TLP CONSULTANCY LIMITED
TERMS AND CONDITIONS FOR PERMANENT RECRUITMENT
APPLICATION OF THESE TERMS
1.1 All and any business relating to permanent recruitment undertaken by TLP is transacted subject to these Terms, all of which shall be incorporated in any agreement between TLP and the Client. In the event of any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly agreed otherwise in writing by a director of TLP.
These Terms are effective from June 2013 and supersede all previous terms and conditions of business of TLP in respect of the subject matter of these Terms whether written, oral or implied.
Receiving a Candidate’s CV, Interviewing or Engaging a Candidate, or a Candidate commencing work for or providing services to the Client or to any Third Party as envisaged under Clause 4.1 (whichever first occurs) shall be deemed acceptance of and agreement to these Terms by the Client.
DEFINITIONS AND INTERPRETATION
Each term starting with a capital letter and not defined elsewhere in these Terms is as defined in the Schedule to these Terms.
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 these Terms) under it from time to time.
Where the context permits, words denoting persons shall include bodies corporate and unincorporated associations of persons; the singular include the plural and vice versa; and one gender shall include any gender.
The headings in these Terms are for ease of reference only and shall not affect its interpretation.
Any reference in these Terms to a Clause is, unless otherwise stated, to a Clause of these Terms.
INTRODUCTIONS AND CONFIDENTIALITY
The Client shall notify TLP immediately:
of any offer of an Engagement which the Client makes to a Candidate; and
upon an offer of Engagement being accepted by a Candidate or otherwise upon the commencement of an Engagement (whichever first occurs) and the Client shall provide TLP with details of the Annual Remuneration.
Notwithstanding Clause 6.2, the Client:
shall satisfy itself as to the suitability of any Candidate for the purposes of the vacancy for which a Candidate has been Introduced;
has sole responsibility for selecting a Candidate for Engagement;
should, TLP recommends, make all offers of Engagement subject to receiving satisfactory references, which the Client should take up directly, and verify to its own satisfaction all statements made by or on behalf of a Candidate, in particular ensuring that any legal, professional body or other requirements relating to (without limitation) training, qualifications, authorisations, professional certification, medical requirements and immigration status, are satisfied.
Introductions of Candidates and any CV supplied by TLP to the Client are confidential and should not be disclosed to any other person without the prior written consent of TLP. The Client may only use any CV supplied for the purposes of selecting a Candidate for Interview and deciding whether to Engage a Candidate. If the Client decides not to Engage a Candidate, the Client hereby undertakes to return all copies of the Candidate’s CV to TLP and to remove, delete or destroy all records it may have which include details of or from the CV.
If the Client:
Engages a Candidate; or
Introduces a Candidate to another person, including (without limitation) any subsidiary, associated or holding company of the Client, (a “Third Party”) resulting in an Engagement by that Third Party
at any time within 12 Months from the later of:
the Introduction of a Candidate to the Client by TLP; or
the date of a Candidate’s last Interview with the Client,
the Client shall pay TLP a Recruitment Fee pursuant to Clause 4.2 of these Terms. No Recruitment Fees will be charged unless the Client or a Third Party Engages a Candidate. All amounts payable under these Terms are exclusive of value added tax which shall be payable by the Client at the prevailing rate where applicable.
The Recruitment Fee per Engagement is based upon a Candidate’s Annual Remuneration in accordance with the following scale:
Annual Remuneration up to: Recruitment Fee (as a percentage of Annual Remuneration)
£50,000 and over 22.5%
All dedicated search and overseas assignments are charged at 35% of Annual Remuneration.
All monies due under this Clause 4 shall become due and payable in full by the Client within 30 days of the date of invoice issued by TLP.
TLP reserves the right to charge the Client interest on any amount outstanding after the period for payment set out in Clause 4.3 (both before and after any judgment) at the rate of 4% per annum above the base rate of National Westminster Bank plc from time to time in force from the due date until the date of payment, and any such interest shall be payable on demand.
