TERMS AND CONDITIONS OF BUSINESS
1.1In these terms and conditions of business (“the Terms”) the following expressions shall be given the following meanings:
“Cadence Partners”New Bold Associates Limited trading as Cadence Partners registered in England and Wales under number 10517492 whose registered office is at 36 Tyndall Court, Commerce Road, Lynchwood, Peterborough, Cambridgeshire, PE2 6LR;
“Candidate”a person introduced by Cadence Partners to the Client to be considered for Engagement;
“Client” any person, firm, hospital, trust, registered charity or corporation who approaches Cadence Partners with a view to Engaging a Candidate, or to whom a Candidate is introduced by Cadence Partners;
“Contingent Search”the search by Cadence Partners for Candidates who are Introduced speculatively to the Client;
“Data Controller” shall have the respective meaning given to it in applicable Data Protection Legislation from time to time.
“Data Processor” shall have the respective meaning given to it in applicable Data Protection Legislation from time to time.
“Data Subject”is an individual whose Personal Data is processed by a Data Controller or Data Processor;
“Engagement” the employment, hire or other use, directly or indirectly, whether under a contract of service or contract for services or otherwise, on a permanent, temporary or other basis, of a Candidate by or on behalf of the Client in any site, office, or location of the Client whether for the position for which the Candidate is introduced or any other position (and “Engage”, “Engages” and “Engaged” shall be construed accordingly);
“Introduction”any means by which a Candidate’s availability for any Engagement (actual or potential, present or future) is communicated to the Client by Cadence Partners including, by post, e-mail, or phone (and “Introduces” and “Introduced” shall be construed accordingly);
“Introduction Fee”the fee payable by the Client to Cadence Partners for an Introduction resulting in an Engagement, whether or not Cadence Partners is the effective cause of the Introduction, and regardless of whether the Candidate is Engaged by the Client for the role for which he was originally Introduced by Cadence Partners;
“Personal Data”means any information relating to an individual who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“processing”shall have the respective meaning given to it in applicable Data Protection Legislation from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly).
“Remuneration” the gross base salary or equivalent fees for the first year’s Engagement (actual or proposed) including bonuses, commission, overseas premiums, living/accommodation/travel allowances, etc. The provision of a car is valued at £5,000 additional remuneration;
“Regulations”the Conduct of Employment Agencies and Employment Business Regulations 2003 as amended (and any reference in the Terms to a ‘Regulation’ shall be interpreted accordingly);
“Retained Search”the exclusive retention of Cadence Partners’ services by the Client to carry out a search for candidates;
“Schedule of Fees”the Schedule attached to the Terms setting out Cadence Partners’ Introduction Fees.
2.1In the Terms words importing the singular shall include the plural and vice versa; words importing the masculine gender shall include the feminine gender and vice versa; and, any reference to “a Person” includes a person, firm or company.
2.2All and any business undertaken by Cadence Partners is transacted subject to the Terms and any attached Schedule, all of which shall be incorporated in any agreement between Cadence Partners and the Client. In the event of any conflict between the Terms and any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed in writing by a Director of Cadence Partners. No variation in the Terms shall be valid if made without the written consent of a Director of Cadence Partners.
2.3On a Contingent Search the Client shall be deemed to have accepted and agreed to the Terms if at any time on or after an Introduction the Client, or any Person on its behalf, directly or indirectly contacts a Candidate; or, a Candidate is interviewed by or on behalf of the Client; or, an offer of Engagement is made to a Candidate by or on behalf of the Client; or, a Candidate is directly or indirectly Engaged by or on behalf of the Client; or, the Client or any Person on its behalf acts upon the Introduction in any way (whichever first occurs). Where Cadence Partners is retained by the Client for a Retained Search, the Terms shall apply upon the acceptance by Cadence Partners of the Retained Search. This clause shall apply regardless of whether the Terms are signed by Cadence Partners or the Client (together “the Parties”).
2.4An Introduction Fee will be charged whether or not the Client knew of the Candidate previously.
2.5The complete or partial invalidity or unenforceability of any provision in the Terms for any purpose shall in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
2.6For the purposes of the Regulations, when introducing the Candidate to the Client, Cadence Partners is acting as an employment agency.
3OBLIGATIONS OF CADENCE PARTNERS
3.1In the case of a Retained Search, Cadence Partners will introduce suitable Candidates to the Client to carry out the role for which Cadence Partners has been advised there is a vacancy; or in the case of a Contingent Search, for a role for which the Candidate is subsequently Engaged.
3.2Cadence Partners shall advertise vacancies in any and all media agreed with the Client.
