Client Terms of Business

1. Interpretation: The following definitions and rules of interpretation apply in this Agreement. 

1.1 Definitions

“Business Day" A day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
     
“Cancellation Fee” Means the fee payable by the Client to Cyber Vacancies  when the Client withdraws an offer of Engagement made to the Candidate before the Candidate has accepted the offer and calculated in accordance with the Key Contract Terms;

 “Candidate” Means the person Introduced by Cyber Vacancies  to the Client for an Engagement including any officer, employee or other representative of the Candidate if the Candidate is a corporate body, and members of Cyber Vacancies  ’s own staff;       

“Charges” Means the charges set out in the Key Contract Terms and as calculated in accordance with these terms;   “Client” means either (a) the client named in the Key Contract Terms or (b) the party that had deemed to have accepted these terms under clause 2.3;  
“Client’s Group” Means any individual, company, partnership, statutory body or other entity which from time to time Controls the Client, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006;  

“Commencement Date” Has the meaning given to that term in clause 2.3;  

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;  

“Data Protection Laws” means the Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) and any applicable statutory or regulatory provisions in force from time to time relating to the protection and transfer of personal data;  

“Engagement” means the engagement (including the Candidate’s acceptance of the Client’s offer), employment or use of the Candidate by the Client or by any third party to whom the Candidate has been introduced by the Client, on a permanent or fixed term basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Candidate is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;  

“Introduction” Means (i) the passing to the Client of a curriculum vitæ or information which identifies the Candidate or (ii) the Client’s interview of a Candidate (in person, by telephone or by any other means), following the Client’s instruction to Cyber Vacancies  to search for a Candidate; and, in either case, which leads to an Engagement of the Candidate; and “Introduces” and “Introduced” shall be construed accordingly;  

“Introduction Fee” Means the fee payable by the Client to Cyber Vacancies  , calculated in accordance with Key Contract Terms, for an Introduction resulting in an Engagement;

“Key Contract Terms” Means the terms set out in the document headed Key Contract Terms;

“Losses” Means direct losses, liabilities, damages, costs, expenses, fines, penalties or interest, excluding indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges;

“Remuneration” Includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments and all other payments (taxable and non-taxable) payable to or receivable by a Candidate for services rendered to or on behalf of the Client;

“Services” Has the meaning given to that term in clause 2.1;

“VAT” Value added tax or any equivalent tax chargeable in the UK or elsewhere;

Clause and paragraph headings shall not affect the interpretation of this Agreement.

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 The Key Contract Terms form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Key Contract Terms. 
1.4 A reference to legislation or a legislative provision is a reference to it, and shall include all subordinate legislation made, as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes email but not facsimile.
1.6 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.

2. The Contract and Commencement
2.1 Cyber Vacancies  acts as an employment agency (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for direct Engagement by that Client (referred to herein as the “Services”).
2.2 This Agreement together with the Key Contract Terms constitute the entire agreement (“the Agreement”) between Cyber Vacancies  and the Client for the Services shall prevail over any terms of business or purchase conditions (or similar) put forward by the Client.  In the event of any conflict between the documents then the following order of precedence shall apply:(a) Key Contract Terms(b) These terms and conditions.
2.3 This Agreement shall commence on the date this Agreement is deemed to be accepted by the Client by its request for interview or meeting with, or Engagement of a Candidate or the passing of any information about a Candidate to any third party after an Introduction (the “Commencement Date”)

3. FEES
3.1 The Client agrees to: 
(a) issue a purchase order, if so required, to Cyber Vacancies  promptly;
(b) notify Cyber Vacancies  immediately of the terms of any offer of an Engagement which it makes to the Candidate;
(c) notify Cyber Vacancies  immediately that its offer of an Engagement to the Candidate has been accepted and to provide details to Cyber Vacancies  of the Remuneration agreed with the Candidate together with any documentary evidence as requested by Cyber Vacancies  ; and 
(d) pay either the Introduction, as specified and calculated in the Key Contract Terms, within the payment terms set out in Key Contract Terms.

