TERMS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT AND FIXED-TERM CANDIDATES
 
1. INTERPRETATION
1.1 In these terms of business (“the Terms”) the following expressions have the following meanings:
“Agreement” the agreement between Form Careers and the Client for the provision of recruitment services, which incorporates the Terms;

“Business Day” a day other than a Saturday, Sunday or public holiday in England;
“Candidate” a person Introduced by Form Careers to the Client to be considered for Engagement, including any Member of the Candidate’s Team;
“Client” the person, firm or company to whom Form Careers Introduces a Candidate, or who requests recruitment services from Form Careers;
“Contingent Search” a search in which Form Careers Introduces Candidates to the Client speculatively or otherwise without a retainer, with the Introduction Fee payable only on Engagement;
“Data Protection Legislation” all applicable laws relating to the processing of personal data and privacy, including the UK GDPR (as defined in section 3(10) of the Data Protection Act 2018), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and, where applicable, the EU GDPR (Regulation (EU) 2016/679), in each case as amended, re-enacted or replaced from time to time, together with any applicable guidance and codes of practice issued by the Information Commissioner;
“Engagement” the employment, hire or other use, directly or indirectly, of a Candidate by the Client or any Group Company, whether under a contract of service or a contract for services, or on an agency, consultancy, freelance, secondment, partnership or other basis (including through any intermediary); whether on a permanent, fixed-term, temporary or other basis; whether full-time or part-time; whether for the position for which the Candidate was Introduced or any other position; and wherever the Candidate performs the work, including remotely (and “Engage”, “Engages” and “Engaged” shall be construed accordingly);
“Form Careers” Form Careers Limited, a company registered in England and Wales with company number 12985018, whose registered office is at [27 Old Gloucester Street, London, WC1N 3AX;
“Group Company” in relation to the Client, any subsidiary or holding company of the Client from time to time and any subsidiary of any such holding company, each as defined in section 1159 of the Companies Act 2006;
“Introduction” the provision by Form Careers to the Client, by any means (including by post, email, telephone, video call or any online platform), of a Candidate’s CV or of any information which identifies the Candidate, or the arrangement by Form Careers of an interview or meeting between the Client and a Candidate (and “Introduce”, “Introduces” and “Introduced” shall be construed accordingly);
“Introduction Date” the date of Form Careers’ first Introduction of the relevant Candidate to the Client;
“Introduction Fee” the fee payable by the Client to Form Careers in accordance with clause 5;
“Member of the Candidate’s Team” has the meaning given in clause 5.8;
“Party” Form Careers or the Client, and “Parties” means both of them;
“Regulations” the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319), as amended (and any reference to a “Regulation” shall be construed accordingly);
“Remuneration” the gross annual base salary or fees payable to the Candidate for the first 12 months of the Engagement (actual or proposed), together with all guaranteed bonuses and commission, any bonus or commission the Candidate could expect to receive on achieving target, any sign-on or joining payment, and any overseas, living or accommodation allowances payable in respect of that period. Where a car or car allowance is provided, £5,000 (or, if higher, the annual value of the car allowance) shall be added. Where the Engagement is for less than 12 months, Remuneration shall be calculated in accordance with clause 5.5.

1.2 In the Terms: (a) words in the singular include the plural and vice versa; (b) words importing any gender include every gender; (c) a reference to a “Person” includes an individual, firm, company, partnership or other body; (d) the words “including” and “include” are to be read without limitation; (e) a reference to a statute or regulation includes it as amended, extended or re-enacted from time to time; (f) “writing” includes email; and (g) headings do not affect interpretation.

2. THE CONTRACT
2.1 The Terms apply to all Introductions and all services provided by Form Careers to the Client, and are incorporated into the Agreement. The Terms prevail over any other terms and conditions, including any terms the Client seeks to apply through a purchase order, supplier portal, confirmation of order or similar document, unless expressly otherwise agreed in writing by a Director of Form Careers.

2.2 No variation of the Terms shall be valid unless it is in writing and signed by a Director of Form Careers.

2.3 If the Client has not signed the Terms, the Client shall be deemed to have accepted them if, on or after the Introduction of a Candidate, the Client or any Person on its behalf: (a) directly or indirectly contacts the Candidate; (b) interviews the Candidate; (c) makes an offer of Engagement to the Candidate; (d) Engages the Candidate; or (e) otherwise makes use of the Introduction, whichever first occurs.

