AstburyMcKinley

These Terms and Conditions of Business for Permanent and Fixed Term Contract Placements (the “Standard Terms”) regulate the relationship between Astbury McKinley Limited (“Astbury McKinley”) and the Client. They are effective from 1st January 2018 and supersede all previous terms issued by Astbury McKinley or the Client. Save as expressly provided for below, these form the entire agreement between the parties. Astbury McKinley has been assigned to Introduce to the Client, for an Introduction Fee, a Candidate for Engagement with the Client into a permanent or fixed term contract placement (“the Assignment”). These Standard Terms regulate permanent and fixed term contract and retained placements by Astbury McKinley to the Client only. Alternative terms and conditions (from time-to-time in place) apply to the placement of temporary workers. These are available on request.

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It is Agreed that:

 

1. DEFINITIONS

“Agreement” means these Standard Terms

"Candidate" means the person introduced to the Client by Astbury McKinley

"Client" means the person, firm or corporate body together with any subsidiary or associated company as defined by the Companies Act 2006 to whom the Candidate is supplied or Introduced

"Contingent Introduction" means the Introduction of a Candidate to the Client by Astbury McKinley other than a Retained Introduction. No prior specific instruction from the Client being required to affect a Contingent Introduction

"Engagement" means the engagement, employment or use of the Candidate by the Client, whether under a contract of service or for services, partnership or otherwise and “Engages” and “Engaged” shall be construed accordingly

“Executive Search” means the identification of potential senior managerial or executive role Candidates by Astbury McKinley and/or the Client and the targeting and direct approach of such Candidates by Astbury McKinley

"Astbury McKinley" means Astbury McKinley Limited, whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ, an employment agency as defined by section 13(2) of the Employment Agencies Act 1973

“Introduction” means the Client’s interview of a Candidate in person or by telephone following the Client’s instruction to Astbury McKinley to fill a vacancy or the passing to the Client of a curriculum vitae or other information by Astbury McKinley that identifies the Candidate and “Introduced” shall be construed accordingly

“Introduction Fee” means the percentage of the Remuneration set out in clause 3 (or any other fixed amount agreed by the parties)

"Remuneration" means the aggregate gross annual taxable emoluments payable to or receivable by the Candidate pursuant to the Engagement, including salary, bonuses, profit share, commission, pension, allowances, profit related pay and any signing-on payment or equivalent (contractual or otherwise and whether guaranteed or not) payable to or receivable by the Candidate during the first year of the Engagement or attributable to such period and paid subsequently. The value of payment of pension contributions (whether to the Client's or Candidate's own scheme) shall be calculated as the higher of the actual value of the contributions or £2,000 per annum. Bonus/profit share which is not guaranteed will be determined on the projected values. Any car, housing and/or relocation allowance shall be treated as part of the Candidate's taxable emoluments. The value of the provision of a company car shall be calculated as the higher of either the taxable benefit of the car provided or the figure of £4,000 per annum and provision of housing, accommodation and/or relocation allowance shall be calculated as the higher of either the value of the benefit or £2,000 per annum. Where the salary or any other element of the package offered to the Candidate is expressed to be net (i.e. after deductions) then, for the purposes of calculating the Remuneration, this will be grossed up to reflect the value prior to the deduction of tax

"Retained Introduction" means the Introduction of a Candidate to the Client by Astbury McKinley on the basis of a specific instruction to identify and select a suitable Candidate for the Client's vacancy. Such introductions will be conducted by Astbury McKinley on the basis of Executive Search, or Advertised Selection

“Schedule of Fees” means the attached schedule; and “Shortlist” means the list of Candidates sent by Astbury McKinley to the Client in either written or electronic form.

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Unless the context otherwise requires, references to the singular include the plural and vice versa. References to clauses or schedules are references to clauses or schedules of these terms unless the contract otherwise admits.

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2. THE CONTRACT

(a) These terms regulate the basis upon which Introductions are effected by Astbury McKinley and shall be accepted on signature and return of the terms by the Client to Astbury McKinley, or in the event of failure to do so, shall be deemed to be accepted by the Client upon the Client's request for details of Candidates or interview with Candidates (whether by telephone or in person).

