Terms of Business
TERMS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT OR FIXED-TERM CONTRACT STAFF (TO BE DIRECTLY ENGAGED BY THE CLIENT)
1. DEFINITIONS
1. In the Terms the following definitions apply:
“Agency”Elev8 Engineering Ltd Limited a company registered company under number 15166812 whose registered office address is at Treviot House, 186-192 High Road, Ilford, Essex, IG1 1LR
“Candidate”a person Introduced by the Agency to the Client to be considered for an Engagement on an Interim or Permanent basis;
“Client” any person, firm, or company who approaches the Agency with a view to Engaging a Candidate, or to whom the Agency introduces a Candidate;
“Data Protection Legislation”the Data Protection Act 2018 incorporating the EU’s GDPR (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426);
“Engagement”the employment, hire or use, directly or indirectly via an Employer Of Record, under a contract of service or contract for services, on a Permanent or Interim basis, of a Candidate by or on behalf of the Client in any site, office, or location of the Client, whether for the Role for which the Candidate is Introduced or any other Role, and whether or not the Agency was the effective cause (and “Engage”, “Engages” and “Engaged” will be construed accordingly);
“Fee”the fee payable by the Client to the Agency for an Introduction resulting in an Engagement, whether or not the Agency is the effective cause of the Introduction, and regardless of whether the Candidate is Engaged by the Client for the role for which the Agency originally Introduced them;
“Interim”an interim, temporary, trial, probationary, fixed term, locum, or similar Engagement of less than 12 months;
“Introduction”any means by which a Candidate’s availability for any Engagement (actual or potential, present, or future) is communicated to the Client by the Agency by phone, video conferencing or in writing (and “Introduces” and “Introduced” will be construed accordingly);
“Permanent”a permanent Engagement with no fixed end date;
“Remuneration”the gross base salary or equivalent fees for the first year of an Engagement (actual or proposed)
“Role”the role for which the Client asks the Agency to search for a Candidate, or the role in which the Candidate is Engaged, whether or not the Agency is the effective cause, and regardless of whether the Candidate is Engaged by the Client for the role for which the Agency originally Introduced them;
“Service Schedule”the Schedule annexed to the Terms detailing the service chosen by the Client.
2. THE TERMS
2.1. In the Terms words importing the singular will include the plural and vice versa; any reference to “a Person” includes a person, firm, or company; the Client and the Agency will be referred to as a “Party”, or together “the Parties”; and “in writing” will include email, instant messaging or other similar means of communication.
2.2. All business undertaken by the Agency is transacted subject to the Terms and the Service Schedule, both of which will be incorporated in any agreement between the Agency and the Client. In the event of any conflict between the Terms and any other terms and conditions, the Terms will prevail unless expressly otherwise agreed in writing by a Director of the Agency. No variation to the Terms will be valid if made without the written agreement of a Director of the Agency. In the event of any conflict between the Terms and the Service Schedule, the Service Schedule will take precedence.
2.3. If the Terms are unsigned, the Client will be deemed to have accepted and agreed to the Terms if at any time on or after an Introduction it or any Person on its behalf, directly or indirectly contacts a Candidate; or, a Candidate is interviewed by or on behalf of the Client; or, an offer of Engagement is made to a Candidate by or on behalf of the Client; or, a Candidate is directly or indirectly Engaged by or on behalf of the Client; or, the Client or any Person on its behalf acts upon the Introduction in any way (whichever first occurs).
2.4. For the purposes of the Regulations, when introducing a Candidate to the Client, the Agency is acting as an employment agency.
2.5. Reference to the Agency will include references to Elev8 Engineering Ltd.
3OBLIGATIONS OF THE AGENCY
3.1. The Agency will use its reasonable endeavours to Introduce a suitable Candidate to the Client to carry out the Role for which the Agency was asked to search for a Candidate or for the Role for which the Candidate is subsequently Engaged.
3.2. The Agency will take all reasonably practicable steps endeavor to ensure the suitability of Candidates Introduced to the Client to work in the Role but gives no warranty as to the suitability of any Candidate, or the validity of any qualification or experience which the Candidate may have or purport to have.
3.3. The Agency will carry out all rights to work checks before Introducing a Candidate to the Client.
3.4. The Agency will advertise Roles in such manner as it in its discretion deems fit in any and all media.
3.5. If the Agency, on behalf of the Client, reimburses a Candidate any travelling or out of pocket expenses in connection with attending an interview with the Client, such costs will be invoiced to, and payable by, the Client in accordance with the payment terms set out in clause 5.9 below.