REPLACEMENT AND REBATE GUARANTEE
If a Candidate is dismissed or leaves within twelve Weeks of commencing the Engagement and provided that:
all monies due under these Terms have been paid in full by the Client in accordance with Clause 4;
such termination is not as a result of redundancy, pregnancy, injury or ill-health or by reason of a Candidate’s race, sex, sexual orientation, religion or belief, any disability or age;
such termination has not arisen as a result of the Client entering into the Engagement with the prior or likely intention of disposing with a Candidate’s services or terminating the Engagement either without proper cause or with a view to obtaining a Rebate unfairly;
the Client serves notice on TLP in writing at its registered office of the termination of the Engagement within 5 Business Days of such termination; and
neither the Client nor any Third Party shall commence Engagement of the Candidate within 12 Months from the date of the termination of the Engagement,
then TLP will use its reasonable endeavours to find a replacement at no extra cost to the Client.
If pursuant to Clause 5.1 TLP is unable to find a replacement within a reasonable time then TLP will pay the Client a Rebate calculated as follows:
where the Engagement terminates:
within two Weeks of the date of commencement of the Engagement, 50% of the Recruitment Fee paid by the Client;
between two Weeks and four Weeks of the date of commencement of the Engagement, 25% of the Recruitment Fee paid by the Client;
between four Weeks and twelve Weeks of the date of commencement of the Engagement, 10% of the Recruitment Fee paid by the Client.
No Rebate shall be made in respect of an Engagement where a Candidate was previously Engaged in any capacity by the Client through TLP.
The Client shall repay the amount of any Rebate in full to TLP where the Client (or any Third Party) subsequently re-Engages (or Engages) a Candidate in any capacity within 12 Months of the date of termination of the Engagement and a full Recruitment Fee shall be payable with no entitlement to a refund or Rebate.
Save in respect of the authority given under these Terms, TLP has no authority to act for the Client, and, in particular, has no authority to enter into any contract with the Candidate on behalf of the Client.
TLP will use its reasonable endeavours to Introduce to the Client a suitable Candidate to fill the position which the Client seeks to fill based on the information provided by the Client to TLP on the position, including the type of work a Candidate in that position would be required to do.
THE CLIENT’S OBLIGATIONS
The Client warrants and confirms that prior to Introduction it has given to TLP sufficient information in order for TLP to select a suitable Candidate(s) for the position the Client seeks to fill, including but not limited to:
the identity of the Client and, if applicable, the nature of the Client’s business;
the date on which the Client requires a Candidate to commence work and the duration, or likely duration, of the work;
the position which the Client seeks to fill, including, but not limited to, the type of work a Candidate in that position would be required to do, the location at which and the hours during which the Candidate would be required to work, any risks to health or safety known to the Client and the steps the Client has taken to prevent or control such risks;
the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law or by any professional body, for the Candidate to possess in order to work in the position;
any expenses payable by or to the Candidate;
the minimum rate of remuneration and any other benefits which the Client would offer to a person in the position which it seeks to fill, and the intervals at which the person would be paid; and
where applicable, the length of notice which the Candidate in such a position would be required to give, and entitled to receive, to terminate the Engagement with the Client.
The Client confirms that prior to Introduction TLP has supplied it with confirmation of the following:
the identity of the Candidate;
that the Candidate has the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law or by any professional body, to work in the position which the Client seeks to fill; and
that the Candidate is willing to work in the position which the Client seeks to fill.
