Terms of Business
TERMS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT OR FIXED TERM CONTRACT STAFF (TO BE DIRECTLY ENGAGED BY THE CLIENT)
1.1 In these Terms the following definitions apply:
“Agency” means Excel Recruitment Solutions Limited (registered number 12988430) whose registered address is at Pioneer House Pioneer Business Park, North Road, Ellesmere Port, United Kingdom, CH65 1AD.
“Business day” means a day other than a Saturday, Sunday or Public/Bank Holiday.
“Candidate” means the person (whether or not previously known to the Client) Introduced by the Agency to the Client for an Engagement including (without limitation) any officer, member, employee or other representative of the Candidate if the Candidate is a corporate body or partnership (including limited or limited liability partnership), 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 by any third party to whom the Candidate has been introduced by the Client (whether with or without the Agency’s knowledge or consent), on a permanent or temporary basis, howsoever engaged (whether directly or indirectly and including (without limitation) under a contract of service or for services, under an agency, licence, franchise or partnership agreement, through a limited company of which the Candidate is an officer, employee or other representative or any other engagement) and “Engage“, “Engages” and “Engaged” shall be construed accordingly.
“Engagement Commencement” means the commencement of an Engagement.
“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) and “Introduces” and “Introduced” shall be construed accordingly.
“Introduction Fee” means the fee payable by the Client to the Agency on an Engagement calculated in accordance with clause 3.3.
“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 £5,000 will be added to the salary in order to calculate the Introduction Fee.
“Replacement Candidate” means any Candidate Introduced by the Agency to the Client to fill the Engagement following the Introduction of another Candidate whose Engagement either did not commence or was terminated during the first 12 weeks of the Engagement.
“Terms” means these terms of business.
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 either (i) an Introduction, an offer of Engagement or an Engagement (ii) a request by the Client to receive information regarding a Candidate or to interview a Candidate or (iii) the passing by the Client of any information about a Candidate to any third party. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged for the same type of work as that for which the Introduction was originally effected.
2.2 These Terms supersede all previous agreements and contain the entire agreement between the parties in relation to the subject matter hereof and shall prevail over any other terms of business or purchase conditions (or similar) put forward by the Client. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Agency which is not set out in these Terms.
2.3 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of 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. The Client authorises the Agency to act on its behalf in seeking Candidates and, if the Client so requests, shall advertise for such Candidates through such methods as are agreed with the Client.
2.5 It is the Client’s responsibility to ensure that only one agency is engaged in respect of the Engagement of a Candidate. The Client must inform the Agency immediately (and in any event prior to 2pm on the next business day) where it receives details of a Candidate from the Agency which it has already received from another agency. If either (i) no such notification is received by the Agency or (ii) the details of a Candidate sent by the Agency were received by the Client prior to the Client receiving the details of the same Candidate from another agency then, in the event of an Engagement, the Client agrees the Agency is entitled to charge an Introduction Fee, in each case notwithstanding that any additional fees may be payable by the Client to any other agency.
3. Notification and fees
3.1 The Client agrees to:
(a) notify the Agency of the terms of any offer of Engagement at the same time which it is made to the Candidate;
(b) notify the Agency immediately of any acceptance by a Candidate of an offer of Engagement 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
(c) pay the Introduction Fee, to be calculated in accordance with the provisions of this
clause 3, by the due date for payment in clause 3.7.
3.2 The Introduction Fee is payable if Engagement Commencement takes place within the period of 9 (nine) calendar months from the latest of the date of (i) the Introduction (ii) the Client’s withdrawal of an offer of Engagement (iii) the Candidate’s rejection of an offer of Engagement (iv) the last interview or other meeting or communication between the Client and the Candidate in the 9 (nine) months following the Introduction.
3.3 The Introduction Fee is payable on Engagement Commencement and is calculated as follows:
|Remuneration*||Percentage of Remuneration|
|Up to £29,999||17.5%|
|£30,000 to £49,000||15%|
|£50,000 to £79,999||12.5%|
|£80,000 and above||12.5%|
* For a permanent (full-time or part-time) Engagement, Remuneration shall refer to annual Remuneration (i.e. 12 months from Engagement Commencement). For a fixed term (full-time or part-time) Engagement, Remuneration shall refer to the Remuneration for the relevant fixed term.