4. OBLIGATIONS OF THE CLIENT
4.1. To enable the Agency to comply with its obligations to the Candidate, the Client undertakes to provide full details of the Role which it seeks to fill, including: the type of work; the location and hours of work; the experience training and qualifications which the Client considers necessary or which are required by law or any professional body for the Role; and, any risks to health or safety known to the Client, and what steps it has taken to prevent or control such risks.
4.2. In addition to the provisions set out in clause 4.1 above, the Client will provide details of: the date it requires the Candidate to commence work; the duration or likely duration of the work; the minimum rate of Remuneration; expenses payable and any other benefits that are offered; the intervals of payment of Remuneration; and the length of notice that the Candidate would be entitled to give and receive to terminate the Role.
4.3. The Client will confirm to the Agency that it is not aware of anything which will cause a detriment to its or a Candidate’s health and safety interests if it Engages a Candidate to fill a Role and will inform the Agency immediately if it becomes aware of any circumstances which would render such Engagement detrimental to its or a Candidate’s health and safety.
4.4. If and whenever the Client Engages a Permanent Candidate Introduced by the Agency, the Client will be liable to pay an Introduction fee in accordance with clause 5 below, unless the Engagement occurs more than 12 months after the last date on which the Client had contact with the Candidate after their Introduction.
4.5A Fee will be charged whether or not the Client knew of the Candidate previously. If, upon Introduction, the Client considers that the Candidate is already known to it, it must notify the Agency within 7 days of Introduction. If the Client fails to do so, it will not be able to rely on previous knowledge of the Candidate after the event.
4.6. The Client warrants that if another employment agency (as defined by the Regulations) provides the Client with a CV or other relevant information relating to a Candidate Introduced by the Agency, the Client will reject the same unless such other employment agency can show that it has complied with the Regulations and provides the Client with a declaration from the Candidate that it is the sole agency appointed to act on the Candidate’s behalf.
4.7. The Client will notify the Agency immediately if an offer of Engagement is made to or accepted by a Candidate and prior to the commencement of the Engagement will;
4.7.1. satisfy itself that the Candidate is suitable and has the necessary experience and expertise required to undertake the Role;
4.7.2. ensure that the Candidate satisfies any medical requirements;
4.7.3. check the validity of the qualifications that it may be appropriate or required by law for the Candidate to hold;
4.7.4. take up Candidate references unless the Agency expressly agrees in writing to do so on the Client’s behalf;
4.7.5. obtain any work permits or visas required by the Candidate.
4.8. The Client undertakes that if it Introduces (directly or indirectly) any Candidate to another Person, which will be deemed a “Third Party Introduction”, resulting in an Engagement by that Person (which the Client will immediately notify to the Agency) the Client will pay the Agency a Third Party Introduction Fee calculated in accordance with clause 5.2 below, unless the Engagement unless the Engagement occurs more than 12 months after the last date on which the Client had contact with the Candidate after their Introduction. The Client acknowledges that this is not a penalty clause, and that this fee represents liquidated damages that recognise the additional management costs incurred by the Agency in this situation, and no Rebate will be available.
4.9. The Client undertakes not to Engage or seek to Engage any member of the Agency’s staff. If any member of the Agency’s staff nevertheless accepts an Engagement with the Client within three months of leaving the Agency’s Engagement, the Client will pay an Introduction Fee to the Agency as if that member of staff had been Introduced to the Client by the Agency, calculated in accordance with clause 5.2 below with reference to the member of staff’s Remuneration as at the date of leaving the Agency. The Client acknowledges that this is not a penalty clause, and that this fee represents liquidated damages that recognise the additional management costs incurred by the Agency in this situation, and no Rebate will be available.
5. FEES
5.1. The Client will be liable to pay the Agency, and the Agency will raise its invoice to the Client for an Introduction Fee for a Candidate Introduced by the Agency (the “Introduction Fee”) on the day the Candidate commences their Engagement.
5.2. Elev8 Engineering Ltd will charge an Introduction Fee will be calculated at the percentage of the Candidate’s Remuneration detailed in the Service Schedule.
5.3. Any Introduction Fee charged for the Introduction of a Candidate for a Permanent Engagement is applicable to 1 Engagement only. For each additional Candidate Introduced by the Agency and Engaged by the Client, a further Introduction Fee will be payable.