(b) For the avoidance of doubt, Candidates become the employees of the Client during the term of the Engagement and the Client assumes all responsibility for the Candidate including, without limitation, the direct payment to the Candidate of all Remuneration.

(c) The Client undertakes to provide to Astbury McKinley details of the position which the Client seeks to fill, including the type of work that the Candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorisation the Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position; and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks. In addition, the Client shall provide details of the date the Client requires the Candidate to commence, the duration or likely duration of the work, the minimum rate of remuneration, expenses and any other benefits that would be offered; the intervals of payment of remuneration and the length of notice that the Candidate would be entitled to give and receive to terminate the employment with the Client.

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3. CONTINGENT (‘SUCCESS ONLY’) RECRUITMENT

 

Permanent Roles

Any Candidate being Engaged on a permanent employment basis by the Client following an Introduction shall attract a fee payable by the Client to Astbury McKinley (the “Introduction Fee”). The Introduction Fee which will be invoiced upon the Candidate's commencement of the Engagement shall be calculated as a percentage of the Remuneration in accordance with the table below.

 

Remuneration                  Introduction Fee

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£0 to £49,999                          20%

£50,000 and above                25%

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Fixed Term Contract (FTC) Roles

Any Candidate being Engaged on a fixed term contract basis by the Client following an Introduction shall attract a fee payable by the Client to Astbury McKinley (the “FTC Fee”) calculated as follows:

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(Remuneration x Introduction Fee percentage) ÷ 12 x Number of months of fixed term contract

 

EXAMPLE

An initial fixed term contract of 6 months with Remuneration set at £26,000 has been agreed. (£26,000 x 20%) ÷ 12 x 6 The FTC Fee payable is £2,600

Where the Engagement is on a fixed-term basis, and in the event that such Engagement contract is renewed or extended after its initial term, further fees will be payable in accordance with the provisions of these terms until such time as such contract ceases or is confirmed as a permanent position. In the latter case, a permanent fee will be payable and will be calculated based upon one year’s Remuneration and the applicable percentage. Where the Candidate is to be engaged on a part time basis, the fees (calculated for the avoidance of doubt by reference to the Remuneration) will be charged at the full time rate.

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4. RETAINED INTRODUCTIONS

The fee payable for Retained Introductions (the “Retainer Fee”) is calculated at 33% of the Introduction Fee and is payable in three equal instalments: The first instalment will be payable upon Astbury McKinley’s acceptance of instruction (the ‘Initial Fee’). The second instalment will be payable upon the submission by Astbury McKinley to the Client of a shortlist of Candidates (the ‘Shortlist Fee’). The third instalment will be payable upon the Candidate's acceptance of the Client's offer of an Engagement (the “Completion Fee”). In the event that the Client terminates a Retained Introduction before its conclusion, the Client shall pay to Astbury McKinley a cancellation fee in an amount equivalent to one third of the total fee due in addition to any fee already paid or due and any expenses incurred. In the event that the Client hires an additional Candidate submitted within the shortlist of a Retained Introduction (or a shortlist Candidate into a position other than the position which was the focus of the Retained Assignment), an Introduction Fee shall be payable in addition to the Retainer Fee.

 

5. INVOICING

All invoices are subject to Value Added Tax, where applicable. The fees will be invoiced, and will be payable, in Sterling within 14 days of the date of the relevant invoice. Astbury McKinley reserves the right to charge interest and compensation on all overdue invoices at the rate set out under the Late Payment of Commercial Debts Regulations 2002 and to recover all reasonable legal costs incurred in recovering sums due and overdue under these Standard Terms. 

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6. REBATE & REPLACEMENT GUARANTEE

a) If the Engagement of a Candidate terminates lawfully within 4 weeks of the initial commencement of the Engagement, then subject to clause 6 (b), Astbury McKinley will provide a refund in accordance with the following scale:

           Weeks 1 & 2: 50%

           Weeks 3 & 4: 20%

After 4 weeks, If the Engagement of a Candidate terminates lawfully within 8 weeks of the initial commencement of the Engagement, then subject to clause 6 (b), Astbury McKinley will make reasonable endeavours to find a replacement at no extra cost to the Client

(b) No rebate or replacement will be made in the following circumstances:

