If you represent a business that is looking for a temporary or long-term IT recruitment solution – here are our general Terms of Business, applied to any services we provide.

No 20181030

1. Definitions

1.1. In these Terms of Business (“Terms”), the following definitions apply:

“Agency” means External Source Recruitment and all its associated companies with a registered office at 5th Floor Suite 23, 63/66 Hatton Garden, London, EC1N 8LE, acting as an employment agency as defined within the Conduct of Employment Agencies and Employment Businesses Regulations 2003;

“Client” means the person, firm, or corporate body (together with any holding, subsidiary or associated company thereof) to which the Agency provides its services pursuant to these Terms;

“Candidate” means any individual who is identified by the Agency as being potentially suitable for an Engagement;

“Confidential Information” means any information concerning any Candidate and any information relating to the Agency’s or the Client’s business methods, plans, systems, finances or projects; trade secrets; products or services; or any other information which is expressly described as confidential;

“Engagement” means any employment, engagement, or use of the Candidate by the Client or any third party whether part or full time, with or without a contract, directly or through any other body or arrangement, and in a different capacity from that in which the Candidate may have been employed by the Client at the commencement of the Agency’s recruitment services to the Client. “Engages” and “Engaged” shall be construed accordingly;

“Introduction” means the sharing or passing on by the Agency to the Client (orally or in writing) of any information which identifies the Candidate, whether or not the Client previously knew of the Candidate, unless the Client was already aware of the Candidate’s availability for the Engagement. “Introduce” and “Introduced” shall be construed accordingly;

“Introduction Fee” means the fee, payable by the Client to the Agency in accordance with these Terms, for the Introduction of the Candidate to the Client on other than a retained basis that results in the Engagement of the Candidate;

“Remuneration” means the total first year guaranteed remuneration to the Candidate including salary, bonuses, allowances, and any other emoluments payable to the Candidate pursuant to the Engagement. Where a company car is included as a benefit in the Candidate’s remuneration package, the value of the company car shall be determined with reference to the Client’s cash alternative where applicable, or £5,000, whichever is the greater;

“Retained Assignment” means the Client’s written instruction for the Agency to search for, locate, and Introduce Candidates on a retained basis as set out in section 6 of these Terms; and

“Vacancy” means a specific role or position, or work that the Client seeks to fill or to be carried out and in relation to which the Agency provisions its services to the Client.

2. Scope of Terms

2.1. All and any business entered into by the Agency is subject to these Terms. In the event of any conflict with any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed by the Agency in writing.

3. Acceptance & Authority to Act

3.1. Prior to the provision of services to the Client, the Agency will seek the Client’s written acceptance to these Terms, however, these Terms are deemed to be accepted by the Client in respect of each Retained Assignment and each Introduction as of the effective date of the Retained Assignment or the date of the Introduction, if no such Retained Assignment is effective.

3.2. 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.

4. Information Required

4.1. Together with a Retained Assignment or in good time before an Engagement due to other Agency services, relevant information about the Vacancy shall be provided by the Client to the Agency in writing, including all such information as is specified in Regulation 18 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, and any information the Client has that suggests it would be detrimental to the interests of either the Client or the Candidate for the Candidate to work in that capacity.

4.2. The Client agrees to give notice to the Agency, preferably with any proving evidence, within 7 working days of receipt of a new Candidate’s identifying information from the Agency, if the Client has previously learned from another source of the Candidate’s availability for the particular Engagement. The Client further agrees that if no such notice is given, the Candidate is indisputably Introduced.

4.3. Further to any interview of any Candidate carried out by the Client, the Client shall provide detailed feedback to the Agency regarding the Candidate, particularly if the interview was carried out due to a Retained Assignment.

4.4. The Client agrees to give notice to the Agency immediately when an offer of Engagement to the Candidate has been accepted and to provide full details of the Remuneration offered.

4.5. The Client also agrees to give notice to the Agency immediately if the Remuneration is increased within 12 weeks of the date of Engagement. In such case, any fees payable will be recalculated to account for the increased Remuneration.

5. Fees & Invoices

5.1. All fees payable according to these Terms are to be paid by the Client to the Agency. All amounts specified in these Terms are exclusive of Value Added Tax and any other applicable taxes payable by the Client in addition, in the manner prescribed by law.

5.2. The Agency shall issue an invoice for any fee no earlier than the date on which all the conditions set out in these Terms are met in order for such fee to be payable. The Client must pay every invoice issued by the Agency within 7 working days of the date of the invoice. For the avoidance of doubt, payment shall be made in sterling by electronic funds transfer.

5.3. An Introduction Fee is payable in respect of each Introduction that results in an Engagement within 12 months of the date of the Introduction.