2.4 If the Client considers that a Candidate was already known to it before the Introduction, it must notify Form Careers in writing within 7 days of the Introduction Date, with reasonable supporting evidence (such as dated correspondence with the Candidate, or a CV received from the Candidate or another agency). If the Client does so to Form Careers’ reasonable satisfaction, no Introduction Fee shall be payable in respect of that Candidate. If the Client does not do so, the Introduction shall be treated as valid and the Client may not later rely on any prior knowledge of the Candidate.

2.5 If any provision of the Terms is or becomes invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable or, if that is not possible, deemed deleted. This shall not affect the validity and enforceability of the rest of the Terms.

2.6 For the purposes of the Regulations, Form Careers acts as an employment agency when Introducing Candidates to the Client.

3. OBLIGATIONS OF FORM CAREERS
3.1 Form Careers will use its reasonable endeavours to Introduce suitable Candidates to the Client for the role for which the Client has notified it of a vacancy or, in the case of a Contingent Search, for any role for which a Candidate is subsequently Engaged.

3.2 Unless otherwise agreed in writing, Form Careers may (but is not obliged to) advertise vacancies in such manner and in such media as it considers appropriate.

3.3 Form Careers will comply with its obligations under the Regulations. Subject to those obligations, Form Careers gives no warranty as to the suitability of any Candidate, or as to the validity of any qualification, experience or right to work which a Candidate has or claims to have.

3.4 If Form Careers, on behalf of the Client, reimburses a Candidate’s travel and out-of-pocket expenses for attending an interview with the Client, those expenses (plus VAT) shall be invoiced to and payable by the Client in accordance with clause 5.10.

4. OBLIGATIONS OF THE CLIENT
4.1 The Client shall notify Form Careers in writing immediately when an offer of Engagement is made to or accepted by a Candidate, and shall at the same time provide full details of the Candidate’s Remuneration and start date.

4.2 If, after the Introduction Date, another employment agency provides the Client with a CV or other information relating to a Candidate, the Client shall reject it unless that agency can show that it has complied with the Regulations or provides a declaration from the Candidate that it is the sole agency appointed to act on the Candidate’s behalf.

4.3 To enable Form Careers to comply with its obligations under the Regulations, the Client shall provide full details of the role 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; any risks to health or safety known to the Client and the steps taken to prevent or control them; the date the Client requires the Candidate to start work; the duration or likely duration of the work; the minimum rate of remuneration, expenses and other benefits offered; the intervals at which remuneration will be paid; and the length of notice the Candidate would be required to give and entitled to receive.

4.4 The Client shall satisfy itself as to the suitability of any Candidate. It is the Client’s responsibility to take up references, check the validity of qualifications, and ensure the Candidate has the experience and expertise required for the role. The Client is also responsible for carrying out right to work checks, obtaining any work or other permits, and ensuring the Candidate meets any medical or other requirements that are appropriate or required by law.

4.5 Subject to clause 5.5.2, if within 12 months of the start of the Engagement there is a material change to the Candidate’s Remuneration (including a change from temporary or fixed-term to permanent employment, a promotion, or a material change to working hours), the Client shall notify Form Careers immediately. Form Careers may recalculate the Introduction Fee on the basis of the revised Remuneration, and the Client shall pay the amount by which the recalculated fee exceeds the fee already paid, in accordance with clause 5.

4.6 If the Client Introduces (directly or indirectly) a Candidate to another Person, and that Person Engages the Candidate within 6 months of the Introduction Date, the Client shall notify Form Careers immediately and shall pay an Introduction Fee calculated in accordance with clause 5 on the Remuneration payable by that Person.

4.7 The Client consents to Form Careers disclosing information about the Client to Candidates.

4.8 The Client acknowledges that Form Careers has a legitimate interest in protecting its business, its goodwill and its investment in recruiting and training its staff. Accordingly, the Client shall not, during the term of the Agreement and for 3 months after it ends, directly or indirectly solicit or entice away any employee or consultant of Form Careers with whom the Client has had dealings in the 12 months before the solicitation. If the Client employs or engages any such person within 3 months after that person leaves Form Careers, the Client shall pay Form Careers a fee of 15% of that person’s annual gross remuneration from Form Careers at the date they left, plus VAT, which the Parties agree is proportionate to that legitimate interest.

