Terms of Business
1.1 In these Terms –
“Client” means the person, firm or corporate body to whom Employment Agency Introduces a Candidate;
“Candidate” means the person Introduced by Employment Agency to Client including, any member or employee of the Candidate if the Candidate is a limited liability partnership, and members of Employment Agency’s own staff;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
“Engagement” means the engagement, employment or use of the Candidate on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or indirectly through another company and “Engages” and “Engaged” will be construed accordingly;
“Introduction” means –
(a) the passing of a curriculum vitæ (resume) or information about the Candidate; or
(b) the interview of a Candidate in person or by telephone or by any other audio or visual means,
and the time of the Introduction will be taken to be the earlier of (a) and (b) above; and “Introduced” and “Introduces” will be construed accordingly;
“Remuneration” includes base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, shift allowances, location weighting and call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Candidate for work (or for services where applicable) to be rendered to or on behalf of Client;
“Terms” means these terms of business;
“Third Party” means any company or person who is not Client. For the avoidance of doubt, subsidiary and associated companies of Client (as defined by s.1159 of the Companies Act 2006 and s.416 of the Income and Corporation Taxes Act 1988 respectively) are included (without limitation) within this definition; and
“Vacancy” means a specific role/s, work or position that Client requests Employment Agency to submit person for consideration for such role/s work or position.
2. These Terms
2.1 These Terms between Employment Agency and Client in relation to the subject matter hereof are deemed accepted by Client and to apply by virtue of (a) an Introduction to Client of a Candidate; or (b) the Engagement by Client of a Candidate; or (c) the passing of information about the Candidate by Client to any Third Party; or (d) Client’s interview or request to interview a Candidate; or (e) Client’s signature at the end of these Terms; or (f) any other written expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged by Client for the same type of work and/or Vacancy as that for which the Introduction was originally effected.
2.2 Client authorises Employment Agency to act on its behalf in seeking a person to meet Client’s requirements and, if Client so requests, shall advertise for such a person through such methods as are agreed with Client and at Client’s expense.
2.3 For the purposes of these Terms, Employment Agency acts as an employment agency as defined within the Conduct Regulations.
3. Obligations of Employment Agency
3.1 Employment Agency shall use reasonable endeavours to introduce suitable individuals to meet the requirements of Client for each Vacancy. Without prejudice to clause 3.2 below, Employment Agency shall use reasonable endeavours to ascertain that the information provided by Employment Agency to Client in respect of the Candidate is accurate.
3.2 Employment Agency accepts no responsibility in respect of matters outside its knowledge and Client shall satisfy itself as to the suitability of the Candidate.
4. Client Obligations
4.1 Client is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, for criminal records and/or background checks and for satisfying other requirements, qualifications or permission required by the law and regulations of the country in which the Candidate is engaged to work.
4.2 To enable Employment Agency to comply with its obligations under clause 3 Client undertakes to provide to Employment Agency details of the position which Client seeks to fill, including 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 Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position; and any risks to health or safety known to Client and what steps Client has taken to prevent or control such risks.
4.3 Client agrees to provide written notice to Employment Agency within 3 working days where it receives details of a Candidate from Employment Agency which it has in the last 3 months already received from (a) another company; or (b) a person; or (c) the Candidate; or (d) any other source including (without limitation) from social media, job boards or advertisements placed by Client. Client further agrees that if no such notice is given by Client to Employment Agency, then in the event of an Engagement of the Candidate by Client, howsoever arising, Client agrees to pay Employment Agency a fee in accordance with clause 5.2.
4.4 Where Client does so notify Employment Agency in accordance with clause 4.3 above, Client will not be liable to pay Employment Agency a fee for that Candidate. Client acknowledges and agrees that where Client is unable to evidence such, Client agrees to pay Employment Agency’s fee in accordance with clause 5.2.
4.5 Client agrees to –
a) notify Employment Agency as soon as possible (and in any event, no later than 7 days from the date of offer or from the date the Engagement takes effect; whichever is earlier) of any offer of an Engagement which it makes to the Candidate; and
b) notify Employment Agency immediately when its offer of an Engagement to the Candidate has been accepted and to provide details of the Candidate’s Remuneration to Employment Agency; and
c) pay Employment Agency’s fee within the period set out under clause 6.2.
4.6 Client warrants that it shall not and shall procure that its employees and agents shall not, pass any information concerning a Candidate to any Third Party. Client acknowledges that Introductions of Candidates are confidential and that failure to comply with this clause 4.6 may cause Employment Agency to breach the Conduct Regulations and/or the Data Protection Legislation and accordingly, Client agrees to indemnify Employment Agency from any and all liability in connection with Client’s breach of this clause 4.6.
