CLIENT TERMS
FRAMEWORK AGREEMENT FOR THE SUPPLY OF RECRUITMENT SERVICES
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following definitions apply:
“Agency Affiliate” means any parent, subsidiary, associate or affiliate company (or companies) of Millarch Limited (trading as Assign Recruitment) including but not limited to Assign Recruitment (hereinafter referred to as ‘Assign’)
“Agreed Rebate Period” means any period within the first 9 consecutive weeks following the commencement of an Engagement;
“Assign” means Millarch Limited (trading as Assign Recruitment) and its subsidiaries or holding company (if any);
“Basic Working and Employment Conditions” means those terms and conditions that are ordinarily included in the contracts of comparable employees or workers of the Client;
“Candidate” means the individual Introduced by Assign to the Client to be considered for an Engagement. For the avoidance of doubt, if the individual is introduced to the Client via a limited company the Candidate is the individual working through such limited company;
“Consultant” means the individual (operating through a limited company/intermediary) supplied by Assign to provide the Services for the Client via Assign, including any substitute supplied by such limited company/intermediary;
“Client” means any person, entity or company which directly or indirectly instructs Assign in respect of services provided under the terms of this Agreement;
“Engagement” means the direct or indirect (including but not limited to via another employment business or employment agency) employment or engagement in any capacity whatsoever (including but not limited to partnership and consultancy) or other use of a Candidate or Consultant by the Client or by any Third Party and“Engage”, “Engages”, and “Engaged” shall be construed accordingly;
“Exclusivity” means Assign will be the Client’s only employment agency engaged to Introduce or supply Candidates to fill the Permanent Placement;
“Fees” means the charges payable to Assign by the Client. For a Permanent Placement, the terms agreed with the Client are referred to in the clauses set out hereinafter of these Terms
“Client’s Group” means the Client and its subsidiaries, any holding company of the Client’s and any subsidiary of such holding company (if any) ;
“Introduction” means Assign or an Agency Affiliate has directly or indirectly introduced a Candidate or Consultant to a Client and such introduction has occurred when the earlier of any of the following take place:
a) the Client has interviewed or met with a Candidate or Consultant in person, by telephone, via Skype or any other method;
b) Assign has passed/sent to the Client or uploaded onto the Client’s system the Candidate or Consultant’s curriculum vitae (“CV”); or
c) Assign has passed any information about the Candidate or Consultant to the Client (including but not limited to details relating to the Candidate’s or Consultant’s name, contact information, experience, qualifications, current employer, biography or summary of past experience)
The time of the Introduction shall be taken to be the earlier of (a), (b) and (c) above and “Introduced” shall be construed accordingly;
“Introduction Fee” means the fee payable by the Client in accordance with clause 6.1 of these Terms;
“Permanent Placement” means a position where the Client or Third Party (where applicable) contractually Engages with the Candidate or Consultant directly;
“Remuneration” includes, without limitation, all gross basic salary or fees, bonuses (including but not limited to contractual or discretionary bonuses, guaranteed and/or anticipated bonus, sign-on bonus) and commission earnings, inducement payments, allowances (including but not limited to allowances relating to shift work, car, housing, relocation, pension location weighting and call-out), benefits (including, if applicable, the benefit of a company car. Where the Client or Third Party provides a company car, a notional amount of €10,000 will be used in lieu of the company car to calculate the Remuneration) and all other payments or emoluments payable to or receivable by the Candidate or Consultant (even if paid subsequently) for services rendered by the Candidate or Consultant to or on behalf of the Client at any time during the (a) first year of the Engagement or (b) if the Engagement is shorter than a year, for the length of the Engagement;
“Services” means the services to be performed by Assign for the Client;
“Terms” means this Framework Agreement and any other terms supplied in writing to the Client in advance of the execution of this Agreement for the supply by Assign of recruitment services to the Client;
“Third Party” means any company or person who is not the Client, whom the Client has directly or indirectly passed any information about a Candidate or Consultant to (including but not limited to any details relating to the Candidate or Consultant’s name, contact information, performance during a Temporary Placement or Permanent Placement, experience, qualifications or biography). For the avoidance of doubt, Third Party can include any company in the Client’s Group;
1.2
Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3
The headings contained in this Agreement are for convenience only and do not affect their interpretation
1.4
Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after this Agreement) under it from time to time.
