(1) TCM RECRUITMENT LIMITED incorporated and registered in England and Wales with company number 08610443 whose registered office is at 4 Cross Street, Beeston, Nottingham NG9 2NX (Agent).
(2) The party whose name and details are set out in paragraph 0 of the 0 (Client).
(A) The Agent carries on the Business of a recruitment agency
(B) The Agency has Clients wishing to employ permanent employees; and
(C) The Client wishes to be introduced to Candidates.
1. 1. Definitions and Interpretation
1.1 The following expressions shall have the following meanings:
1.1.1 “Candidate” means any person introduced to the Client by the Agent for an Engagement;
1.1.2 “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.1.3 “Engagement” means the employment or use of the Candidate by the Client, or any third party to whom the Client has introduced the Candidate, on a permanent or short-term basis under any form of contract or relevant agreement;
1.1.4 “Services” means the agency services as described in the Schedule;
1.2 Clause and Schedule headings shall not affect the interpretation of this Agreement.
1.3 The Schedules forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this Agreement includes the Schedules.
1.4 References to clauses and Schedules are to the clauses and Schedules of this Agreement.
1.5 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.8 A reference to a statute or statutory provision shall include any subordinate legislation made from time to time under that statute or statutory provision.
1.9 Writing or written includes faxes and e-mail.
1.10 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.1 The Agent shall supply the Services to the Client on the terms and conditions contained in this Agreement and this Agreement shall supersede any other documentation or communication between parties.
2.2 Any variation to this Agreement must be agreed in writing by the Agent.
2.3 Nothing in this Agreement shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agent may be entitled in relation to the Services, by virtue of any statute, law or regulation.
2.4 Nothing in this Agreement shall be construed as constituting a partnership or joint venture between the parties.
3.1 The Services are as described in the Schedule.
3.2 Any variation to the Services must be agreed by the Agent in writing.
3.3 This Agreement shall commence on the date hereof and continue until terminated by either party giving not less than three months notice in writing or unless terminated according to the terms of this Agreement.
3.4 Time is not of the essence in the provision of the Services and the Agent shall not be held liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the Services.
4. Price And Payment
4.1 The price for Services is as specified in the Schedule and is inclusive of VAT and any other charges as outlined in it.
4.2 If the fees paid relate to a short-term placement of a Candidate who then becomes engaged on a long-term placement with the Client, the Client shall pay the difference between the placement fees at the time of the change in status.
4.3 The terms for payment are as specified in the Schedule.
4.4 Fees relating to the cancellation of any bookings are as specified in the Schedule.
4.5 The Client shall pay each invoice submitted by the Agent:
4.5.1 within 30 days of the date of the invoice; and
4.5.2 in full and in cleared funds to a bank account nominated in writing by the Agent,
and time for payment shall be of the essence of this Agreement.
4.6 The Client will pay interest on all late payments at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998
4.7 The Agent is also entitled to recover all reasonable expenses incurred in obtaining payment from the Client where any payment due to the Agent is late.
4.8 The Client is not entitled to withhold any monies due to the Agent.
4.9 The Agent is entitled to vary the price to take account of:
4.9.1 any additional Services requested by the Client which were not included in the original Schedule;
4.9.2 any reasonable increase in fee rates, if applicable;
and any variation must be intimated to the Client in writing by the Agent.
5. Client Obligations
5.1 The Client agrees to cooperate with the Agent as may be required.
5.2 The Client shall provide full details to the Agent as to the type of Candidate required and the precise nature of the work the Candidate shall be involved in.
5.3 The Client shall notify the Agent immediately on Engagement of any Candidate introduced by the Agent.
5.4 The Client agrees to pay the appropriate fee as described in the Schedule on receipt of the signed offer letter of a requested Candidate.
5.5 If the Client or a member of the Client’s staff or any acquaintance or associate of the Client, passes on an introduction to any other person or persons within six months of the Candidate’s introduction to the Client by the Agent, resulting in the Engagement of the Candidate, the Client shall be liable for payment of the appropriate fee in accordance with the fees described in the Schedule.
5.6 The Client is responsible for complying with all legal obligations connected with the Engagement of the Candidate including providing a suitable contract of employment.
5.7 The Client shall provide the Agent with a copy of the offer of employment between the Candidate and the Client within 5 Business Days.