3.3Notwithstanding Cadence Partners’ obligations under the Regulations, it cannot give any guarantee as to the validity of any qualification or experience which the Candidate may say they have.
3.4If Cadence Partners, on behalf of the Client, reimburses a Candidate their reasonable travelling and necessary out of pocket expenses in connection with attending an interview with the Client, such costs shall be invoiced to, and payable by, the Client in accordance with the payment terms set out in clause 5.10 below.
4OBLIGATIONS OF THE CLIENT
4.1If and whenever the Client Engages a Candidate Introduced by Cadence Partners, the Client shall pay an Introduction fee in accordance with clause 5 below, unless the Engagement occurs more than 12 months after the Introduction of the Candidate.
4.2The Client will notify Cadence Partners immediately an offer of Engagement is made to or accepted by a Candidate.
4.3The Client warrants and undertakes to Cadence Partners that in the event that another employment agency (as defined by the Regulations) provides the Client with a CV or other relevant information relating to a Candidate Introduced by Cadence Partners, the Client will reject the same unless such other employment agency can show that it has complied with the Regulations or provides the Client with a declaration from the Candidate that it is the sole agency appointed to act on the Candidate’s behalf.
4.4To enable Cadence Partners to comply with its obligations to the Candidate under the Regulations, the Client undertakes to provide full details of the role which it seeks to fill, including: the type of work; the location and hours of work; the experience, training and qualifications which the Client considers necessary or which are required by law or any professional body, membership of which is required, for the role; and, any risks to health or safety known to the Client, and what steps it has taken to prevent or control such risks. In addition, the Client shall provide details of: the date it requires the Candidate to commence work; the duration or likely duration of the work; the minimum rate of remuneration; expenses and any other benefits that are offered; the intervals of payment of remuneration; and the length of notice that the Candidate would be entitled to give and receive to terminate the employment with the Client.
4.5The Client shall satisfy itself as to the suitability of any Candidate. It is for the Client to take up references, to check the validity of qualifications and to ensure that the Candidate has the necessary experience and expertise required to undertake the role. The Client shall be responsible for obtaining any work or other permits, and for ensuring that the Candidate satisfies any medical requirements or other qualifications that may be appropriate or required by law.
4.6Subject to and provided that the Candidate has entered into confidentiality undertakings to the Client in a form provided by the Client, the Client consents to the disclosure of information relating to it by Cadence Partners to Candidates.
4.7The Parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of this agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other Party who has worked on the services provided under this agreement at any time during the term of this agreement. For the avoidance of doubt, nothing in this clause is intended to restrict either Party from advertising vacancies to the general public and dealing with any employee or key executive of either Party who responds to such advertisements or who first contacts either Party on his or her own initiative.
4.8The Client in pursuance of its obligations under section 17(2) of the Agency Workers Regulations 2010:
4.8.1confirms that it is not aware of anything which will cause a detriment to the interests of the Candidate or the Client if it Engages that Candidate to fill a vacancy; and
4.8.2will inform Cadence Partners immediately if it becomes aware of any circumstances which would render such Engagement detrimental to the interests of the Candidate or the Client.
5.1All Introduction Fees shall be calculated in accordance with Cadence Partners’ Schedule of Fees attached to the Terms and are expressed as a percentage of the Candidate’s Remuneration; or as a Fixed Fee.
5.2On a Contingent Search, the Introduction Fee shall become payable by the Client on the day the Candidate accepts an offer of employment with the Client.
5.3The Introduction Fee charged for the Introduction of any Candidate for an Engagement is applicable for one Engagement only. For each additional Candidate Introduced by Cadence Partners and Engaged by the Client, a further Introduction Fee will be payable.
5.4If, after an offer of employment has been accepted by a Candidate the Client withdraws the offer, the Client will be liable for a cancellation fee of 100% of the Introduction Fee, unless information is found when checking on the suitability of the candidate in line with clause 4.5 that means the offer of employment must be withdrawn. The Client acknowledges that this is not a penalty clause, and that this fee represents liquidated damages that recognise the additional management costs incurred by Cadence Partners in this situation.
5.5On a Retained Search, the Introduction Fee will be payable in three tranches to comprise a Total Fee as follows:
5.5.1a non-refundable Retainer Fee payable immediately upon the instruction of Cadence Partners by the Client;
5.5.2a non-refundable Long-List Fee payable upon the presentation to the Client candidate(s) whose applications, in the reasonable opinion of Cadence Partners and the client, meet the agreed specification for the role;
5.5.3a Completion Fee invoiced on the day the Candidate accepts the job offer
5.6If a Retained Search is cancelled by the Client (which cancellation must be made in writing) at any time after payment of the Retainer Fee, Cadence Partners reserves the right to charge the Client the next stage fee that relates to work done by Cadence Partners up to the date of cancellation (by way of example, the 3rd stage Offer-Acceptance Fee, if the search was cancelled at any stage after the 2nd stage Long-List Fee stage) plus all the agreed advertising costs and other expenses incurred by Cadence Partners. The Client acknowledges that this is not a penalty clause, and that this fee represents liquidated damages that recognise the additional management costs incurred by Cadence Partners in this situation.
