1. Background and Scope of these Terms (the ‘Agreement’)
1.1) In this Agreement, BIE Executive Limited is referred to as BIE/we/our/us. You, our client, are referred to as you/your (BIE and you shall together be referred to as ‘the Parties’) and shall include any of your Group Companies (as defined below).
1.2) You require additional staff on a permanent and/or fixed term basis (each an “Individual”) and we agree to provide a staffing solution for the recruitment of Individuals for you (the ‘Services’) on the terms and conditions set out below.
1.3) This Agreement shall become binding upon the soonest of:
a) your signature of this Agreement;
b) you giving us written (or verbal instructions) to supply Candidate(s);
c) you interviewing a Candidate we Introduced to you;
d) you employing or otherwise Engaging (as defined below) a candidate we Introduced to you; or
e) you referring a Candidate we Introduce (as defined below) to you, to a third party then employs or otherwise Engages that candidate.
1.4) The Services shall be provided in accordance with all applicable provisions of the proposal that outlines the details of our engagement, type of Placement/s you have requested and other relevant information pertaining to that particular Placement, which is incorporated herein by this reference (‘Proposal’). In the event of any conflict between this Agreement and any of the terms of the Proposal, the terms of the Proposal shall prevail.
The following definitions and rules of interpretation apply in this Agreement.
Additional Costs: any advertising campaign, additional or any other agreed supplementary charges.
Business: work performed by us in relation to permanent or Fixed Term Placements including, our provision of CVs (solicited or unsolicited), our receipt of instructions from you for a Placement, long/short listing of Candidates, Introducing a Candidate, our arrangement of or conducting interviews with Candidates or any other act either directly or indirectly relating to the sourcing or supply of a Candidate.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Cancellation Fee: the fee payable to us by you if you cancel an Engagement resulting from a Retained Search calculated in accordance with clause 4.12;
Candidate: an individual Introduced by us to you.
Client Group Company: any of your subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time.
Commencement Date: the date of the Proposal.
Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).
CV: curriculum vitae.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Engage: the employment of a Candidate or engagement directly or indirectly through as a direct result of any Introduction to you and the terms Engaged or Engagement shall be construed accordingly.
Final Communication: the latest date on which the Parties communicated in respect of a Candidate.
Fixed Term Placement: any Candidate Introduced to you who is Engaged directly by you on a fixed term contract.
Introduce: the provision by us to you of information by way of a curriculum vitae or in such format as you may from time to time require which identifies the Candidate and Introduction and Introduced shall be construed accordingly.
Placement: a position or role to which a Candidate may be or is appointed on a permanent or Fixed Term basis (including a Fixed Term Placement) with you.
Placement Fees: the fees due to us in relation to a specific Placement calculated in accordance with this Agreement (in respect of Fixed Term Placements, these shall be pro-rated as set out below).
Retained Search: where we are instructed by you to assist you in recruiting persons for one or more positions on a retained basis (a “Retained Assignment”);
Total Remuneration Package: the annual anticipated gross remuneration package for a Placement, which includes gross annual salary, applicable benefits for which there is a cash equivalent paid to the Candidate, profit share, commission, bonus (indicative or guaranteed), living allowances, travel allowances, overseas allowances and joining inducements. For the purposes of calculating Placement Fees, the provision of a car to the Candidate is valued at £5,000 per annum.
VAT: value added tax chargeable in the UK.
2.2) A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) as a nominee.
2.3) Any Proposals or Schedules form 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 Proposals and/or Schedules.
2.4) A reference to writing or written includes email.
2.5) A reference to this Agreement or to any other agreement or document is a reference to this Agreement or such other agreement or document, in each case as varied from time to time.
3. Our respective obligations
3.1) We will submit details of Candidates we believe are appropriate to the job specification you provide.
3.2) You acknowledge that it is your sole responsibility and obligation to undertake your own investigations to verify any information provided, in respect of that Candidate and ensure that the same is accurate and correct.
3.3) You shall provide us with details of the particular Placement, including the anticipated job description, Total Remuneration Package and any other reasonably necessary information to enable us to assess the suitability of a Candidate for that Placement. You shall keep us updated regarding any changes to this information.
