Terms and Conditions - Permanent placements

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​TERMS OF BUSINESS FOR THE INTRODUCTION OF CANDIDATES

1            DEFINITIONS & INTERPRETATION

1.1       In these terms of business (Terms), the following definitions apply:

Candidatemeans a person (including a legal person) who is Introduced by the Company to the Client;

Clientmeanstheperson, firm, partnership, organisation, public sector body or company to which the Recruitment Services are provided under these Terms;

CompanymeansKenna Recruitment Limited (Registered in England & Wales No. 10473531)of154 - 160 Fleet Street, London, EC4A 2DQ;

Conduct Regulationsmeans the Conduct of Employment Agencies and Employment Businesses Regulations 2003;

Connected Partymeans any (i) holding, subsidiary, associated or connected company of the Client (ii) organisation or business within the same purchasing group as the Client or (iii) organisation or business which is demonstrably connected to the Client through common ownership, management or control;

Data Protection Legislationmeans (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the Data Protection Act 2018 or the GDPR insofar as it is applicable to the United Kingdom;

Employeemeans an employee or director of the Company with whom the Client has had material dealings in connection with these Terms;

Engagementmeans the engagement, employment, hire or use of the Candidate or Employee by the Client or Connected Party under any agreement or arrangement whatsoever, whether directly or through any third party and whether on a permanent, fixed term, temporary, consultancy or any other basis. “Engage,” “Engaged” and “Engages” have the corresponding meaning;

Introductionhas the meaning set out in clause 3.2. “Introduce”, “Introduces” and “Introduced” have the corresponding meaning;

IntroductionFeemeans the fee payable by the Client upon the Engagement of a Candidate;

IntroductionPeriodmeans 12 month period from the most recent Introduction of the Candidate;

Payment Termsmeans the period set out in the Commercial Terms Schedule;

Recruitment Servicesmeans the Introduction of Candidates to the Client by the Company;

Refundmeans a full or partial refund or credit of the Introduction Fee in accordance with the Refund Scale;

Refund Scalemeansthe scale of refund set out in the Commercial Terms Schedule;

Remunerationmeans (i) the gross annualised remuneration package payable to the Candidate including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances and all other emoluments and benefits in kind. A notional sum of £6,000 shall be added to the Remuneration in respect of any company car provided to the Candidate or (ii) if the Candidate is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable in respect of the Candidate’s services;

Shared Datameans personal data and special/sensitive personal data within the meaning of the Data Protection Legislation and which is shared between the parties pursuant to these Terms;

Third-PartyEngagementmeans the engagement of a Candidate by a party other than the Client following a Third-Party Introduction; and

Third-PartyIntroductionmeans the disclosure of a Candidate’s details to a third party by the Client following an Introduction.

1.2       A reference to a party shall mean either the Company or the Client as applicable and a reference to the parties shall mean both the Company and the Client.

1.3       The clause headings used in these Terms are not intended to affect the interpretation of any clause.

1.4       Unless otherwise indicated by the context (i) references to the singular include the plural and vice-versa (ii) references to the masculine include the other genders and vice-versa.

1.5       Any reference to legislation includes an amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.

2            FORMATION & BASIS OF AGREEMENT

2.1       Unless otherwise agreed in writing by a director of the Company, these Terms form the entire agreement between the parties for the provision of Recruitment Services to the exclusion of any terms proposed or issued by the Client.

2.2       If the Client has not signed these Terms or otherwise confirmed acceptance of the Terms in writing, these Terms shall be deemed to have been accepted upon the Client (i) instructing the Company to Introduce Candidates (ii) interviewing or meeting with a Candidate who has been Introduced (iii) using the Company to facilitate an Engagement or (iv) making a Third-Party Introduction, whichever occurs first following receipt of these Terms.

2.3       Once accepted in accordance with clause 2.2, these Terms shall apply to any Recruitment Services provided by the Company until terminated in accordance with clause 8.

2.4       No variation to these Terms shall be effective unless agreed in writing between a representative of the Client and a director of the Company. Nothing in this clause shall prevent the Company from updating and issuing a revised version of these Terms from time to time.

2.5       These Terms shall apply to any Introduction which is made by the Company on the basis that the Candidate shall be directly engaged by the Client. If, at the time the Candidate is Introduced, the Client has not confirmed whether they intend to engage a Candidate (i) directly on a permanent/fixed term basis or (ii) indirectly through the Company as a temporary worker, these Terms shall take priority over the Company’s temporary terms of business.

3            INTRODUCTIONS

3.1       The Company shall use reasonable endeavours to Introduce Candidates from time to time who (i) meet the criteria specified by the Client under clause 4.1 or (ii) the Company believes may otherwise be of interest to the Client.

3.2       An Introduction shall occur upon (i) the Company providing a CV or other information to the Client which expressly or impliedly identifies a Candidate (ii) the Company arranging an interview or meeting between the Client and a Candidate whether face to face, by telephone, by web conference or by any other means or (iii) the parties conducting any negotiations or discussions, whether verbal or written, in respect of the potential Engagement of a specific Candidate.