3.4 Where the actual Remuneration is not known to the Agency, the Agency will charge an Introduction Fee calculated in accordance with clause 3.3 based on its determination of the Remuneration at its sole discretion but 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 and/or comparable positions in the market generally.
3.5 Where prior to Engagement Commencement the Agency and the Client agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata. If the Client (a) extends the Engagement beyond the initial fixed term or (b) re-Engages the Candidate within 12 calendar months from the date of termination of the agreed period of the fixed term Engagement, then the Client shall be liable to pay a further Introduction 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, subject to the Client not being liable to pay a greater sum in Introduction Fees than the Client would have been liable for under clause 3.3 had the Candidate first been Engaged for 12 months or more.
3.6 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.
3.7 The Introduction Fee shall be payable within 14 days of the date of the Agency’s invoice, which will be rendered at any time on or after the date of Engagement Commencement.
3.8 Where applicable, VAT is charged at the standard rate on all fees. All invoices must be settled in full in GBP Sterling and for the avoidance of doubt the Client is solely responsible for paying all bank transfer, currency conversion and other fees and charges so that the full amount of the invoice is received by the Agency.
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 In the event that any Agency staff with whom the Client has had personal dealings accepts an Engagement with the Client while employed by the Agency or within three months of leaving the Agency, the Client shall be liable to pay an Introduction Fee to the Agency calculated in accordance with clause 3.3.
4.1 If, after Engagement Commencement, the Engagement is terminated by either the Candidate or the Client before the expiry of 12 weeks from the date of Engagement Commencement then at the Client’s request the Agency will endeavour to find one suitable Replacement Candidate. If a suitable Replacement Candidate is subsequently Engaged, the Fee will be calculated, invoices and paid based on the Remuneration of the Replacement Candidate.
4.2 If, after Engagement Commencement, the Engagement is terminated by either the Candidate or the Client before the expiry of 12 weeks from the date of Engagement Commencement then subject to the terms of clause 4.3, the Agency will refund an amount calculated as follows:
|Number of weeks between Engagement Commencement and termination||Percentage of Introduction Fee to be refunded|
4.3 In order to qualify for the refund set out in this clause 4:
(a) the Engagement cannot have terminated (or offer of Engagement have been withdrawn) due to the role being made redundant or in connection with any re- organisation or change in strategy of the person Engaging the Candidate;
(b) the Candidate must not leave the Engagement because he/she reasonably believed that the nature of the actual work was substantially different from the information the Client provided prior to the Candidate accepting the offer of Engagement;
(c) the Candidate did not leave the Engagement as a result of discrimination or other acts against the Candidate;
(d) the Candidate was not at any time in the 12 months prior to the Introduction employed or hired (whether on a permanent or contract basis) by the Client;
(e) the Client must:
(i) have complied and continued to comply with the provisions of clauses 3.1 and 3.7;
(ii) notify the Agency in writing of the termination of the Engagement within seven days of its termination; and
(iii) give the Agency exclusivity to search for a suitable Replacement Candidate as contemplated by clause 4.1 for a period of four weeks from the date of receipt by the Agency of the notification in clause 4.3(e)(ii). If after such four week period no suitable Replacement Candidate can be found, or if the Replacement Candidate’s Engagement is terminated before the expiry of eight weeks from the date of the Engagement Commencement of the original Candidate, the Client will then be eligible for a refund, subject to the remainder of this clause 4.
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 If subsequent to the Client receiving a refund the Candidate is re-Engaged within a period of 12 calendar months from the date of termination then the refund shall be repaid to the Agency. The Client shall not be entitled to any further refunds in relation to the re- Engagement of this Candidate.
4.5 Excel Recruitment Solutions will also be given the opportunity to find one replacement should the employee be dismissed within the first 12 weeks of employment. This will be honoured before any refund is applied.
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 Engagement of 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.
6. Suitability checks
6.1 The Agency shall use reasonable 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:
(a) ensure that the Engagement would not be detrimental to the interests of either the Client or the Candidate;
(b) ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body; and
(c) confirm that the Candidate is willing to work in the position.
6.2 Notwithstanding clause 6.1 the Client must satisfy itself as to the suitability of the Candidate for the position they are seeking to fill. The Client is responsible for:
(a) taking up any references provided by the Candidate before Engaging the Candidate;
(b) 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;
(c) the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and
(d) satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.