5.8 The Client is responsible for any deductions of Income Tax, National Insurance or other charges from the Candidate.
5.9 The Client is responsible for obtaining any medical certificates, work permits or other approvals for the Candidate prior to the commencement of employment.
6. Agent Obligations
6.1 The Agent shall supply the Services as specified in the Schedule.
6.2 The Agent shall perform the Services with reasonable skill and care and to a reasonable standard and in accordance with recognised codes of practice and statutory obligations.
6.3 The Agent will take all reasonable steps to introduce Candidates who are of sound character, honest and reliable but cannot be held responsible for the conduct of Candidates at any time.
6.4 The Agent shall keep a copy of the offer of employment between the Client and the Candidate on file.
6.5 The Agent shall obtain references from Candidates but the Client must take ultimate responsibility as to suitability of a Candidate, including obtaining further references and medical information if required.
7.1 If a Candidate engaged in permanent employment by the Client does not remain in the Client’s employment or has their employment terminated by the Client, the Agent will provide a refund of any placement fee as set out below, PROVIDED THAT all of the conditions in clause 7.2are met:
7.1.1 If the termination of the Candidates employment occurs:
within the first calendar month of employment – 90% of the placement fee will be refunded;
(a) within the second calendar month – 70% of the placement fee will be refunded;
(b) within the third calendar month – 50% of the placement fee will be refunded
(c) after the third calendar month – none of the placement fee will be refunded
7.2 The conditions referred to in clause 7.1 are:
7.2.1 The Client notifies the Agent within five Business Days of the Candidate’s termination;
7.2.2 The Client has paid the appropriate placement fee;
7.2.3 The Client has not changed any of the original requirements for the Candidate as specified in the Schedule;
7.2.4 The Candidate did not resign due to unreasonable demands placed upon them by the Client;
7.2.5 The Client has not terminated the Candidates employment by reason of redundancy;
7.2.6 The Client still intends to employ a Candidate;
7.2.7 The Client has given the Agent a reasonable period to recruit a suitable replacement Candidate (this does not offer exclusivity to the Agent) to be engaged by the Client for the same requirements as specified in the original Schedule;
7.2.8 The Client has not terminated this Agreement
7.3 If the Client has not met the conditions as stated in Condition 7.2of this Agreement they remain responsible for full payment of the initial placement fee.
7.4 If the Candidate has been appointed by the Client on a freelance basis then the fees set out in the Schedule shall be payable and no refund shall be due if the freelance contract is terminated.
8.1 The Agreement shall continue until the Services have been provided in terms of the Schedule or any subsequent date as mutually agreed in writing by both parties or until terminated by either party in accordance with the terms of this Agreement.
8.2 The Client may terminate this Agreement if the Agent fails to comply with any aspect of this Agreement and this failure continues for a period of two months after notification of non-compliance is given.
8.3 Either party may terminate this Agreement by notice in writing to the other if:
8.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
8.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
8.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
8.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
8.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
8.4 In the event of termination the Client must make over to the Agent any payment for work done and expenses incurred up to the date of termination.
8.5 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
Both parties warrant their authority to enter into this Agreement and have obtained all necessary approvals to do so.
10. Limitation Of Liability
10.1 Nothing in this Agreement shall exclude or limit the liability of the Agent for death or personal injury, however the Agent shall not be liable for any direct loss or damage suffered by the Client or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agent in the insurance year in which the Client’s claim is first notified.
10.2 The Agent accepts no liability for any loss, damage, expense or compensation suffered or incurred of any nature by the Client, arising directly or indirectly from an act or omission by any Candidate introduced to the Client by the Agent.
The Client shall indemnify and keep fully indemnified the Agent at all times from and against any actions, proceedings, claims, demands, costs (to include without prejudicing the generality of this clause, the legal costs of the Agent), awards or damages howsoever arising directly or indirectly as a result of any breach or non-performance by the Client of any of the Client’s obligations, undertakings or warranties as set out in this Agreement.
12. Force Majeure
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Agent.
14. Third Party Rights
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
If any term or provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid, illegal or unenforceable provision eliminated.
16.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
16.2 Unless specifically provided otherwise, rights and remedies arising under this agreement are cumulative and do not exclude rights and remedies provided by law.
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Schedule or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
18. Entire Agreement
These Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
19. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts.