We are Wade Macdonald Limited (throughout “we”, “us”, “our” and “ours”) of Greyfriars Gate, 7 Greyfriars Road, Reading, Berkshire, RG1 1NU including, for the purposes of this agreement, our branch offices and our subsidiary companies (as defined by s.1159 Companies Act 2006) or associated companies (as defined by s.309A Companies Act 1985).
You are a Client or potential Client of ours and are the recipient of these Terms of Business (throughout “you”, “your” and “yours”) including, for the purposes of this agreement, an Associate.
Introduction and acceptance
We provide a range of first class services for the introduction of candidates to employers. The terms in this document set out the arrangements and fees for our service, together with the information that we are obliged to collect from you for the benefit of our candidates. Once you have received this document, comprising this page and the pages that follow, any act by you of accepting or requesting services from us, or using in any way information from us relating to a Candidate, is deemed to be and shall constitute your acceptance of these Terms of Business. Upon such acceptance, and in consideration of the mutual benefits set out herein, these terms apply.
1: Definitions and interpretation
1.1 Definitions:
Additional Fee means the fee payable by You to Us as calculated in accordance with clause 8.
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Candidate means the person Introduced to You by Us.
Commencement Date means the date on which the Engagement starts.
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
Contract means the contract between Us and You in accordance with the Terms.
Data Controller means -
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(a) "data controller" in the Data Protection Act 1998 in respect of processing undertaken on or before 24 May 2018; and
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(b) "controller" in accordance with the General Data Protection Regulation (EU) 2016/679 in respect of processing undertaken on or after 25 May 2018
Data Protection Legislation means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the processing of personal data and privacy, including without limitation,(a) the Data Protection Act 1998; (b) (with effect from 25 May 2018) the General Data Protection Regulation (EU) 2016/679, now UK GDPR; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy resulting from the United Kingdom leaving the European Union.
DPA means the Data Protection Act 2018.
Engagement means the engagement, employment or use of the Candidate by You or by any Third Party (whether with or without Our knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services and whether under an agency, license, franchise or partnership agreement or through any other engagement directly or indirectly through a limited company of which the Candidate is an officer, shareholder or employee or through a limited liability partnership of which the Candidate is a member or employee and Engage and Engaged shall be construed accordingly.
Fee means the fee payable by You to Us as calculated in accordance with clause 7.
Fixed Term Engagement means an Engagement which is for a fixed term of fewer than twelve months.
GDPR means the General Data Protection Regulation (EU) 2016/679 now UK GDPR.
Introduction means either:
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(a) Us passing to You a curriculum vitæ or other information which identifies a Candidate following Your issuing of a Requirement; or
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(b) Us speculatively passing to You a curriculum vitæ or other information which identifies a Candidate,
and Introduced and Introduce shall be construed accordingly.
Offer means an offer to Engage a Candidate communicated either by You, or by Us at Your request.
Permanent Engagement means an engagement of indefinite duration.
Personal Data means as set out in, and will be interpreted in accordance with Data Protection Legislation.
Personal Data Breach means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with these Terms or which relates to any Candidate.
Process means as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly.
Rebate means a refund of part of the Fee paid by You to Us under the Contract as calculated in accordance with clause 11.
Recruitment Fee means the fee payable by You to Us in accordance with clause 12.
Remuneration means the total sum payable to the Candidate for services rendered to or on behalf of You or any Third Party during the first twelve months of the Engagement (or during the term of the Engagement if the Engagement is a Fixed Term Engagement) including annual salary, fees, guaranteed and/or anticipated bonus and commission earnings, car and other allowances, inducement payments, shift allowances, location weighting, call-out allowances and all other benefits, payments or emoluments payable to or receivable by the Candidate. If the Candidate receives the benefit of a company car, the value of that benefit for the purposes of calculating the Remuneration shall be deemed to be £6,000.00 (six thousand pounds). If the Engagement is on a part-time basis, the Remuneration means the total sum that would be payable to the Candidate on a full time equivalent basis.
Replacement Candidate means a Candidate Introduced by Us to You to fill the Engagement following the Introduction of another Candidate whose Engagement ended within 12 weeks of the Commencement Date.
Requirement means a request from You in any form for Us to search for a Candidate to fill a Vacancy.
Termination Date means the date on which the Engagement ends.
Terms means these terms of business.
Third Party means any company or person who is not You and includes any of Your subsidiary or associated companies (as defined in s.1159 of the Companies Act 2006 and s.416 of the Income and Corporation Taxes Act 1988).
Vacancy means a specific role/s, work or position You for which We Introduce a Candidate.
