1. DEFINITIONS
In this Agreement the following definitions shall apply:
AGREEMENT means these terms of business.
ASSOCIATED COMPANY means any holding company, subsidiary, subsidiary undertaking or any other subsidiaries or subsidiary undertakings of any such holding company.
CANDIDATE means a person Introduced by the Company to the Client including, but not limited to, members of the Company’s own staff.
CLIENT means the person firm or corporate body together with any Associated Company to whom the Company supplies services under this Agreement.
COMPANY means Macdonald & Company Property Limited, also trading as Macdonald & Company, a company registered in the United Kingdom with registration number 3282128.
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 (a) The Data Protection Act 1998; (b) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) 2003; and (d) any legislation that subsequently converts existing law relating to data protection into United Kingdom law.
EMPLOYMENT means the employment, engagement, or use of the Candidate by the Client or by any Third Party to whom the Candidate was introduced by the Client (whether with or without the Company’s knowledge or consent) on a permanent or temporary basis whether under a contract of service or for services. “Employ” and “Employed” shall be construed accordingly.
INTRODUCTION means either a) the notification by the Company to the Client of details that identify a Candidate or b) the meeting or interview, whether in person, by videoconference or by telephone of a Candidate. “Introduce” and “Introduced” shall be construed accordingly.
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 this Agreement.
THIRD PARTY means any company or person who is not the Client, its employees or agents.
TOTAL REMUNERATION means the Candidate’s salary and/or profit share together with the value of any bonuses, commission payments, accommodation allowances, premiums for working abroad, insurances, pension payments, school fees, car allowances, benefits in kind etc; a company vehicle will be valued at £10,000 additional salary, single status accommodation at £5,000 and married status accommodation at £10,000.
2. GENERAL
a. The Company effects Introductions between Clients and Candidates. This Agreement applies to such services of Introduction provided by the Company and will apply unless a variation is agreed in writing by a Director of the Company.
b. All references to client, candidate, employment, offer of employment, salary, remuneration and any other words or phrases which are applicable to the relationship of Client and employee shall also be construed as references to the relationship of firm and salaried or equity partner or consultant as if a salaried or equity partner or consultant were an employee.
c. Headings contained in this Agreement are for reference only and will not affect the intended meanings of the clauses to which they relate.
d. This Agreement constitutes the entire agreement between the Company and Client and in the event of a disagreement the provisions contained in these Terms of Business shall prevail over any other terms save where expressly agreed otherwise by the Company.
e. This Agreement supersedes all previous agreements between the Company and the Client.
3. FEES
a. Fees are charged for each Introduction of a Candidate and are calculated as a percentage of the projected Total Remuneration in the first year of Employment.
b. Unless otherwise agreed in writing by a Director of the Company, a Standard Fee Rate of 30% (thirty per cent) of projected Total Remuneration in the first year of Employment will be charged for each Introduction of a Candidate.
c. fee becomes due on the first day of Employment of a Candidate Introduced by the Company except where it has been agreed between the Client and the Company that an amount will become due on the Company being instructed to Introduce Candidates.
d. Invoices are payable on receipt and will be deemed to have been accepted in full unless the Client notifies the Company in writing within 5 days of receiving the invoice, stating the amount the Client disputes and the reason it disputes that amount. In the event the Client does so notify the Company, the Client agrees to pay the undisputed amount in accordance with this Agreement and will co-operate fully with the Company to resolve the dispute as quickly as possible.
e. All fees are calculated exclusive of any value added, purchase, withholding or other tax to which the Company’s services may be subject and the Client will bear such taxes, if any, at applicable rates.
f. The Client undertakes to inform the Company immediately in writing of the terms of Employment agreed with a Candidate Introduced by the Company and to provide such information in writing that may be necessary to calculate fees payable.
g. Fees will be charged for any Candidate Employed as a consequence of, or resulting from, a Client notifying the Company of a vacancy even though the Introduction is made indirectly.
h. The Company reserves the right to charge interest and recovery costs on fees unpaid within 14 days of the invoice date. Overdue invoices will incur interest at the rate of four per cent above HSBC’s base lending rate calculated on a day-to-day basis as from the date of the invoice until the date of payment.
i. Fees will be charged in pounds sterling. Where the Candidate is remunerated in another currency, fees will be converted using the exchange rate on FT.com on the day the invoice is submitted.
j. Where for whatever reason the projected Total Remuneration in the first year of Employment cannot be agreed the Company reserves the right to calculate its fees on its own projection of Total Remuneration.
k. Where the actual Total Remuneration paid in the first year of Employment is materially different to the projected Total Remuneration used in calculating the initial fee, the Company reserves the right to charge an additional fee. The Client undertakes to provide the Company with such information in writing as may be necessary to calculate such additional fee.
l. Fees will be charged for any employee of the Company Employed by a Client in any capacity and this Agreement will apply save as to clause 5. below.