4.9 The Client:

4.9.1 confirms that it is not aware of anything which would cause detriment to the interests of the Candidate or the Client if the Client Engages the Candidate; and

4.9.2 shall inform Form Careers immediately if it becomes aware of any circumstances which would make the Engagement detrimental to the interests of the Candidate or the Client.

5. INTRODUCTION FEES
5.1 The Introduction Fee is 20% of the Candidate’s Remuneration, plus VAT at the applicable rate. All other sums payable under the Terms are also exclusive of VAT, which shall be payable in addition.

5.2 The Introduction Fee is payable if the Client Engages a Candidate within 6 months of the Introduction Date. It is payable whether or not Form Careers was the effective cause of the Engagement, whether or not the Candidate is Engaged for the role for which they were Introduced, and including where the Client previously rejected the Candidate or the Candidate previously declined an offer of Engagement.

5.3 Form Careers will invoice the Introduction Fee on the first day of the Engagement. If the Client does not notify Form Careers of the Engagement, Form Careers may invoice at any time after becoming aware of it.

5.4 Each Introduction Fee relates to one Engagement only. A further Introduction Fee is payable for each additional Candidate Introduced by Form Careers and Engaged by the Client.
Fixed-term and temporary Engagements

5.5 Where a Candidate is Engaged on a fixed-term, temporary, trial, probationary, locum or other basis for a period of less than 12 months:

5.5.1 the Remuneration shall be calculated as if the Engagement were for 12 months, unless Form Careers agrees in writing to calculate the Introduction Fee on a pro rata or other basis;

5.5.2 where Form Careers has so agreed, and the Client subsequently extends the Engagement beyond its initial period, Engages the Candidate for an indefinite period, or Introduces the Candidate (directly or indirectly) to another Person who Engages them, the Client shall notify Form Careers immediately and pay a further Introduction Fee calculated in accordance with clause 5.1 as if that subsequent Engagement were a new and separate Engagement, without deduction for any fee previously paid; and

5.5.3 the Client shall not be entitled to any rebate under clause 6 in respect of any subsequent Engagement referred to in clause 5.5.2.
Other fees

5.6 If the Client withdraws an offer of Engagement after the Candidate has accepted it, the Client shall pay Form Careers a cancellation fee of 50% of the Introduction Fee that would have been payable had the Engagement gone ahead, reflecting the work carried out by Form Careers in securing the Candidate’s acceptance.

5.7 If the Client fails to provide Form Careers with full details of the Candidate’s Remuneration on or before the first day of the Engagement, Form Careers may at its discretion either:

5.7.1 charge an Introduction Fee at the flat rate of £10,000 plus VAT; or

5.7.2 notify the Client of its reasonable assessment of the Candidate’s Remuneration, which shall be binding on the Client for the purpose of calculating the Introduction Fee unless the Client provides full details of the Remuneration within 7 days of that notice.

5.8 If one or more people who work or have worked with a Candidate in any capacity (each a “Member of the Candidate’s Team”) are Engaged by the Client as a result, directly or indirectly, of the Introduction of that Candidate:

5.8.1 the Client shall pay Form Careers an additional Introduction Fee in respect of each Member of the Candidate’s Team, calculated in accordance with this clause 5 on their respective Remuneration; and

5.8.2 clauses 1.1, 3, 4, 5 and 6 shall apply to each Member of the Candidate’s Team as if references to the Candidate included that person.

5.9 Where Form Careers advertises on the Client’s behalf under clause 3.2, the Client shall pay the advertising costs and any associated artwork costs, as agreed in writing before the advertisement is placed, whether or not a Candidate is Engaged. The Client may cancel an advertisement only on sufficient notice to allow Form Careers to withdraw it, and shall pay any cancellation costs. All advertising costs (plus VAT) shall be invoiced to and payable by the Client in accordance with clause 5.10.

Payment:

5.10 All invoices are payable within 30 days of the invoice date, in full and without any set-off, deduction or withholding.

5.11 If the Client fails to pay any sum by its due date, Form Careers may claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998, and the Client shall also pay Form Careers’ reasonable costs of recovering the debt. Form Careers may suspend the provision of its services until all overdue sums are paid.

5.12 Any discount on the Introduction Fee, agreement to accept payment by instalments or other concession is binding on Form Careers only if agreed in writing by a Director of Form Careers.