5.4. If, after an offer of an Engagement has been accepted by a Candidate and the Client withdraws the offer, the Client will be liable to pay a cancellation fee of 50% of the Introduction Fee (the “Cancellation Fee”). The Client acknowledges that this is not a penalty clause, and that the Cancellation Fee represents liquidated damages that recognise the additional management costs incurred by the Agency in this situation.
5.5. In the event that any Candidate is rejected by the Client, or the Candidate rejects an offer of Engagement, and the Candidate is subsequently Engaged by the Client within 12 months after the last date on which the Client had contact with the Candidate after their Introduction, the Client will remain liable to pay an Introduction Fee to the Agency calculated at 20% of the Candidate’s Remuneration. The Client acknowledges that this is not a penalty clause, and that this fee represents liquidated damages that recognise the additional management costs incurred by the Agency in this situation.
5.6. If the Client fails to provide the Agency with full details of the Candidate’s Remuneration on or before the date upon which the Agency raises its invoice for the Introduction Fee, the Agency will give notice to the Client as to its assessment of the value of the Candidate’s Remuneration and unless the Client provides the Agency with full details of the Remuneration within 1 week, the Agency’s assessment of the Remuneration will be binding upon the Client for the purposes of determining the Introduction Fee payable by the Client pursuant to this clause 5.
5.7. The Client will pay the Agency’s invoice(s) within 14 days of the invoice date. The Agency reserves the right to charge compensation, interest, and reasonable debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 on invoices which are not paid by their due date.
6. REBATES (Outlined in Schedule below)
6.1 If a Candidate terminates, or the Client lawfully terminates, an Engagement and provided that:
6.1.1 all moneys due under the Terms have been paid by the Client in accordance with clause 5.8 above;
6.1.2 such termination is not as a result of redundancy, injury, or ill-health or by reason of discrimination against the Candidate under the Equality Act 2010, or any other circumstances beyond the Candidate’s control; and,
6.1.3 such termination has not arisen where the Client has entered into the Engagement with the prior or likely intention of disposing with the Candidate’s services or terminating employment either without proper cause or with a view to obtaining a Rebate unfairly; and,
6.1.4the Client serves notice on the Agency in writing of the termination of the Engagement within 7 days;
The Agency will search for a replacement Candidate (the “Replacement Candidate”) and the Client will be entitled to a Rebate of the Introduction Fee as a credit against the Introduction Fee for the Replacement Candidate (the “Rebate”) on a sliding scale detailed in the Service Schedule determined by the week in which the Candidate’s Engagement is terminated.
6.2 No Rebate or Replacement Candidate will be available if the Client fails to comply with clause 6.1 above; if the Candidate was previously Engaged in any capacity by the Client through the Agency; or if the Engagement, in the opinion of the Agency, differs substantially from that which was offered to and accepted by the Candidate; including (without limitation) changes in type of work, responsibilities and location.
6.3 If the Client, or any Person connected to or associated with the Client, re-Engages the Candidate within 6 months of the date of the termination of the Engagement referred to in clause 6.1 above, any Rebate will be immediately re-payable and no Rebate will be available in relation to the re-Engagement.
7. TERMINATION
7.1 Without prejudice to the other remedies or rights a Party may have, either Party may terminate the Terms immediately on written notice to the other Party:
7.1.2if the other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other Party’s assets or business, or if the other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
8. CONFIDENTIALITY AND DATA PROTECTION
8.1For the purpose of this clause 8, the terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data”, “Process” and “Processing” will have the meanings prescribed under the Data Protection Legislation.
8.2The Parties acknowledge that for the purposes of the Data Protection Legislation, the Agency is the Data Controller, and the Client is the Data Processor unless or until the Client Engages a Candidate.
8.3 The subject matter of Data Processing is such Candidate Personal Data as is necessary for the performance of the Terms.
8.4 The category of Data Subjects is Candidates, and any other individuals Introduced pursuant to the Terms.
8.5 The type of Personal Data will include a Candidate’s first and last name, contact information (email, phone, and address), ID data, professional life data, and personal life data (including residency and immigration status).
8.6 The Client will, in relation to any Personal Data processed in connection with the performance of its obligations under the Terms Process that Personal Data only on the written instructions of the Agency unless required to do otherwise by applicable law.
8.7 At the written direction of the Agency, and automatically on the termination of the Terms, the Client will delete or return Personal Data and copies thereof to the Agency unless required by applicable law to store the Personal Data; provided always that if the Client Engages a Candidate, then such Personal Data may be retained for each such Data Subject until such Engagement has been completed.
