Terms of Business
These Terms of Business apply to the delivery of services by ACTIVE HUMAN CAPITAL LTD, whose registered business is at Victoria Square House, Victoria Square, Birmingham B2 4BU to an employer client pursuant to a letter engaging ACTIVE HUMAN CAPITAL LTD to do so (“the Proposal Letter”).
Definitions
The meanings of the following words and phrases which are widely used in these Terms of Business shall be as set out below:
Services - the services to be delivered by us under the Proposal Letter.
Proposal Letter - the document detailing the services to be delivered and associated costs. This may be provided in either hard copy or by electronic transmission.
ACTIVE HUMAN CAPITAL LTD or we (or derivatives) - is the contracting party.
You (and derivatives) - the addressee (or addressees) of the Proposal Letter.
ACTIVE HUMAN CAPITAL LTD Persons - ACTIVE HUMAN CAPITAL LTD, each and all of our directors, employees, agents and partners, as the case may be, together with any other body or entity controlled by us or owned by us or associated with us and each and all of its members, directors, employees and agents and “ACTIVE HUMAN CAPITAL LTD Person” shall mean any one of them.
Services Contract - these Terms of Business and the proposal Letter, together with any documents or other terms applicable to the Services to which specific contractual reference is made in the Proposal Letter.
These definitions shall apply wherever these words and phrases are used in the Services Contract.
Our Services and Responsibilities
1) In the Proposal Letter we shall set out details of the services to be delivered by us. These include executive recruitment, management review and assessment (including psychometric testing) and other recruitment, retention and assessment related services.
2) The Services shall be delivered with reasonable skill and care.
3) We may acquire information concerning your business or affairs in the course of delivering the Services (“Confidential Information”). In relation to Confidential Information we shall comply with usual confidentiality standards and we shall adhere to the confidentiality restrictions imposed on us by any other authority with whose requirements we are bound to comply, as well as any imposed on us by law. We shall be entitled to comply with any requirement of the law, or any other authority with whose requirements we are bound to comply to disclose Confidential Information. This clause shall not apply where Confidential Information properly enters the public domain or where we wish to disclose it to our professional indemnity insurers or advisers or where information comes into our possession from another source without that source having breached any confidence of which we are aware.
4) Where we introduce a candidate to you for possible recruitment by you (“Candidate”), whether by means of releasing a long-list or short-list of potential Candidates prepared by us or otherwise, we shall do so on a confidential basis. Neither you nor we shall approach or make any contact with a Candidate’s employer or (as may be appropriate) business partner/s (if any) or referee without the prior consent of the Candidate concerned.
5) We shall prepare a report following any interviews by us of any potential short listed Candidates (“the Candidate Report”) and may produce or commission advertising or other material concerning you or your requirements (“Other Materials”). We shall release our Candidate Report to you on the basis that any Candidate introductions or Candidate Reports are for your benefit and information only and shall not be copied, referred to or disclosed, in whole or in part, without our prior written consent.
6) Our Candidate Report shall not amount to any final assessment or recommendation of a specific Candidate. Responsibility for selection of the Candidate of choice will remain with you.
7) We shall, where you ask us to do so, and to the extent reasonably possible, assist you in obtaining references and confirming the professional qualifications claimed by a Candidate whom we introduce to you. In relation to any such Candidate you shall be responsible for deciding on the adequacy of references and confirming the existence of academic qualifications claimed by a Candidate, obtaining work or any other permit that may be required and arranging for any necessary medical examinations or investigations prior to recruitment.
8) We shall comply with relevant legislation including equal opportunity, sex discrimination and race relations legislation in force when the Services are provided.
9) We shall not, directly, solicit the employment of any of your partners, directors or employees from within the specific area or business unit of your business to which the Services are provided, as the case may be, while the Services are being performed or for a period of six months following their completion or following termination of the Services Contract, without your prior written consent. This prohibition shall not prevent us at any time from running recruitment advertising campaigns and receiving and processing, if necessary to recruitment, responses to them from your partners, directors or employees.
