of Candidates to the Client constitute the contract between the Company and the Client for the supply of permanent or contract staff (to be engaged directly by the Client) (“the Contract”) 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.
2.3 : These Conditions contain the entire agreement between the parties and shall prevail over any other terms and conditions put forward by the Client.
2.4 : No variation or alteration to these Conditions shall be valid unless the details of such variation are agreed in writing between the Company and the Client.
3 : NOTIFICATION AND FEES
3.1 : The Client shall:
3.1.1 : notify the Company immediately of the conditions of any offer of an Engagement which it makes to the Candidate;
3.1.2 : notify the Company immediately that its offer of an Engagement to the Candidate has been accepted and to provide details to the Company of the Remuneration agreed with the Candidate together with any documentary evidence as requested by the Company;
3.1.3 : pay the Introduction Fee within 14 days of the date the Candidate commences the Engagement, unless other payment terms are agreed in writing between the parties;
3.2 : In the event of failure to comply with any of the conditions set out in 3.1.1 – 3.1.3 above, any special terms or discounts agreed with the Client shall become null and void and thereafter standard fees and terms shall apply. The Company reserves the right to invoice a late payment fee to the Client of 1% of the invoice value per seven-day period the invoice is overdue.
3.3 : The Introduction Fee is payable 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 or (c) the Candidate’s rejection of an offer of an Engagement, (whichever is the later). For the avoidance of doubt, the parties agree that there shall be no implied term that an Introduction must be the, or an, effective cause of an Engagement.
3.4 : All Introductions are confidential and if the Client (or any employee, agent or representative of the Client) refers the Candidate to any other third party within 12 months of the Introduction and this results in an Engagement, then the Introduction Fee as detailed below shall be payable by the Client as though the Client had Engaged the Candidate directly itself.
3.5 : The Introduction Fee is the amount equal to the bandings below of the Remuneration applicable during the first 12 months of the Engagement.
|£0 – £14,999||15%|
|£15,000 to £24,999||20%|
3.6 : Where the actual Remuneration is not known, the Company will charge an Introduction Fee calculated in accordance with clause 3.5 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 Company by the Client and/or comparable positions in the market generally.
3.7 : Where prior to the commencement of the Engagement the Company and the Client agrees that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata.
3.8 : 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. Time for payment shall be of the essence. VAT is charged at the current prevailing rate on all fees.
3.9 : The Company is entitled to and will charge interest at 4% over the base rate of NatWest Bank Plc on invoiced amounts unpaid from the due date until the date of payment. In addition, the Client shall be liable to pay the Company any additional costs and expenses incurred by the Company in seeking to enforce its rights or recover any outstanding sums due under the Contract from the Client, including, without limitation, legal fees, court fees and process server fees.
3.10 : If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw it after the Candidate has accepted the Engagement, the Client shall be liable to pay the Company the full Introduction Fee agreed.
3.11 : A minimum fee of £5,000 will apply to any contracting or self-employed engagement
4 : CREDITS
4.1 : If, once an Engagement has commenced, it is terminated by either the Candidate or the Client (except in circumstances where the Candidate is made redundant or where the Client is at fault) before the expiry of 8 weeks from the date of commencement of the Engagement; then subject to the conditions of clause 4.2 the Company will allow a credit to be set against future Introductions in accordance with the scale set out below:
|Week in which the Candidate’s Engagement is terminated||% of credit|
4.2 : In order to qualify for the credit set out in clause 4.1, the Client must comply with the provisions of clause 3.1 and must notify the Company in writing of the termination of the Engagement within 7 days of its termination.
4.3 : There shall be no credit allowed where the Client has received a discount on the Companies standard fees as set out in clause 3.5.
4.4 : For the purposes of this clause 4 the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client, but for any period of garden leave or payment in lieu of notice, whichever is the later.
4.5 : There will be no refund where the Candidate’s Engagement is terminated (or the Engagement would have terminated but for any period of garden leave or payment in lieu of notice) during or after the 9th week of the Engagement.
4.6 : In circumstances where clause 3.4 applies, the full Introduction Fee is payable and there shall be no entitlement to a credit.
4.7 : If subsequent to the Client receiving a credit the Candidate is re-Engaged within a period of 6 calendar months from the date of termination then the full Introduction Fee shall be payable for that Introduction with no further entitlement to any further credit in relation to the re-Engagement of that Candidate.
4.8 : In the event that The Client should fail to honour the Company’s payment terms in accordance with Clause 3.1.3, the Client shall forfeit the right to claim any credit hereunder and the Company’s standard full fees shall remain due and owing.
5 : SUITABILITY CHECKS
5.1 : The Company endeavours to ensure the suitability of Candidates Introduced to the Client to work in the position which the Client seeks to fill by taking reasonably practicable steps to:
5.1.1 : ensure that it would not be detrimental to the interests of either the Client or the Candidate;
5.1.2 : ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body;
5.1.3 : confirm that the Candidate is willing to work in the position.
5.2 : Notwithstanding clause 5.1 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:
5.2.1 : taking up any references provided by the Candidate before Engaging the Candidate;
5.2.2 : 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;
5.2.3 : the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.