3.4) You will make us aware of any security and/or health and safety requirements which the Candidate must observe whilst at your premises.
3.5) It is your responsibility for permanent Placements, to take up references (if it deems necessary) concerning the Candidate’s skills, qualifications, integrity, obtaining any necessary work permits where applicable and ensuring they satisfy any medical requirements or qualifications which may be required by law.
3.6) Unless you notify us to the contrary in writing, you hereby provide us with your consent to use and reproduce your name, logo and trademarks within advertising for the Placement and our general promotional literature (whether online or in print) provided always that we shall not change or otherwise amend your name, logo or trademark without your prior written consent. Nothing in this provision shall create any rights of ownership (whether registrable or not) in favour of us over your intellectual property.
4. Fees and Payments
4.1) Retained Searches. Where you instruct us to undertake Retained Searches, Placement Fees for Retained Searches shall be calculated at 33% of the Total Remuneration Package as set out in Proposal and invoiced at the following three stages:
4.1.1) One third of the Placement Fee on our agreement to undertake the Business (based on an estimate of the Total Remuneration Package);
4.1.2) One third of the Placement Fee (based on an estimate of the Total Remuneration Package) when the short-list of Candidates is presented to you by us or six (6) weeks after our agreement to undertake the Business whichever is the sooner; and
4.1.3) the balance (if applicable, adjusted for any variance between the estimated and final Total Remuneration Package) on acceptance of the offer of Engagement by the Candidate.
4.2) Placement Fees for Retained Searches are non-refundable. If you withdraw the Placement for any reason prior to a Candidate commencing an Engagement, the next stage of the fees specified in clause 4.1 will become payable immediately.
4.3) Fixed Term Placements. The Placement fee for a Fixed Term Placement shall be calculated at the percentage in 4.1, of the first year’s salary. Where prior to the commencement of the Engagement we agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Placement Fee shall apply pro-rata. For the avoidance of doubt, invoices for Placement Fees for Fixed Term Placements shall be invoiced upfront for the duration of the Placement upon the Candidate’s employment start date (‘Start Date’).
4.4) Should a Fixed Term Placement subsequently be extended during the twenty-four (24) month period starting from the date of Introduction of the Candidate, you will inform us within 7 days and you shall pay the balance of the Placement Fee.
4.5) Where an offer of Engagement is accepted by the Candidate but (through no fault of the Candidate or us) no Engagement results, we may charge the Placement Fees.
4.6) Invoices shall be payable monthly in arrears (including those for Additional Costs) in full, within thirty (30) days of the date of an invoice without any right of set off.
4.7) Placement Fees are exclusive of any VAT which shall be charged by us at the prevailing rate.
4.8) We shall be entitled to invoice any and all Additional Costs immediately after they have been incurred by us.
4.9) You are deemed to have accepted a BIE invoice if no dispute is raised in respect of the same, within seven (7) days of the date of such invoice. All disputes shall be dealt with promptly, in good faith and escalated to the appropriate levels within BIE. For the avoidance of doubt, no disputed payment shall give you any right of set off against future invoices or permit you to fail to discharge any of our other invoices issued pursuant to this Agreement.
4.10) Any third-party costs and/or expenses (including legal fees and other professional fees) incurred by us in recovering amounts overdue pursuant to this Agreement shall be payable by you.
4.11) We reserve the right to charge interest on invoiced amounts which remain unpaid for more than 14 days from the due date, at the rate of 4% a year above the base rate from time to time of the Bank of England's base rate, but at 4% a year for any period when that base rate is below 0%, until the date of payment.
4.12) If, after an offer of Engagement has been made to the Candidate, you decide for any reason to withdraw it prior to the Candidate accepting the Engagement, you shall be liable to pay us a Cancellation Fee as set out in the Proposal. For Retained Searches, the Cancellation Fee shall be calculated in accordance with the following stages:
4.12.1) if you cancel any Engagement at any time after our acceptance to undertake the Business in accordance with Clause 4.1.1 prior to the submission of the short-list, you shall pay the second stage of the Placement Fee due under Clause 4.1.2.