To the extent that TLP may not have supplied the Client with confirmation as set out in Clause 7.2, the Client confirms that it is satisfied with the confirmation supplied; and the Client agrees that, if the Candidate fails to have the experience, training, qualifications or any authorisation which the Client considers are necessary, or which are required by law or by any professional body, TLP shall have no liability to the Client in respect of this.
acknowledgement and liability
Whilst TLP will make every effort to maintain a high standard of integrity and an efficient service, TLP gives no warranty as to the suitability of any Candidate and accordingly, neither TLP nor any of TLP’s staff shall be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising in connection with any Introduction or Engagement and, in particular (but without limitation to the foregoing), any such loss, injury, damage, expense or delay arising in connection with:
failure of any Candidate to meet the requirements of the Client for all or any of the purposes for which the Candidate is required by the Client;
any act or omission of any Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;
any loss, injury, damage, expense or delay incurred or suffered by a Candidate;
provided that nothing in this Clause 8.1 shall be construed as purporting to exclude or restrict TLP’s liability to the Client for personal injury or death resulting from TLP’s own negligence nor any statutory liability or any exclusion or limitation which is prohibited by law.
The Client acknowledges that in entering into these Terms, it has not relied on any representations, warranties or other assurances by TLP other than those expressly set out in these Terms, provided that nothing in this Clause 8.2 shall operate to limit or exclude any liability for fraudulent misrepresentation between TLP and the Client.
The terms “Personal Data”, “Data Controller”, “Data Subject”, “Data Processor” and “process/processing” (and their derivatives) used in this clause 9 have the meaning given in applicable Data Protection Legislation. References to “consent” mean a form of consent which complies with the requirements of Article 7 of the GDPR. “Client Data” means any Personal Data (other than Personal Data related to the Candidate) held and processed by the Client, whether as a data controller or data processor.
Each Party shall comply with the provisions and obligations imposed on them by the Data Protection Legislation when processing Personal Data under this Agreement.
The Parties acknowledge that for the purposes of the Data Protection Legislation, each Party shall be considered to be a Data Controller with respect to Personal Data processed in connection with this Agreement.
To the extent that a Party processes any Personal Data on behalf of the other Party, the processing Party shall: (a) comply with the provisions and obligations imposed on a processor by the GDPR, including the stipulations set out in Article 28(3)(a)-(h) which form a part of, and are incorporated into, this Agreement as if they were set out in full, and the reference to “documented instructions” in Article 28(3)(a) shall include the provisions of this Agreement; and (b) not disclose any Personal Data to any Data Subject or to a third party other than at the written request of the other Party or as expressly provided for in this Agreement.
If either Party receives any complaint, notice or communication which relates to the processing of Personal Data by the other Party or to either Party’s compliance with the Data Protection Laws, or if any Personal Data processed in connection with this Agreement is subject to a personal data breach (as defined in the GDPR), it shall immediately notify the other Party and provide the other Party with reasonable co-operation and assistance in relation to any such complaint, notice, communication or personal data breach.
The Client warrants and undertakes that:
it shall be responsible for notifying the Candidate of its fair processing information and securing any personal undertakings from the Candidate as the Client (or any customer of the Client) may require in relation to the Candidate’s access to and processing of Client Data. TLP shall not, unless otherwise agreed in writing by the Parties, be responsible or liable for:
ensuring that the Candidate receives the Client’s fair processing information; or
ensuring that the Candidate receives notice of the Client’s fair processing information; or
securing any consents the Client may require from the Candidate in relation to the processing of the Candidate’s personal data; or
ensuring that the Candidate processes Client Data in accordance with applicable Data Protection Legislation;
TLP shall not be involved in the processing of Client Data; and
where the Candidate has access to or otherwise processes Client Data, the Client’s data processing policies shall apply to such processing.
The Client shall do nothing to place TLP in breach of Data Protection Legislation.
The Client shall indemnify TLP for any losses TLP incurs or suffers arising from any breach of the Client’s obligations under this clause 9.
For the purposes of the Conduct Regulations TLP shall operate as an employment agency in relation to the Client.
These Terms are personal to the Client and it shall not be entitled to assign or sub-contract its obligations or rights under these Terms to any third party without the prior written consent of TLP. TLP shall however be entitled to assign its obligations or rights under these Terms and, upon such assignment, without prejudice to the assignor’s rights in respect of matters arising prior to such assignment, all references to TLP shall be deemed to refer to the assignee.
No variation or amendment to these Terms is effective unless it is in writing and signed by a director of TLP.