5.1 Where Client discloses to a Third Party any details regarding a Candidate and that Third Party subsequently Engages the Candidate within 12 months from the date of the Introduction, Client agrees to pay Employment Agency’s fee as set out in clause 5.3. There is no entitlement to any rebate or refund to Client or to the Third Party in relation to fees paid in accordance with this clause 5.1.
5.2 Client agrees to pay Employment Agency a fee calculated in accordance with clause 5.3 where it Engages, whether directly or indirectly, any Candidate within 12 months from the date of Employment Agency’s Introduction.
5.3 The fee will be calculated as 25% of the Candidate’s Remuneration applicable during the first 12 months of the Engagement. Employment Agency will charge VAT on the fee where applicable.
5.4 Where the amount of the actual Remuneration is not known or disclosed, Employment Agency will charge a fee calculated in accordance with clause 5.3 on the level of remuneration applicable –
a) for the type of position the Candidate had been originally submitted by Employment Agency to Client for; or
b) for a comparable position in the general marketplace.
5.5 Where the Engagement is for a fixed term of less than 12 months, the fee in clause 5.3 will apply pro-rata. Where the Engagement is extended beyond the initial fixed term or where Client Re-Engages the Candidate within 6 months from the date of planned or actual termination (as applicable) of the first Engagement, Client shall pay a further fee based on the Remuneration applicable for the period of Engagement following the initial fixed term period up to the termination of the second Engagement calculated in accordance with clause 5.3.
5.6 Charges incurred by Employment Agency at Client’s written request in respect of advertising, or any other matters will be charged to Client in addition to the fee and such charges will be payable whether or not the Candidate is Engaged.
5.7 Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to Employment Agency under or in connection with these Terms.
6.1 Except in the circumstances set out in clause 5.1 and 5.6 no fee is incurred by Client until the Candidate commences the Engagement; whereupon Employment Agency will render an invoice to Client for its fees.
6.2 Employment Agency shall raise invoices in respect of the charges payable and Client agrees to pay the amount due within 30 days of the date of the invoice.
6.3 All invoices will be deemed to be accepted in full by Client in accordance with the payment terms stated within clause 6.2 unless Client notifies Employment Agency, in writing within 5 days of receiving the invoice, stating the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify Employment Agency that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with Employment Agency in order to resolve the dispute as quickly as possible.
6.4 Employment Agency reserves the right to charge interest on invoiced amounts overdue at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 (as may be calculated using the calculator on the website: www.payontime.co.uk) from the due date until the date payment is received in cleared funds and reserves the right to charge compensation and further recovery costs in accordance with the Late Payment of Commercial Debts Regulations 2013.
7.1 Where the Candidate is terminated by Client or by the Candidate within 8 weeks of commencement, HCP Automotive will attempt to refer a replacement at no additional charge. If HCP Automotive is unable to refer a suitable replacement within 8 weeks, HCP Automotive shall refund the corresponding fee to Client, less 25% in respect of each 2-week period (or part thereof) of the Candidate’s engagement up to a maximum of 8 weeks.
7.2 Rebates strictly do not apply if the Candidate has been made redundant, unlawfully dismissed or resigns because Client has significantly modified their job duties or assigned them to another position or if the Client fails to either notify Employment Agency in writing within 5 business days of the termination or to pay all fees and expenses relating to such referral on time.
7.3 Where Client re-engages the Candidate, Client agrees that any rebate paid to Client under clause 7.1 in respect of that Candidate, will be immediately repaid to Employment Agency by Client.
8. Liability and Indemnity
8.1 Employment Agency shall use reasonable endeavours to ensure Candidate has the required standard of skill, experience and necessary qualifications as stated in the Vacancy; nevertheless, Employment Agency is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of Employment Agency or of Candidate to evidence such to Client nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill, experience or qualifications of Candidate.
8.2 Neither party is 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 obligations in these Terms.
8.3 Notwithstanding clause 8.2 above, nothing in these Terms will be deemed to exclude or restrict any liability for personal injury, death or fraud.
8.4 Save as required by law, the sole aggregate liability of Employment Agency arising out of or in connection with these Terms is limited to the value of the services in the preceding 12 months.
8.5 In the event that either party is in breach of clause 12 (Data Protection), that party shall indemnify and hold harmless the other party for any losses, claims, costs or damages it may suffer as a result of the actions of the party in breach.