4.12.2) If you cancel any Engagement after we have submitted the short-list or after acceptance of the Engagement of the Candidate, in accordance with Clause 4.13.2, you will pay the final third of the Placement Fee due under Clause 4.1.3 in addition to the Placement Fee due under Clause 4.1.1 and 4.1.2.
4.13) If you suspend any Engagement for more than 90 days, we shall be entitled to renegotiate the Placement Fee with you, and where we are engaged on an exclusive basis, a Cancellation Fee in the sum equivalent the amount due under the next stage as set out in Clause 4.12 above shall apply.
4.14) You may use purchase orders in relation any services provided to you by us under this Agreement. Such purchase orders must be received by us no later than the close of business on first day of the Candidate’s Engagement. Purchase order numbers shall not be listed on invoices we issue to you unless you otherwise notify us of this requirement in advance in writing. Any purchase order terms and conditions conflicting with this Agreement shall not become a part of this Agreement.
5. Candidate Ownership
5.1) If you choose to interview a Candidate presented to you by us or refer such Candidate to a third-party then you acknowledge that the Candidate has been introduced by us subject to this Agreement, and that any previous interactions, communications or employment relationships have no bearing on our Introduction or the fees payable according to this Agreement.
5.2) If the Candidate accepts permanent employment with you within twenty-four (24) months of the end date of the last Fixed Term Placement, a further fee will be calculated in accordance with the provisions of clause 5.1.
5.3) Though no Placement occurs initially, the relevant Placement Fee will be due if a Candidate accepts an offer of employment or Engagement with you within twenty-four (24) months of the Final Communication, in which case you must notify us of the Total Renumeration Package, the Start Date and appropriate contact details.
5.4) If you effectively Introduce any Candidate to any third party, whether directly or indirectly, and that Introduction results in an Engagement of the Candidate by that third party, you will:
5.4.1) immediately notify us of the Engagement; and
5.4.2) pay to us the Placement Fee in accordance with clause 4, unless the Engagement occurs more than twenty-four (24) months after the Introduction of the Candidate to you by us or the date of the Candidate’s last interview with you, whichever is the later.
6. Replacement Candidates
6.1) If the Engagement of a Candidate terminates within a period of twelve (12) weeks (including the Candidate’s period of contractual notice with you) from the Start Date, we shall use reasonable endeavours to seek a replacement Candidate on the condition that:
a) The Candidate leaves of their own volition and not due to any redundancy measures, change in job description or change in work conditions;
b)Our invoices have been settled in accordance with this Agreement;
c) You have complied with your obligations to the Candidate including your obligations under any relevant law;
d) The request is given exclusively to us to replace the Candidate;
e) The replacement role is the same as the initial Placement; and
f) We are informed in writing that the Candidate is no longer to be engaged by you within seven (7) days of such decision being made.
6.2) If the Total Remuneration Package of the replacement Candidate differs from that provided to the original Candidate, the invoiced amount will be adjusted accordingly.
6.3) No replacement for the replacement Candidate in whatever capacity shall be provided.
6.4) This clause 6 shall constitute your exclusive remedy with regards to a Candidate’s Engagement terminating in the circumstances set out in clause 6.1.
7. Warranties and Liability
7.1)We make no warranty as to the suitability of any candidate to a particular position. You are responsible for ensuring the candidate is suitable to the position to which they are appointed. We give no representation or warranty that any Candidate is or will be willing and/or available to accept any Placement.
7.2) We confirm that, in Introducing any Candidate to you, we are not aware of anything which will cause any detriment to you or the Candidate interests or if you Engage the Candidate except as notified to you by us.
7.3) If a Candidate or a third party provides details relating to the Candidate, including (but not limited to) information as to a candidate’s qualifications and experience and information contained in a Candidate’s reference, we provide no warranty or representation as to the accuracy of such information. We will not be liable to you for any loss (including direct loss, indirect or consequential loss, loss of profit, loss of anticipated revenue, loss of reputation or regulatory fines) or damage, nor shall we bear any responsibility for any legal costs and expenses associated with such matters, whether arising directly or indirectly, as a result of such inaccurate or misleading information.