We means Wade Macdonald Limited registered in England and Wales with company number 02585194 and Us and Our shall be construed accordingly.
Withdrawal Fee means 50% of the Fee.
You means the person or firm to whom We Introduce a Candidate, and Yourself shall be construed accordingly.
1.2 Interpretation
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by 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.
(c) Headings are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.
(d) A reference to writing or written includes email.
2. Application and capacity
2.1 - These Terms shall apply to all dealings between You and Us relating to Introductions (but not the supply) of Candidates.
2.2 - We shall act as an employment agency as defined in the Conduct Regulations.
3. Our obligations
3.1 - We shall use reasonable endeavours to Introduce one or more suitable Candidates to meet Your requirements, however, We cannot guarantee to find a suitable Candidate for each Vacancy.
3.2 - We shall use reasonable endeavours to ascertain that the information provided by Us to You in respect of the Candidate is accurate, however, We cannot accept any responsibility for matters outside Our knowledge and You must satisfy Yourself as to the suitability of the Candidate.
4. Your obligations
4.1 - In order that We may comply with Our obligations under the Conduct Regulations, You shall, upon issuing a Requirement, or as soon as possible thereafter, provide to Us:
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(a) full details of the Vacancy, including details of the type of work that the Candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorisation which You consider necessary or which are required by law or by any professional body for the Candidate to possess in order to carry out the Engagement; and any risks to health or safety known to You and the steps You have taken to prevent or control such risks; and
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(b) details of the proposed Commencement Date, the proposed duration of the Engagement; the proposed Remuneration; the intervals of payment of the Remuneration and the length of notice that the Candidate would be entitled to give and to receive to terminate the Engagement.
4.2 - Following an Introduction, You shall:
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(a) satisfy Yourself as to the suitability of the Candidate;
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(b) be responsible for obtaining such work permits and/or other permission to work as may be required by law in the country in which the Candidate is Engaged to work;
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(c) be responsible for ensuring that the Candidate possesses such qualifications as may be required by law in the country in which the Candidate is Engaged to work;
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(d) be responsible for the arrangement of any medical examinations and/or investigations into the medical history of the Candidate; and
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(e) inform Us of any information You have that suggests it would be detrimental to the interests of either You or the Candidate for the Candidate to accept the offer of Engagement.
4.3 - Within 7 Business Days of making an Offer to a Candidate, You shall (unless the Offer was communicated to the Candidate by Us at Your request) notify Us in writing of the terms of the Offer, including the amount of the Remuneration.
4.4 - Within 7 Business Days of the Candidate’s acceptance of the Offer You shall notify Us in writing of the acceptance and the proposed Commencement Date.
4.5 - In the event of the Engagement of the Candidate within twelve months of the Introduction You shall pay to Us the Fee in accordance with the Contract.
4.6 - You shall pay the Fee in accordance with the Contract whether or not the Candidate is Engaged for the same type of work and/or Vacancy as that for which the Introduction was originally made.
4.7 - If You withdraw an Offer, You shall:
4.8 - If We Introduce a Candidate who is already known to You, then, in the event of the Engagement of the Candidate within twelve months of the Introduction, You shall pay the Fee unless within 3 Business Days of the Introduction You:
4.9 - You shall not, and shall not cause Us to, unlawfully discriminate in relation to the services provided by Us to You in connection with these Terms and shall disclose any and all information requested by Us in the event a Candidate makes a complaint to Us.
5. Equal opportunities
5.1 - We are committed to equal opportunities and expect You to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.
6. Data Protection
6.1 - For the purposes of this clause "Data Subject" means as set out in, and will be interpreted in accordance with Data Protection Legislation. For the avoidance of doubt, Data Subject includes Candidate.
6.2 - The parties hereto acknowledge that We are a Data Controller in respect of the Personal Data of a Candidate and provide such Personal Data to You in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.
6.3 - The parties hereto acknowledge that You are a Data Controller but the parties hereto are not Joint Controllers (as defined within Data Protection Legislation) save where a specific agreement is made to that effect between the parties hereto.
6.4 - The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by You, Us or by a Candidate, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.
6.5 - The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.
6.6 - You will:
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(a) comply with the instruction of Us as regards the transfer/sharing of data between the parties hereto. If You require Personal Data not already in Your control to be provided by Us, You will set out the legal basis for the request of such data and accept that We may refuse to share/transfer such Personal Data where, in the reasonable opinion of Us, it does not comply with its obligations in accordance with Data Protection Legislation;
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(b) agree to comply with the DPA/GDPR and shall not cause Us to breach the DPA and shall provide any and all information requested by Us in a timely manner to assist Us to respond to a ‘data subject access request’ (as defined in the DPA/GDPR).