5.7If, during a Retained Search, the Client in the reasonable opinion of Cadence Partners materially alters its search requirements for any reason, Cadence Partners reserves the right to recalculate the Total Fee with prior notice to the Client as a consequence of those changed requirements.
Fixed Term Engagement
5.8If the Client Engages a Candidate on a temporary, interim, trial, probationary, fixed term, locum, or other such basis, for any period of less than 24 months (any such Candidate being a ‘Temporary’ for the purposes of this clause 5.8), and Cadence Partners agrees in writing to accept payment of the Introduction Fee on some basis other than that set out in this clause 5 then:
5.8.1the Client undertakes that in the event that it subsequently Engages the Temporary either for an indefinite period or a definite period in excess of the period for which the temporary was first Engaged, or effectively Introduces (directly or indirectly) any Temporary to another Person resulting in the Engagement of the Temporary by that Person (either of which circumstances the Client shall immediately notify toCadence Partners), the Client shall pay Cadence Partners its full Introduction Fee calculated in accordance with this clause 5, as if such subsequent Engagement was a new separate and distinct Engagement;
5.8.2any Introduction Fee payable pursuant to the provisions of clause 5.8 on the subsequent Engagement of any Temporary shall be payable in full notwithstanding any fees paid or payable by the Client to Cadence Partners in respect of any preceding Engagement;
5.8.3the Client shall not be entitled to a replacement candidate in accordance with clause 6 below in respect of the termination of such subsequent Engagement; and,
5.8.4Regulation 10 shall not apply.
5.9In the event that any Candidate is rejected by the Client, or the Candidate rejects an offer of Engagement, and the Candidate is subsequently Engaged by the Client within 12 months of the date on which the Candidate was Introduced, the Client shall pay the Introduction Fee as if such rejection had not occurred.
5.10Where Cadence Partners incurs a cost in providing an advertising service to the Client pursuant to clause 3.2 above, the Client will pay the advertising costs and any associated artwork costs. Charges for advertising will be separately agreed in writing by the Parties before the advertisement is placed and will be payable irrespective of whether a Candidate is Engaged. An advertisement may only be cancelled by the Client on sufficient notice to enable Cadence Partners to withdraw the advertisement. Any cancellation costs will be payable by the Client. All costs relating to advertising will be invoiced to, and payable by the Client in accordance with the payment terms set out in clause 5.11 below.
5.11All properly submitted, valid invoices shall be paid by the Client within 14 days of the invoice date. Cadence Partners reserves the right to charge the client interest on any amount outstanding after the period for payment (both before and after Judgment) from the due date of the invoice up to and including the day of payment at the rate of 8% per annum.
5.12Any discount on Cadence Partners’ Introduction Fee as set out in the attached Schedule of Fees, agreement to accept payment of fees by instalments, or any other concession, will not be valid and binding upon Cadence Partners unless agreed in writing by a Director of Cadence Partners.
6.1In the event of a Candidate terminating, or the Client lawfully terminating, an Engagement within 6 months, and provided that:
6.1.1all moneys due under the Agreement have been paid by the Client in accordance with clause 5.10; and,
6.1.2such termination is not as a result of redundancy, pregnancy, injury, ill-health, death or criminal activity, or by reason of discrimination against the Candidate under the Equality Act 2010; and,
6.1.3such termination has not arisen where the Client has entered into the Engagement with the prior or likely intention of disposing with the Candidate’s services or terminating employment either without proper cause or with a view to obtaining a replacement unfairly; and,
6.1.4the Client serves notice on Cadence Partners in writing of the termination of the Engagement within 1 week;
Cadence Partners will have the right to Introduce a replacement Candidate to the Client.
6.2In the event that the Client, acting reasonably, is unable to Engage a replacement Candidate Introduced in accordance with Clause 6.1 within 6 months of such termination then Cadence Partners shall immediately refund 50% of the Introduction Fee.
6.3In the event that the Client Engages a replacement Candidate in accordance with Clause 6.1 then no further Introduction Fee shall be payable by the Client.
7.1Client may terminate this Agreement at any time by giving one month’s written notice to Cadence Partners. In the event of such termination, Client shall pay to Cadence Partners the sums referred to in Clause 5.6 in respect of any cancelled Retained Searches.
