Terms and Conditions
Definitions & Interpritations
1.1 In these Terms and Conditions the following words, expressions or phrases shall have the following meaning: "Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business; "Candidate" means a person introduced by the Company to the Client or in respect of whom, or in respect of whose skills or services, information is provided to the Client by the Company either following the request by the Client to provide the Services or through an unsolicited introduction of that Candidate to the Client; "Company" means Hartmann Young Limited; "Conditions" means these Terms and Conditions as amended; "Contract" means the contract between the Company and the Client for the supply of Services in accordance with these Terms and Conditions; "Client" means any person, firm or corporate body together with any holding, subsidiary or associated company (each as defined in the Companies Act 2006) to which a Candidate is introduced in connection with the provision of the Services; "Engagement" means the offer of employment to a Candidate in any capacity whatsoever whether as an employee, partner, consultant or otherwise on either a permanent or fixed term contract basis, verbally or in writing and "Engaged" and "Engages" shall have the equivalent meanings; "Introduction" means submission and receipt of a CV or profile of a person (whether in paper, electronic or other format) to the Client and "Introduced" shall have the equivalent meaning; "Introduction Fee" the fees due to the Company as set out in condition 5; "Remuneration" means the gross remuneration paid or agreed to be paid to a Candidate in respect of the first year of the Engagement which (so far as possible) shall include the total gross amount of the following: signing on payments or the value of other benefits granted to the Candidate as a condition of their accepting employment including shares or stock of the Client whether listed or unlisted (which, where shares or stock are listed, shall be valued at the difference between the subscription price payable by the Candidate and the closing mid-market price on the Business Day immediately preceding the day that the candidate commences the Engagement and where unlisted shall be based on the value represented to the Candidate by the Client on or prior to the Engagement offer less the subscription price paid by the Candidate), base salary or fees, bonus or commissions whether guaranteed, or estimated, forecasted or projected by the Client to the Candidate at the date of Engagement as on target earning potential, profit share or performance bonuses (which shall be based on projected values), pension contributions, the full monetary value of housing and living allowances, all weightings (including any compensation for living away from his/her home location), one-off payments (including any relocation allowances), the provision of private medical cover which will be deemed for these purposes to have a value of £2,500, the value of any share or stock options that can be exercised within the first twelve months of the Engagement (which, where shares or stock are listed, shall be valued at the difference between the option price and the closing mid-market price on the Business Day immediately preceding the day that the candidate commences the Engagement and where unlisted shall be based on the value represented to the Candidate by the Client on or prior to the Engagement offer), and where a car is provided an amount of either £10,000 or the full amount of the cash 3 alternative (as agreed between the Company and the Client) and any other contractual benefits which form part of the total remuneration package or other taxable emoluments offered to the Candidate; "Services" means the recruitment service provided by the Company to the Client by way of search or advertisement.
1.2 In these terms & Conditions
1.2.1 a reference to a statute or statutory provision is a reference to it as amended or re-enacted and a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.2 references to the singular or the plural and vice versa and a reference to any gender include references to all genders and words importing companies shall be treated as importing individuals and vice versa;
1.2.3 the headings in these Terms and Conditions are for convenience only and shall not affect their interpretation;
1.2.4 any phrase introduced in these Terms and Conditions by including, include in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes fax and email.
2. BASIS OF CONTRACT 2.1 All Services undertaken by the Company for the Client are governed by these Terms and Conditions. No variation or alteration of these Terms and Conditions shall be valid unless agreed in writing by the Company.
2.2 Following receipt of these Terms and Conditions by the Client, any act by the Client of accepting or requesting Services from the Company which shall include the interviewing or the arrangement of an interview, or offering of an Engagement, or using in any way information from the Company relating to a Candidate, is deemed to be and shall constitute the Client's acceptance of these Terms and Conditions.
2.3 In the event of a conflict between these Terms and Conditions and any other agreement between the Client and the Company, these Terms and Conditions shall prevail.