6.7 - In the event You become aware of an actual or any reasonably suspected Personal Data Breach, You will immediately notify Us and will provide Us with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information We reasonably request relating to the Personal Data Breach.
6.8 - In the event of a Personal Data Breach, You will promptly (at Your own expense) provide such information, assistance and cooperation and do such things as We may request to:
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(a) investigate and defend any claim or regulatory investigation;
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(b) mitigate, remedy and/or rectify such breach; and
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(c) prevent future breaches.
and will provide Us with details in writing of all such steps taken.
6.9 - You will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of Us.
6.10 - You agree You will only Process Personal Data of a Candidate for the agreed purpose that is introduction for a Vacancy pursuant to these Terms.
6.11 - You will provide evidence of compliance with clause 6 upon request from Us.
6.12 - You will indemnify and keep indemnified Us against any costs, claims or liabilities incurred directly or indirectly by Us arising out of or in connection with any failure to comply with clause 6.
7. Calculation of the Fee
7.1 - Subject to clause 7.2, the Fee in respect of each Engagement shall be calculated as follows:
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Remuneration
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Fee
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Less than £30,000
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20% of the
Remuneration
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From £30,000 up to
and including
£69,999.99
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25% of the
Remuneration
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£70,000 or more
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30% of the
Remuneration
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7.2 - The minimum Fee shall be £3,000 (three thousand pounds).
7.3 - If the amount of the Remuneration is not disclosed to Us, the Remuneration shall be deemed to be the amount of the maximum level of remuneration applicable to:
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(a) the Vacancy; or, if unknown to Us,
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(b) a comparable position in the general marketplace at that time.
8. Fixed Term Engagements
8.1 - If a Fixed Term Engagement becomes a Permanent Engagement, You shall pay to Us an Additional Fee which shall be calculated as set out at clause 8.4 based on the Remuneration applicable to the Permanent Engagement:
8.2 - If a Fixed Term Engagement is extended You shall pay to Us an Additional Fee which shall be calculated as set out at clause 8.4 based on the Remuneration applicable to such additional period of Engagement.
8.3 - If You re-Engage the Candidate within 6 months of the Termination Date of a Fixed Term Engagement, You shall pay to Us an Additional Fee which shall be calculated as set out at clause 8.4 based on the Remuneration applicable to the re-Engagement.
8.4 - The Additional Fee shall be calculated as follows:
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Remuneration
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Fee
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Less than £30,000
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20% of the
Remuneration
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From £30,000 up to and
including £69,999.99
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25% of the
Remuneration
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£70,000 or more
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30% of the
Remuneration
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8.5 - If the amount of the Remuneration is not disclosed to Us, the Remuneration shall be deemed to be the amount of the maximum level of remuneration applicable to a comparable position in the general marketplace at that time.
8.6 - The Fee already paid (or payable) by You in connection with the Fixed Term Engagement shall not be set off against the Additional Fee.
9. Other charges
9.1 - Charges incurred by Us at Your written request in respect of advertising or any other matters will be charged to You and such charges will be payable whether or not the Candidate is Engaged. We shall notify You prior to any additional charges being incurred.
Invoices and payment
10.1 - We shall invoice You in respect of the Fee and any Additional Fee or other charges payable to Us by You under the Contract.
10.2 - If You operate a purchase order system, You shall provide Us with a purchase order number prior to the Commencement Date.
10.3 - You shall pay each invoice submitted by Us within 14 days of the date of the invoice.
10.4 - You shall have no right to set off, withhold or deduct mones from sums due to Us under the contract.
10.5 - All amounts payable by You under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Us to You, You shall, on receipt of a valid VAT invoice from Us, pay to Us such additional amounts in respect of VAT as are chargeable on the supply at the same time as payment is due for the supply.
10.6 - If You fail to make payment to Us by the due date for payment, We will charge interest and late payment charges on the overdue amount under the Late Payment of Commercial Debts (Interest) Act 1998.
10.7 - You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting Our other rights or remedies, set off any amount owing to Us by You against any amount payable by Us to You.
11. Rebate
11.1 - If a Permanent Engagement ends within 12 weeks of the Commencement Date, You shall notify Us of the Termination Date in writing within three Business Days of the earlier of the Termination Date or the date on which notice of termination is given, and You shall allow Us to Introduce a Replacement Candidate for the Vacancy.