3.3       An Introduction by the Company shall be deemed to be the effective cause of any Engagement of the Candidate within the Introduction Period unlessall threeof the following conditions apply: (i) within the 12 month period prior to the initial Introduction, the Candidate had applied directly for a position with the Client or instructed a third party to introduce the Candidate to the Client for a specific position (ii) the Client provides reasonable evidence of such prior application or introduction within five working days of the Company initially Introducing the Candidate and (iii) the Client has not arranged to interview the Candidate through the Company or otherwise used the Company’s Introduction to facilitate the Engagement of the Candidate.

4            PROVISION OF INFORMATION

4.1       The Client shall provide to the Company all such information as the Company shall reasonably require regarding the position which the Client is seeking to fill (Relevant Position) including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.

4.2       The Company may advertise the Relevant Position in such format and including such information as the Company considers appropriate unless the Client notifies the Company in writing that it may not advertise such position or otherwise specifies the information about the position which may not be advertised.

4.3       The Client must (i) notify the Company without delay of any offer of an Engagement which it wishes to make to a Candidate and provide the terms of such offer (ii) notify the Company without delay upon the acceptance of an offer of Engagement by a Candidate and in any event prior to commencement of the Engagement and (iii) provide the details of the Remuneration agreed with the Candidate and, if requested by the Company, a copy of the Candidate’s contract of employment.

5            CANDIDATE CHECKS

5.1       The Company shall comply with its obligations under the Conduct Regulations by (i) taking all reasonably practicable steps to ensure that the Candidate and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Candidate to enable the Candidate to work for the Client in the Relevant Position (ii) making all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Candidate or the Client for the Candidate to work in the Relevant Position and (iii) ensuring that the Candidate is willing to work in the Relevant Position.

5.2       Where required to do so under the Conduct Regulations due to the nature of the Relevant Position, the Company shall take all reasonably practicable steps to (i) obtain copies of any relevant qualifications or authorisations of the Candidate and offer to provide copies of those documents to the Client (ii) obtain two references from persons who are not relatives of the Candidate and who have agreed that the references may be disclosed to the Client and (iii) confirm that the Candidate is suitable for the Relevant Position.

5.3       Notwithstanding the Company’s obligations under clause 5.1 and, where applicable, clause 5.2, the Client acknowledges that the Client is exclusively responsible for deciding whether to Engage the Candidate and shall bear the costs of Engaging of the Candidate. The Client must therefore make such enquiries and carry out such checks as are necessary for the Client to satisfy itself that the Candidate’s ability, experience, and character meet the Client’s requirements.

5.4       The Client must not and shall ensure that its employees, subcontractors, and representatives do not unlawfully discriminate against, harass, or victimise any Candidate.

6            FEES & INVOICING

6.1       Where the Company is the effective cause of an Engagement under clause 3.3, the Client will be liable to pay an Introduction Fee to the Company in respect of each Candidate who is Engaged within the Introduction Period, whether or not they are Engaged in the position for which they were Introduced.

6.2       The Introduction Fee shall bea sum equivalent to a percentage of the Remuneration, rounded up to the nearest pound and calculated in accordance with the Fee Scale in the Commercial Terms Schedule.If the precise Remuneration is not known, if the Client fails to provide details of the Remuneration to the Company or if it is impracticable to calculate the Remuneration, the Company will calculate the Introduction Fee using the Remuneration which, in the Company’s reasonable opinion, is the market rate for the Engagement.

6.3       The Company shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged at the standard rate on the Company’s invoices.

6.4       The Client shall settle the Company’s invoices within the Payment Terms. Time for payment shall be of the essence.

6.5       The Client must not deduct or set off against any sum due to the Company under these Terms, any sum which is owed or which the Client alleges to be owed by the Company to the Client, whether under these Terms or under any other agreement between the Company and the Client.

6.6       If the Client does not pay the Company’s invoice within the Payment Terms, the Company may (i) charge interest 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 together with statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998 (ii) issue a further invoice under clause 6.7 and (iii) refer the collection of such payment to a collection agency or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by the Company in recovering payment from the Client.

6.7       Any discount or reduction in the Introduction Fee which is agreed between the parties is conditional upon the Client (i) complying with clause4.3 in all respects and (ii) paying the Company’s invoice within the Payment Terms.

6.8       If the Candidate’s Remuneration is not paid in Pounds Sterling, the Company shall convert the Remuneration to Pounds Sterling using the exchange rate published by the Bank of England on the invoice date and shall submit the invoice in Pounds Sterling. The Client shall bear any bank charges and currency exchange costs when paying the Company’s invoice.

6.9       If the Client withdraws an accepted offer of Engagement for any reason other than the Candidate’s suitability for the position, the Client shall pay a Cancellation Fee equivalent to 25% of the Introduction Fee. Such Cancellation Fee shall be payable by the Client within the Payment Terms.

6.10   If the Client makes a Third-Party Introduction which results in a Third-Party Engagement within the Introduction Period, the Client shall be liable to pay an Introduction Fee which shall be calculated in accordance with clause 6.2. The Client shall not be entitled to a Refund if the Third-Party Engagement terminates for any reason.