Limitation of Liability
10) In the particular circumstances of the Services set out in the Proposal Letter, the liability to you of each and all ACTIVE HUMAN CAPITAL LTD persons in contract or tort or under statute or otherwise for any indirect or consequential economic loss or damage (including loss of profits) suffered by you (or by any such other party) arising from or in connection with the Services, however the indirect or consequential economic loss or damage is caused, including our negligence but not our fraud or other deliberate breach of duty, shall be excluded.
11) The aggregate liability to you in contract or tort or under statute or otherwise, for any direct loss or damage suffered by you (or by any such other party) arising from or in connection with the Services, however the direct loss or damage is caused, including our negligence but not our fraud or other deliberate breach of duty, shall be limited to £50,000.
Terms of Payment
12) We shall render invoices in respect of the Services comprising our fees, outlays and VAT thereon (where appropriate), plus any overseas taxes that might be payable thereon or deductible therefrom (“our Charges”). In return for the delivery of the Services by us, you shall pay our Charges on presentation of the invoice concerned. Media charges will be paid in full prior to media space being confirmed. If payment of our charges is delayed for any reason we reserve the right to charge interest at our Bank's Lending Rate for the period the debt remains unpaid.
Our Charges
13) Our fee for executive recruitment shall equal a percentage of the annual cash compensation (“the Compensation”) of the Candidate concerned (“the Percentage”). The Percentage to be applied shall vary according to the nature of the Services:
- Where the Services involve our searching for and identifying a Candidate or Candidates for you without advertising your requirements (“executive search”), the Percentage shall be 33%;
- Where the Services involve our advertising your requirements and identifying a Candidate or Candidates for you (“advertised executive selection”), the Percentage shall be 25%;
- Where the Services involve a combination of a limited (up to 10 agreed targets) executive search campaign and advertised executive selection, the Percentage shall be 30%.
Additional outlays shall be charged (see para. 18)
The Compensation shall for these purposes comprise annual starting salary or (as may be appropriate) expected initial annual drawings plus any guaranteed or reasonably anticipated bonus but shall exclude any payment made to the Candidate on recruitment, any stock incentives and the value of any other fringe benefits. If a Candidate’s remuneration is performance related, the Compensation shall comprise the amount reasonably estimated by you [and agreed by us] to be earned by the Candidate during the first year following recruitment.
Where the Services involve psychometric or other testing of Candidates, additional charges shall be payable and will be detailed in the Proposal Letter.
Any other Services provided by ACTIVE HUMAN CAPITAL Ltd will be detailed, together with pricing in the Proposal Letter.
14) Promptly following our engagement to deliver the Services we shall estimate the likely Compensation to be paid by you to the successful Candidate (“the Compensation Estimate”). We shall render two interim invoices on the basis of the Compensation Estimate as set out below and any adjustment made necessary due to the remuneration terms agreed with the Candidate recruited shall be made at the time of the third and final invoice. We shall render these three invoices in respect of our Charges in stages as follows:
14.1 On commencement of your engagement of us, one third of the Percentage applied to the Compensation Estimate shall be charged.
14.2 On presentation by us of a short-list of Candidates to you, one third of the Percentage applied to the Compensation Estimate shall be charged.
14.3 On acceptance of a position with you by a Candidate shortlisted by us, the balance outstanding to total the Percentage applied to the Compensation Estimate shall be charged. If the Percentage is lower than the amount already paid by you, no refund shall be payable by us.
15) For certain Engagements, including Non- Executive appointments, our fee shall be set as a fixed amount rather than as a percentage of Compensation. Invoices are rendered in three equal instalments staged as set out under paragraph 14.
