1.1 In these Terms the following definitions apply:
"Agency" means BKB Investments Limited (registered number 10830116) (trading as gofitjobs) whose registered address is at 71-75 Shelton Street, Covent Garden, London WC2H 9JQ in the United Kingdom. "business day" means a day other than a Saturday, Sunday or Public or Bank Holiday.
"Candidate" means the person (whether or not previously known to the Client) Introduced by the Agency to the Client for an Engagement including (without limitation) any officer, member, employee or other representative of the Candidate if the Candidate is a corporate body or partnership (including limited or limited liability partnership), and members of the Agency's own staff.
"Client" means the person, firm or corporate body (together with any subsidiary or associated person, firm or corporate body (as the case may be)) to which the Candidate is Introduced.
"Engagement" means the engagement, employment or use of the Candidate by the Client or by any third party to whom the Candidate has been introduced by the Client (whether with or without the Agency's knowledge or consent), on a permanent or temporary basis, howsoever engaged (whether directly or indirectly and including (without limitation) under a contract of service or for services, under an agency, licence, franchise or partnership agreement, through a limited company of which the Candidate is an officer, employee or other representative or any other engagement) and "Engage", "Engages" and "Engaged" shall be construed accordingly.
"Engagement Commencement" means the commencement of an Engagement.
"Introduction" means (i) the passing to the Client of a curriculum vitæ or information which identifies the Candidate or (ii) the Client's interview of a Candidate (in person, by telephone or by any other means) and "Introduces" and "Introduced" shall be construed accordingly.
"Introduction Fee" means the fee payable by the Client to the Agency on an Engagement calculated in accordance with clause 3.3.
"Remuneration" includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Candidate for services rendered to or on behalf of the Client or any third party. Where the Client provides a company car, a notional amount of $5,000 will be added to the salary in order to calculate the Introduction Fee.
"Replacement Candidate" means any Candidate Introduced by the Agency to the Client to fill the Engagement following the Introduction of another Candidate whose Engagement either did not commence or was terminated during the first 12 weeks of the Engagement.
"Terms" means these terms of business.
1.2 Unless the context requires otherwise, references to the singular include the plural and the masculine includes the feminine and vice versa.
1.3 The headings contained in these Terms are for convenience only and do not affect their interpretation.
2. The Contract
2.1 These Terms constitute the contract between the Agency and the Client for the supply of permanent or contract staff (to be engaged directly by the Client) and are deemed to be accepted by the Client by virtue of either (i) an Introduction, an offer of Engagement or an Engagement (ii) a request by the Client to receive information regarding a Candidate or to interview a Candidate or (iii) the passing by the Client of any information about a Candidate to any third party. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged for the same type of work as that for which the Introduction was originally affected.
2.2 These Terms supersede all previous agreements and contain the entire agreement between the parties in relation to the subject matter hereof and shall prevail over any other terms of business or purchase conditions (or similar) put forward by the Client. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Agency which is not set out in these Terms.
2.3 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of the Agency and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
2.4 The Agency acts as an employment agency (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for direct Engagement by that Client. The Client authorises the Agency to act on its behalf in seeking Candidates and, if the Client so requests, shall advertise for such Candidates through such methods as are agreed with the Client.
2.5 It is the Client's responsibility to ensure that only one agency is engaged in respect of the Engagement of a Candidate. The Client must inform the Agency immediately (and in any event prior to 2pm on the next business day) where it receives details of a Candidate from the Agency which it has already received from another agency. If either (i) no such notification is received by the Agency or (ii) the details of a Candidate sent by the Agency were received by the Client prior to the Client receiving the details of the same Candidate from another agency then, in the event of an Engagement, the Client agrees the Agency is entitled to charge an Introduction Fee, in each case notwithstanding that any additional fees may be payable by the Client to any other agency.
3. Notification and fees
3.1 The Client agrees to:
(a) notify the Agency of the terms of any offer of Engagement at the same time which it is made to the Candidate;
(b) notify the Agency immediately of any acceptance by a Candidate of an offer of Engagement and to provide details to the Agency of the Remuneration agreed with the Candidate together with any documentary evidence as requested by the Agency; and
(c) pay the Introduction Fee, to be calculated in accordance with the provisions of this
clause 3, by the due date for payment in clause 3.7.