7.2Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, immediately at any time, on written notice to the other Party:
7.2.1if the other Party is in material breach of its obligations under this Agreement and, if the breach is capable of remedy, the breach is not remedied within 14 days of the other Party receiving notice which specifies the breach and requiring the breach to be remedied; or,
7.2.2if the other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other Party’s assets or business, or if the other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
8CONFIDENTIALITY AND DATA PROTECTION
8.1All Personal Data relating to a Candidate is confidential and subject to the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction as amended from time to time (the “Data Protection Legislation”); and is provided solely for the purpose of providing recruitment services to the Client. Such information must not be used for any other purpose nor divulged to any third party. Both Parties warrants to abide by the provisions of the Data Protection Legislation at all times and shall not perform their obligations under these Terms and Conditions in such a way as to cause the other party to breach any of its obligations under the Data Protection Legislation. In addition, information relating to either party’s business and affairs which is capable of being confidential, including but not limited to the amount and rate of any fees charged, must be kept confidential and not divulged to any third party, except information which is in the public domain.
8.2A Candidate’s CV is provided in strict confidence to the Client, purely for its information, and only on the basis that its content is not disclosed to any other Person without Cadence Partners’ prior written consent. The Candidate’s CV is also provided on the basis that the Client does not approach the Candidate’s current employer unless or until the Candidate has accepted a written offer of Engagement from the Client.
8.3All information of a confidential business nature that is exchanged between the Parties, including but not limited to strategy documents and named organisation charts, shall not be divulged to any other Person.
8.4The parties understand and agree that, for the purposes of the Data Protection Legislation, each party is a Data Controller for Personal Data under these Terms and Conditions.
8.5Each party warrants that it has all necessary functions in place to enable the lawful transfer of Personal Data to the other party in accordance with the Data Protection Legislation and these Terms and Conditions.
8.6Where either party acts as the other party’s Data Processor, the Data Processor shall comply with its obligations under the Data Protection Legislation.
8.7 Each party shall indemnify and keep indemnified the other party against all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the infringing party of its obligations under this clause 8 and all amounts paid or payable by the other party to a third party which would not have been paid or payable if the infringing party’s breach of this clause 8 had not occurred.
9LIABILITY & INDEMNITY
9.1Neither Cadence Partners nor any of its staff shall be liable to the Client for any loss, injury, damage, expense, or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with an Engagement and, in particular, but without limitation to the foregoing, any such loss, injury, damage, expense, or delay arising from or in any way connected with:
9.1.1failure of the Candidate to meet the requirements of the Client for all or any of the purposes for which he is required by the Client;
9.1.2any act or omission of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;
9.1.3any loss, injury, damage, expense, or delay incurred or suffered by a Candidate; (PROVIDED THAT nothing in this clause 9 shall be construed as purporting to exclude or restrict liability of Cadence Partners to the Client for personal injury or death resulting from negligence (as defined in the Unfair Contract Terms Act 1977) nor any statutory liability or any exclusion or limitation which is prohibited by law.
9.2The Client shall not hold Cadence Partners responsible for any loss, injury, damage, expense or delay suffered or incurred by it as a result of the acts or omissions of a Candidate, where such loss, injury damage, expense or delay is not directly attributableto Cadence Partners' negligence or breach of contract.
9.3Each Party undertakes to indemnify the other in respect of any and all liability for any actions, proceedings, claims, demands, costs, expenses, fines, penalties, loss and damage whatsoever in respect of any failure by the other Party to observe perform and comply with the provisions of the Equality Act 2010.
9.4The Client acknowledges that the limitations and exclusions of the obligations and liabilities of Cadence Partners set out herein are reasonable and reflected in the fee payable to Cadence Partners hereunder and shall accept risk and/or insure accordingly.
9.5The Client shall bear the costs and expenses that Cadence Partners may in any way incur in consequence of, or arising from, any breach by the Client of the Terms.
9.6Each of the Parties acknowledges that when agreeing to the Terms, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in the Terms; and any conditions, warranties or other terms implied by statute or common law are excluded from the Terms to the fullest extent permitted by law; save that nothing in the Terms excludes liability for fraud.
10.1Any amendment or variation to these Terms may only be made by prior written agreement of the authorised representatives of each Party.
10.2A notice required or permitted to be given by either Party to the other under the Terms shall be in writing addressed to that other party at its registered office or principal place of business.
10.3No waiver by Cadence Partners of any breach of the Terms by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4Except as expressly provided in the Terms a person who is not a party to the Terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Terms. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
10.5The Terms shall be governed by and construed in accordance with the laws of England and Wales.