9.1 These Terms may be terminated by either party by giving to the other immediate notice in the event that either Employment Agency or Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where Employment Agency has reasonable grounds to believe Client will not pay Employment Agency’s invoice within the payment terms agreed within clause 6.2.
9.2 These Terms may be terminated by either party for convenience by serving 1 months’ notice in writing.
9.3 Without prejudice to any rights accrued prior to termination, the obligations within clauses 1, 4.6, 5, 6, 7.3, 8, 11, 12, 13, 14 and 15 will remain in force beyond the cessation or other termination (howsoever arising) of these Terms.
10. Equal Opportunities
10.1 Employment Agency is committed to equal opportunities and expects Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.
11.1 All information contained within these Terms will remain confidential and Client shall not divulge it to any Third Party save for its own employees and professional advisers and as may be required by law.
11.2 Client shall not without the prior written consent of Employment Agency provide any information in respect of a Candidate to any Third Party whether for employment purposes or otherwise.
12.1 The parties hereto acknowledge that HCP Automotive is a data controller in respect of the personal data of Candidate and provides such personal data to Client in accordance with the General Data Protection Regulation (EU) 2016/679 (‘GDPR’) for the purposes anticipated by this Agreement. The parties hereto acknowledge that Client is a data controller, but the parties hereto are not joint controllers save where a specific agreement is made to that effect between the parties hereto. Any reference to controllers, processors, personal data and data subjects are defined within the GDPR.
12.2 The parties warrant to each other that any Personal Data relating to a data subject, whether provided by Client, HCP Automotive Group or by Candidate or Representative, will be used, Processed and recorded by the receiving party in accordance with the GDPR.
13.1 Any notice required to be given under these Terms (including the delivery of any information or invoice) will be delivered by hand, sent by facsimile, e-mail or prepaid first-class post to the recipient at its fax number or address specified in these Terms.
14.1 No variation or alteration of these Terms will be valid unless approved in writing by Client and Employment Agency.
15. Applicable Law
15.1 These Terms will be construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
1.1 In these Terms –
“Assignment” means the period during which Contractor renders the Services;
“Candidate” means the person or company introduced by Employment Business to Client for an Engagement including any Representative or Contractor, and members of Employment Business’s own staff;
“Client” means the person, firm or corporate body together with any subsidiary or associated company (as defined by s. 1159 of the Companies Act 2006) to whom Employment Business supplies or introduces Candidate, or any company with whom Client has an agreement and who is the recipient of the Services, and any end user;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
“Contractor” means the company which renders the Services;
“Statement of Work” means the schedule provided by Employment Business to Client confirming the details relating to Assignment;
“Engagement” means the engagement, employment or use of Candidate and/or Contractor on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which Candidate is an officer or employee; or indirectly through another employment business or company which holds itself out as such and “Engages” and “Engaged” will be construed accordingly;
“Introduced” means the passing to Client of a curriculum vitæ or information about Candidate, or Client’s interview of a Candidate in person or by telephone or by any other audio or visual means, whichever first occur and “Introduces” and “Introduction” will be construed accordingly;
“Off-Payroll” means Chapter 10 Part 2 of Income Tax (Earnings and Pensions) Act 2003;
“Opted-Out” means the notice given by Contractor and Representative in accordance with regulation 32(9) of the Conduct Regulations;
“Remuneration” means basic salary, shift or weighting allowances, guaranteed and/or anticipated bonus and commission earnings, car allowance and any other benefit or allowance;
“Representative” means employee, officer or representative of Contractor, specified in Statement of Work who renders the Services on behalf of Contractor;
“Services” means the services to be performed by Representative on behalf of Contractor pursuant to these Terms, as described in Statement of Work;
“Terms” means these terms of business for the Supply of Contractor Services and will include any Statement of Work issued pursuant to these Terms; and
“Transfer Fee” means the fee set out within clause 8.1.
2. These Terms
2.1 These Terms are effective from the Agreement Date and supersede all previous terms of business for the Supply of Contractor Services issued by Employment Business or Client.
2.2 These Terms will be deemed accepted by Client and to apply by virtue of (a) the passing of information about a Candidate to Client by Employment Business or (b) an Introduction to Client of, or the Engagement by Client of, a Candidate or (c) Client’s interview or request to interview a Candidate (including interview by video conferencing or by telephone) or (d) the signature by Client on a timesheet relating to services provided by Contractor or (e) Client’s signature at the end of these Terms or (f) any other written, acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not Candidate is Engaged by Client for the same type of work as that for which the Introduction was originally effected.