5.4. If not stipulated otherwise, the Introduction Fee shall be calculated as a percentage of the Remuneration, subject to a minimum of £2000. The applicable percentage is set out as follows:

5.5. If an Engagement is for a fixed term of less than 12 months, the Introduction Fee shall be calculated pro-rata. If such Engagement is extended or re-entered within a period of 12 months from the date of the Introduction, a further pro-rata Introduction Fee is payable for such additional period(s) of Engagement until the total balance of fees paid and amounts rebated in respect of the particular Introduction constitutes the Introduction Fee in full.

5.6. If a permanent Engagement is re-entered following its termination within 12 months subsequent to the date of the Introduction, a fee is payable in the amount of any rebates applied due to the premature termination.

5.7. If the Client withdraws an offer of an Engagement made to the Introduced Candidate, a fee of 5% of the Remuneration is payable for the services provided prior to the Client’s withdrawal. The Client further agrees to indemnify and hold harmless the Agency from any liability in connection with the Client’s withdrawal of the offer.

5.8. Should there be an Engagement of an employee of the Agency within 12 months of the date the Client last engaged with the employee of the Agency, the employee is considered to be an Introduced Candidate and an Introduction Fee of 50% of the Remuneration is payable with no entitlement to any rebate.

5.9. Where the actual Remuneration is not known, the Agency will invoice any fees according to these Terms based on the remuneration that the Agency reasonably believes to be the market rate for the relevant role.

5.10. If an invoice remains unpaid after 7 working days from the date of the invoice, the Agency may:

(a) suspend the provision of services to the Client under these Terms and any other terms agreed with the Client;

(b) pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation and interest on such invoiced amounts at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment; and

(c) refer the collection of such payment to a debt collection agency or legal representatives and, if so referred, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by the Agency in recovering payment from the Client.

5.11. The Client shall be liable for any advertising and other out-of-pocket expenses incurred by the Agency provided that such expenses shall be agreed between the Client and the Agency prior to it being incurred. The Agency may issue an invoice for such expenses at any time after they have been agreed.

6. Retained Services

6.1. If not stipulated otherwise, a Retained Assignment shall be deemed effective as of the date it has been accepted by the Agency in writing.

6.2. The total amount owing pursuant to the Retained Assignment shall be the sum calculable as the Introduction Fee under clause 5.4, increased by an additional 10% of the Remuneration. The fee is payable in parts as follows:

(a) the first part (“Retainer Fee”), in the amount of 15% of the estimated Remuneration, is payable upon the Agency’s acceptance of the Retained Assignment;

(b) the second part (“Shortlist Fee”), in the amount of 10% of the estimated Remuneration, is payable upon presentation of an acceptable Candidate Shortlist; and

(c) the third part (“Completion Fee”), being the balance of the total amount, is payable upon a shortlisted Candidate’s commencement of the Engagement.

6.3. Upon the effective date of the Retained Assignment, an exclusivity period of 120 days shall be introduced, during which time the Client shall refrain from appointing any other person or business to fill the Vacancy and the Agency shall endeavour to Introduce of a minimum 3 potential Candidates who, in the reasonable opinion of the Agency, are suitable for the relevant Engagement (“Candidate Shortlist”).

6.4. Upon presentation of a Candidate Shortlist, the Client shall notify the Agency of any Candidates who the Client wishes to interview. The Client shall not, without the Agency’s written consent, approach any shortlisted Candidate nor the Candidate’s current employer.

6.5. The Agency shall endeavour to arrange the interview of any shortlisted Candidate notified by the Client but the Client acknowledges that the Candidate may decline such interview request at the Candidate’s entire discretion.

6.6. If the presented Candidate Shortlist is not acceptable, that is, Client does not wish to interview any of the shortlisted Candidates, the Client shall provide additional information to assist the Agency in identifying potential Candidates and, upon receipt of such information, the Agency shall use reasonable endeavours to identify further Candidates and present another Candidate Shortlist within a reasonable time.

6.7. If the Client Engages more than one of the shortlisted Candidates, the Completion Fee (based on each relevant Remuneration) is payable for every subsequent shortlisted Candidate Engaged in any capacity other than the Vacancy.

6.8. Where a Retained Assignment is cancelled by the Client or if, in the reasonable opinion of the Agency, the Client materially alters its requirements before an acceptable Candidate Shortlist is presented, a cancellation fee of 50% of the Shortlist Fee is payable. If the cancellation occurs after the Candidate Shortlist and before a shortlisted Candidate’s Engagement, a cancellation fee of 50% of the Completion Fee is payable.

7. Rebates

7.1. A rebate period (“Rebate Period”) is (a) 12 weeks for permanent Engagements and (b) one week for each month of the agreed contract length for fixed term Engagements, up to a maximum of 12 weeks.

