TERMS OF BUSINESS FOR THE INTRODUCTION OF STAFF
1.1. In these Terms of Business the following definitions apply:
“Applicant” means the person introduced by the Agency to the Client for an Engagement including any members of the Agency’s own staff;
“Client” means the person, firm or corporate body requiring the services of the Applicant;
“Agency” means Anderson Knight Limited of 126 West Regent Street, Glasgow G2 2RQ;
“Engagement” means the engagement, employment or use of the Applicant by the Client or any third party 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; directly or through a limited company of which he is an officer or employee or under a self-employed capacity;
“Introduction” means either (i) the Client’s interview of an Applicant in person or by telephone, following the Client’s instruction to the Agency to search for an Applicant; or (ii) the passing to the Client of a curriculum vitæ or other information which identifies the Applicant; and which leads to an Engagement of that Applicant by the Client;
“Remuneration” includes base salary, 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 Applicant for services rendered to or on behalf of the Client. Where the Client provides a company car, a notional amount of £3000 will be added to the salary in order to calculate the Agency’s fee.
1.2. Unless the context requires otherwise, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in these Terms of Business are for convenience only and do not affect their interpretation.
1.4 The Appendix to these Terms of Business form part of (and are incorporated into) this agreement.
2. THE CONTRACT
2.1. These Terms of Business are deemed to be accepted by the Client by virtue of an Introduction to, or the Engagement of an Applicant.
2.2. Unless otherwise agreed in writing by a Manager or Director of the Agency, these Terms of Business shall prevail over any other terms of business or purchase conditions put forward by the Client.
2.3. No variation or alteration of these Terms of Business shall be valid unless approved in writing by Manager / Director of the Agency.
3. NOTIFICATION AND FEES
3.1. The Client agrees:
a) To notify the Agency immediately of any offer of an Engagement which it makes to the Applicant;
b) To notify the Agency immediately that its offer of an Engagement to the Applicant has been accepted and to provide details of the Applicant’s Remuneration to the Agency; and
c) To pay the Agency’s fee by the due date as stated on the invoice.
3.2. Except in the circumstances set out in clause 5.1 below, the Client incurs no fee until the Applicant commences the Engagement when the Agency will render an invoice to the Client for its fees.
3.3. The Agency reserves the right to charge interest on invoiced amounts unpaid for more than 14 days at the rate of 4% per annum above the base rate from time to time of the Bank of England from the due date until the date of actual payment.
3.4. Should an invoice remain unpaid after the invoice due date, the Agency reserves the right to cancel all reduced fee arrangements and full fees are automatically calculated as set out in Appendix 1 – Schedule of Fees, attached to these Terms of Business.
3.5. The fee payable to the Agency by the Client for an Introduction resulting in an Engagement is the amount equal to a % of the Applicant’s Remuneration applicable during the first 12 months of the Engagement. VAT will be charged on the fee if applicable. See Appendix 1 – Schedule of Fees, attached to these Terms of Business for fee structure.
4.1. In order to qualify for the following refund, the Client must pay the Agency’s fee within 14 days of the date of invoice and must notify the Agency in writing of the termination of the Engagement within 7 days of its termination.
4.2. If the Engagement terminates before the expiry of 8 weeks from the commencement of the Engagement (except where the Applicant is made redundant) the fee will be refunded in accordance with the accompanying ‘Scale of Refund’ set out in Appendix 1 – Schedule of Fees, attached to these Terms of Business.
4.3. Should the Client or any subsidiary or associated company of the Client subsequently engage or re-engage the Applicant within the period of 6 calendar months from the date of termination of the Engagement or withdrawal of the offer, a full fee calculated in accordance with clause 3.5 above becomes immediately payable to the Agency, with no entitlement to the refund.
5. CANCELLATION FEE
If, after an offer of Engagement has been made to the Applicant, the Client decides for any reason to withdraw it, the Client shall be liable to pay the Agency a minimum fee of 50% of the annual Remuneration of the Applicant.
6.1. Introductions of Applicants are confidential. The disclosure by the Client to a third party of any details regarding an Applicant introduced by the Agency which results in an Engagement with that third party within 6 months of the Introduction renders the Client liable to payment of the Agency’s fee as set out in clause 3.5 with no entitlement to any refund.