6.3 To enable the Agency to comply with its obligations under clause 6.1, the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including (without limitation) the following:
(a) any information it has that suggests it would 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;
(b) the type of work that the Candidate would be required to do;
(c) the location and hours of work;
(d) 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;
(e) any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(f) the date the Client requires the Candidate to commence the Engagement;
(g) the duration or likely duration of the Engagement;
(h) the minimum rate of Remuneration, expenses and any other benefits that would be offered;
(i) the intervals of payment of Remuneration; and
(j) the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.
7. Confidentiality and data protection
7.1 All information relating to a Candidate is confidential and subject to the Data Protection Act 1998 (“DPA”) 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 (i) to abide by the provisions of the DPA in receiving and processing the data at all times; (ii) not provide any information relating to any Candidate to any third party without the prior written consent of the Agency; (iii) not to cause the Agency to breach the DPA; and (iv) provide the Agency with any and all information requested by the Agency in a timely manner to assist the Agency to comply with its obligations under the DPA including (without limitation) any response to a Data Subject access request.
7.2 The Client undertakes that information relating to the Agency’s business and any Candidate 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 (through no fault of the Client or breach of this clause 7) or is required to be disclosed by law.
8.1 The Agency shall not be liable under any circumstances whether in contract, tort (including negligence), breach of statutory duty, or otherwise 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 (i) the Agency seeking a Candidate for the Client (ii) the Introduction to or Engagement of any Candidate by the Client (iii) the failure of the Agency to introduce any Candidate (iv) any act or omission of any Candidate (whether wilful, negligent, fraudulent, reckless or otherwise). Nothing in these Terms shall limit or exclude the Agency’s 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.
8.2 The Client shall indemnify the Agency against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with (i) the Client’s breach or negligent performance or non- performance of these Terms (ii) the Agency’s enforcement of these Terms.
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.
10.1 A waiver by the Agency of any right under these Terms is only effective if it is confirmed in writing by a director of the Agency and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the Agency in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.2 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.
10.3 No third party is intended to have any rights under or in connection with these Terms.
10.4 On termination of these Terms for any reason, clauses which expressly or by implication have effect after termination (including, for the avoidance of doubt, clauses 7 to 11 (inclusive)) shall continue in full force and effect.
11. Governing law and jurisdiction
These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the Client irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
Terms for the supply of temporary workers
In these Terms and Conditions the following definitions apply: ‘The Agent’; Excel Recruitment Solutions Ltd of Pioneer House, Pioneer Business Park, North Road, Ellesmere Port, Cheshire, CH65 1AD. ‘The Client’; means the person, firm or corporate body requiring the services of the Temporary. ‘The Temporary’; means the person or limited company (including any officer, employee or agent thereof) engaged to carry out the Assignment. ‘The Assignment’; means the period during which the Temporary is engaged to work for the Client.
2. The Contract
These Terms and Conditions are accepted by the Client by virtue of its interview with the Agent or the Temporary or the engagement by the Client of the services of the Temporary. No variation or alteration of these Terms and Conditions shall be valid or enforceable unless approved in writing by the Agent. For the purposes of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Conduct Regulations) the Agent is acting as an Employment Business. In the event that a permanent or fixed term engagement follows the introduction of the Temporary to the Client, the Agent will be acting as an Employment Agency.
3. Client Obligations
To enable the Agent to satisfy its obligations under the Conduct Regulations the Client shall provide the Agent with the following information regarding each role it seeks to fill: a) the date on which the Client requires a Temporary to commence work, and the duration or likely duration of the work; b) the role for which the Client seeks a Temporary, including the type of work the Temporary would be required to do; c) the location and working hours; d) any issues relating to health and safety and details of any steps taken by the Client to control or prevent such risk; d) the experience, training, qualifications and any authorisations which the Client considers are necessary or are required by law or any professional body for a Temporary to possess in order to work in the relevant position; e) the remuneration, any expenses, and/or any other benefits which the Temporary would be paid, and the intervals at which such remuneration or other benefits would be paid; f) the length of notice which the Temporary would be required to give and entitled to receive to terminate the engagement; and g) the minimum rate of pay, expenses and any other benefits that would be payable to the Temporary. To allow the Agent to satisfy its obligations under the Agency Workers Regulations 2010 (“AWR”) the Client undertakes to provide all information including any variation thereto requested by the Agent in relation to the Assignment, including but not limited to relevant working and employment conditions, and the work history of the Temporary. The Client warrants that all information provided pursuant to this Clause 3 is true and accurate in all material respects. Where the Temporary is unable to continue the Assignment on maternity grounds for reasons of health and safety, the Client undertakes to make such reasonable adjustments as are necessary to allow the Temporary to continue providing services for the duration of the Assignment. For the avoidance of doubt, such reasonable adjustments shall include provision of alternative work on terms no less favourable than those applicable to the Assignment.
