Standard Terms of Business for the Introduction of Candidates to Clients for Direct Employment/Engagement
These terms are between Digital Skills Limited, The Employment Agency (registration number 09918739) and clients using Digital Skills services (The Client)
- Scope of Agreement
- These Terms and Conditions constitute the entire agreement between the Employment Agency and the Client and shall govern all work between them. In the event of a conflict between these Terms and any other agreement, this agreement shall prevail.
In these Terms:
- “Client” means the person, firm or corporate body to whom the Employment Agency Introduces a Candidate;
- “Candidate” means the person Introduced by the Employment Agency to the Client for an Engagement including, but not limited to, any officer or employee of the Candidate if the Candidate is a limited company, any member or employee of the Candidate if the Candidate is a limited liability partnership, and members of the Employment Agency’s own staff;
- “Employment Agency” means Digital Skills Limited, a company incorporated in England and Wales under company 09918739 and whose registered office is at is 9 St Ives Road, Maidenhead, Berkshire, SL6 1QS
- “Engagement” means the engagement, employment or use of the Candidate by the Client or by any Third Party to whom or to which the Candidate was Introduced by the Client (whether with or without the Employment Agency’s knowledge or consent) on a permanent or temporary basis, howsoever engaged (whether directly or indirectly); and “Engages” and “Engaged” shall be construed accordingly;
- “Exclusivity” means the Employment Agency will be the sole supplier of Candidates to fulfil the Engagement
- “Introduction” means: a) the interview of a Candidate in person, by telephone, via Skype or any other method; or b) the passing of a curriculum vitæ or information about the Candidate. The time of the Introduction shall be taken to be the earlier of (a) and (b) above; and “Introduced” and “Introduces” shall be construed accordingly;
- “Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003; and references to a particular Regulation are references contained therein;
- “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 services rendered to or on behalf of the Client. Where the Client provides a company car, a notional amount of £5000 will be added to the salary in order to calculate the Employment Agency’s fee;
- “Terms” means these Terms of Business as further defined with clause 3;
- “Third Party” means any company or person who is not the Client. For the avoidance of doubt, subsidiary and associated companies of the 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 in this definition.
- These Terms
- These Terms constitute the entire agreement between the Employment Agency and the Client in relation to the subject matter hereof and are deemed to be accepted by the Client and to apply by virtue of (a) an Introduction to the Client of, or the Engagement by the Client of, a Candidate or (b) the passing of information about the Candidate by the Client to any Third Party or (c) the Client’s interview or request to interview a Candidate or (d) the Client’s signature at the end of these Terms or (e) any other written expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged by the Client for the same type of work as that for which the Introduction was originally effected.
- These Terms supersede all previous agreements between the parties in relation to the subject matter hereof.
- These Terms prevail over any other terms of business or purchase conditions put forward by the Client.
- The Client authorises the Employment 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.
- For the purposes of these terms, the Employment Agency acts as an employment agency as defined within the Regulations.
- Obligations of the Employment Agency
- The Employment Agency shall use reasonable endeavours to introduce one or more suitable Candidates to meet the requirements of the Client for any particular vacancy. The Employment Agency cannot guarantee to find a suitable Candidate for each vacancy. Without prejudice to clause 4.5 below, the Employment Agency shall use reasonable endeavours to ascertain that the information provided by the Employment Agency to the Client in respect of the Candidate is accurate.
- Digital Skills will use reasonable endeavours to ensure the suitability of the Applicant but it does not take up references nor seek independent verification of the information supplied by an Applicant. No warranty either express or implied is given by Digital Skills as to the suitability of the Applicant for the purposes of the Client or as to the accuracy of any references supplied or qualifications of the Applicant.
- All information given by Digital Skills about an Applicant is given in good faith and in reliance of information given to Digital Skills by the Applicant. It shall be the responsibility of the Client to take such steps as are necessary to satisfy itself of the suitability of the Applicant and to verify the accuracy of the information supplied by or any statement made by the Applicant. The Client is strongly advised to take up any references provided by the Applicant before Engagement.
- The Client shall be responsible for obtaining all work, security and other permits, verifying professional and academic qualifications, the arrangement of medical examinations and/or investigations into the medical history of the Applicant, and satisfying any medical and other requirements or qualifications required by law for the position, which the Applicant is sought.