(i) if the Candidate Engaged was previously Engaged by the Client as a temporary or fixed term contract worker through Astbury McKinley; or

(ii) if the Client does not notify Astbury McKinley in writing within five days of the termination of the Candidate’s Engagement (time to be of the essence); or

(iii) if an Engagement is terminated by the Client by reason of redundancy or convenience; or

(iv) if the Client has not offered to Astbury McKinley (where applicable) a two-week opportunity (on an exclusive basis) to find a suitable replacement Candidate; or

(v) where an offer of Engagement has been made by the Client and accepted by the Candidate but is subsequently withdrawn by the Client, due to no fault on the part of the Candidate. In the event this clause 6 (b)(vi) applies then notwithstanding any other provision in these Standard Terms, Astbury McKinley shall be entitled to immediately issue an invoice to the Client for the Introduction Fee or the Completion Fee.

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7. CONFIDENTIALITY

All introductions are confidential. The information concerning the Candidate including his of her name, address, CV and all other details relating to the Candidate belong to Astbury McKinley and the Client may only use that information for the purposes of interviewing the Candidate and deciding whether or not to engage his or her services and for no other purpose whatsoever. Should the Client decide not to engage the services of the Candidate the Client agrees that it will not retain any documents and other records or data held concerning the Candidate. The Client will not pass any information concerning the Candidate to any third party. In the event of the Client’s breach of this clause, such breach resulting in the Engagement of the Candidate by any third party, the Client will pay a Fee to Astbury McKinley as if the Client had Engaged the Candidate.

 

8. GENERAL

(a) Where the Candidate’s actual Remuneration is higher than the figure upon which the Fee has been calculated, the Client shall provide details of the Remuneration to Astbury McKinley within 3 months of the expiry of the first year of the Engagement and Astbury McKinley  shall be entitled to charge a further fee which shall be calculated by applying the applicable percentage to the excess amount of the Remuneration.

(b) The Client will be liable to pay a fee in respect of any Candidate engaged by the Client as a consequence of or resulting from an Introduction by or through Astbury McKinley, whether direct or indirect, which occurs within 12 months of either the Introduction or the Candidate’s final interview with the Client, whichever is later.

(c) Where a Candidate introduces any other individual(s) to the Client within 12 months of the Introduction to the Client and this results in the engagement of such individual(s) or the use of their services by the Client whether under a contract of service or for services, partnership or otherwise, the Client shall be liable to pay Astbury McKinley a Fee. (The Client acknowledges that the objective of this clause is to cover situations where the Candidate introduces to the Client one or more former colleagues from a previous engagement).

(d) Where any Candidate introduced by Astbury McKinley to the Client is already known to the Client as a result of direct contact or contact through another employment agency, the Client shall notify Astbury McKinley of that fact in writing within 1 working day from the Introduction, failing which the Client will be liable to pay the Fee in the event of its Engagement of that Candidate.

The Client undertakes that during this Agreement and for 12 months thereafter it shall not, directly or indirectly, solicit or entice away Astbury McKinley personnel for employment, engagement or other use by the Client. If the Client breaches this clause, it shall be liable to pay to Astbury McKinley Astbury McKinley a fee equivalent to all losses incurred by Astbury McKinley including, without limitation, costs of employing temporary staff to cover such position, administration fees and any other costs or expenses incurred by Astbury McKinley as a result.

(e) No variation or alteration of these terms shall be valid unless approved by an authorised representative of Astbury McKinley in writing. The details of any variation to these terms shall be notified to the Client in writing by Astbury McKinley as soon as reasonably practicable and such document shall confirm the date upon which the varied terms are to take effect.

(f) No third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 in connection with these Standard Terms. (g) The parties agree that a failure or delay by either party to enforce any of the provisions set out in these Standard Terms shall not be construed as a waiver.

(h) If any provision or any part of this Agreement is held to be illegal or unenforceable in whole or in part under any enactment or rule of law such provision or part shall be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected.

(i) Both Astbury McKinley and the Client each undertake to comply with all laws, rules and regulations applicable to the subject matter of this Agreement (including but not limited to the Data Protection Act 1998 as may be amended from time to time). (j) This Agreement is governed by English law and all disputes arising from these terms shall be subject to the exclusive jurisdiction of the English Courts.