All and any business undertaken by Assign is transacted subject to the terms and conditions hereinafter set out. Assign is acting in the capacity of an employment agency.
2. THE FRAMEWORK AGREEMENT RE SUPPLY OF CANDIDATES FOR PERMANENT PLACEMENT
2.1
Assign shall, upon receipt of an instruction from a Client regarding a Permanent Placement vacancy, source and introduce Candidate(s) to the Client who, if suitable, the Client will engage directly. Assign shall act as an employment agency. [ACTS AS EMPLOYMENT AGENCY]
2.2
It is understood and agreed by the parties that Assign shall be entitled to sub-contract any of the Services set out in these Terms to an Agency Affiliate, provided always that Assign shall be responsible for procuring that the Agency Affiliate complies with these Terms. [ASSIGNMENT OF SERVICES]
2.3
Both parties acknowledge that, in entering into these Terms, neither do so on the basis of nor rely on any representation, warranty or other provision except as expressly provided in writing. [WRITTEN AGREEMENT ONLY]
2.4
Unless otherwise agreed in writing by a director of Assign and the Client, these Terms shall prevail over and supersede any terms of business or purchase conditions (or similar) put forward by the Client and any previous agreements between the parties relating to Permanent Placements. No variation or alteration of these Terms shall be valid unless approved in writing by the Client and a director of Assign. [TOTAL AGREEMENT]
2.5
Provided these Terms and Conditions or any other Terms and Conditions which have been sent to the Client in writing by Assign in advance of execution of this Agreement, then all such Terms and Conditions are deemed to be accepted by the Client and to apply by virtue of the earlier of: a) their being signed by the Client; b) Assign having introduced a Candidate or Consultant to the Client; c) a Temporary Placement or Permanent Placement arranged by Assign commencing; or (d) any other written expressed acceptance of these Terms. [ACCEPTANCE BY CLIENT OF TERMS]
2.6
These Terms consist of a framework agreement between Assign and the Client. These Terms will continue to apply and be enforceable during, between and after Placements and Introductions until such time as either party terminates the Terms as set out hereinafter. Notwithstanding this, save as expressly provided, termination of a Permanent Placement or these Terms will not release either party from any obligation accrued on or before such termination. In addition, any obligation of a continuing nature in these Terms will remain in force after termination. [APPLICABLE AGREEMENT]
2.7
Even if the Consultant or Candidate was employed or engaged by the Client at any point within the period of 6 months prior to the intended commencement of the Permanent Placement, the Client agrees that Assign is entitled to enforce the provisions within these Terms. [PRIOR PLACEMENT]
2.8
The Client will have a period of 4 hours from the time that Assign submits a Candidate’s CV to the Client, to notify Assign in writing of any duplication of representation of such Candidate (e.g. by another employment business or agency). In the absence of receipt of such notification, the Client is deemed to have agreed that the Candidate (as appropriate) has been introduced by Assign and these Terms shall apply. [INTRODUCTION BY AGENCY]
3. SERVICES AGREEMENT re: PERMANENT PLACEMENTS
3.1
The within Terms constitute the entire agreement between Assign and the Client in relation to any Permanent Placement vacancies that the Client instructs Assign that it wishes to fill and to any Introductions made with respect to any Candidate. [ENTIRE AGREEMENT]
3.2
The Client authorises Assign to act on its behalf in seeking Candidates to fill any Permanent Placement vacancy and, if the Client so requests, Assign shall advertise for such Candidates through such methods as are agreed in advance with the Client. [ AUTHORITY AND ADVERTISING]