6. REBATES
6.1 If, within 12 weeks of the first day of the Engagement, the Candidate terminates the Engagement or the Client lawfully terminates it, the Client shall be entitled to a rebate of the Introduction Fee in accordance with clause 6.2, provided that:

6.1.1 the Introduction Fee and all other sums due to Form Careers were paid in full within the period set out in clause 5.10;

6.1.2 the termination is not by reason of redundancy, restructuring or reorganisation, the Candidate’s injury or ill-health, any breach by the Client of the Candidate’s terms of Engagement, or any unlawful act of the Client (including discrimination against the Candidate under the Equality Act 2010);

6.1.3 the Client did not enter into the Engagement intending to end it without proper cause or with a view to obtaining a rebate; and

6.1.4 the Client notifies Form Careers in writing within 7 days of the Engagement ending, giving the reason for termination.

6.2 The rebate shall be calculated by reference to the week in which the Engagement ends, where week 1 begins on the first day of the Engagement:

Engagement ends in:

Weeks 1 to 4    :  Rebate 75%
Weeks 5 to 8    :  Rebate 50%
Weeks 9 to 12  :  Rebate 25%
After week 12   :  None
 
6.3 Any rebate will be paid by credit note or refund within 30 days of Form Careers receiving the Client’s notice under clause 6.1.4. No rebate is payable if the Client does not comply with all of the conditions in clause 6.1.

6.4 No rebate is payable where the Candidate was previously engaged in any capacity by the Client through Form Careers.

6.5 No rebate is payable where the Client has negotiated a discount on the Introduction Fee which has been confirmed in writing.

6.6 No rebate is payable where the Engagement differs materially from the role notified to Form Careers or the terms offered to and accepted by the Candidate, including in the type of work, responsibilities, remuneration, hours or location.

6.7 If the Client or any Group Company re-Engages the Candidate within 6 months of the end of the Engagement, any rebate paid shall be repayable to Form Careers in full immediately on demand, and no rebate shall be available in respect of the re-Engagement.

7. TERMINATION
7.1 Without affecting any other right or remedy available to it, either Party may terminate the Agreement with immediate effect by written notice to the other Party if:

7.1.1 the other Party commits a material breach of the Agreement and (if the breach is capable of remedy) fails to remedy it within 14 days of receiving written notice specifying the breach and requiring it to be remedied; or

7.1.2 the other Party becomes insolvent, has an order made or a resolution passed for its winding up (other than for the purpose of a solvent amalgamation or reconstruction), has an administrator, administrative receiver or receiver appointed over any of its assets or business, makes any composition or arrangement with its creditors, or takes or suffers any similar or analogous action in consequence of debt.

7.2 Termination of the Agreement shall not affect any rights or liabilities which have accrued before termination. An Introduction Fee shall remain payable in respect of any Candidate Introduced before termination who is Engaged within 6 months of the Introduction Date, and clauses 1, 4.5, 4.6, 4.8, 5, 6, 8, 9 and 10 shall survive termination.

8. DATA PROTECTION AND CONFIDENTIALITY
8.1 In this clause 8, “controller”, “personal data”, “personal data breach”, “processing” and “data subject” have the meanings given in the Data Protection Legislation, and “Candidate Personal Data” means personal data relating to Candidates which Form Careers provides to the Client.

8.2 Each Party shall comply with its obligations under the Data Protection Legislation. The Parties acknowledge that each of them processes Candidate Personal Data as an independent controller, and nothing in the Terms is intended to make either Party the processor of the other or to make them joint controllers.

8.3 Form Careers shall ensure that it has a lawful basis for providing Candidate Personal Data to the Client, and that Candidates have been informed that their personal data will be shared with prospective employers.

8.4 The Client shall:

8.4.1 process Candidate Personal Data only for the purpose of considering the Candidate for Engagement and, if the Candidate is Engaged, for the purposes of that Engagement;

8.4.2 not disclose Candidate Personal Data to any third party, other than its own personnel, its Group Companies and its service providers who need access for the purpose in clause 8.4.1 and who are bound by appropriate obligations of confidentiality and data protection;

8.4.3 implement appropriate technical and organisational measures to protect Candidate Personal Data against unauthorised or unlawful processing and against accidental loss, destruction or damage;

8.4.4 in relation to Candidates who are not Engaged, retain Candidate Personal Data for no longer than is necessary for the purpose in clause 8.4.1, to comply with its legal obligations or to establish or defend legal claims, and then securely delete or destroy it;

8.4.5 not transfer Candidate Personal Data outside the United Kingdom except in accordance with the Data Protection Legislation;

8.4.6 notify Form Careers without undue delay, and in any event within 48 hours, on becoming aware of any personal data breach affecting Candidate Personal Data; and

8.4.7 give Form Careers reasonable assistance in responding to any request or complaint from a Candidate, or any communication from the Information Commissioner, relating to Candidate Personal Data.