2.4 The Client shall at its own cost co-operate with the Company to such extent and provide to the Company such information and assistance as the Company shall reasonably require to enable the Company to perform its obligations under these Terms and Conditions and to enable Remuneration to be calculated.
3. SERVICES The Client may engage the Company to undertake the following Services:
3.1 Executive Search and Selection: here the Company is appointed to locate one or more candidates to fulfil a particular role or roles within the Client and will provide the Client with a shortlist. The Company will undertake the Service by what means it considers appropriate but which again will usually involve a direct approach to potential candidates. Where a Client appoints the Company to provide Executive Search and Selection it shall do so on an exclusive basis. If, during the period the Company is retained to supply the Executive Search or Selection Services to fulfil a role ("Assignment") and for a period of 12 months after the Company has ceased to provide such services in respect of that Assignment, the 4 Client Engages a person, other than a Candidate, to fulfil a role in relation to the Assignment (irrespective of whether the person is sourced from a third party, by the Client or whether the person is or was previously Engaged by the Client or otherwise) it shall, in relation to such Engagement, pay the Company the Introduction Fee that would have been payable had such person been Introduced by the Company.
3.2 Contingent Search: here the Company is requested to locate one or more Candidates to fulfil a particular role or roles within the Client on a non-exclusive basis. The Company will undertake this Service by whatever means it considers appropriate but usually this will involve a direct approach to potential candidates.
4. Notifications of Acceptence
4.1 The Client shall notify the Company immediately after any offer of Engagement has been accepted (whether verbally or in writing) and shall provide written details of the Candidates Remuneration to the Company. If by the date the Candidate begins his or her Engagement for whatever reason the Company is unable to ascertain the Remuneration, the Company shall be entitled to make a reasonable estimate of the Candidate's Remuneration based on current market conditions and any information previously supplied by the Candidate and such reasonable estimates shall be deemed to be the Candidate's Remuneration for the purposes of these Terms and Conditions.
4.2 Where the Candidate's Remuneration is greater than the Company's original estimate of the Remuneration, the Company reserves the right to invoice the Client for the difference. The Client shall not be entitled to any refund in the event that the Remuneration is less.
5. FEES 5.1 The Client shall be liable to pay an Introduction Fee as set out in condition
5.2 if the Client makes an offer of Engagement to a Candidate which results in Engagement of that Candidate by the Client. The Introduction Fee shall be payable where an Engagement takes place at any time within 12 months from the date of the Introduction of the Candidate to the Client by the Company. 5.2 Fees will be calculated and invoiced in sterling. The Introduction Fee is calculated as a percentage of a Candidate's total Remuneration as follows: Remuneration Proportion Up to £24,999 30% £25,000 to £99,999 35% £100,000 to £199,999 38% £200,000 plus 40% 5.3 Where the Introduction Fee relates to the appointment of a Candidate as a non-executive director or consultant then the Introduction Fee will be calculated as above but subject to a minimum amount of £30,000. The Introduction Fee in respect of the Introduction of Candidates appointed to commission-only roles will be calculated as above but subject to a minimum Introduction Fee of £20,000.
5.4 Where the Candidate is engaged on a fixed term basis for a period of less than one year, the Introduction Fee shall be calculated on a pro-rata basis where all elements specified in the definition of 5 Remuneration are taken into account. After any Engagement for a period of less than one year should the contract become permanent the standard Introduction Fee applicable shall be payable by the Client to the Company.
5.5 An additional charge will be made to the Client for out of pocket expenses necessarily incurred in performing the obligations of the Company under these Terms and Conditions for example, but not limited to, accommodation and travel expenses.
6. PAYMENT TERMS 6.1 Where Contingent Search Services are provided the Introduction Fee is payable in one instalment: all of which is chargeable and payable once the Candidate provides written acceptance of the Client's offer (or, if sooner, on the date the Engagement of the Candidate commences).