4. SERVICES
a. In making an Introduction the Company will have confirmed that a Candidate has not made or consented to another entity making an Introduction to the Client on his or her behalf in the previous 6 months.
b. By instructing the Company to introduce Candidates, the Client declares that it has exhausted internal resources contacts and connections and releases any claim to Candidates it may have previously known or had such contact with who are subsequently Introduced by the Company.
c. An Introduction will have been effected if a Client and a Candidate make contact at any time during a period of 12 months commencing on a date when the Company notifies either the Client or the Candidate of the other’s requirements be they current, potential or otherwise. Fees will be charged and be payable by the Client if a Candidate is Employed by the Client in any capacity at any time within 12 months from the date of the Introduction or if later the date of a meeting arranged by the Company between the Client and the Candidate.
d. The Client acknowledges that Introductions are confidential and warrants that it will not, and shall procure that its employees and agents shall not, pass any information concerning a Candidate to a Third Party. The Client agrees that in such circumstances an Introduction will have been effected, this Agreement will apply save as to clause 5. below and the Company will be entitled to charge the Client a fee.
e. Introductions are made to ‘Persons’ and such Persons include natural persons, firms, partnerships, companies, corporations, associations, organizations, governments, foundations and trusts (in each case whether or not having a separate legal personality). An Introduction to an individual or department within a Person is deemed to be an Introduction to the Person.
5. GUARANTEE
a. The Company will credit a proportion of its fee if a Candidate the Company has Introduced leaves their Employment provided that:
i. the Employment has been terminated within 13 weeks of commencement; and
ii. the Employment of the candidate was a full time contract for no less than 35 hours a week; and
iii. the Company’s fees in respect of the Introduction of the Candidate have been paid in full and within 14 days of the date of the invoice; and
iv. the Client notifies the Company in writing of the termination of the Employment within 7 days thereof; and
v. the Client or any Associated Company or firm of the Client shall not Employ the Candidate within nine months of the date of termination of Employment; and
vi. the termination is not due to redundancy or the liquidation, bankruptcy, administration, dissolution or amalgamation of the Client; and
vii. the termination is not due to constructive or unlawful dismissal and
viii. Clause 5.b. below is not applied.
b. In the event that notification of termination in accordance with 5.a.iii. occurs in the first 4 weeks of employment the Company will seek to Introduce a replacement Candidate at no extra charge provided the Total Remuneration payable to the replacement Candidate is not materially different to that paid to the first Candidate.
c. In the event that termination occurs in accordance with clause 5.a. and a replacement Candidate is not Introduced within 4 weeks, the Client will receive a credit calculated as proportion of the fee less any amounts due on instruction of the Company and net of taxes as follows:
For Employment terminated during weeks 1 to 4 – 100% (less 10% administration costs); Weeks 5 and 6 – 60%; Weeks 7 and 8 – 50%; Weeks 9 and 10 – 30%; Weeks 11 and 12 – 20%; Weeks 13 and 14 – 10%.
6. REFERENCES
Clients will be responsible for taking up references, confirming of professional and academic qualifications and ascertaining the suitability of any Candidate prior to Employment. The Client will also be responsible for arranging any medical examination or other investigations of the Candidate and for obtaining any work or other permits.
