TH Daniels Executive Search Limited Terms and Conditions
TH Daniels prides itself on building strong working relationships with its clients for their mutual benefit. However, to protect both parties in the case of any eventuality, TH Daniels requires these terms and conditions to be accepted by all clients.
Section 1 – Contract
1.1. In this Agreement, the definitions and interpretation set out in Schedule 1 shall apply.
1.1 The Client shall be deemed to have accepted and agreed to these terms and Conditions (which will prevail over any other terms and conditions put forward by the Client), when any of the following events occurs:
1.1.1. the Client signs this Agreement; or
1.1.2. an Applicant that is introduced by Company is interviewed by Client
1.2. The services provided by the Company will be Contingent Search Services, unless expressly agreed in writing by the parties by way of a separate appendix which is signed by both parties that Retained Search Services are to be provided.
1.3. These Terms shall apply to all business undertaken by the Company for the Client, to the exclusion of any other terms that the Company seeks to impose or incorporate, or which are implied by law, trade, practice or course of dealing.
Section 2 – Contingent Search Services and Applicant Placement
2.1 Unless otherwise agreed in writing between a Director of the Company and the Client prior to the services commencing, the Client shall pay the Introduction Fee to the Company if any Applicant who is Introduced is Engaged by the Client within 12 months of the date of any interview arranged by the Company (“Introduction Period”) irrespective of whether:
2.1.1 further interviews are organised by the Company or the Client;
2.1.2 the Company was the effective cause of the offer of Engagement;
2.1.3 the Applicant is Engaged in respect of a different role to the role to be fulfilled under the Original Instruction; and/or
2.1.4 the Engagement is the first or any subsequent Engagement of the Applicant during that Introduction Period.
2.2 Where the Company is providing Contingent Search Services, the Company shall invoice the Client for the Introduction Fee on the date that the Applicant starts the role with the Client.
Section 3 – Retained Search Services
3.1 Where the Company is providing Retained Search Services, the Client will pay to the Company an initial payment upon instructing the Company to act on its behalf, which will be set out in the appendix signed by the parties and will form part of the Introduction Fee. This initial fee is non-refundable irrespective of whether any offer of Engagement or Engagement is made by the Client, any withdrawal of the Client’s instructions to the Company, or any other termination of the Company providing services to the Client.
3.2 The remaining balance of the Introduction Fee will be payable upon Engagement and will be invoiced upon the date that the Applicant starts the role with the Client.
3.3 If the Client withdraws its instruction to the Company to proceed with Retained Search Services, a fee of £6,000 will be payable by the Client to the Company upon such withdrawal. For the avoidance of doubt, the withdrawal fee is payable in addition to any instalments of the Introduction Fee already invoiced to or paid by the Client.
3.4 If the Client engages a Non-Company Candidate to fulfil a role for which the Client has instructed the Company and has not withdrawn its instruction, the Client shall pay the Company a one-off sum of £12,000 upon demand.
Section 4 – Calculation of Introduction Fee
4.1 If the Company is providing Contingent Search Services, the Introduction Fee is 30% of the relevant Applicant’s Total Annual Commencing Remuneration.
4.2 If the Company is providing Retained Search Services, the Introduction Fee is an amount equal to a proportion of the relevant Applicant’s Total Annual Commencing Remuneration, as set out below:
| Total Annual Commencing Remuneration | Proportion |
|---|---|
| LESS THAN £200,000 | 30% |
| £200,000 AND ABOVE | 35% |
4.3 If the period of an Engagement is for less than twelve months, the Introduction Fee shall be prorated.
4.4 If any Engagement for a period of less than twelve months should become permanent, a further Introduction Fee shall be payable equal to the difference between the Introduction Fee which would have been payable if the Engagement had been permanent at the outset, and the Introduction Fee which has already been paid.
Section 5 – Replacement Employee Facility
5.1 If an Applicant leaves the Client’s employment within the first 8 weeks from the date on which the Applicant starts their role, (save where the Engagement is for a fixed period of less than 8 weeks) then the Company will use reasonable endeavours to provide a replacement Applicant for no additional fee provided that:
5.1.1 the Client has paid all Company invoices by the relevant due dates;
5.1.2 the Company has received notification of the Applicant leaving their employment, by email, within 7 days of the Applicant’s departure; and
5.1.3 the Applicant has not left their employment due to redundancy or a material change in the job description.
Section 6 – Payment
6.1 Unless otherwise agreed in writing, all invoices must be paid by the Client within 7 days of the invoice date. If invoices are not settled within 7 days then, without prejudice to its right to recover that payment from the Client and any other rights which the Company may have, the Company reserves the right to:
6.1.1 suspend provision of any services to the Client and shall be under no obligation to provide the replacement employee facility referred to in Section 5; and
6.1.2 remove any discount given from the standard Introduction Fees referred to in clause 4.1.
6.2 All sums referred to in these Terms are subject to VAT where applicable. Note this clause only applies for placements made within the UK.
Section 7 – Confidentiality and Personal Data
7.1 The Client undertakes that it shall use any information provided by the Company solely for the internal purposes of considering candidate details for recruitment purposes and agrees to:
7.1.1 keep such information strictly confidential;
7.1.2 not publish all or any part of the information;
7.1.3 not allow any Applicant to see all or any part of the information;
7.1.4 not divulge or disclose all or any part of the information to any third party;
7.1.5 not make any approach to any Applicant’s present or prior employers (whether to obtain a reference or for any other reason) without the Applicant’s prior written consent; and
7.1.6 permit access to the information only to those of its officers or employees who need to know the information and, without limiting the liability of the Client for breach of this section, the Client shall ensure that its officers and employees also comply with the provisions of this section.