4. ASSIGN’S OBLIGATIONS re: PERMANENT PLACEMENTS
4.1
Assign shall use reasonable endeavours to introduce one or more suitable Candidates to meet the requirements of the Client for any particular vacancy for a Permanent Placement. Assign will endeavour to check that a Candidate has the right to work in the Ireland or the UK, as may be applicable, and shall endeavour to obtain appropriate proof of qualifications. All information given by Assign about any Candidate is given in good faith and in reliance of information given to Assign by the Candidate. [REASONABLE ENDEAVOURS BY AGENCY]
4.2
Notwithstanding clause 4.1, Assign does not take up references nor seek independent verification of the information supplied by any Candidate. Therefore, no warranty either express or implied is given by Assign as to the suitability of the Candidate for the purposes of the Client or as to the accuracy of any references supplied or qualifications of the Candidate. Assign shall not be liable for any loss or expense by the Client (including direct loss, indirect or consequential loss, loss of profit, loss of anticipated revenue, loss of reputation or regulatory fines) arising from any incorrect, misleading or misrepresented information provided by the Candidate. [REFERENCES and /or MISLEADING INFORMATION]
5. CLIENT’S OBLIGATIONS re: PERMANENT PLACEMENTS
5.1
It shall be the responsibility of the Client to take such steps as are necessary to satisfy itself of the suitability of the Candidate and to verify the accuracy of the information supplied by or any statement made by the Candidate. The Client is strongly advised to take up any references provided by the Candidate before Engagement. [ONUS ON CLIENT re REFERENCES]
5.2
The Client shall be wholly responsible for obtaining all right to work, security and other permits, verifying professional and academic qualifications, arranging examinations and/or investigations into the medical history of the Candidate (if the Client deems necessary) and obtaining verification with respect to any other requirements or qualifications required by the Client or law for the Permanent Placement vacancy. [ONUS ON CLIENT re QUALIFICATIONS etc]
5.3
To enable Assign to comply with its obligations under clause 13, the Client undertakes to provide to Assign with details of the position which the 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 the 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 the Client and what steps the Client has taken to prevent or control such risks. [CLIENT TO PROVIDE INFORMATION TO AGENCY]
5.4
The Client shall provide Assign with the start date of the Permanent Placement, the duration or likely duration of the Permanent Placement; the minimum rate of remuneration, expenses and any other benefits that would be offered; the intervals of payment of remuneration and the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client. [CLIENT TO PROVIDE INFORMATION TO AGENCY]
5.5
The Client shall inform Assign of any information it has that suggests it would be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the position which the Client seeks to fill. [CLIENT TO PROVIDE INFORMATION TO AGENCY]
5.6
The Client shall not, and shall not seek to cause Assign to, unlawfully discriminate in relation to the services provided by Assign to the Client in connection with these Terms and shall disclose any and all information requested by Assign in the event a Candidate makes a complaint to Assign. [DISCRIMINATION]
6. FEES & CHARGES re: PERMANENT PLACEMENTS
6.1
In consideration for the search and supply of Candidates and a subsequent Engagement of a Candidate within 12 months of an Introduction, the Client shall pay Assign the Introduction Fee specified which shall be stated orally and/or in writing by Assign with the Client which shall be calculated as a percentage of the Candidate’s Remuneration, plus Value Added Tax at the applicable rate. [AGENCY INTRODUCTION FEE]
Assign / Client Communication refers.