3.2 Introduction Fee: The Introduction Fee is payable if the Client Engages the Candidate within the period of 12 calendar months from the date of (a) the Introduction, (b) the Client’s withdrawal of an offer of Engagement or (c) the Candidate’s rejection of an offer of an Engagement, (whichever is the later). The Introduction Fee shall be payable within the payment terms specified in the Key Contract Terms.
3.3 Estimating Remuneration: Where the actual Remuneration is not known, Cyber Vacancies  will calculate the Introduction Fee based on its determination of the Remuneration taking into account the market rate level of remuneration applicable for the position in which the Candidate has been Engaged and with regard to any information supplied to Cyber Vacancies  by the Client and/or comparable positions in the market generally.
3.4 Fixed Term Contracts: Where prior to the commencement of the Engagement Cyber Vacancies  and the Client agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata. If the Client (a) extends the Engagement beyond the initial fixed term or (b) re-Engages the Candidate within 12 calendar months from the date of termination of the agreed period of the fixed term Engagement, then the Client shall be liable to pay a further fee based on the additional Remuneration applicable for (a) the extended period of Engagement or (b) the period of the second and any subsequent Engagement, subject to the Client not being liable to pay a greater sum in Introduction Fee than the Client would have been liable for had the Candidate first been Engaged for 12 months or more. 
3.5 The Client’s obligations under this clause 3 shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights. For the avoidance of doubt the Client shall not be entitled to withhold payment on the grounds that the Client has not issued a purchase order for any reason.
3.6 VAT is charged at the standard rate on all fees. 
3.7 Cyber Vacancies  reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment. 
3.8 If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw it prior to the Candidate accepting the Engagement, the Client shall be liable to pay Cyber Vacancies  a Cancellation Fee.
3.9 In the event that any Cyber Vacancies  staff with whom the Client has had personal dealings accepts an Engagement with the Client while employed by Cyber Vacancies  or within 3 months of leaving CYBER VACANCIES , the Client shall be liable to pay Cyber Vacancies  a fee equivalent to the Introduction Fee calculated in accordance with the Key Contract Terms. For the avoidance of doubt, the Client shall not be entitled to a refund for any fee due under this clause 3.9 in any circumstances.

4. REFUNDS 
4.1 If, after an offer has been made and accepted, the Engagement (a) does not commence because the Candidate withdraws their acceptance; or (b) once it has commenced, is terminated by either the Candidate or the Client (except in circumstances where the Candidate is made redundant, the Client has otherwise changed their mind on the requirement for the role or the Candidate has resigned because the Client has significantly modified their job duties) before the expiry of 10 weeks from the date of commencement of the Engagement; then subject to the terms of clause
4.2 Cyber Vacancies  will refund the Introduction Fee in accordance with the Scale of Refunds set out in the Key Contract Terms.4.2 In order to qualify for the refund set out in clause 4.1 the Client must: 
(a) have paid all invoices raised by Cyber Vacancies  within the agreed payment terms; and
(b) notify Cyber Vacancies  in writing of the termination of the Engagement or the non-commencement of the Engagement within 7 days of its termination or non-commencement. 
4.3 For the purposes of this paragraph 4 the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client, but for any period of garden leave or payment in lieu of notice, whichever is the later. 
4.4 If subsequent to the Client receiving a refund the Candidate is re-Engaged within a period of 12 calendar months from the date of termination then the refund shall be repaid to Cyber Vacancies  . The Client shall not be entitled to any further refunds in relation to the re-Engagement of this Candidate.

5. INTRODUCTIONS TO THIRD PARTIES
Introductions of Candidates are confidential. If a Client discloses a Candidate’s details to a third party, that will be deemed to be a “Third Party Introduction”. If that Third Party Introduction results in an Engagement of the Candidate by the third party within 12 months of Cyber Vacancies’ Introduction of the Candidate to the Client, then the Client will be liable to Cyber Vacancies  for payment of an Introduction Fee. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under clause 4 in any circumstances.


6. SUITABILITY CHECKS 
6.1 Cyber Vacancies  endeavours to ensure the suitability of Candidates Introduced to the Client to work in the position which the Client seeks to fill by taking reasonably practicable steps to:
(a) ensure that it would not be detrimental to the interests of either the Client or the Candidate;
(b) ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body; and
(c) confirm that the Candidate is willing to work in the position.
6.2 Notwithstanding clause 6.1 the Client must satisfy itself as to the suitability of the Candidate for the position they are seeking to fill. The Client is responsible for: 
(a) taking up any references provided by the Candidate before Engaging the Candidate; 
(b) checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work; 
(c) the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.    

7. Data protection 
Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws. The parties have determined that for the purposes of Data Protection Laws each party shall act as independent controllers of the personal data.

8. Confidentiality
8.1 Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party except as permitted by clause 8.2.
8.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 8.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

9. Limitation of liability
9.1 Nothing in this this clause 9 shall limit the Client's payment obligations under this Agreement.
9.2 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
9.3 Cyber Vacancies  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 Cyber Vacancies  seeking a Candidate for the Client or from the Introduction to or Engagement of any Candidate by the Client or from the failure of Cyber Vacancies  to introduce any Candidate. 
9.4 Notwithstanding clause 9.3 above, the total liability of Cyber Vacancies  under this Agreement shall not exceed 100% of the total Introduction Fees paid by the Client to Cyber Vacancies  in the preceding 12 months before the Client raised a claim.

10. Termination
Without affecting any other right or remedy available to it either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or
(b) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

11. GENERAL
11.1 Assignment and other dealings This Agreement is personal to the Client and the Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement. Cyber Vacancies  may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
11.2 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
11.3 Severance. If any provision or part-provision of this Agreement 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 this Agreement.
11.4 No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
11.5 Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
11.6 Governing law. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
11.7 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.