3.2 The Introduction Fee is payable if Engagement Commencement takes place within the period of 9 (nine) calendar months from the latest of the date of (i) the Introduction (ii) the Client's withdrawal of an offer of Engagement (iii) the Candidate's rejection of an offer of Engagement (iv) the last interview or other meeting or communication between the Client and the Candidate in the 9 (nine) months following the Introduction.
3.3 The Introduction Fee is payable on Engagement Commencement and is agreed between the Client and the Agency in writing prior to commencement of the assignment.*
* For a permanent (full-time or part-time) Engagement, Remuneration shall refer to annual Remuneration (i.e. 12 months from Engagement Commencement). For a fixed term (full-time or part-time) Engagement, Remuneration shall refer to the Remuneration for the relevant fixed term.
3.4 Where the actual Remuneration is not known to the Agency, the Agency will charge an Introduction Fee calculated in accordance with clause 3.3 based on its determination of the Remuneration at its sole discretion but taking into account the market rate level of remuneration applicable for the position in which the Candidate has been Engaged and with regard to any information supplied to the Agency by the Client and/or comparable positions in the market generally.
3.5 Where prior to Engagement Commencement the Agency and the Client agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata. If the Client (a) extends the Engagement beyond the initial fixed term or (b) re-Engages the Candidate within 12 calendar months from the date of termination of the agreed period of the fixed term Engagement, then the Client shall be liable to pay a further Introduction Fee based on the additional Remuneration applicable for (a) the extended period of Engagement or (b) the period of the second and any subsequent Engagement, subject to the Client not being liable to pay a greater sum in Introduction Fees than the Client would have been liable for under clause 3.3 had the Candidate first been Engaged for 12 months or more.
3.6 The Client's obligations under this clause 3 shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights.
3.7 The Introduction Fee shall be payable within 14 days of the date of the Agency's invoice, which will be rendered at any time on or after the date of Engagement Commencement.
3.8 Where applicable, VAT is charged at the standard rate on all fees. All invoices must be settled in full in GBP (Pound Sterling) and for the avoidance of doubt the Client is solely responsible for paying all bank transfer, currency conversion and other fees and charges so that the full amount of the invoice is received by the Agency.
3.9 The Agency reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
3.10 In the event that any Agency staff with whom the Client has had personal dealings accepts an Engagement with the Client while employed by the Agency or within three months of leaving the Agency, the Client shall be liable to pay an Introduction Fee to the Agency calculated in accordance with clause 3.3.
3.11 For Executive Search functions, the Introduction Fee is divided into three payments at a pre-agreed fixed rate. The Client agrees to pay the Agency 25% of the fixed fee at the commencement of the assignment (the search), 25% of the fixed fee when the Candidate has accepted the job offer and 50% of the fixed fee at Engagement Commencement.
4.1 If, after Engagement Commencement, the Engagement is terminated by either the Candidate or the Client before the expiry of 6 weeks from the date of Engagement Commencement then at the Client's request the Agency will endeavour to find one suitable Replacement Candidate. If a suitable Replacement Candidate is subsequently Engaged, the Fee will be calculated, invoices and paid based on the Remuneration of the Replacement Candidate.
4.2 If, after Engagement Commencement, the Engagement is terminated by either the Candidate or the Client before the expiry of 6 weeks from the date of Engagement Commencement then subject to the terms of clause 4.3, the Agency will refund an amount calculated as follows:
No. of weeks between engagement and termination:
4.3 In order to qualify for the refund set out in this clause 4:
(a) the Engagement cannot have terminated (or offer of Engagement have been withdrawn) due to the role being made redundant or in connection with any re- organisation or change in strategy of the person Engaging the Candidate;
(b) the Candidate must 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 accepting the offer of Engagement;
(c) the Candidate did not leave the Engagement as a result of discrimination or other acts against the Candidate;
(d) the Candidate was not at any time in the 12 months prior to the Introduction employed or hired (whether on a permanent or contract basis) by the Client;
(e) the Client must:
(i) have complied and continued to comply with the provisions of clauses 3.1 and 3.7;
(ii) notify the Agency in writing of the termination of the Engagement within seven days of its termination; and
(iii) give the Agency exclusivity to search for a suitable Replacement Candidate as contemplated by clause 4.1for a period of four weeks from the date of receipt by the Agency of the notification in clause 4.3(e)(ii). If after such four week period no suitable Replacement Candidate can be found, or if the Replacement Candidate's Engagement is terminated before the expiry of eight weeks from the date of the Engagement Commencement of the original Candidate, the Client will then be eligible for a refund, subject to the remainder of this clause 4.