- The Employment Agency accepts no responsibility in respect of matters outside its knowledge and the Client must satisfy itself as to the suitability of the Candidate.
- Client Obligations
- The Client shall satisfy itself as to the suitability of the Candidate. The 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, and satisfying other requirements, qualifications or permission required by law of the country in which the Candidate is engaged to work.
- To enable the Employment Agency to comply with its obligations under clause 4 the Client undertakes to provide to the Employment Agency 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.
- The Client shall provide details of the date the Client requires the Candidate to commence work, the duration or likely duration of the work; the minimum rate of remuneration, expenses and any other benefits that 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 the employment with the Client.
- The Client shall inform the Employment Agency 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.
- The Client shall inform the Employment Agency within 24 hours where it receives details of a Candidate from the Employment Agency which it has already received from another agency in relation to the same vacancy. If no such notification is given by the Client then, in the event of an Engagement, the Client agrees the Employment Agency is entitled to charge a fee in accordance with clause 6.2.
- The Client agrees to:
a) notify the Employment Agency immediately that its offer of an Engagement to the Candidate has been accepted and to provide details of the Remuneration to the Candidate.
b) pay the Employment Agency’s fee within the period set out under clause 7.2.
- The Client shall not, and shall not seek to cause the Employment Agency to, unlawfully discriminate in relation to the services provided by the Employment Agency to the Client in connection with these Terms and shall disclose any and all information requested by the Employment Agency in the event a Candidate makes a complaint to the Employment Agency.
- The Client shall be liable to pay the Charges/Fees where an offer of Engagement has been made verbally or in writing by the Client and which is subsequently withdrawn by the Client after acceptance by the Candidate either verbally or in writing, or where the Client through its own actions discourages the Candidate from accepting the Engagement after an offer of Engagement has been made.
- Introductions of Candidates are confidential. Where the Client discloses to a Third Party any details regarding a Candidate Introduced to the Client by the Employment Agency that Third Party subsequently Engages the Candidate within 12 months from the date of the Introduction, the Client shall pay the Employment Agency’s fee as set out in clause 6.3. and there shall be no entitlement to any rebate or refund to the Client or to the Third Party.
- The Client shall pay the Employment Agency a fee calculated in accordance with clause 6.3 where it Engages, whether directly or indirectly, any Candidate Introduced by or through the Employment Agency within 12 months from the date of the Employment Agency’s Introduction.
- The fee shall be calculated at 20% of the Candidate’s Remuneration applicable during the first 12 months of the Engagement. The Employment Agency will charge VAT on the fee where applicable.
- Where the amount of the actual Remuneration is not known or disclosed, the Employment Agency will charge a fee calculated in accordance with clause 6.3 on the maximum level of remuneration applicable for the position or type of position the Candidate had been originally submitted to the Client for and/or comparable position in the general marketplace.
- Where the Engagement is for a fixed term of less than 12 months, the Client shall pay the Employment Agency a fee as follows:
- 80% 0-8 months
- 90% 9-12 months
- 100% 12 months and above
The Employment Agency will charge VAT on the fee where applicable. Where the Engagement is extended beyond the initial fixed term or where the Client re-Engages the Candidate within 12 months from the date of planned or actual termination (as applicable) of the first Engagement, the 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 or until the Candidate has been engaged for a total of one year.
- Charges incurred by the Employment Agency at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the fee and such charges will be payable whether or not the Candidate is Engaged.
- Except in the circumstances set out in clause 6.1, no fee is incurred by the Client until the Candidate commences the Engagement; whereupon the Employment Agency will render an invoice to the Client for its fees.
- The Employment Agency shall raise invoices in respect of the charges payable and the Client agrees to pay the amount due within 14 days of the date of the invoice.
- All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated within clause 7.2 unless the Client notifies the Employment Agency in writing within 5 days of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify the Employment Agency 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 the Employment Agency in order to resolve the dispute as quickly as possible.
- The 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).
- In the event of the Candidate leaving the Client’s service within the agreed rebate time period, Digital Skills will have the right to introduce a replacement Candidate; and where the Client Engages a replacement Candidate, the Client shall pay the Employment Agency a fee calculated in accordance with clause 6.3 above (“Charges/Fees”).
