Permanent Business Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms the following definitions apply:
Agency means Auxeris Ltd (registered company no. 12773096) of registered office Shorthouse & Martin, Worthy House, 14 Winchester Road, Basingstoke, Hampshire, United Kingdom, RG21 8UQ. The trading office of Auxeris Ltd is Soho Works Shoreditch, 56 Shoreditch High St, Hackney, London E1 6JJ.
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 whom the Candidate is Introduced;
Client's Group means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Client, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Client, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
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, 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 vitae or information which identifies the Candidate; or (ii) the Client’s interview of the Candidate (in person or by telephone or by any other means), following the Client’s instruction to the Employment Business to supply a temporary worker; or (iii) the supply of the Candidate; and, in any case, which leads to an Engagement of the temporary worker or the Candidate; and “Introduced” and "Introducing" shall be construed accordingly;
Introduction Fee means the fee payable by the Client to the Agency for an Introduction resulting in an Engagement;
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 may be added to the salary in order to calculate the Agency’s 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 two calendar months of the Engagement;
Vulnerable Person means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen; and
1.2 Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3 The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.4 Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after these Terms) under it from time to time.
2. THE CONTRACT
2.1 These Terms of business and 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 of the Agency, these Terms prevail over any Terms of business or purchase conditions (or similar) put forward by the Client.
2.3 Subject to clause 5.2, no variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a Director of the Employment Business 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.
3. NOTIFICATIONS 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, by the due date for payment in clause 3.7.
3.2 The Introduction Fee calculated in accordance with clause 3.3 below is payable 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 or (c) the Candidate’s rejection of an offer of an Engagement, (whichever is the later).
3.3 The Introduction Fee is the amount equal to a % of the Gross Base Salary applicable during the first 12 months of the Engagement according to the below schedule:
3.3.1 Gross base salary Introduction Fee: 15%
3.3.2 Please note that the minimum Fee charged by the Agency is £2,500 (two thousand five hundred pounds sterling).
3.3.3 Any additional fees on the remainder of the Remuneration will be negotiated on a case by case basis and agreed in advance of any search or placement.
3.4 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 Gross Base Salary 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 the commencement of the Engagement 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 6 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 in three instalments on the following schedule:
3.7.1 50% at 30 days of the date of the Agency’s invoice which shall be rendered once the Candidate commences the Engagement.
3.7.2 25% at 60 days of the date of the Agency’s invoice which shall be rendered once the Candidate commences the Engagement.
3.7.3 25% at 90 days of the date of the Agency’s invoice which shall be rendered once the Candidate commences the Engagement.
3.8 Payment shall be made in accordance with the schedule above by direct debit.
3.9 VAT is charged at the standard rate on all fees.
3.10 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.
4.1 If, after an offer has been made and accepted, the Engagement (a) does not commence because the Candidate withdraws their acceptance; or (b) once it has commenced, is terminated by either the Candidate or the Client (except in circumstances where the Candidate is made redundant) before the expiry of the first three calendar months from the date of commencement of the Engagement; then subject to the Terms of clause 4.2:
4.1.1 the Agency will forfeit 100% of the Introduction Fee should a Candidate leave within the first calendar month or one replacement candidate will be provided without further charge subject to availability.
4.1.2 The agency will forfeit 50% of the Introduction fee should a candidate leave in month two or one replacement candidate will be provided without further charge subject to availability.
4.1.3 The agency will forfeit 25% of the Introduction fee should a candidate leave in month three or one replacement candidate will be provided without further charge subject to availability.
4.2 In order to qualify for the refund set out in clause 4.1, then:
4.2.1 the Client must comply with the provisions of clause 3.1 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 satisfy the Agency that there have been no significant changes to the job specification which have led to the Candidate terminating the Engagement; and
4.2.3 the Client may give the Agency 8 weeks from the date of the notice of non-commencement or termination in which to find one suitable Replacement Candidate based on the original specification given for the position the Client is seeking to fill. If after 8 weeks from the date of the notice no suitable Replacement Candidate can be found, the Client will then be eligible for a refund, subject to the rest of clause 4.
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 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.
4.4 In circumstances where clause 3.5 applies, the full Introduction Fee is payable and there shall be no entitlement to a refund.
4.5 If subsequent to the Client receiving a refund the Candidate is re-Engaged within a period of 6 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.
5. INTRODUCTIONS TO THIRD PARTIES
5.1 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 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
6.1 The Agency 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
6.1.1 ensure that it would not be detrimental to the interests of either the Client or the Candidate;
6.1.2 ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body; [and]
6.1.3 confirm that the Candidate is willing to work in the position [and]
6.1.4 obtain confirmation of the Candidate’s identity; and 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.
6.2 Notwithstanding clause 6.1 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:
6.2.1 taking up any references provided by the Candidate before Engaging the Candidate;
6.2.2 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;
6.2.3 the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and
6.2.4 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 6.1 above the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including the following:
6.3.1 the type of work that the Candidate would be required to do;
6.3.2 the location and hours of work;
6.3.3 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;
6.3.4 any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
6.3.5 the date the Client requires the Candidate to commence the Engagement;
6.3.6 the duration or likely duration of the Engagement;
6.3.7 the minimum rate of Remuneration, expenses and any other benefits that would be offered;
6.3.8 the intervals of payment of Remuneration; and
6.3.9 the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.
6.4 Where the Candidate is Introduced for a position which involves working with, caring for or attending to a Vulnerable Person the Agency shall, in addition to the obligations in clause 6.1, take reasonably practicable steps to:
6.4.1 obtain confirmation of the Candidate’s identity;
6.4.2 obtain confirmation 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
6.4.3 obtain and offer to provide copies to the Client of two references from persons who are not relatives of the Candidate and who have agreed that the references they provide may be disclosed to the Client; and any relevant qualifications or authorisations of the Candidate. If the Agency has taken all reasonably practicable steps to obtain such information and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event.
7. INFORMATION TO BE PROVIDED
7.1 When the Agency Introduces a Candidate to the Client in the case of a position which involves working with Vulnerable Persons, then the Agency shall inform the Client that they have obtained confirmation of the matters set out in clause 6.4 and the parts therein. 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.
8. CONFIDENTIALITY AND DATA PROTECTION
8.1 All information relating to a Candidate is confidential and subject to the Data Protection Act 2018 (‘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 to abide by the provisions of the DPA 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.
9.1 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.
10.1 All notices which are required to be given in accordance with these Terms 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, when that email is sent.
11.1 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
12.1 These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.