4.4 For the purposes of this clause 4 the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client, but for any period of garden leave or payment in lieu of notice, whichever is the later.
4.5 If subsequent to the Client receiving a refund the Candidate is re-Engaged within a period of 12 calendar months from the date of termination then the refund shall be repaid to the Agency. The Client shall not be entitled to any further refunds in relation to the re- Engagement of this Candidate.
4.6 The Client and Agency may agree alternative solutions in writing prior to the commencement of the assignment, and in this such event, the agreement will take precedent.
5. Introductions to third parties
Introductions of Candidates are confidential. If a Client discloses a Candidate's details to a third party, that will be deemed to be a "Third Party Introduction". If that Third-Party Introduction results in an Engagement of the Candidate by the third party within 12 months of the Agency's Introduction of the Candidate to the Client, then the Client will be liable to the Agency for payment of an Introduction Fee in accordance with clause 3. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under clause 4 in any circumstances.
6. Suitability checks
6.1 The Agency shall use reasonable endeavours to ensure the suitability of Candidates Introduced to the Client to work in the position which the Client seeks to fill by taking reasonably practicable steps to:
(a) ensure that the Engagement would not be detrimental to the interests of either the Client or the Candidate;
(b) ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body; and
(c) confirm that the Candidate is willing to work in the position.
6.2 Notwithstanding clause 6.1 the Client must satisfy itself as to the suitability of the Candidate for the position they are seeking to fill. The Client is responsible for:
(a) taking up any references provided by the Candidate before Engaging the Candidate;
(b) checking the Candidate's right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work;
(c) the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and
(d) satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.
6.3 To enable the Agency to comply with its obligations under clause 6.1, the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including (without limitation) the following:
(a) 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;
(b) the type of work that the Candidate would be required to do;
(c) the location and hours of work;
(d) 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;
(e) any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(f) the date the Client requires the Candidate to commence the Engagement;
(g) the duration or likely duration of the Engagement;
(h) the minimum rate of Remuneration, expenses and any other benefits that would be offered;
(i) the intervals of payment of Remuneration; and
(j) the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.
7. Confidentiality and data protection
7.1 All information relating to a Candidate is confidential and subject to the Data Protection Act 1998 ("DPA") and is provided solely for the purpose of providing work-finding services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes (i) to abide by the provisions of the DPA in receiving and processing the data at all times; (ii) not provide any information relating to any Candidate to any third party without the prior written consent of the Agency; (iii) not to cause the Agency to breach the DPA; and (iv) provide the Agency with any and all information requested by the Agency in a timely manner to assist the Agency to comply with its obligations under the DPA including (without limitation) any response to a Data Subject access request.
7.2 The Client undertakes that information relating to the Agency's business and any Candidate which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain (through no fault of the Client or breach of this clause 7) or is required to be disclosed by law.
8.1 The Agency shall not be liable under any circumstances whether in contract, tort (including negligence), breach of statutory duty, or otherwise 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 (i) the Agency seeking a Candidate for the Client (ii) the Introduction to or Engagement of any Candidate by the Client (iii) the failure of the Agency to introduce any Candidate (iv) any act or omission of any Candidate (whether wilful, negligent, fraudulent, reckless or otherwise). Nothing in these Terms shall limit or exclude the Agency's liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
8.2 The Client shall indemnify the Agency against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Agency arising out of or in connection with (i) the Client's breach or negligent performance or non- performance of these Terms (ii) the Agency's enforcement of these Terms.
All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent.
10.1 A waiver by the Agency of any right under these Terms is only effective if it is confirmed in writing by a director of the Agency and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the Agency in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.2 If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
10.3 No third party is intended to have any rights under or in connection with these Terms.
10.4 On termination of these Terms for any reason, clauses which expressly or by implication have effect after termination (including, for the avoidance of doubt, clauses 7 to 11 (inclusive)) shall continue in full force and effect.
11. Governing law and jurisdiction
These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the Client irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.