6.2 Where the Company provides Executive Search and Selection Services the Introduction Fee is payable in three instalments: one third of the fee is chargeable and payable on the Client requesting the Company to act on its behalf; one third of the fee is chargeable and payable on presentation of shortlist and the final balance of the Introduction Fee is chargeable and payable when a Candidate provides written acceptance of the Client's offer (or, if sooner, on the date the Engagement of the Candidate commences). The first and second instalment will be based on an estimate of the Remuneration and is non-refundable irrespective of whether any offer of Engagement or Engagement is made by the Client.
6.3 All sums referred to in these Terms and Conditions are subject to VAT where applicable. All invoices must be paid within 7 days of the invoice date, unless previously agreed by the Company in writing. If invoices are not settled within 7 days then, without prejudice to its right to recover that payment from the Client, the Company shall be entitled to suspend provision of any Services.
6.4 In the event of late payment of an invoice the Company shall be entitled to charge the Client interest (both before and after judgement) on the amount unpaid at the rate of 4% per annum above the base rate of Barclays Bank plc for the time being (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the date payment becomes due until the actual date of payment. The right to charge interest shall be without prejudice to any other rights or remedies available the Company.
7. Circumstances where fees remain payable
7.1 The Client shall remain liable to pay the Introduction Fee to the Company: 7.1.1 if the offer of an Engagement or the Engagement itself is by any associated, holding or subsidiary Company of the Client;
7.1.2 if a Candidate introduced by the Company is rejected by the Client at any stage or a Candidate rejects an offer made by the Client and is then employed by the Client in any capacity within 12 months of rejection, including where a Candidate is re-introduced from another source within such period; and 7.1.3 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 that Candidate from accepting the Engagement after an offer of Engagement has been made. 7.2 The Client shall not have the right to assign the benefit of an Introduction made by the Company. If the Client directly or indirectly refers a Candidate to a third party which results in an Engagement of the Candidate by that third party the Client shall be liable to pay the Introduction Fee as if the Candidate 6 had been engaged by the Client on the same terms as the Candidate has been engaged by the third party. 7.3 Where the Company has provided Services to the Client, if in addition to the Candidate Engaged by the Client, the Client Engages any of the other Candidates who were identified by the Company at any time between the Introduction of such Candidate and the date 12 months following the appointment of the successful Candidate the Client shall pay the Company an Introduction Fee relating to such Engagement.
8. WITHDRAWAL/CANCELLATION FEES Where the Company is providing Executive Search and Selection Services if the Client withdraws the instruction to the Company to proceed with any Assignment, or materially alters its instructions submitted to the Company once the Assignment has started and accordingly the original Assignment is not concluded then a withdrawal/cancellation fee equivalent to 50% of the balance of the Introduction Fee (or agreed Assignment fee) that would have been paid had a Candidate been engaged that has not been invoiced at that date will be immediately due and payable. For these purposes the Introduction Fee shall be calculated using the Company's estimate of the total Remuneration of each of the positions to be filled by the Assignment. Where a salary band has been given for the position the estimate will be based on the salary at the upper end of the band. This withdrawal/cancellation fee will be payable in addition to any instalments that have already been invoiced to the Client. If the Assignment has been on hold for 12 weeks then it will be deemed to be indefinitely on hold and a withdrawal/cancellation fee will be payable
9. ADVERTISING FEES The nature of the advertising undertaken by the Company to locate a Candidate shall be determined by the Company however if a position requires additional advertising on behalf of the Client to what is considered reasonable by the Company, the Company reserves the right to charge the Client these additional costs provided that the advertising is previously been agreed by both parties.
10. REPLACEMENT SERVICE If a Candidate leaves the employment of the Client within the first 8 weeks from the date on which their Engagement commenced (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 Candidate for no additional fee, in the period of 3 months following the receipt by the Company of the notification and unless otherwise agreed with the Client provided that (i) the termination is not due to redundancy or a material change to the job description; (ii) all the Company's invoices have been paid by the due dates; (iii) the Company has received written notification of the Candidate's departure within 7 days of the Candidate ceasing to be employed; and (iv) the Client does not re-Engage the Candidate in any capacity in the following 12 months. If the Client does re-Engage the Candidate, the Client shall pay the Company an Introduction Fee in relation to the appointment of the replacement.