2.3 For the purposes of these Terms, Employment Business acts as an employment business as defined within the Conduct Regulations.
2.4 Where there is a conflict of provisions between the main body of these Terms and Statement of Work, the Statement of Work will take precedence.
3. Client Obligations
3.1 These Terms are personal to Client and will not be assigned by it without the prior written consent of Employment Business.
3.2 Client shall ensure that Representative works in a safe environment in accordance with a safe system of work. Client agrees to indemnify and keep indemnified Employment Business from and against all loss or liability suffered or incurred by Employment Business as a result of any claim by Contractor and/or Representative arising out of any injury or damage to his person or property suffered in the course of performing the Services.
3.3 Client undertakes to confirm in writing to Employment Business the details of the Assignment and undertakes to notify Employment Business immediately of its intention to:
a) Engage a Candidate Introduced by Employment Business; or
b) extend an Assignment or otherwise Engage directly or indirectly a Candidate Introduced and/or supplied via Employment Business; or
c) Engage a Candidate otherwise (including through another recruitment agency, employment business or limited company).
3.4 Where the Agency Worker Regulations 2010 (“AWR”) applies to Assignment, Client warrants that it will not, and where applicable will procure that end user will not, seek to deny agency worker’s entitlement to rights under the AWR by virtue of the structure of assignments and shall at all times comply with all regulations of the AWR.
3.7 Where Off-Payroll applies to Client or end user, Client undertakes and agrees to:
a) assess the working practices of Services to be provided during Assignment and to notify Employment Business of the results of such assessment prior to the commencement of Assignment and of any changes that occur during the term of Assignment.
c) provide information to Employment Business under these Terms that is true and accurate.
4. Employment Business’s Obligations
4.1 Employment Business shall use reasonable endeavours to introduce Candidates to Client who meet Client’s stated requirements.
4.2 Employment Business will give Client a Statement of Work confirming the name of Contractor and Representative, the agreed pay rates/fees, duration of Assignment, description of the Services, notice periods and any other relevant details communicated and agreed between the parties.
5.2 Signature by Client or by end user of timesheets or other verification of hours or days worked is confirmation of the amount of time worked by Representative and of satisfaction with the Services provided. Client shall not be entitled to decline to sign or approve a timesheet on the basis that they are dissatisfied with the work performed by the Contractor, in such cases the Client should rely on its power to terminate the Statement of Work.
5.3 If Client is unable to sign a timesheet because it disputes the amount of time claimed, then Client will notify Employment Business within two working days from the submission of the timesheet and will co-operate fully with Employment Business, including providing documentary evidence of the hours/days worked by Representative, to enable Employment Business to establish what periods of time, if any, Representative worked.
5.4 There are no refunds or rebates payable by Employment Business to Client in respect of Employment Business’s charges.
5.5 Client agrees to pay Employment Business all reasonable business expenses incurred by Contractor/Representative in the provision of the Services as agreed within Statement of Work.
5.6 VAT will be payable in addition to charges/fees.
5.7 Client acknowledges and agrees that Employment Business may, upon notice, increase the charge rate set out in clause 5.1 (or as set out in the relevant Statement of Work if applicable) in order to comply with the AWR or with Off-Payroll.
6.1 Employment Business will raise invoices monthly (unless otherwise specified in Statement of Work) in respect of the charges payable and Client agrees to pay such invoices within thirty days (30) of the date of the invoice, unless otherwise specified in Statement of Work.
6.2 All invoices will be deemed accepted in full by Client unless Client notifies Employment Business in writing within five days of the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify Employment Business that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms and will co-operate fully with Employment Business in order to resolve the dispute as quickly as possible.
6.3 Employment Business reserves the right to charge interest and compensation on invoiced amounts overdue at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998. from the due date until the date payment is received in cleared funds.
7. Termination of Assignments
7.1 Client may instruct Employment Business, in writing, to end the Services of Contractor immediately in the event of substantial non-performance by Contractor, provided that Client provides detailed, written confirmation of the non-performance.
7.2 Employment Business may end any Assignment immediately by giving Client notice in writing if Client is in material breach of these Terms.
7.3 Either party may terminate Assignment prior to the end of Assignment by giving not less than 4 weeks’ notice in writing, or such other period of notice as agreed and set out in the relevant Statement of Work.
