Terms of Business Europe
These Terms of Business for Recruitment Services (“Terms”) are effective from the 1st of September 2020 (the “Effective Date”) between:
Mint Selection Ltd, a company registered in England and Wales with company number 10410069 and registered office at
1 Long Lane, London, SE1 4PG, UNITED KINGDOM
(“Mint Selection”)
And
[client name] a company registered in England and Wales with company number [number] and registered office at [address] (“Client”)
Mint Selection agrees to provide and the Client agrees to engage the services of Mint Selection acting as an employment agency as defined by section 13(2) of the Employment Agencies Act 1973 (as amended), on the terms and conditions set out in these Terms of Business, to Introduce Candidates to the Client.
DEFINITIONS
“Annual Salary”means the annualremuneration which includes salary plus any guaranteed commissions and bonuses. If the Candidate is engaged on a temporary assignment or a contract for service, the rate which has been agreed between the Candidate and the Client will be calculated to an annual amount.
“Candidate” means any person Introduced by Mint Selection to the Client for an engagement including, but not limited to, any company or other legal entity that person may operate through and any other partner, director, shareholder or employee of company or other legal entity and members of Mint Selection’s own staff.
“Client” means the person, firm, organisation or corporate body together with any subsidiary or associated or connected company or person as defined by the Companies Act 2006 to whom Mint Selection Introduces or agrees to Introduce candidates, as may but is not necessarily better described within the signature section of this Agreement.
“Data Protection Legislation”incorporates The Data Protection Act 2018, the General Data Protection Regulation (EU 2016/679) or any applicable statutory or regulatory provisions in force from time to time relating to the protection and transfer of personal data;
“Engage(s) (or Engagement or Engaged)”means the employment, hire or other use either directly or indirectly and whether under a contract of service or contract for services or otherwise, and/or whether on a permanent, temporary or other basis, of a Candidate by or on behalf of the Client, and ‘Re-engages’ is to be interpreted accordingly;
“Engagement Letter”means an amendment to these Terms for any specific role or roles which the Client and Mint Selection may agree from time to time.
“Fee”means the money owed by the Client to Mint Selection due to an Introduction resulting in an Engagement as detailed in clause 3.1.
“Introduce (or Introduction)”means any manner of communicating a Candidate’s identity to the Client including, but not limited to, the provision to the Client of a curriculum vitae or any other details, whether written or oral, of a Candidate, whether or not the Client had knowledge of that Candidate before the Introduction;
“Group Company”means any body corporate of which the Client is a subsidiary (as defined in section 1159 of the Companies Act 2006), or any other subsidiary of such body corporate and any subsidiary of the Client (as defined in the same provision mentioned above);
“Third Party Engagement”– the passing by the Client (or anyone acting at the Client’s direction or by any employee, director or officer of the Client) by whatever means, any information regarding an Introduction which has been supplied to the Client by Mint Selection pursuant to these Terms;
“Vacancy”means a specific role requested by the Client.
AGREEMENT
These Terms and any Engagement Letter constitute the entire agreement between the parties and supersede all prior and pre-existing representations and agreements.
No variation or alteration of this Agreement shall be valid unless approved in writing by a Director of Mint Selection.
Should any of the clauses within these Terms be in conflict with the Engagement Letter, the Engagement Letter will take precedence.
These Terms will commence on the Effective Date or upon the commencement of the Services, whichever is earliest.
FEES
Unless otherwise agreed in an Engagement Letter or
when a Candidate is Engaged by the Client, Mint Selection’s Fee will be 25% of the Annual Salary.
For the avoidance of doubt, the Fee will be payable:
If a Candidate commences an Engagement of any kind with the Client, which may or may not be the Vacancy;
if a Candidate commences an Engagement with the Client within 12 months of the date of an Introduction, date of the last interview, date of last discussion or the date of an offer of Engagement, whichever is the later;
if a Candidate commences an Engagement with any Group Company within 12 months of the date of an Introduction, date of the last interview or date of the last discussion by the Company to the Client, whichever is the later; or
if a Candidate commences an Engagement with a Third Party pursuant to a Third Party Introduction within 12 months of an Introduction by the Company to the Client.
Should the Client Engage the Candidate on Contact for Service, Mint Selection will have the option of charging a fee in accordance with clause 3.1 above or contracting with the Client on a monthly fee basis (“Monthly Fee Period”). Monthly fees will be charged at 25% (twenty-five percent) of the Candidate’s fee and will be payable until the assignment has been terminated.
Should the Candidate be hired on a permanent contract with the Client or any Third Party during the Monthly Fee Period or within 12 months of the Monthly Fee Period terminating, the Client will pay to Mint Selection the Fee as defined in clause 3.1.
The Client warrants that, if the Client has not notified the Company within 72 hours that the Candidate was submitted by another organisation for the same role or the Candidate applied directly for the same role (other than as a consequence of Company’s discussion with the Candidate regarding the same role), it shall be deemed that the Candidate was not known to the Client and the Company shall be entitled to charge the Fee in accordance with clause 3.1.