6.2
The Client shall inform Assign in writing within 4 hours of receipt of the Candidate’s details from Assign, if it has already received the Candidate’s details from another employment agency in relation to the same Permanent Placement vacancy. If Assign has not received such notification from the Client then, in the event of an Engagement within 12 months of the Introduction of the Candidate, the Client agrees to pay Assign the Introduction Fee. [FEE –INTRO ALSO BY ANOTHER AGENCY]
6.3
Within 1 working day of the following events, the Client agrees to notify Assign in writing: [NOTIFICATION OF AGENCY BY CLIENT]
6.3.1 that the Client or any Third Party has directly or indirectly offered any Candidate Engagement orally or in writing (whichever is earlier); [NOTIFICATION OF OFFER]
6.3.2 that the Client’s or any Third Party’s offer of an Engagement to the Candidate has been accepted either orally or in writing (whichever is earlier); and [ACCEPTANCE OF OFFER]
6.3.3 of details of the Remuneration offered to the Candidate. [REMUNERATION OFFERED]
6.4
For the avoidance of doubt, the Client shall still be liable to pay Assign the Introduction Fee where an offer of Engagement has been made verbally or in writing by the Client (directly or indirectly) to a Candidate where: (a) the Client through its own actions discourages the Candidate from accepting the Engagement after an offer of Engagement has been made; or (b) the offer is subsequently withdrawn by the Client after the Candidate has accepted it. [LIABILITY OF CLIENT TO PAY FEE]
6.5
Introductions of Candidates are confidential. Where the Client discloses to a Third Party any details regarding a Candidate Introduced to the Client by Assign and that Third Party subsequently Engages the Candidate within 12 months from the Introduction, the Client shall pay Assign the Introduction Fee plus VAT and there shall be no entitlement to any rebate or refund to the Client or to the Third Party. [LIABILITY OF CLIENT TO PAY FEE]
6.6
Where the amount of the actual Remuneration has not been disclosed to Assign within the time period referred to in clause 6.3, Assign will charge a fee calculated in accordance with clause 6.1 by replacing the unknown Remuneration figure with the maximum annual remuneration package that Assign considers to be applicable to the Engagement with regard to the general marketplace. [FEE ESTIMATE]
6.7
Where the Engagement is for a fixed term of less than 12 months, the Client shall pay Assign a fee, plus VAT, as follows: [FEE RE LESS THAN 12 MONTH CONTRACT]
Assign / Client communications refer.
6.8
If the Engagement is initially for less than a year and Assign charges an Introduction Fee on that basis, but that Engagement (the “First Engagement”) is extended beyond the initial term (the “Extended Period”) or where the Client re-Engages the Candidate within the 12 month period following the end of the First Engagement (the “Second Engagement”), the Client shall pay Assign a further Introduction Fee plus VAT based on the Candidate’s Remuneration for the Extended Period or the Second Engagement (as applicable), provided in each case that the total Introduction Fee payable by the Client to Assign is no more than it would have been had the Introduction Fee for the First Engagement been based on the Candidate’s Remuneration for the first year of the Engagement. [FEE RE SUBSEQUENT CONTRACT]
6.9
For the avoidance of doubt, the Client is required to pay the Introduction Fee whether or not the Candidate is Engaged during the 12 months immediately following the Introduction for the same type of work as that for which the Introduction was originally made. [FEE RE ALTERNATIVE WORK]
6.10
Charges incurred by Assign at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the Introduction Fee and the Client will pay such charges to Assign irrespective of whether or not the Candidate is Engaged. [ADVERTISING]
7. INVOICES re: PERMANENT PLACEMENTS
Except in the circumstances set out in clause 6.5, no fee is incurred by the Client until the Candidate commences the Engagement; whereupon Assign will render an invoice to the Client for its Introduction Fee plus VAT and any charges. [COMMENCEMENT DATE FOR FEE]
The Client agrees to pay Assign’s invoices within 14 days of the date of the invoice. [14 DAYS CREDIT ONLY]
All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated within clause 6 unless the Client notifies Assign in writing within 5 working days of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify Assign that it wishes to dispute part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with Assign in order to resolve the dispute as quickly as possible. [DISPUTED INVOICE]
Assign reserves the right to charge interest on invoiced amounts overdue at the rate of 2% above the European Cental Bank base rate, calculated on a daily basis and compounded monthly; [INTEREST ON OVERDUE FEES]
8. REBATES re: PERMANENT PLACEMENTS
8.1
If the Permanent Placement of the Candidate who was Engaged by the Client terminates within the Agreed Rebate Period, Assign will have Exclusivity for a period of 4 weeks to Introduce replacement Candidate(s) to the Client; and where the Client Engages a replacement Candidate, the Client shall pay Assign an Introduction Fee with respect to the replacement Candidate calculated in accordance with clause 6.1 above. [REPLACEMENT CANDIDATE]
8.2
Where the Client qualifies for a rebate in accordance with the clauses of the within agreement, the Client shall be entitled to a rebate of the Introduction Fee with respect to the Introduction Fee paid by the Client to Assign with respect to the original Candidate as follows:
Week in which the Permanent Placement ended Percentage of original Introduction Fee to be rebated to the Client [TERMS OF REBATE]
Assign / Client communication refers.
8.3
The following conditions must be met in order for the Client to qualify for a rebate:
a) the Client must notify Assign in writing that the Candidate’s Engagement has ended within 7 days of the Engagement ending or within 7 days of notice being given to end the Engagement, whichever is earlier;
b) Assign’s invoice for the Introduction Fee must have been paid in full within the payment terms in accordance with the clauses of the within agreement;
c) the Client has paid all sums owed to Assign in relation to any other Temporary Placements or Permanent Placements and otherwise in accordance with these Terms;
d) the Candidate’s Engagement is not terminated by reason of redundancy or re-organisation or change in strategy of the Client;
e) the Client has offered Assign Exclusivity in accordance with the clauses of the within agreement;
f) the Candidate did not leave the Engagement because he/she reasonably believed that the nature of the actual work was substantially different from the information the Client provided prior to the Candidate’s acceptance of the Engagement; and
g) the Candidate’s reasons for leaving the Engagement as communicated to the Client or Assign did not relate to any allegations of less favourable treatment, harassment or victimisation or any other bullying by the Client or any of its staff.
8.4
Where the Client re-Engages the Candidate within the 12 month period immediately following the end of the Permanent Placement, any rebate paid to the Client under the clauses of the within agreement with respect to that Candidate, shall be immediately repaid to Assign by the Client (plus VAT). [CONDITIONS FOR REBATE]
9. LIABILILTY re: PERMANENT PLACEMENTS
9.1
Assign shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with Assign seeking a Candidate for the Client or from the Introduction or Engagement of any Candidate by the Client or from the failure of Assign to introduce any Candidate or from the Client’s disclosure to a Third Party of any details regarding a Candidate. [LIABILITY OF AGENCY TO CLIENT]
10. TERMINATION OF AGREEMENT
10.1
This Agreement may be terminated by either party giving four (4) weeks written notice.
10.2
This Agreement may be terminated by either party by written notice with immediate effect:
10.2.1 If the other commits any material breach of this Agreement and fails to remedy the breach within seven (7) days of being required in writing to do so; or
10.2.2 If an order is made or an effective resolution is passed for the winding up of that other party (other than for the purpose of restructuring) or a receiver, administration or administrative receiver is appointed over the undertaking or any of the property or assets of that other party. [TERMINATION OF CONTRACT BY AGENCY OR CLIENT]
11. LIABILITY IN ALL CASES
11.1
The Client shall indemnify and keep indemnified Assign against any costs (including legal costs), claims or liabilities incurred directly or indirectly by Assign arising out of or in connection with these Terms including (without limitation) as a result of:
a) any breach of these Terms by the Client, any company within the Client’s group or by its employees or agents;
b) any breach by the Client, any company within the Client’s group or a Third party, or any of its employees or agents, of any applicable statutory provisions; and / or
c) any unauthorised disclosure of a Candidate or Consultant’s details by the Client or a Third party, or any of its/their employees or agents. [INDEMNITY OF AGENCY BY CLIENT]
11.2
Neither party will be liable for any loss or damage whatsoever or howsoever caused arising from any innocent misrepresentation, except to the extent that such liability may not be lawfully excluded. [NO LIABILITY FOR INNOCENT MISREPRESENTATION]
11.3
Neither party shall be liable for any claims made against the other unless they are notified within 12 months of the action arising. [NOTIFICATION OF CLAIMS]
11.4
Neither party excludes or limits liability for death or personal injury caused by its negligence, for breach of confidentiality or damages caused by intentional misconduct or gross negligence, any other indemnities included within these Terms or any other type of liability which cannot by law be excluded or limited. [ LIABILITY OF BOTH AGENCY & CLIENT]
11.5
To the extent permitted by law, Assign shall not be liable to the Client for any indirect or consequential loss or damage of any kind, or for loss of profit (direct or indirect), loss of business, revenue, goodwill or anticipated savings. [LIABILITY OF AGENCY]