These Terms shall be governed by and construed in all respects in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
If any provision or any part of these Terms is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
such provision or part shall to that extent be deemed not to form part of these Terms but the enforceability of the remainder of these Terms shall not be affected;
to the extent permitted by law, TLP and the Client shall negotiate in good faith a replacement to any provision severed under Clause 9.5.1 by a provision which is of similar effect but which is not illegal or unenforceable.
None of the provisions of these Terms is intended to be for the benefit of, or enforceable by third parties (other than permitted assignees of TLP who shall be entitled to enforce the provisions of these Terms as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
“Annual Remuneration” the annual salary or fees of the Candidate Engaged by the Client, including (without limitation) base salary or fees and a figure for the value of guaranteed and/or anticipated benefits (including the benefit of a company car), inducement payments, bonuses, commission and allowances (including car allowances) and any other payments or Benefits in Kind provided or made available to the Candidate which form part of the total remuneration package for the period of 12 Months from the date of commencement of the relevant Candidate’s Engagement whether the Candidate remains Engaged by the Client for the full 12 Months or not (without limitation to any Rebate that may become payable pursuant to Clause 5);
“Benefit in Kind” any benefit offered to the relevant Candidate in addition to salary or fees which is taxable as a benefit in accordance with Inland Revenue rules from time to time in force;
“Business Day” any day (other than Saturday or Sunday) on which clearing banks are open for business in London;
“Candidate” a person Introduced to the Client to be considered by the Client for Engagement;
“Client” a person who approaches TLP with a view to Engaging a Candidate or to whom a Candidate is Introduced by TLP;
“Company’s Group” TLP, any body corporate of which TLP is a subsidiary (as defined in section 1159 of the Companies Act 2006, as amended), any other subsidiary of such body corporate and any subsidiary of TLP;
“Conduct Regulations” The Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“CV” a Candidate’s curriculum vitae and any other details, documentation or information supplied by TLP to the Client relating to a Candidate;
“Data Protection Legislation” Any laws and regulations in any relevant jurisdiction relating to privacy or the use or processing of data relating to natural persons, including: (a) EU Directives 95/46/EC and 2002/58/EC (as amended by 2009/139/EC) and any legislation implementing or made pursuant to such directives, including (in the UK) the Data Protection Act 1998 (the “DPA”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) from 25 May 2018, EU Regulation 2016/679 (“GDPR”); and (c) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR or DPA; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.
“Engagement” the employment, engagement, hire or other use, directly or indirectly, of a Candidate on a permanent, temporary or other basis, whether under a contract of service or contract for services, or under an agency, licensee, franchise, partnership agreement or otherwise, and “Engage”, “Engaging” and “Engaged” shall be construed accordingly;
“Interview” a face to face meeting (in person or by video link) or telephone conversation between the Client and a Candidate, or, where the Candidate is a limited company, a representative of the Candidate, and “Interviewing” and “Interviewed” shall be construed accordingly;
“Introduction” directly or indirectly introducing a Candidate, or, where the Candidate is a limited company, a representative of the Candidate, by way of CV, Interview, meeting or referral, by telephone or otherwise, following the Client’s instruction to TLP to search for a Candidate, and “Introduce”, “Introducing” and “Introduced” shall be construed accordingly;
“Month” means a calendar month;
“Rebate” any rebate of the Recruitment Fee pursuant to Clause 5;
“Recruitment Fee” the fee payable to TLP by the Client upon any Engagement pursuant to these Terms;
“Terms” the terms between TLP and the Client comprising the terms set out in this document including the Schedule(s);
“TLP” TLP Consultancy Limited (Company No. 3161509) whose registered office is at Abacus House, 367 Blandford Road, Beckenham, Kent BR3 4NW; and
“Week” means seven consecutive days.
These Terms are effective from May 2018 and replace all previous terms and conditions issued by TLP.
Ref: K/ITRIS Standard Forms/Permanent Terms and Conditions 21.05.18