TERMS OF BUSINESS

1. DEFINITIONS

1.1   In these Terms of Business the following definitions apply:

"Agency" The Bowers Partnership Limited of 7 Nelson Street, Southend-on-Sea, Essex, SS1 1EH (08610517)
"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 Company as defined by the Companies Act 1985 to which the candidate is introduced;
"Engagement" means the engagement (including the Candidate's acceptance of the Client's offer), 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 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), following the Client's instruction to the Agency to search for a Candidate; and, in either case, which leads to an Engagement of the Candidate; and "Introduces" and "Introduced" 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 of will be added to the salary in order to calculate the Agency's fee;
"Losses" means all losses, liabilities, damages, costs, expenses, fines, penalties or interest, whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
"Data Protection Legislation" means the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) or any applicable statutory or regulatory provisions in force in the UK from time to time relating to the protection and transfer of personal data;
"Exclusivity Term" means the period during which these Terms shall remain in force commencing on the Commencement Date;

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 of business and the attached Schedule(s) ("the Terms") constitute the contract between the Agency and the Client for the Introduction 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 of Business prevail over any other terms of business or purchase conditions put forward by the Client.

2.3   No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between 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.

3. NOTIFICATION AND FEES

3.1   The Client agrees:

a)   To notify the Agency immediately of the terms of any offer of an Engagement which it makes to the Candidate;

b)   To 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

c)   To pay the Agency’s fee within 14 days of the date of invoice.

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 12 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).

3.2.1   The Introduction Fee shall be payable within days of the date of the Agency’s invoice which shall be rendered once the Candidate commences the Engagement.

3.3   The fee payable to the Agency by the Client for an Introduction resulting in an Engagement is the amount equal to 30% of the Remuneration applicable during the first 12 months of the Engagement.  VAT will be charged on the fee if applicable. 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 Remuneration 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.

3.4   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 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.

3.5   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.

3.6   VAT is charged at the standard rate on all fees.

3.7   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.

3.8   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 3 months of leaving the Agency], the Client shall be liable to pay the Agency a fee equivalent to the Introduction Fee calculated in accordance with clause 3.3. For the avoidance of doubt, the Client shall not be entitled to a refund for any fee due under this clause 3.8 in any circumstances.

4. INTRODUCTIONS TO THIRD PARTIES

4.1   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 calculated in accordance with clause 3.3. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under clause 4 in any circumstances.

5. SUITABILITY AND REFERENCES

5.1   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:

5.1.1   ensure that it would not be detrimental to the interests of either the Client or the Candidate;

5.1.2   ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body;

5.1.3   confirm that the Candidate is willing to work in the position; and

5.1.4   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.

5.2   Notwithstanding clause 5.1 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:

5.2.1   taking up any references provided by the Candidate before Engaging the Candidate;

5.2.2   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;

5.2.3   the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and

5.2.4   satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.

5.3   To enable the Agency to comply with its obligations under clause 5.1 above the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including the following:

5.3.1   the type of work that the Candidate would be required to do;

5.3.2   the location and hours of work;

5.3.3   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;

5.3.4   any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;

5.3.5   the date the Client requires the Candidate to commence the Engagement;

5.3.6   the duration or likely duration of the Engagement;

5.3.7   the minimum rate of Remuneration, expenses and any other benefits that would be offered;

5.3.8   the intervals of payment of Remuneration; and

5.3.9   the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.

5.4   Where the Candidate is Introduced for a position which involves working with, caring for or attending a Vulnerable Person the Agency shall, in addition to the obligations in clause 5.1, take reasonably practicable steps to

5.4.1   obtain confirmation of the Candidate’s identity;

5.4.2   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

5.4.3   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.

6. EXCLUSIVITY TERM

6.1   The Agency agrees to Introduce Candidates to the Client for Engagement directly by the Client for the duration of the Exclusivity Term.

6.2   The Client agrees that during the Exclusivity Term it will exclusively use the services of the Agency for the Introduction of permanent or contract staff. The Client will not use the services of any employment agency, directly or indirectly, other than the Agency save in circumstances where the Agency has searched for Candidates but is unable to Introduce suitable Candidates for Engagement, or in the circumstances set out in clause 6.3.