5.3 : To enable the Company to comply with its obligations under 5.1 above the Client undertakes to provide to the Company details of the position which the Client seeks to fill, including the following:
5.3.1 : the type of work that the Candidate would be required to do;
5.3.2 : the location and hours of work;
5.3.3 : 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;
5.3.4 : any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
5.3.5. : the date the Client requires the Candidate to commence the Engagement;
5.3.6 : the duration or likely duration of the Engagement;
5.3.7 : the minimum rate of Remuneration, expenses and any other benefits that would be offered;
5.3.8 : the intervals of payment of Remuneration; and
5.3.9 : the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.
6 : CONFIDENTIALITY AND DATA PROTECTION
6.1 : The Client shall keep the following strictly confidential, use it strictly for the purpose for which it was disclosed to it and not divulge to any third party, save for its own employees and professional advisors and as may be required by law:
6.1.1 : all information contained within the Contract;
6.1.2 : all information relating to an Introduction, including without limitation, the Candidate’s CV and any other personal information disclosed to it about the Candidate by the Company; and
6.1.3 : all information relating to the Company’s business, except that which is in the public domain.
6.2 : Both the Company and the Client shall comply with all applicable requirements of the Data Protection Laws.
6.3 : Without prejudice to the generality of clause 6.2 above, the Client shall, in relation to any personal data (as defined in the Data Protection Laws) processed in connection with the performance by it of its obligations under the Contract and in connection with its recruitment processes (“Agreed Purpose“):
6.3.1 : process that personal data only for the Agreed Purpose, unless you are otherwise required to do so by law;
6.3.2 : ensure it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
6.3.3 : ensure that all personnel who have access to and/or process the personal data are obliged to keep it confidential;
6.3.4 : not transfer any personal data outside the European Economic Area unless the Company’s prior written consent has been obtained and the following conditions are fulfilled:
6.3.5 : the data subject (as defined in the Data Protection Laws) has enforceable rights and effective legal remedies with regard to the transferred personal data; and
6.3.6 : the transferring party complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any personal data that is transferred;
6.3.7 : assist the Company in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.3.8 : notify the Company within 48 hours upon becoming aware of a personal data breach;
6.3.9 : at the Company’s written direction, delete or return the personal data and copies thereof to the Company on termination of the Contract unless required by law to store the personal data; and
6.3.10 : provide the Company with evidence of compliance with this clause 6.3 upon request.
6.4 : The Company does not consent to the Client appointing a third party processor of personal data under the Contract.
6.5 : The Client shall indemnify the Company against all claims and proceedings and all liability, loss, costs and expenses incurred by the Company as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of any breach by the Client, your employees or agents, of the Data Protection Laws and/or this clause 6.
7 : LIABILITY
7.1 : The Company shall not be liable for any loss, injury, damage, expense or delay, incurred or suffered by the Client arising in connection with any Introduction or Engagement and, in particular (but without limitation to the foregoing), any such loss, injury, damage, expense or delay arising in connection with:
7.1.1 : failure by the Company to Introduce a Candidate;
7.1.2 : failure of any Candidate to meet the Client’s requirements for all or any of the purposes for which the Candidate is required by the Client;
7.1.3 : any act or omission of any Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; or
7.1.4 : any loss, injury, damage, expense or delay incurred or suffered by a Candidate.
7.2 : The Client acknowledges that in entering into the Contract it has not relied on any representations, warranties or other assurances made by the Company or the Candidate other than those expressly set out in the Contract.
7.3 : The Company shall not be liable for failure to perform our obligations under the Contract if such failure results by reason of any cause beyond its reasonable control.
7.4 : Nothing in these Conditions shall exclude the Company’s liability for:
7.4.1 : death or personal injury caused by its negligence;
7.4.2 : fraud or fraudulent misrepresentation; or
7.4.3 : for any other matter for which it would be illegal for the Company to exclude or attempt to exclude its liability for.
7.5 : Subject to this clause 7 above:
7.5.1 : the Company shall not be liable whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, direct or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
7.5.2 : the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Introduction Fee(s) paid during the 12 months immediately preceding the date on which the claim arose.
8 : TERMINATIONS
8.1 : Without affecting any right or remedy available to us, the Company can terminate the Contract by giving the Client 21 days’ written notice to terminate for convenience or with immediate effect if the Client:
8.1.1 : fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than 14 days after being notified in writing to make such payment; or
8.1.2 : commits a material breach of any provision of the Contract and fails to remedy such breach (if capable of remedy) within 7 days of receipt in writing to do so; or
8.1.3 : takes any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purposes of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.
9 : GENERAL
9.1 : All notices which are required to be given in accordance with the Contract 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.
9.2 : None of the provisions of the Contract are intended to be for the benefit of, or enforceable by third parties and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
9.3 : The Company shall be entitled to assign or sub-contract all or any of its rights or obligations under the Contract without the Client’s prior consent.
9.4 : Any indulgence granted by the Company to the Client and any failure by the Company to insist upon the strict performance of the Contract shall not be deemed a waiver of any of its rights or remedies nor be deemed a waiver of any subsequent default by the Client.
9.5 : If any of the provisions of the Contract shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remainder of the Contract, which shall continue to be valid to the fullest extent permitted by applicable laws.
9.6 : The Contract is governed by the law of England & Wales and subject to the exclusive jurisdiction of the Courts of England & Wales.