7. DATA PROTECTION
a. The Client and the Company agree to keep confidential all information marked as such or which should reasonably be understood to be confidential, in particular all information relating to Candidates that is not already in the public domain. The Client and the Company agree not to use Confidential Information of the other party except to the extent reasonably necessary to perform its obligations under this Agreement.
b. The Company and the Client acknowledge that the Data Protection Legislation applies to this agreement.
c. The Company and the Client warrant to each other that any personal data whether provided by the Company, the Client or a Candidate, will be used, processed and recorded by the receiving party in accordance with the Data Protection Legislation.
d. The Client agrees that the Company is the controller of personal data relating to Candidates Introduced by the Company.
e. The Client agrees it will only process personal data for the agreed purpose that is an Introduction pursuant to this Agreement.
f. The Client and the Company will take appropriate technical and organisational measures to adequately protect all personal data against accidental loss, destruction or damage, alteration or disclosure.
g. In the event the Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify the Company and comply with all reasonable requests for information from the Company.
h. In the event of a Personal Data Breach, the Client will at its own expense provide such information, assistance and co-operation at the Company’s request to investigate and defend any claim or regulatory investigation, mitigate or remedy such breach and prevent future breaches.
i. The Client will not publish or release any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of the Company.
j. The Client will indemnify and keep indemnified the Company against any costs, claims or liabilities incurred directly or indirectly by the Company arising out of or in connection with any failure to comply with clause 7.
8. WARRANTY
In effecting Introductions the Company is obliged to rely upon the good faith of Candidates and cannot accept responsibility for any information or representation concerning Candidates to whom Clients may be Introduced and in particular the history, character, age, capability or suitability of any Candidate. No representation or warranty is made that any Candidate is or will be available to fill a vacancy.
9. LIABILITY
a. The Company shall use reasonable endeavours to ensure Candidates are suitable for the Client’s requirements; nevertheless the Company shall not be liable for failure to perform the Services for reasons beyond its reasonable control nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omission of a Candidate.
b. The Company shall not be liable for any indirect or consequential losses or damage including but not limited to; loss of profits, revenue, goodwill, anticipated savings or for claims by Third Parties arising out of the Company’s performance or failure to perform any of its obligations in this Agreement.
c. Notwithstanding clause 9. a. above, nothing in this Agreement will be deemed to restrict any liability of the Company for personal injury, death or fraud directly caused by the Company.
d. Save as required by law, the sole aggregate liability of the Company to the Client arising under or in connection with this Agreement shall be limited to £10,000.
10. INDEMNITY
a. The Client shall indemnify and keep indemnified the Company against any costs, claims or liabilities incurred directly or indirectly by the Company arising out of or in connection with this Agreement including (without limitation) as a result of:
i. any breach of this Agreement by the Client;
ii. any breach by the Client of applicable Data Protection Legislation including passing information about a Candidate to a Third Party without the Company’s consent; and
iii. any breach by the Client, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination, other inequality of opportunity or unlawful dismissal).
11. EQUAL OPPORTUNITIES
The Company is committed to equality of opportunity and expects the Client to comply with all anti-discrimination legislation in respect of Candidates Introduced by the Company.
12. MARKETING
The Company may at its discretion and expense use any reasonable means to advertise, promote or notify Candidates of Clients’ requirements.
13. FIXED TERM CONTRACTS
In circumstances where a Candidate is Employed for a fixed term that is less than twelve months a fee will be charged of 40% of the annual Total Remuneration paid. Fee calculations will always be made assuming a minimum duration of 6 months even if the actual duration is less and Total Remuneration will be pro rated to this period for making fee calculations. Any extension of a fixed term contract will incur additional charges at the rate of 40% of additional remuneration. Should a permanent contract be offered to such a Candidate at any time in the first 12 months of a fixed term contract the Agreement set out herein will apply. In respect of Candidates on fixed term contracts or who are employed permanently after starting a fixed term contract Clause 5. Will not apply.
14. ENFORCABILITY
If any provision of this Agreement or any part of thereof shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force. If any provision of this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provisions were deleted or modified, the provision in question shall apply with such deletion or modification as may be necessary to make it valid.
15. ACCEPTANCE
In the absence of any signed Agreement or written acceptance of this Agreement, by notifying the Company, whether or not in writing, of any vacancy or agreeing to meet or Employ a Candidate Introduced by the Company, the Client agrees to be bound by this Agreement.
16. JURISDICTION
This Agreement and all contractual relations between the Client and the Company as contemplated herein shall be governed by and construed in accordance with English law. Any dispute, difference or claim arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of England & Wales unless the Company determines in its sole discretion that any claim should be brought within the jurisdiction in which the Client resides.