6.3   Nothing in these Terms shall preclude the Client from

6.3.1   responding to unsolicited approaches from third party agencies by referring that agency to the Agency to serve as a sub-contractor or consultant for the Agency;

6.3.2   responding to unsolicited approaches from work-seekers directly;

6.3.3   directly approaching work-seekers using its own resources.

6.4   Subject to the provisions for earlier termination set out in clause 6.5 below, the Exclusivity Term shall terminate by either party giving the other 3 months' written notice.

6.5   Either party may immediately terminate the Exclusivity Term by notice to the other if the other:

6.5.1   commits a breach of these Terms which in the case of a breach capable of remedy shall not have been remedied within 14 days of the receipt by the other of a notice from the innocent party identifying the breach and requiring its remedy;

6.5.2   is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the party resulting from such reconstruction or amalgamation if a different legal entity shall agree to have the contract assigned to it and to take on all liabilities and obligations thereunder whether actual or contingent).

6.6   For the avoidance of doubt in the event that the Exclusivity Term is terminated by either party, the Client remains obligated to pay any fees owed to the Agency in accordance with the Terms, irrespective of whether these fees relate to an Introduction made before or after the Exclusivity Term is terminated.

7. INFORMATION TO BE PROVIDED

7.1   When the Agency Introduces a Candidate to the Client the Agency shall inform the Client that they have obtained confirmation of the matters set out in clause 5.1. 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

8.1   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. DATA PROTECTION

9.1   The following definitions shall apply in this clause 9:

Agreed Purposes means the sharing of Candidate Personal Data in order for the Client to assess the suitability of a Candidate for an Engagement.

Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures means as set out in the Data Protection Legislation in force at the time.

Data Protection Legislation means:

the Data Protection Act 1998, until the effective date of its repeal;

the General Data Protection Regulation ((EU) 2016/679) (GDPR)and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK; and

any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.

Permitted Recipients means the Agency and the Client, the employees of each party, any third parties engaged to perform obligations in connection with these Terms.

Shared Personal Data means the personal data to be shared between the parties under these Terms. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: name and contact information; qualifications and employment experience; remuneration and financial details; entitlement to work in the UK.

9.2   This clause 9 sets out the framework for the sharing of personal data between the Agency and the Client as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

9.3   Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation

9.4   Each party shall:

9.4.1   ensure that it has all necessary legal bases in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;

9.4.2   give full information to any data subject whose personal data may be processed under these Terms of the nature such processing. This includes giving notice that, on the termination of these Terms personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

9.4.3   process the Shared Personal Data only for the Agreed Purposes;

9.4.4   not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

9.4.5   ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by these Terms;

9.4.6   ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and

9.4.7   not transfer any personal data outside of the European Economic Area unless the transferor:

9.4.7.1   complies with the provisions of Article 26 of the GDPR (in the event the third party is a joint controller); and

9.4.7.2   ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer.

9.5   Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

9.5.1   promptly inform the other party about the receipt of any data subject access request;

9.5.2   provide the other party with reasonable assistance in complying with any data subject access request;

9.5.3   not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;

9.5.4   assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

9.5.5   notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

9.5.6   at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of these Terms unless required by law to store the personal data or the Data Recipient has established another legal basis for keeping the Personal Data;

9.5.7   maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the other party or the other party's designated auditor; and

9.5.7   provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.

9.6   The Client indemnifies and shall keep indemnified the Agency from and against any and all fines, losses, costs, liabilities, expenses and damages (including, but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all fines, interest, penalties and legal fees and expenses (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 the Company’s breach of this clause 9 or the Data Protection Legislation.

9.7   The Agency’s total aggregate liability to the Client, whether in contract, tort (including negligence) breach of statutory duty, or otherwise, arising from or in connection with a breach of this clause 9 or the Data Protection Legislation by the Agency shall be limited to £200,000. The Agency’s liability for all indirect, consequential and special loss shall be excluded.

10. LIABILITY

10.1   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.

10.2   The Client shall indemnify and keep indemnified the Agency against any Losses incurred by the Agency arising out of any non-compliance with the Data Protection Laws, and/or as a result of any breach of, these Terms by the Client.

11. NOTICES

11.1   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 or facsimile transmission, when that email or facsimile is sent.

12. SEVERABILITY

12.1   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.

13. GOVERNING LAW AND JURISDICTION

13.1   These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.