6.2. An Introduction fee calculated in accordance with clause 3.5 will be charged in relation to any Applicant engaged as a consequence of or resulting from an Introduction by or through the Agency, whether direct or indirect, within 6 months from the date of the Agency’s Introduction.
6.3. Where the amount of the actual Remuneration is not known the Agency will charge a fee calculated in accordance with clause 3.5 on the minimum level of Remuneration applicable for the position in which the Applicant has been engaged with regard to any information supplied to the Agency by the Client and/or comparable positions in the market generally for such positions.
6.4 In the event that any employee of the Agency with whom the Client has had personal dealings accepts an Engagement with the Client within 3 months of leaving the Agency’s employment, the Client shall be liable to pay an Introduction fee to the Agency in accordance with clause 3.5.
7. SUITABILITY AND REFERENCES
The Agency endeavours to ensure the suitability of any Applicant introduced to the Client. Notwithstanding this the Client shall satisfy itself as to the suitability of the Applicant and the Client shall take up any references provided by the Applicant to it or the Agency before engaging such Applicant. The Client shall be responsible for obtaining work and other permits if required, for the arrangement of medical examinations and/or investigations into the medical history of any Applicant, and satisfying any medical and other requirements or qualifications required by law of the country in which the Applicant is engaged to work.
8. DATA PROTECTION
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. In this clause Data Protection Legislation means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, both parties are data controllers (where Data Controller has the meaning as defined in the Data Protection Legislation). Appendix 2 sets out the scope, nature and purpose of the data transfer and sharing between both parties.
8.3 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer and sharing of personal data from the Agency to the Client for the duration and purposes of this agreement.
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 an Applicant for the Client or from the Introduction to or Engagement of any Applicant by the Client or from the failure of the Agency to introduce any Applicant. For the avoidance of doubt, the Agency does not exclude liability for death or personal injury arising from its own negligence.
These Terms are governed by the law of Scotland and are subject to the exclusive jurisdiction of the Scottish courts.
10.1 These Terms be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed at least one counterpart.
10.2 Transmission of the executed document counterpart of this agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of the agreement. Without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
IN WITNESS WHEREOF these presents consisting of this and the three preceding pages are executed as follows:-
Signed for and on behalf of Anderson Knight Limited by its duly authorised signatory as follows:-
Director / Authorised signatory
At ……………………………………… on ………………………… 2021
In the presence of this witness:
Signed by the Client as follows:-
Director / Authorised signatory
At ……………………………………… on ………………………… 2021
In the presence of this witness:
Schedule of Fees for the Introduction of Staff
The fee structure is calculated on the following basis:
- Where provision is made for a company car, £3,000 is added to the Applicant’s salary increasing the Applicant’s Remuneration.
- A minimum fee of £2000 is applicable.
The Scale of Refund is calculated on the following basis:
- In the event of the Client engaging an Applicant for employment in any capacity within twelve months of Introduction by the Agency, then a fee shall be payable by the Client to the Agency
- All fees will be subject to the Terms of Business attached and to the addition of Value Added Tax (if applicable).
Data Transfer and Sharing
The following definitions apply to this Appendix 2:
“Agreed Purposes” means the performance by each party of its obligations under this agreement.
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation: (i) the Data Protection Act 1998, until the effective date of its repeal (ii) 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 (iii) 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: The parties to this agreement, the employees of each party and any third parties engaged to perform obligations in connection with this agreement.
Shared Personal Data: the personal data to be shared between the parties under this agreement, including but not limited to CVs and employment records of Applicants.
1.1 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.
1.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
1.3 Each party shall:
a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, 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;
c) process the Shared Personal Data only for the Agreed Purposes;
d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
f) 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;
g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
(i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
(ii) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
1.4 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
b) promptly inform the other party about the receipt of any data subject access request;
c) provide the other party with reasonable assistance in complying with any data subject access request;
d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
e) 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;
f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
i) maintain complete and accurate records and information to demonstrate its compliance with the provisions contained within this Appendix 2; and
j) 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 joint training of relevant staff, 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.
1.5 Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.