7.4) Neither Party shall be liable to the other under or in connection with this Agreement or any contract made upon them for any indirect or consequential loss, loss of profits, loss of business, loss of revenue loss of anticipated savings, loss of reputation or regulatory fines.
7.5) Nothing in this Agreement limits any warranty, exclusion or limitation of liability or right imposed by statute or regulation to the extent that it cannot lawfully be excluded or limited.
7.6) Subject to the extent that a liability cannot be lawfully excluded or limited, the maximum liability of each Party to the other in respect of any Placement shall be limited to one hundred per cent (100%) of the Placement Fees which are payable.
Subject to the Engagement by you of a Candidate under this Agreement, and for the Term together with a period of twelve (12) months thereafter (either on its own account or for any other individual or organisation), directly or indirectly induce, entice or solicit away or try to induce, entice or solicit away from the other any individual who is an employee, director or consultant of the other Party. If either Party employs or engages any person in breach of this provision, that Party shall pay to other on demand the sum equivalent to fifty percent (50%) of the annual Total Remuneration Package of such person. The Parties agree that this is a genuine pre-estimate of loss. For the avoidance of doubt, this does not include if an individual approaches either Party directly or in response to an advertisement.
9. Force majeure
We shall not be liable for any delay or non-performance of our obligations under this Agreement to the extent that such delay or non - performance is caused by a Force Majeure Event. For the purposes of this Agreement “Force Majeure Event” shall mean any event beyond our reasonable control including without limitation, fire, floods, storms, earthquakes, natural physical disasters, acts of war, acts of terrorism or threats of, or industrial action or acts of government.
10. Confidentiality and Data Protection
10.1) Each Party will hold information of the other that can be reasonably regarded as being confidential or is notified as being so by the disclosing Party, in confidence and will not disclose such information without the consent of the other Party unless required by law or a court of competent jurisdiction, or it has already been made available to the public other than through a breach of this clause. Any CVs or details of the Candidate provided to you by us shall constitute confidential information.
10.2) Both Parties shall comply with its obligations in respect of the privacy of data as more particularly set out in the Data Protection Legislation.
10.3) If either Party receives any complaint, notice or communication which relates to the processing of Personal Data by the other Party or to either Party’s compliance with the Data Protection Laws, or if any Personal Data processed in connection with this Agreement is subject to a personal data breach (as defined in the UK GDPR), it shall immediately notify the other Party and provide the other Party with reasonable co-operation and assistance in relation to any such complaint, notice, communication or personal data breach.
10.4) You shall indemnify us against all liabilities, costs, expenses, damages and direct losses and all interest, penalties and reasonable legal and professional costs and expenses suffered or incurred by us arising out of or in connection with any third-party claims (including those of Candidates) caused by you, or any Client Group Company’s misuse of a Candidate’s personal data or the employees, directors, agents or contractors of each.
11. Term and Termination
11.1) Once commenced, this Agreement shall continue until terminated by either Party by giving one calendar month’s written notice to the other.
11.2) We may terminate this Agreement by notice in writing if you fail to pay any amount due to us within 14 days of the due date.
11.3) Notwithstanding the above, this Agreement may be terminated immediately by either party upon a resolution being passed or an order made for the winding up of the other party, or if that other party becomes subject to an administration order, or has a receiver or administrative receiver appointed over its assets, or by the non-breaching party in the event the other party commits a material breach of this Agreement which is not remedied despite having been given 5 working days’ written notice of such breach by the non-breaching party.
11.4) On termination, we shall remain entitled to receive Placement Fees for Placements up to the termination date.
12.1) Any failure by either party to enforce at any provisions of this Agreement, shall not be deemed a waiver of such rights or of the right to enforce this Agreement subsequently.
12.2) If any provision, clause or part-clause of this Agreement is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of this Agreement shall remain in full force and effect to the extent permitted by law.
12.3) No provision of this Agreement shall be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act 1999 ("the Act"). This does not, however, affect any right or remedy of a third party that exists or is available independently of the Act.
12.4) This Agreement may not be modified or amended except in writing and signed by a duly authorised representative of each Party.
12.5) This Agreement shall be governed and construed in accordance with English Law and the Courts of England shall have exclusive jurisdiction.