7.4 When notice of termination of Assignment is served by Client, payment for each week of notice will be based on the specified hours/days agreed in Statement of Work or actual hours worked by Representative, whichever the greater.
7.5 These Terms may be terminated by either party by giving to the other immediate notice in the event that either Employment Business or Client goes into liquidation enters into an arrangement with creditors, has a receiver or administrator appointed, or where Employment Business has reasonable grounds to believe Client will not pay Employment Business’s invoice within the payment terms agreed within clause 6.1.
7.6 Employment Business may substitute Contractor and/or any Representative with another suitably qualified and similarly skilled Contractor and/or Representative with reasonable notice at its absolute discretion.
7.7 Employment Business may, at its absolute discretion and at any time, terminate Assignment upon immediate notice where in the opinion of Employment Business Contractor and/or Representative is no longer suitable to provide the Services.
7.8 Following termination (howsoever arising) of these Terms, the provisions contained within clauses 1, 2, 3.4, 5.2, 5.4, 5.5, 6, 8, 9, 11, 12 and 13 will continue in full force and effect.
8. Transfer and Introduction Fees
8.1 Client agrees that when Client Engages a Candidate, other than through Employment Business, either during Assignment or within 6 months from the end of the Assignment, Client agrees to notify Employment Business of that Engagement and agrees to pay Employment Business a Transfer Fee of 25% of the Candidates annual remuneration irrespective of the planned duration of the Engagement, or as otherwise agreed in Statement of Work.
8.2 Where there has been an Introduction of a Candidate to Client which does not immediately result in the supply of the services by Employment Business to Client, but which later leads to an Engagement by Client, within 6 months from the date of Introduction, Client agrees to notify Employment Business of that Engagement and agrees to pay the Transfer Fee in accordance with clause 8.1 above.
8.3 All Introductions are confidential. If Client passes details of a Candidate, to any third party resulting in an Engagement, then Client agrees to pay the Transfer Fee.
8.4 For the avoidance of doubt, no refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates.
9. Data Protection
9.1 The parties hereto acknowledge that HCP Automotive is a data controller in respect of the personal data of Candidate and provides such personal data to Client in accordance with the General Data Protection Regulation (EU) 2016/679 (‘GDPR’) for the purposes anticipated by this Agreement. The parties hereto acknowledge that Client is a data controller but the parties hereto are not joint controllers save where a specific agreement is made to that effect between the parties hereto. Any reference to controllers, processors, personal data and data subjects are defined within the GDPR.
9.2 The parties warrant to each other that any Personal Data relating to a data subject, whether provided by Client, HCP Automotive Group or by Candidate or Representative, will be used, Processed and recorded by the receiving party in accordance with the GDPR.
10.1 Employment Business shall use reasonable endeavours to ensure Candidate has the required standard of skill, integrity and reliability; nevertheless, Employment Business is not liable for any indirect, special, consequential or additional loss, expense, damage or delay arising from and in connection with any failure on the part of Contractor or Representative to perform the Services nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill of Contractor or Representative howsoever arising save for death or personal injury caused by Employment Business’s direct negligence.
10.2 Contractors are engaged under contracts for services. They are not the employees of Employment Business.
10.3 Client will comply, and will procure that end user will comply, in all respects with all relevant statutes, by-laws and legal requirements including provision of adequate public liability insurance in respect of Representative where appropriate. Client agrees to allow and reasonably assist Employment Business in complying with its legal obligations regarding the introduction of Candidate/s and supply of Services by Contractor/s.
10.4 Save where required by law, the parties hereto are not liable for-
a) any loss of profits, loss of business, loss of revenue, depletion of goodwill, pure economic loss, loss of anticipated savings, damages, charges, expenses and/or similar losses; or
b) any special, indirect or consequential losses;
10.5 Save as required by law, the sole aggregate liability of Employment Business arising out of or in connection with these Terms is limited to the value of the services in the preceding 12 months.
11.1 Client agrees to indemnify and keep indemnified Employment Business against any costs, claims or liabilities incurred directly or indirectly by Employment Business arising out of or in connection with these Terms including (without limitation) as a result of:
a) any breach of these Terms by Client (including its employees, subcontractors and agents); and
b) any breach by Client, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity).
12.1 Any notice required to be given under these Terms will be delivered by hand, sent by facsimile, e-mail or prepaid first class post to the recipient at its fax number or address specified in these Terms.
13. Governing Law
These Terms shall be construed in accordance with the laws of England and Wales and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms shall be subject to the exclusive jurisdiction of the courts of England and Wales.