16) Any potential Candidate identified by you shall be interviewed and assessed by us and if such a Candidate is shortlisted and subsequently recruited our Charges shall be payable in full. Where you recruit more than one Candidate from a short-list supplied by us, a fee of 20% of the Compensation Estimate of each additional Candidate shall be charged in addition to the fee for the substantive appointment. This additional charge shall apply to any additional Candidate recruited within the eighteen months period following the recruitment of the substantive Candidate.
17) If you terminate the Services Contract at any time after the second stage invoice is raised then the Percentage of the Compensation Estimate shall be charged on a proportionate basis of the final stage. If you terminate the Service Contract at any time during delivery of the first or second stage (as defined in para. 14) then you will be charged for the first and second stage.
18) Outlay Charges which shall form part of our Service shall include assignment advertising and related costs incurred by us, application and presentation pack costs incurred by us, travelling and subsistence expenses incurred by us and by Candidates attending interviews and an amount, equal to 10% of the value of our fees, to cover communication and research costs, and incidental expenses. Detailed breakdowns of outlays shall not normally be supplied as they are aggregated costs and subject to confidentiality.
19) If a Candidate introduced by us leaves you within six months of recruitment (from the date they agree to join you) for any reason other than corporate restructuring or takeover, and providing the job specification remains the same, we shall present a new short-list of Candidates. We shall not charge an additional fee for doing so, unless the Percentage of the Compensation of a Candidate recruited by you from the new short-list exceeds the fee already paid in respect of the original Candidate, in which event our fee shall equal the excess. Additional outlays shall be charged (see Para.18).
Your responsibilities
20) You shall retain responsibility and accountability for:
20.1 making any decision affecting the Services, your investigations relating to any Candidate introduced by us, your appointment of any such Candidate, your interests or your affairs
20.2 the accuracy, completeness and suitability of any Other Materials (as defined in clause 5)
20.3 ensuring any Candidate recruited by you fulfils your expectations and delivers any benefits directly or indirectly expected from their recruitment and employment by you.
20.4 fulfilling any monitoring and recording keeping requirements under any relevant legislation.
Information
21) We may rely on any information supplied by any person whom we know to be or reasonably believe to be authorised by you to communicate with us. Save that, to facilitate delivery of the Services, we shall make reasonable assessments of information supplied by you, we shall not be required to make any enquiries in respect of accuracy or completeness.
The Services Contract
22) The Services Contract sets out the entire agreement and understanding between us in connection with the Services. Any modifications or variations to the Services Contract must be in writing and signed by an authorised representative of each of us. In the event of any inconsistency between the Proposal Letter and any other elements of the Services Contract, the Proposal Letter shall prevail.
23) Neither of us shall have the right to assign the benefit or burden of the Services Contract without the written consent of the other of us.
Termination and Severability
24) Each of us can terminate the Services Contract or suspend its operation by giving 30 days’ prior notice in writing to the other at any time. In that event all sums due to us when termination or suspension takes effect shall become payable in full at that time.
25) Each clause or term of the Services Contract constitutes a separate and independent provision. If any of the provisions of the Services Contract are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
Capacity
26) You agree to and accept the provisions of the Services Contract on your own behalf and as agent for any and each person or organisation whose activities you may either represent or control.
27) We accept your agreement to and acceptance of the terms of the Services Contract on our own behalf and as agent and trustee for each and all of our directors, employees, partners and agents, together with any other body or entity controlled by us or owned by us or associated with us and each and all of its directors, employees and agents.
Law and Jurisdiction
28) The Services Contract shall be subject to and governed by English law and all disputes arising from or under the Services Contract shall be subject to the exclusive jurisdiction of the English courts.
Complaints
29) If at any time you would like to discuss with us how the Services can be improved or if you have a complaint about them, you are invited to contact Richard Boot FCA Chairman ACTIVE HUMAN CAPITAL LTD by writing to him at Victoria Square House, Victoria Square, Birmingham. B2 4BU. He will investigate any complaint promptly and do what we can to resolve the difficulties.
|