11.2 - If You have in good faith allowed Us to Introduce a suitable Replacement Candidate for the Vacancy and We have not, within 28 days of Your notification to Us under clause 11.1, been able make an Introduction of a Replacement Candidate which has led to an Engagement, You shall be entitled to a Rebate of part of the Fee if all of the following conditions are met:
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(a) You have paid Our invoice for the Fee and any Additional Fee or other charges payable to Us by You under the Contract in accordance with all of the payment terms contained within the Contract;
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(b) You have notified Us of the Termination Date in accordance with clause 11.1;
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(c) The Engagement was not terminated by reason of redundancy, re-organisation or a change in Your strategy;
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(d) 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 You provided prior to the Candidate’s acceptance of the Engagement;
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(e) The Candidate did not leave the Engagement as a result of discrimination or other acts against the Candidate; and
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(f) The Candidate was not at any time in the 12 months prior to the Commencement Date employed or engaged (whether on a permanent or contract basis, directly or indirectly) by You; and
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(g) You have first provided Us with the exclusive opportunity to provide You with a Replacement Candidate.
11.3 - The Rebate shall be calculated as follows:
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Engagement ends
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Percentage of Fee to be rebated
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Prior to or within eight weeks of the Commencement Date:
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50%
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Nine to twelve weeks after
the Commencement Date:
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25%
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11.4 - If, after receiving a Rebate from Us, the Candidate is re-Engaged, You shall immediately repay to Us the full amount of the Rebate.
12. Protection of Our business
12.1 - If, in the twelve months following the Introduction of a Candidate or the termination of the Engagement (whichever is the later) You wish to directly or indirectly employ or engage any of Our employees, officers or consultants, You shall pay to Us the Recruitment Fee.
12.2 - The amount of the Recruitment Fee shall be £30,000.00 (thirty thousand pounds) which is intended to be a genuine pre-estimate of Our loss.
13. Limitation of liability
13.1 - Nothing in the Contract shall limit or exclude Our liability for:
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(a) death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors;
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(b) fraud or fraudulent misrepresentation; or
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(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
13.2 - Subject to clause 13.1, We shall not be liable to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
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(a) loss of profits;
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(b) loss of sales or business;
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(c) loss of agreements or contracts;
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(d) loss of anticipated savings;
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(e) loss of use or corruption of software, data or information;
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(f) loss of damage to goodwill; and
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(g) any indirect or consequential loss.
13.3 - Subject to clause 13.1, Our total liability to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of the total Charges paid under the Contract.
13.4 - The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.5 - This clause 13 shall survive termination of the Contract.
14. Indemnity
14.1 - You shall indemnify Us and hold Us harmless and keep Us indemnified against any costs (including legal costs), claims or liabilities incurred directly or indirectly by Us arising out of or in connection with this Contract including (without limitation) as a result of:
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(a) any breach of the Contract by You or by Your employees, agents or subcontractors;
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(b) any breach by You or a Third Party, or any of Your or the Third Party’s employees, agents or subcontractors, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation, the Conduct Regulations or the DPA); or
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(c) any unauthorised disclosure of a Candidate details by You or any Third Party, or any of Your or the Third Party’s employees, agents or subcontractors.
15. Termination
15.1 - Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party three months' written notice.
15.2 - Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
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(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
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(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
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(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
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(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.3 - Without limiting Our other rights or remedies, We may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under the Contract on the due date for payment and remains in default not less than 28 days after being notified in writing to make such payment.
15.4 - Without limiting Our other rights or remedies, We may suspend provision of Our services under the Contract if You become subject to any of the events listed in clause 15.2(b) to clause 15.2(d) or if We reasonably believe that You are about to become subject to any of them, or if You fail to pay any amount due under this Contract on the due date for payment.
16. Consequences of termination
16.1 - On termination of the Contract for any reason:
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(a) You shall remain bound by these Terms in respect of any Introduction already made;
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(b) You shall immediately pay to Us all of Our outstanding unpaid invoices and interest;
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(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
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(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
17. General
17.1 - Acceptance. The Terms shall be deemed to be accepted by You in the event of any of the following:
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(a) Your interview of, or request to interview, a Candidate;
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(b) the Engagement of a Candidate; or
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(c) Your passing to any Third Party of information about a Candidate.
17.2 - Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
17.3 - Confidentiality. All information contained within these Terms shall remain confidential and You shall not divulge it to any Third Party save for Your own employees and professional advisers and as may be required by law.
17.4 - Entire agreement.
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(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
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(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.5 - Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.6 - Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
17.7 - Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.8 - Notices.
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(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier.
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(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address
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referred to in clause 17.8(a); if sent by pre-paid first class post or other next working day delivery service, at 10.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
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(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
17.9 - Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
17.10 - Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
17.11 - Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.