The Fee charged for the Introduction of any Candidate is applicable for one Engagement only. For each additional Candidate Introduced by Mint Selection and Engaged by the Client, a further Fee will be payable.
Should the Client terminate any Offer once it has been accepted by a Candidate, then 50% of the Fee will be owed by the Client to Mint Selection.
If, through a Mint selection introduction an agreement is reached whereby there is a company acquisition, investment, project funding, sale secured or an analogous transaction, Mint selection reserve the right to charge a fee which will be in-line with the value of the introduction and agreed on a case-by-case basis. It will be outlined fully in an ‘Introduction Agreement’ drafted after the introduction. As a guide but without limiting Mint Selection, a company acquisition or sales contract might reflect 1-2% of value and a company acquisition for the purpose of attaining talent calculated either by number of candidates or, a reduced % of business value. In this scenario, Mint Selection reserve the right to decide whether to charge on the basis of hires or the company value.
All amounts stated are exclusive of VAT and any other applicable taxes which will, if applicable, be charged and payable in addition at the rate in force at the time the Client is required to make payment.
PAYMENT TERMS
Client agrees to pay all fees and related expenses within 30 days of the invoice date. Mint Selection is entitled to raise its invoice at the point of employee contract signature or on the commencement date (whichever is earlier).
Interest of 8% above the Bank of England base rate may be charged on unpaid Fees if not paid in full by the due date.
If any invoice is not paid by the due date, any agreed discount or alternative fee will be void and the original Fee will be due from the Client to Mint Selection.
Client must supply Mint Selection with any purchase order or similar accounts payable process requirement within 14 days of acceptance or commencement of an offer of engagement by a Candidate (whichever is earlier). If Client fails to do so, Mint Selection is authorised to invoice the Client without an accompanying purchase order, compliance with such process or similar.
REPLACEMENTS & REBATES
If the Engagement of a Candidate Introduced under these Terms for permanent employment terminates within 12 weeks of commencement the Client may be entitled to a rebate in accordance with clause 5.2 provided:
the Client informs Mint Selection in writing of the termination within 5 days of the date of termination;
The Client allows Mint Selection 30 days in order to find a replacement;
The Candidate has not been made redundant, unlawfully dismissed or resigned because of Client mistreatment or due to the Client significantly modifying their job duties or assigning them to another position; or
there are any outstanding invoices.
For the purposes of clause 5.1.1, the date of termination of the Engagement shall be the date on which the Candidate ceases to be Engaged by the Client (or the date which the Candidate would have ceased their Engagement in the absence of garden leave or a payment in lieu of notice).
Rebates will be payable at the following percentages:
Termination week | Rebate % |
0-3 | 100 |
3-6 | 75 |
6-9 | 50 |
9-12 | 25 |
In the event that a rebate is due from Mint Selection in accordance with this clause 5, Mint Selection shall set off the amount owed against any future invoices. In the event that no future invoices are owed, are likely to be owed within a reasonable timeframe or the Client specifically requests such, Mint Selection will reimburse the Client by bank transfer.
No rebate shall be made in respect of an Engagement where the Client withdraws an offer of Engagement after the Candidate has accepted that offer.
The Client shall repay the amount of any rebate used in full to Mint Selection where the Client, any Group Company, or any Third Party, subsequently re-Engages (or Engages) a Candidate in any capacity within 12 calendar months of the date of termination of the Engagement and a full Fee shall be payable with no entitlement to a rebate or further rebates in respect of the Candidate.
Where a Candidate’s Engagement with a Client terminates as a result of their lack of suitability for the Engagement, and a rebate is due pursuant to this clause 5, the Client and Company may agree an arrangement in relation to sourcing a replacement candidate, as an alternative to receiving a rebate pursuant to this clause.
CLIENT’S OBLIGATIONS AND ACKNOWLEDGMENTS
TheClientacknowledges and agrees that by requesting Mint Selection to carry out an act on its behalf, the Client authorises Mint Selection to act on the Client’s behalf and therefore authorises Mint Selection to advertise that position.
In order for Mint Selection to Introduce Candidates for a specific Vacancy, theClientwill provide to Mint Selection the following information:
the nature of the Vacancy, including the type of work involved, its location, the hours of work, the commencement date and any salary expectations;
any risks to health and safety known to theClientand the steps taken by theClientto prevent or control such risks; and
any other information likely to be necessary in order for Mint Selection to effectively carry out the Services.
The Client acknowledges and confirms that:
It has sole responsibility for selecting a Candidate for an Engagement and it shall satisfy itself as to the suitability of any Candidate for the purposes of the Vacancy for which a Candidate has been Introduced;
shall take up any references provided by the Candidate to it or the Company before engaging such Candidate and verify such references and/or statements made by or on behalf of the Candidate (including, but not limited to, training, qualifications, authorisations, professional certification, medical requirements and immigration status) to its own satisfaction;
shall be responsible for obtaining and/or such other permission to work as may be required by the law of the country in which the Candidate is Engaged, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, and for satisfying any medical and other requirements, qualifications or permission required by law of the country in which the Candidate is engaged to work.