- Where the Client qualifies for a rebate in accordance with clause 8.3, and the Engagement of the Candidate is terminated by the Client or by the Candidate within the time periods specified
below, the Client shall be entitled to a rebate of the introduction fee in accordance with the table below:
Duration of Employment Percentage of Fee to be rebated
- Weeks 1 to 4 – 100%
- Weeks 5 to 8 – 50%
- Weeks 9 to 12 – 75%
- Weeks 12 + – 0%
- The following conditions must be met in order for the Client to qualify for a rebate:
a) the Client must notify the Employment Agency 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) the Employment Agency’s invoice for the fee must have been paid within the payment terms in accordance with clause 7.2;
c) the Candidate’s engagement is not terminated by reason of redundancy or reorganisation or change in strategy of the Client;
d) 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;
e) the Candidate did not leave the Engagement as a result of discrimination of any kind or other acts against the Candidate; and
f) the Candidate was not at any time in the 12 months prior to the start of the Engagement employed or hired (whether on a permanent or contract basis) by the Client.
- Where the Client re-engages the Candidate either on an employment or indirect basis, any rebate paid to the Client under clause 8.1 in respect of that Candidate, shall be immediately repaid to the Employment Agency by the Client.
- Liability and Indemnity
- The Employment Agency 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 the Employment Agency seeking a Candidate for the Client or from the Introduction or Engagement of any Candidate by the Client or from the failure of the Employment Agency to introduce any Candidate or from the Client’s disclosure to a Third Party of any details regarding a Candidate.
- Notwithstanding clause 9.1 above, nothing in these Terms shall be deemed to exclude or restrict any liability of the Employment Agency to the Client for personal injury or death.
- The Employment Agency 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.
- The Client shall indemnify and keep indemnified the Employment Agency against any costs (including legal costs), claims or liabilities incurred directly or indirectly by the Employment Agency 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 or by its employees or agents; and/or
b) any breach by the Client or Third Party, 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, immigration legislation and the Regulations); and/or
c) any unauthorised disclosure of a Candidate details by the Client or Third Party, or any of its employees or agents.
- These Terms may be terminated by either party without liability to the other if:
- 7 days’ written notice of termination is given; or
- either party makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1976) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
- either party ceases, or threatens to cease, to carry on business
- Equal Opportunities
- The Employment Agency is committed to equal opportunities and expects the Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.
- 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.
- The Client shall not without the prior written consent of the Employment Agency provide any information in respect of the Candidate to any Third Party whether for employment purposes or otherwise.
- The Client agrees to comply with the Data Protection Act 1988 (“the Act”) and shall not cause or seek to cause the Employment Agency to breach the Act in connection with these Terms and shall provide any and all information requested by the Employment Agency in a timely manner to assist the Employment Agency to respond to a Data Subject access request (as defined within the Act).
- Any failure by the Employment Business 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.
- Headings contained in these Terms are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.
- No provision of these Terms shall be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act 1999.
- If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms shall remain in full force and effect to the extent permitted by law.
- Any reference to legislation, statute, act or regulation shall include any revisions, re-enactments or amendments that may be made from time to time.
- Any notice required to be given under these Terms (including the delivery of any information or invoice) shall 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 (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms).
- Notices shall be deemed to have been given and served:
a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 10.00am on the next business day after the day of delivery; or
b) if sent by facsimile or e-mail, at the time of despatch if despatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of despatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
c) if sent by prepaid first class post, 48 hours from the time of posting.
- No variation or alteration of these Terms shall be valid unless approved in writing by the Client and the Employment Agency.
- Applicable Law
- These Terms shall be construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
Digital Skills Ltd processes personal data in relation to its own staff, work-seekers and individual client contacts. It is vitally important that we abide by the principles of the Data Protection Act 1998 set out below.
Digital Skills Ltd holds data on individuals for the following general purposes:
- Staff Administration
- Advertising, marketing and public relations
- Accounts and records
- Administration and processing of work-seekers personal data for the purposes of work-finding services
The Data Protection Act 1998 requires Digital Skills Ltd as data controller to process data in accordance with the principles of data protection. These require that data shall be:
- Fairly and lawfully processed
- Processed for limited purposes
- Adequate, relevant and not excessive
- Not kept longer than necessary
- Processed in accordance with the data subjects rights
- Kept securely
- Not transferred to countries outside the European Economic Area without adequate protection.