6.11   If the Client Engages any Employee within 6 months of such Employee leaving the Company’s employment, the Client shall pay a fee to the Company, which shall be a sum equivalent to 35% of the Employee’s gross remuneration in the last year of the Employee’s service with the Company. Such fee shall be payable by the Client within the Payment Terms.

7            REFUND GUARANTEE

7.1       If the Engagement terminates within the period specified in the Refund Scale, the Client may be entitled to a Refund provided that (i) the Client paid the Introduction Fee within the Payment Terms (ii) the Client strictly complied with clause4.3 (iii) the Client notified the Company in writing within 5 days of the termination of the Engagement, giving the reasons for such termination and, if requested by the Company, reasonable evidence that the Engagement has terminated (iv) the Candidate’s position was not redundant or otherwise no longer required due to any internal reorganisation, restructure or change in strategy (v) the Candidate was not dismissed for reasons which were automatically unfair and (vi) the Company had not previously supplied the Candidate to the Client as a temporary worker for a period of more than one month.

7.2       Subject to the conditions in clause7.1, the Company shall give any Refund to the Client within 20 working days of receiving the notification under clause 7.1 (iii).

7.3       For the purposes of calculating the Refund, the date of termination of the Engagement shall be the last day of the Candidate’s contractual notice period, irrespective of whether the Candidate is paid in lieu of notice or agrees to shorten their notice.

7.4       If the Client receives a Refund and subsequently Engages the same Candidate again within 12 months of the original Engagement terminating, the Client must repay the Refund to the Company without delay. The Client shall have no further right to a Refund if this Engagement then terminates for any reason.

8            TERMINATION

8.1       Either party may terminate the Recruitment Services by the Company at any time by notifying the other party in writing.

8.2       Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by the Company prior to such termination and the Company’s right to charge an Introduction Fee in respect of any Engagement of a Candidate within the Introduction Period.

9            LIABILITY & INDEMNITY

9.1       Whilst the Company will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the requirements specified by the Client, the Company offers no warranty as to the ability, integrity, or character of the Candidate.

9.2       The Company shall not be liable to the Client for (i) not Introducing a Candidate (ii) the acts or omission of any Candidate (iii) any indirect or consequential losses or (iv) any claim for loss of profit, business, anticipated savings, or reputation howsoever arising.

9.3       Subject to clause 9.4, the aggregate liability of the Company to the Client in respect of any claim or series of claims arising out of or in connection with these Terms and whether arising in contract, tort (including negligence) or otherwise, is limited to the Introduction Fee paid by the Client in respect of the Engagement to which the claim relates or, if no Introduction Fee was paid or the claim does not relate to an Engagement, the sum of £10,000.

9.4       The Company does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other liability which may not be limited or excluded by law.

9.5       All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

9.6       Any claim which the Client may bring against the Company in connection with these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.

9.7       The Client shall indemnify and keep indemnified the Company against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by the Company as a result of the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.

10         CONFIDENTIALITY & DATA PROTECTION

10.1   The Client shall treat all information relating to a Candidate which is provided by the Company with the utmost confidentiality and, in particular, must (i) not use such information for any other purpose without the prior consent of the Company and the Candidate (ii) ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information and (iii) not disclose to any third party that the Candidate is seeking new employment or apply for a reference from the Candidate’s current employer without the Candidate’s express consent.

10.2   The Company and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall (i) control and process the Shared Data in accordance with the Data Protection Legislation (ii) place the Candidate on notice of their data processing activities through notices which comply with the Data Protection Legislation and the Company shall assist the Client in this regard if requested to do so (iii) take appropriate technical and organisational measures to safeguard the security of Shared Data under their control (iv) co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data and (v) co-operate with the other party where any Candidate seeks to exercise their statutory rights respect of the Shared Data.

11         BRIBERY & HUMAN TRAFFICKING

11.1   The Client and the Company warrant that they shall each:

11.1.1                comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

11.1.2                promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms; and

11.1.3                take reasonable steps and carry out appropriate checks to ensure that their respective businesses and business supply chains are free of slavery and human trafficking.

12         GENERAL PROVISIONS

12.1   The Client shall not assign any of its rights or obligations under these Terms without the prior written consent of the Company.

12.2   The Company may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company and, if relevant, the right to receive payment under these Terms and any other relevant rights may be directly enforced by such third party.

12.3   Subject to clause 12.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.

12.4   If any provision of these Terms is determined by a court to be unenforceable, the unenforceable provision shall be severed from these Terms solely to that extent and the remainder of the Terms shall continue to be valid and enforceable to the extent permitted by law.

12.5   No failure or delay by a party 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.

12.6   Neither party shall be in breach of these Terms nor liable for any delay in performing or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing its obligations.

12.7   For the purposes of the Conduct Regulations, the Company shall act as an employment agency when providing Recruitment Services under these Terms.

12.8   These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation, or performance of these Terms.

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COMMERCIAL TERMS SCHEDULE

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Fee Scale:

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Refund Scale:

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Payment Terms:14 days from the date of the Company’s invoice