7.2. If a Candidate leaves (other than through redundancy, or constructive or unlawful dismissal) before the expiry of the Rebate Period from the commencement of the Engagement and provided:

(a) the Client has given notice to the Agency of this fact within 7 working days of the departure;

(b) the Client has paid all fees due in accordance with these Terms;

(c) the Candidate has not been previously Engaged by the Client;

(d) the Candidate’s Engagement was not terminated by reason of poor performance prior to the completion of any induction or training;

(e) the Candidate did 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’s acceptance of the Engagement; and

(f) the Candidate did not leave the Engagement as a result of discrimination or other acts against the Candidate.

Then the Client shall be entitled to a rebate (“Rebate”).

7.3. The Rebate shall be calculated as a percentage of (a) the Completion Fee for Introductions on Retained Assignments and (b) the Introduction Fee for other Introductions that qualify for a rebate. The applicable percentage is set out as follows: 95% for the incomplete week 1; 5% less for each incomplete week 2 to 6; and 10% less for each incomplete week 7 to 12 (i.e. 10% at week 12).

7.4. The Rebate shall be applied as credit against any subsequent recruitment spend by the Client (related to the Vacancy in question or another) within one year of the date on which the Engagement commenced. In exceptional circumstances, the Agency may consider refunding the credit. However, any refunds are at the sole discretion of the Agency. The Agency shall not in any circumstances be obliged to make any refund to the Client.

8. Confidentiality & Data Protection

8.1. Unless required by law, all and any Confidential Information shall not be disclosed to any third party without the prior written consent of the source.

8.2. The disclosure by the Client of any Confidential Information which results in an Engagement of any Introduced Candidate with a third party within 12 months of the Introduction renders the Client liable to payment of the full Introduction Fee with no entitlement to any rebate.

8.3. Where the Client is located within the United Kingdom, the Client warrants that it is registered as a data controller with the Information Commissioner’s Office.

9. Liability & Indemnity

9.1. Whilst the Agency will use reasonable endeavours to ensure that Introduced Candidates meet the criteria specified by the Client, the Client is responsible for verifying any references, qualifications, eligibility to work and for conducting any background, credit, medical and other checks that the Client considers appropriate prior to making the decision as to whether the Candidate is suitable for an Engagement. The Agency shall have no liability to the Client if it is later established that the Candidate does not meet the Client’s or any other requirements.

9.2. The Agency shall be liable to the Client for any claim arising out of or in connection with these Terms solely to the extent that such claim arises as a direct result of the acts or omissions of the Agency.

9.3. The Agency shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, or for any indirect or consequential loss arising out of or in connection with the performance or non-performance of these Terms.

9.4. Save to the extent that liability may not be limited or excluded by law, the aggregate liability of the Agency to the Client in respect of any claim or series of claims arising out of or in connection with the performance or non-performance of these Terms, and whether arising in contract, tort (including negligence) or otherwise, is limited to the fees paid by the Client to the Agency in respect of the specific Retained Assignment or Introduction in relation to which such claim arises.

9.5. Prior to initiating a legal claim, the Agency’s and the Client’s representatives shall attempt through negotiation to amicably and in good faith resolve any dispute arising out of or in connection with these Terms within 30 days of notice by one party to the other that such dispute exists. Should the negotiation be unsuccessful, any legal claim arising out of or in connection with these Terms shall be commenced within 12 months of the date on which the claiming party becomes aware or should reasonably have become aware of such claim.

9.6. The Client shall indemnify the Agency against all losses, damages, expenses, costs or claims suffered or incurred by the Agency as a result of the Client’s breach of contract, negligence, breach of statutory duty or otherwise.

9.7. Neither party to these Terms shall be liable for any failure or delay in performing their obligations where this arises from matter outside the reasonable control of that party.

9.8. Nothing in these Terms shall limit or exclude any party’s liability for fraud or for death or personal injury caused by the negligence, or to the extent otherwise not permitted by law.

10. General

10.1. The Client shall not assign any of its rights or obligations under these Terms without the written consent of the Agency.

10.2. The Agency and the Client do not intend these Terms to be enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

10.3. The Client shall not set off any sums due to the Client against any sums it owes to the Agency under these Terms or any other contract entered into with the Agency.

10.4. No failure or delay by a party in exercising any right or remedy under these Terms shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.

10.5. All notices under these Terms shall be in writing and shall be sent to point of contact by email deemed to have been received on the day of the dispatch. If the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the notice in due course. Should multiple attempts at electronic communications be unsuccessful, first class prepaid post to the registered office shall be used and deemed delivered 48 hours following posting.

10.6. Headings contained in these Terms are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.

10.7. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between Agency and Client in writing, stating the date on or after which such varied Terms shall apply.

10.8. If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by judicial body, the remaining provisions of these Terms shall remain in full force and effect to the extent permitted by law.

10.9. These Terms shall be governed by and construed in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.