8.5 The Client shall indemnify Form Careers against all losses, liabilities, costs (including reasonable legal costs) and claims which Form Careers suffers or incurs as a result of any breach by the Client of this clause 8 or of the Data Protection Legislation in relation to Candidate Personal Data, except to the extent caused or contributed to by Form Careers.

8.6 A Candidate’s CV and all other information about a Candidate are provided in strict confidence, solely for the Client’s use in considering the Candidate for Engagement. The Client shall not disclose them to any other Person without Form Careers’ prior written consent, except as permitted by clause 8.4.2. The Client shall not contact a Candidate’s current employer (including to request a reference) unless and until the Candidate has accepted a written offer of Engagement from the Client and has consented to that contact.

8.7 If the Client discloses information about a Candidate to another Person and that Person Engages the Candidate, clause 4.6 shall apply.

9. LIABILITY AND INDEMNITY
9.1 Nothing in the Terms limits or excludes either Party’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, or for any other liability which cannot lawfully be limited or excluded.

9.2 Subject to clause 9.1 and to Form Careers’ obligations under the Regulations, Form Careers shall not be liable to the Client for any loss, damage, expense or delay arising directly or indirectly from:

9.2.1 any failure of a Candidate to meet the Client’s requirements for any purpose;

9.2.2 any act or omission of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; or

9.2.3 any loss, injury, damage, expense or delay suffered by a Candidate in connection with an Engagement.

9.3 Subject to clause 9.1, Form Careers shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profits, revenue, business or goodwill, or for any indirect or consequential loss.

9.4 Subject to clause 9.1, Form Careers’ total aggregate liability to the Client arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the total fees paid by the Client to Form Careers in the 12 months before the event giving rise to the claim.

9.5 The Client shall indemnify Form Careers against all liability, loss, damage, costs and expenses (including reasonable legal costs) arising from any act or omission of a Candidate during or in connection with an Engagement.

9.6 The Client shall indemnify Form Careers against all liability, loss, damage, costs, expenses, claims and proceedings arising from any failure by the Client to comply with the Equality Act 2010, or with its obligations as an employer, including its obligations to carry out right to work checks.

9.7 The Client acknowledges that the limitations and exclusions of Form Careers’ liability in the Terms are reasonable, are reflected in the level of the Introduction Fee, and that the Client should insure accordingly.

9.8 The Client shall pay the reasonable costs and expenses that Form Careers incurs as a result of any breach of the Terms by the Client, including the costs of recovering any unpaid sums.

10. GENERAL
10.1 The Terms constitute the entire agreement between the Parties relating to their subject matter. Each Party acknowledges that it has not relied on any representation, warranty or other provision not set out in the Terms. All conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Nothing in this clause limits liability for fraud.

10.2 Form Careers may revise the Terms by giving the Client not less than 30 days’ written notice. The revised Terms shall apply only to Candidates Introduced after the date on which the revision takes effect.

10.3 Any notice under the Terms shall be in writing and delivered by hand, sent by pre-paid first-class post or sent by email to the other Party at its registered office, its principal place of business or the email address it has most recently notified for that purpose. A notice is deemed received: if delivered by hand, on delivery; if posted, at 9.00 am on the second Business Day after posting; and if sent by email, at the time of transmission or, if that is outside 9.00 am to 5.00 pm on a Business Day, at 9.00 am on the next Business Day.

10.4 No failure or delay by either Party in exercising any right or remedy shall operate as a waiver of it, and no waiver of any breach shall be a waiver of any subsequent breach.

10.5 The Client may not assign or transfer any of its rights or obligations under the Agreement without Form Careers’ prior written consent. Form Careers may assign or transfer any of its rights under the Agreement, including the right to receive payment.

10.6 A person who is not a Party shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Terms. This does not affect any right or remedy of a third party which exists or is available apart from that Act.

10.7 The Terms and any dispute or claim arising out of or in connection with them (including non-contractual disputes or claims) shall be governed by the law of England and Wales.

10.8 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms.
Signed by the Parties to confirm their agreement to these Terms of Business.