The Agent is responsible for payroll and will deduct from sums paid to the Temporary, Schedule E Income Tax (PAYE) and national insurance primary contributions, and will account for the tax, primary national insurance contributions and secondary national insurance contributions to HMRC as required by Section 13+ ICTA 1988. The agent will also pay holding pay in line with the Working Time Regulation.
The Client agrees to pay the hourly charge of the Agent advised at the time of the booking. These charges largely represent the Temporary’s payment and national insurance secondary contributions. The Agent reserves the right to vary the agreed charges in order to comply with additional liabilities imposed by statute or other legal requirement. The Client agrees to verify and sign the Agent’s timesheets each week. Signature of timesheets by the Client constitutes acceptance that the
Temporary has worked satisfactorily for the hours indicated on the timesheet. Failure to sign the timesheet does not alter the Clients liability to pay for the hours worked. Other expenses as may be agreed shall be itemised on the Agent’s invoice in addition to this charge. The Client agrees to pay any amounts to which the Temporary is entitled under the AWR, where applicable, including where the Temporary is pregnant payment for time off to attend ante-natal appointments. VAT is charged in addition to these fees.
6. Introduction fees
The Engagement by the Client of a Temporary introduced or supplied by the Agent, or a re-introduction of a temporary to the Client through another agency, or the introduction of a Temporary to other employers resulting in an engagement, renders the Client liable to pay a fee in line with the agents fee schedule to the Agent provided that any such engagement takes place within six months of the termination of any temporary assignment through the Agent. Charges for Temporaries are invoiced weekly and payable within 7 days of the date of the Agents invoice.
Whilst every effort is made by the Agent to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from the Temporary and to provide them in accordance with the booking details provided by the Client, no liability is accepted by the Agent for any loss, expense, damage or delay arising from the failure to provide a Temporary for all or part of the period of the Clients bookings or from the negligence, dishonesty, misconduct or lack of skill of the Temporary or if the Temporary terminates the Assignment for any reason. Temporaries provided by the Agent to the Client are provided under contracts for services and are deemed to be under the supervision, direction and control of the Client for the duration of the assignment. The client is responsible for all acts, errors and omissions of the Temporary whether wilful, negligent or otherwise as though the Temporaries were an employee of the Client, and the Client will comply in all respects with all statutes including for the avoidance of doubt, the Working Time Regulations, bye-laws and legal requirements to which the client is ordinarily subject in respect of its own employees and staff, including in particular the provision of adequate Employer’s and Public Liability, insurance cover for the Temporary during Assignments, but excluding the matters referred to in Paragraph 3. The Client warrants and undertakes that it shall not seek to deny the Temporary’s entitlement to rights under the AWR. The client shall ensure that it complies with all relevant Health and Safety Legislation in respect of the Temporary as if the Temporary was an employee of the Client and that the Temporary complies with any obligations to which it is subject under such legalisation. The Client shall indemnify the Agent against any costs, claims, charges and expenses incurred by the Agent arising out of or connection with these terms or the engagement or use of the Temporary by the Client including but not limited to any breach of any applicable statutory provisions. The Client shall report to the Agent, any accident resulting in injury or death of the Temporary whilst carrying out an assignment.
The Client shall supervise the Temporary sufficiently to ensure its satisfaction with skills and standards of workmanship but if the services of the Temporary are unsatisfactory, the Agent may reduce or cancel the charge for the time worked by the Temporary with the Client provided that the Client terminates the Assignment and notifies the Agent of the termination within the same day as commencement of the assignment each of the Client, the Temporary or the Agent may terminate the Assignment at any time without prior notice.
Invoicing & Payments
The invoice will be issued on the day of engagement commencement with the candidate.
This invoice is payable 7 days from the initial day of submission.
The payment for the invoice will need to be transferred into Excel Recruitment Solutions Ltd bank account via a BACS transfer.
All invoice queries should be sent to email@example.com
This proposal is valid for 30 days from submission, after that date prices and services may vary and change accordingly to which all prospects and partners will have due notice.