11.6
Assign shall not be liable for failure to perform its obligations under these Terms if such failure results by reason of any cause beyond its reasonable control. [LIABILITY OF AGENCY]
11.7
If any exclusion of liability in Assign’s case in these Terms will be held to be invalid for any reason or Assign becomes liable for loss or damage that is capable of being limited in law, such liability will be limited to €50,000 for all claims, costs, damage and losses under or in connection with a Permanent Placement or Temporary Placement. [LIMITATION OF LIABILITY OF AGENCY]
12. EQUAL OPPORTUNITIES
12.1
Assign is committed to equal opportunities and expects the Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates and Consultants. [NO DISCRIMINATION]
13. CONFIDENTIALITY AND DATA PROTECTION
13.1
All information relating to a Candidate and Consultant is confidential and where that information relates to an individual is also subject to the Data Protection Acts 1988-2003 or subsequent enactments or re-enactments thereof and is provided solely for the purpose of providing services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the Data Protection Acts 1988-2003 or subsequent enactments or re-enactments thereof in receiving and processing the data at all times.
13.2
Both parties recognise that information disclosed to the other in the course of the negotiation of and the performance of a Permanent Placement or Temporary Placement will contain and incorporate confidential information in which the other has an interest.
13.3
Both parties agree that they will keep such information confidential, and will neither use nor disclose to a third party any part or the whole of such information (or information gained from such disclosure), until or unless such information becomes public knowledge through no fault of the party using such information.
13.4
All information contained within these Terms shall remain confidential and the Client shall not divulge it to any Third Party save for its own employees and professional advisers and as may be required by law.
13.5
The Client shall not without the prior written consent of Assign provide any information in respect of any Candidate or Consultant to any Third Party whether for employment or engagement purposes or otherwise. [DATA PROTECTION & CONFIDENTIALITY]
14. GENERAL
14.1
Any failure by Assign to enforce at any particular time any one or more of these Terms shall not be deemed a waiver of such rights or of the right to enforce these Terms subsequently nor shall it prejudice Assign’s right to take action in respect of the same or any later breach. No provision of these Terms shall be enforceable by any person who is not a party to it but this does not affect any right of Assign or its Consultant(s) to enforce any provision of these Terms against the Client. If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining provisions, which shall continue to be valid to the fullest extent permitted by applicable laws. [ENFORCEABILITY & SEVERABILITY]
14.2
Assign shall not be liable for any delay or non-performance of its obligations under these Terms to the extent that such delay or non-performance is caused by Force Majeure Event. For the purposes of these Terms, “Force Majeure Event” shall mean any event beyond Assign’s 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. [FORCE MAJEURE]
14.3
Any notice under these Terms shall be made in writing. Notices may be sent by post, fax or email. Any notice served by post shall be deemed to have been served 48 hours after it was posted and proof that the notice was properly addressed, pre-paid and posted shall be sufficient evidence of service. Any notice served by fax shall be deemed to have been received on transmission as evidenced by the transmission report. Correctly addressed emails shall be deemed to be received in despatch, as evidenced by hardcopy printouts. [FORMS OF NOTICE]
15. GOVERNING LAW & JURISDICTION
15.1
These Terms shall be construed in accordance with the law of the Republic of Ireland and the parties submit to the exclusive jurisdiction of the Courts of the Republic of Ireland.
15.2
Where these Terms are also provided in a language other than English, whilst the translation is believed to be accurate, no warranty to that effect is given, and the English language version will prevail [APPLICABLE LAW & LANGUAGE]