8.8 The Agency does not consent to the Client appointing any third-party processor of Personal Data under the Terms.
8.9 The Client will indemnify the Agency against all loss, liability, damages, costs, third party claims, fees, and reasonable incurred expenses which the Agency and/or any of its Candidates may incur or suffer by reason of any breach of this Clause 8 or the Data Protection Legislation by the Client to the extent that such losses, liability, damages, costs, claims, fees, and expenses are not materially contributed to by the Agency.
8.10 A Candidate’s CV is provided in strict confidence to the Client, purely for its information, and only on the basis that its content is not disclosed to any other Person without the Agency’s prior written consent.
8.11A Candidate’s CV is provided on the basis that the Client does not approach the Candidate’s current employer unless or until the Candidate has accepted a written offer of Engagement from the Client.
8.12The Client consents to the disclosure of information relating to it by the Agency to Candidates.
9. LIABILITY & INDEMNITY
9.1. The Agency will not be liable to the Client for any indirect, special, additional, or consequential loss, injury, damage, expense, or delay incurred or suffered by the Client arising from or in any way connected with an Engagement and, in particular but without limitation to the foregoing, in any way connected with:
9.1.1. the failure of the Candidate to meet the requirements of the Client for all or any of the purposes for which the Client requires them;
9.1.2. any act or omission of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless, or otherwise;
9.1.3. any loss, injury, damage, expense, or delay incurred or suffered by a Candidate.
9.2. The Agency’s liability to the Client for any direct loss under the Terms will be limited to the value of the Fee payable by the Client.
9.3. The Agency’s liability to the Client will exclude any implied statutory warranties. The Client agrees that when agreeing to the Terms it does not do so in reliance on any representation, warranty, or other provision except as expressly provided in the Terms; and that any conditions, warranties, or other terms implied by statute or common law are excluded from the Terms to the fullest extent permitted by law.
9.4. The Agency does not attempt to exclude or restrict liability to the Client for personal injury or death resulting from negligence, or any statutory liability, exclusion, or limitation which is prohibited by law.
9.5. The Client will indemnify the Agency in respect of any and all liability of the Agency for any loss, injury, damage, expense, or delay suffered or incurred by it or anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless, or otherwise, in connection with an Engagement.
9.6. The Client will indemnify the Agency in respect of any and all liability of the Agency for any actions, proceedings, claims, demands, costs, expenses, fines, penalties, loss, or damage in respect of any failure by the Client to observe perform and comply with the provisions of the Equality Act 2010.
10. MISCELLANEOUS
10.1. The Agency reserves the right to review and to revise the Terms upon giving 14 days prior notice to the Client.
10.2. Any notice required or permitted to be given by either Party to the other under the Terms will be in writing addressed to that other Party at its registered office or principal place of business.
10.3. The Agency is not liable for any delay or failure in performance of its obligations to Client where this arises from matters outside its reasonable control or for any reason of Force Majeure.
10.4. The complete or partial invalidity or unenforceability of any provision in the Terms for any purpose will in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions will be deemed to be severed for that purpose, subject to such consequential modification as may be necessary for the purpose of such severance.
10.5. No waiver by the Agency of any breach of the Terms by the Client will be considered as a waiver of any subsequent breach of the same or any other provision.
10.6. Except as expressly provided in the Terms, a person who is not a party to the Terms will have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Terms. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
10.7. The Terms will be governed by and construed in accordance with the laws of England and Wales; and the Parties agree that the courts of England and Wales will have exclusive jurisdiction.
SERVICE SCHEDULE:
FEE STRUCTURE
This Service Schedule is incorporated into the Terms of Business of Elev8 Engineering Ltd.
Remuneration Fee
£0 - £39,999.99 15%
£40,000 - £59,999.99 17.5%
£60,000+ 20%
REBATE STRUCTURE
Employment week Rebate
0-4 90%
5-8 50%
9-11 25%
12 10%
1. The above scale of refund only applies in the event that the Client complies with the provisions of clause 6.1 of these Terms.
2. Where the Applicant leaves during the first 12 weeks of the Engagement, are fund will be given in accordance with our refund guarantee or the Agency will search for a replacement Candidate (the “Replacement Candidate”) and the Client will be entitled to a Rebate of the Introduction Fee as a credit against the Introduction Fee for the Replacement Candidate (the “Rebate”) on a sliding scale detailed in the Service Schedule determined by the week in which the Candidate’s Engagement is terminated.).
3. There will be no refund where the Applicant leaves during or after the 13th week of the Engagement.