Personal data means data, which relates to a living individual who can be identified from the data or from the data together with other information, which is in the possession of, or is likely to come into possession of, Digital Skills Ltd.
Processing means obtaining, recording or holding the data or carrying out any operation or set of operations on the data. It includes organising, adapting and amending the data, retrieval, consultation and use of the data, disclosing and erasure or destruction of the data. It is difficult to envisage any activity involving data, which does not amount to processing. It applies to any processing that is carried out on computer including any type of computer however described, main frame, desktop, laptop, iPad etc.
Data should be reviewed on a regular basis to ensure that it is accurate, relevant and up to date and those people listed in the appendix shall be responsible for doing this. Data may only be processed with the consent of the person whose data is held. Therefore if they have not consented to their personal details being passed to a third party this may constitute a breach of the Data Protection Act 1998.
By instructing Digital Skills Ltd to look for work and providing us with personal data contained in a CV work-seekers will be giving their consent to processing their details for work-finding purposes. If you intend to use their data for any other purpose you must obtain their specific consent. However caution should be exercised before forwarding personal details of any of the individuals on which data is held to any third party such as past, current or prospective employers; suppliers; customers and clients; persons making an enquiry or complaint and any other third party. Data in respect of the following is “sensitive personal data” and any information held on any of these matters MUST not be passed on to any third party without the express written consent of the individual:
- Any offence committed or alleged to be committed by them
- Proceedings in relation to any offence and any sentence passed
- Physical or mental health or condition
- Racial or ethnic origins
- Sexual life
- Political opinions
- Religious beliefs or beliefs of a similar nature
- Whether someone is a member of a trade union
From a security point of view, only those staff listed in the appendix should be permitted to add, amend or delete data from the database. However all staff are responsible for notifying those listed where information is known to be old, inaccurate or out of date. In addition all employees should ensure that adequate security measures are in place.
- Computer screens should not be left open by individuals who have access to personal data
- Passwords should not be disclosed
- Email should be used with care
- Personnel files and other personal data should be stored in a place in which any unauthorised attempts to access them will be noticed. They should not be removed from their usual place of storage without good reason
- Personnel files should always be locked away when not in use and when in use should not be left unattended
- Any breaches of security should be treated as a disciplinary issue
- Care should be taken when sending personal data in internal or external mail
Destroying or disposing of personal data counts as processing. Therefore care should be taken in the disposal of any personal data to ensure that it is appropriate. For example, it would have been more appropriate to shred sensitive data than merely to dispose of it in the dustbin It should be remembered that the incorrect processing of personal data e.g. sending an individual’s details to the wrong person; allowing unauthorised persons access to personal data; or sending information out for purposes for which the individual did not give their consent, may give rise to a breach of contract and/or negligence leading to a claim against Digital Skills Ltd for damages from an employee, work-seeker or client contact. A failure to observe the contents of this policy will be treated as a disciplinary offence.
Data subjects, i.e. those on whom personal data is held, are entitled to obtain access to their data on request and after payment of a fee. All requests to access data by data subjects i.e. staff, members, customers or clients, suppliers, students etc should be referred to Mike Cheeseman, Digital Skills Ltd, 1 Bell Street, Maidenhead, Berkshire, SL6 1BU or email@example.com.
Any requests for access to a reference given by a third party must be referred to Mike Cheeseman and should be treated with caution even if the reference was given in relation to the individual making the request. This is because the person writing the reference also has a right to have their personal details handled in accordance with the Data Protection Act 1998, and not disclosed without their consent.
Therefore when taking up references an individual should always be asked to give their consent to the disclosure of the reference to a third party and/or the individual who is the subject of the reference if they make a subject access request. However if they do not consent then consideration should be given as to whether the details of the individual giving the reference can be deleted so that they cannot be identified from the content of the letter. If so the reference may be disclosed in an anonymised form. Finally it should be remembered that all individuals have the following rights under the Human Rights Act 1998 and in dealing with personal data these should be respected at all times:
- Right to respect for private and family life [Article 8]
- Freedom of thought, conscience and religion [Article 9]
- Freedom of expression [Article 10]
- Freedom of assembly and association [Article 11]
- Freedom from discrimination [Article 14]
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