11. TERMINATION Without limiting its other rights or remedies, the Company may terminate the provision of the Services at any time with immediate effect by giving written notice to the Client. The Client may request that the Company cease to provide any Introductions to the Client at any time, where the services are terminated the Client shall remain liable for any payments due under the Conditions and any Introduction Fees due in respect of any Introductions made to the Client by the Company before the Company gives or receives such notice and any subsequent Engagements. 7
12. FORCE MAJEURE Neither the Client or the Company shall be in breach of these Terms and Conditions, nor liable for delay in performing, any of its obligations under these Terms and Conditions if such delay or failure results from events, circumstances or causes beyond its reasonable control.
13. CONFIDENTIALITY The Client undertakes to keep confidential the Introduction of the Candidate to the Client and all personal information relating to a Candidate, which is supplied to it by the Company. Such information is supplied for use by the Client solely in connection with assessing the suitability of the Candidate for an Engagement and the Client shall not be entitled to pass any such information to a third party, including an associated company. The Client shall indemnify the Company for any costs, claims, damages and expenses that the Company may incur as a result of the Client failing to keep such information confidential
14. INTELLECTUAL PROPERTY RIGHTS All intellectual property rights in or arising out of or in connection with the Services provided by the Company shall be owned by the Company. All Company materials are the exclusive property of the Company.
15. DATA PROTECTION The Client shall: 15.1 Comply with the Company's data protection policy and all data protection laws and regulations (including the Data Protection Act 1998); 15.2 Maintain appropriate technical and organisational security measures and procedures to prevent accidental or unauthorised persons gaining access to all or any part of the information relating to a Candidate provided by the Company; and 15.3 Inform the Company immediately on becoming aware of any unauthorised use and/or disclosure all or any part of any material relating to a Candidate.
16. ENTIRE AGREEMENT 16.1 These Terms and Conditions constitute the entire agreement between the Company and the Client and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 16.2 The Client agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions nor any claim for innocent or negligent misrepresentation (or negligent misstatement) based on any statement in these Terms and Conditions.
17. WAIVER 17.1 A waiver of any right or remedy under these Terms and Conditions or by law is only effective if given in writing, and shall not be deemed a waiver of any subsequent breach or default. 17.2 A failure or delay by any party to exercise any right or remedy provided in these Terms and Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict 8 any further exercise of that of any other right or remedy. No single or partial exercise of any other right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18. LIABILITY 18.1 The Company will use reasonable endeavours to ensure the suitability of the Candidate but it will not seek independent verification of the information supplied by a Candidate, nor seek and confirm references, unless it has specifically agreed to do so. No warranty either expressed or implied is given by the Company as to the suitability of the Candidate or as to the accuracy of any references supplied or qualifications of the Candidate.
18.2 All information given by the Company about a Candidate is given in good faith and in reliance of information given to the Company by the Candidate. It shall be the responsibility of the Client to take such steps as are necessary to satisfy itself of the suitability of the Candidate and to verify the accuracy of the information supplied by or any statement made by the Candidate. The Client acknowledges that information regarding Candidates is based on information provided to the Company by third parties whose accuracy the Company cannot control.
18.3 The Client shall be responsible for obtaining all work, security and other permits, verifying academic and professional qualifications, the arrangement of medical examinations and/or investigations into the medical history of the Candidate, and satisfying any other requirements or qualifications required by law for the position the Candidate is required.
18.4 The Company is obliged only to make Introductions on the basis agreed with the Client and, save as provided in condition 18.5, shall not be liable in contract, tort or otherwise for any loss, liability, expense, costs, claims or damage suffered or incurred by the Client arising from or in any way connected with the Introduction or Engagement of a Candidate or from the failure of the Company to introduce a Candidate or any prospective Candidate. 18.5 Nothing in these Terms and Conditions shall operate to limit the Company's liability for death or personal injury, which occurs as a result of the Company's negligence or that of its employees or agents.
19. LAW AND JURISDICTION 19.1 The Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 19.2 The Company and the Client irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims)