TERMS OF BUSINESS - Eden Smith Nurture Programme ONLY
These Terms & Conditions of Business for the provision of recruitment services from the (“Terms”) are effective from 14 March 2016 and, unless otherwise agreed in writing by a director of Eden Smith, constitute the entire and only agreement between Client and Eden Smith Limited, a company registered in England and Wales (No. 09994471) with its registered office at The Old Barn, Wood St, Swanley, Kent, BR8 7PA (“Eden Smith”).
Eden Smith acts as an employment business (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for Engagement by Client.
These Terms are designed to be a plain speaking agreement. This means we try to speak without using legal jargon. We do however use a number of words and phrases which have specific meanings within the context of this agreement which are set out at the end of this document.
- CONTRACT: These Terms are deemed to be accepted by Client by virtue of a request for or acceptance of an Introduction or the interview, offer to Engage or Engagement of a Candidate, or the passing by the Client of any information about a Candidate to any third party following an Introduction.
- FEES: Eden Smith’s Introduction Fee:
- Must be paid by Client in respect of any Candidate it Engages within 12 months from the latter of: (i) the most recent Introduction of the Candidate; (ii) the making, withdrawal or rejection of an offer of Engagement; (iii) the supply of the Candidate by Eden Smith; or (iv) in the case of one of Eden Smith’s own employees, whether employed currently or within the previous 6 months, its most recent material business dealings with the Candidate while employed by Eden Smith;
- is calculated as 15% of the Remuneration applicable during the first 12 months of the Engagement, with Eden Smith being entitled to make a reasonable estimation its fee when the actual Remuneration is not known to Eden Smith;
- is charged on a pro-rata basis where, prior to the commencement of the Engagement, Client notifies Eden Smith that the Engagement will be on the basis of a fixed term of less than 12 months. In that event, Client must pay additional Introduction Fees in respect of any additional Remuneration applicable to any period of Engagement beyond or re-Engagement after the initial fixed term; subject to the combined fees not exceeding the Introduction Fee had the Candidate been Engaged for 12 months or more from the outset. No fee rebates are payable in respect of fees under this clause 2.3;
- shall be £5,000 if, after an offer of Engagement has been made, Client decides for any reason to withdraw it prior to the Candidate accepting or commencing the Engagement.
- PAYMENT TERMS: The Introduction Fee shall be payable within 14 days of the date of Eden Smith’s invoice which shall may be issued once the Candidate accepts the offer of the Engagement, whether such offer is conditional or not.
Eden Smith reserves the right to charge interest on invoiced amounts unpaid by the due date at the rate of 5% per annum above the base rate from time to time of Barclays Bank PLC from the due date until the date of payment. Client must indemnify Eden Smith against any costs, including but not limited to legal fees and disbursements, incurred by Eden Smith when seeking to recover monies due from Client in accordance with the Terms.
- FEE REBATES: If an Engagement commences and then terminates within the first 6 weeks, Eden Smith will then refund 100% of its Introduction Fee. If the engagement terminates between weeks 7 and 12 Eden Smith will refund 50% of its introduction fee. No refund will be given after 12 weeks of engagement. In order to qualify for the refund set out in this clause:
- Client must have notified Eden Smith in writing within 7 days of the termination or noncommencement, or Client being on notice of the same (whichever is earlier);
- Client must give Eden Smith 8 weeks from the date of the notice of termination, on an exclusive basis, in which to find a suitable replacement Candidate based on the original specification given for the position the Client is seeking to fill; and
- the Engagement must neither have failed to commence nor have terminated due to redundancy, unlawful dismissal or resignation arising due to Client substantially altering the Candidate’s role or principle place of work.
If subsequent to Client receiving a refund, either the Candidate is re-Engaged or a replacement Candidate is Engaged within a period of 6 calendar months from the date of termination, the refund must be repaid to Eden Smith without Client then being entitled to further refunds in respect of such Engagement.
- NOTIFICATION: Client agrees to notify Eden Smith immediately if it makes an offer of Engagement to any Candidate, the terms of such offer and both that any such offer has been accepted and details of the Remuneration agreed together with any documentary evidence as may reasonably be requested by Eden Smith.
- INTRODUCTIONS TO THIRD PARTIES: Introductions of Candidates are confidential. If a Client discloses a Candidate’s details to a third party and, as a result, the third party Engages the Candidate within 12 months of the Eden Smith’s Introduction of the Candidate to Client, then Client will be liable to Eden Smith for payment of an Introduction Fee in accordance with clause 3. Client shall not be entitled to a refund of the Introduction Fee under clause 4 in such circumstances.
- SUITABILITY: Eden Smith endeavours to ensure the suitability of Candidates Introduced to Client however Client shall be obliged to satisfy itself as to the suitability of the Candidate for the position they are seeking to fill.
This includes Client being responsible for: (i) taking up any references provided by the Candidate before Engaging the Candidate; (ii) 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; (iii) the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and (iv) satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.
- CONFIDENTIALITY AND DATA PROTECTION: All information relating to a Candidate is confidential and subject to the Data Protection Act 1998 (“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 Eden Smith’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.
- LIABILITY: Eden Smith 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 Eden Smith seeking a Candidate for the Client or from the Introduction to or Engagement of any Candidate by the Client or from the failure of Eden Smith to introduce any Candidate. For the avoidance of doubt, Eden Smith 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.
- SET OFF: The Client’s obligations under these Terms shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights.
- NOTICES: All notices which are required to be given in accordance with this Agreement 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.
- SEVERABILITY: 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.
- GOVERNING LAW AND JURISDICTION: These Terms are governed by the laws of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.
- INTERPRETATION: In these Terms:
“Candidate” means the person Introduced by the Eden Smith 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 Eden Smith’s own staff;
“Client” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body to which the Candidate is Introduced;
“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 Eden Smith, 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 from which the Candidate can be identified or (ii) the Client’s interview of a Candidate (in person, by telephone or by any other means) and “Introduces” and “Introduced” shall be construed accordingly;
“Introduction Fee” means the fee payable by the Client to Eden Smith for an Introduction resulting in an Engagement; and
“Remuneration” includes gross base salary, fees or similar and guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company or other car allowance 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.