7.2 If requested by the Client, the Company will assume responsibility for gaining consent from the candidate to be reference checked. This will otherwise be the responsibility of the Client.
7.3 Each party acknowledges that it shall act in the capacity of an independent controller for the purposes of the Data Protection Legislation and shall comply with all the obligations imposed on a controller under the Data Protection Legislation.
Section 8 – Liability of the Company and Client
8.1 The Client agrees and acknowledges that the information provided to it by the Company is provided on the assumption that it is not used as the sole basis of the decision of the Client regarding whether to Engage an Applicant. The Company does not take up references on Applicants unless it specifically agrees to do so, and the Client is advised and recommended to do so before making any offers of Engagement.
8.2 Subject to clause 8.3, the Client acknowledges and agrees that:
8.2.1 information supplied to the Client regarding Applicants will represent or be based on information provided to the Company by third parties, which is therefore outside of the Company’s control;
8.2.2 the Company does not make any warranty (express or implied) as to the accuracy or completeness of any information provided in relation to an Applicant or the validity of any advice given or opinion expressed on the basis of such information or as to the suitability of any Applicant for any Engagement by the Client;
8.2.3 the Company shall not be liable to the Client (a) any indirect or consequential loss or loss of profits incurred by the Client or (b) for any loss, liability, damage, costs, claims or expenses suffered or incurred by the Client arising (either directly or indirectly) from or connected with:
(i) its use of any
information provided by the Company in relation to an Applicant or its reliance upon any advice or opinion expressed on the basis of such information or otherwise;
(ii) the interviewing or Engagement of any Applicant (including in relation to any claim made by an Applicant);
(iii) any act or omission of an Applicant in pursuing his/her employment duties;
8.2.4 the Company shall not under any circumstances be liable to the Client whether in contract, tort (including negligence) for breach of statutory duty or otherwise howsoever arising in respect of:
(i) will not be liable for any direct loss of profit (whether actual or anticipated); or
(ii) any indirect, economic or consequential loss or damage; and
8.3 The Company does not exclude its liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation, or for any other liabilities which cannot be excluded at law.
Section 9 – Termination
9.1 Upon termination or expiry of these Terms the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of any Introduction Fees for which the Client is liable but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.
9.2 Termination or expiry of these Terms shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination.
Section 10 – Notice
10.1 Any notice given to a party under or in connection with these Terms shall be in writing and shall be sent by email to the email address used by the applicable party in connection with these Terms from time to time. Notices shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
Section 11 – General
11.1 These Terms form the entire agreement between the parties and any variations (including any additions) to the Terms must be agreed in writing by a director of the Company.
11.2 If any variations to these Terms have been agreed, and the Client subsequently Engages an Applicant without notifying the Company of such Engagement in writing within 14 days of its commencement, then the agreed variations to these Terms shall cease to have effect, and the original terms set out herein shall apply.
11. 3 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms. If any provision or part provision of the Terms is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
11.4 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
11.5 A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.
11.6 These Terms shall be governed by the law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
Schedule 1 – Definitions
In these Terms:
“Applicant” means a person Introduced by the Company to the Client;
“Client” means COMPANY NAME, NUMBER AND REGISTERED ADDRESS;
“Company” means TH Daniels Executive Search Limited, a company registered in England and Wales with company number 12356862, acting as an employment agency;
“Contingent Search Services” means services provided by the Company to locate one or more candidates to fulfil a particular role or roles within the Client where the Introduction Fee is only payable when the Applicant starts their role. ;
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK which apply to a party relating to the use of Personal Data, including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
“Engagement” means the engagement, employment or other use of the Applicant by the Client (whether for the position originally advertised or otherwise) whether as an employee, partner, consultant or otherwise (and whether on an employed or self-employed basis) or an offer of the same by the Client which is subsequently accepted by the Applicant and “Engaged” and “Engages” shall have the equivalent meanings;
“Introduction” means the Client’s receipt of a CV or profile of a potential candidate from the Company (whether in paper, electronic or other format) and “Introduced” shall have the equivalent meaning;
“Introduction Fee” means the fee payable by the Client to the Company in the circumstances specified in these Terms, as calculated by reference to clause 4.1;
“Non-Company Candidate” means any person Engaged by the Client who was not Introduced by the Company, including but not limited to candidates sourced by the Client itself, by third parties, other employment agencies or former employees re-engaged by the Client;
“Original Instruction” a role in respect of which the Company was appointed to provide Contingent Search Services or Retained Search Services (as applicable).
“Party” means a party to these Terms (being the Client and the Company respectively) and “Parties” shall be construed accordingly;
“Retained Search Services” means services provided by the Company to locate one or more candidates to fulfil a particular role or roles within the Client where the Client pays an initial non-refundable fee and then a further fee when the Applicant starts their role. ;
“Total Annual Commencing Remuneration” means such amount as is equal to the first year’s annual remuneration including basic salary and any guaranteed compensation including guaranteed bonuses or commissions, one-off payments upon joining the company and full monetary value of car allowances (or the actual provision of a company car which shall be deemed to be valued at £8,000 per annum).
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
The headings in these Terms are for convenience only and shall not affect their interpretation.