The Client undertakes not to employ or seek to employ any member of Mint Selection’s staff. If any member of the Mint Selection’s staff nevertheless accepts an Engagement within twelve months of leaving Mint Selection’s employment, the Client will pay a Fee to Mint Selection as if that member of staff had been Introduced to the Client by Mint Selection.
If Client discloses any details regarding a Candidate introduced by Mint Selection to a third party which results in a Third Party Engagement, the Client must pay Mint Selection’s Fee as set out in clause 3.1 of this Agreement as if the Client had engaged the Candidate, with no entitlement to any replacement guarantee or refund.
MINT SELECTION OBLIGATIONS
Mint Selection will use its reasonable endeavours to Introduce Candidates who meet the requirements of the Vacancy which the Client seeks to fill based on the information provided by the Client to Mint Selection pursuant to clause 6.2 above and whom are suitable for interview.
Mint Selection shall take such steps as are reasonably practicable to ensure that it would not be detrimental to the interests of either the Client or the Candidate for the Candidate to accept the Vacancy which the Client is working to fill and to ensure that the Client and Candidate are aware of any requirements imposed by law or any professional body in relation to the Vacancy the Client is seeking to fill.
Mint Selection will take all reasonably practicable steps to ascertain if the Candidate would be willing to work in the Vacancy the Client seeks to fill.
TERMINATION
These Terms may be terminated by either party on written notice for convenience on 30 days’ notice.
These Terms may be terminated by either party with immediate effect where the other party either:
commits a material breach which is either not remediable or which they fail to remedy within 14 days of written notification of such breach; or
becomes insolvent, bankrupt or has a receiver or administrator appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on business or if a court makes an order to that or a similar effect.
The following clauses shall survive termination: 3 (Fees), 4 (Payment Terms), 6 (Client Obligations) 9 (Confidentiality & Data Protection), 10 (Liability) and 16 (Governing Law & Jurisdiction).
CONFIDENTIALITY & DATA PROTECTION
Neither party shall during and after termination of this agreement, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature.
In particular, Introductions by Mint Selection are confidential. All information relating to a Candidate is confidential and subject to the Data Protection Laws. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the Data Protection Legislation in receiving and processing the data at all times.
Mint Selection shall have the right and licence to use the name and logo of the Client in any marketing materials and Mint Selection shall have the right and licence to use any testimonials or other written statements of the Client for the same purpose.
The Parties warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, Mint Selection or by the Candidate will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.
For the purposes of this clause, Personal Data, Data Subject and Processed will have the meanings given in the Data Protection Legislation.
LIABILITY
Mint Selection makes reasonable efforts to Introduce Candidates and ensure the accuracy of information provided regarding a Candidate however it does not guarantee either successful Introductions, the accuracy of such information or the performance of services by any Candidate.
The Client will indemnify and hold harmless Mint Selection from and against all claims and losses arising from loss, damage, liability, injury to Mint Selection, its employees and third parties, by reason of or arising out of any Introduction or Engagement.
Mint Selection shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be incurred or suffered by the Client arising from or in any way connected with Mint Selection seeking a Candidate for the Client or from the Introduction to or Engagement of any Candidate by the Client, or from the failure of Mint Selection to Introduce any Candidate or, so far as any such exclusion of liability is lawful, from any contravention of the Conduct Regulations 2003. Mint Selection does not exclude liability for death or personal injury arising from its own negligence.
The Client acknowledges that in entering into these Terms, it has not relied on any representations, warranties or other assurances by Mint Selection other than those expressly set out in these Terms, provided that nothing in this clause 10 shall operate to limit or exclude any liability for fraudulent misrepresentation between Mint Selection and the Client.
If Mint Selection’s liability cannot be excluded in law but can be limited in law, their total liability arising under or in connection with these Terms whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the sum of any Fee paid or due to be paid by the Client to Mint Selection in respect of the Vacancy or any other role pursuant to which such liability directly or indirectly arises.
In the event Mint Selection institutes litigation to enforce its rights under this agreement and is the prevailing party in such litigation, Mint Selection shall be entitled to costs and expenses of the claim incurred in connection with such litigation on the indemnity basis.
INDEPENDENT CONTRACTOR
The services provided under agreement are provided as an independent contractor. Nothing in this agreement shall be construed as creating the relationship between the parties of principal and agent, joint ventures, partners or employer and employee.
ASSIGNMENT
This agreement and all of its provisions are binding on and to the benefit of Mint Selection and Client and their respective successors and permitted assigns, but neither this agreement nor any of the rights, interests, or obligations hereunder may be assigned by either party without the prior written consent of the other.
LAWFUL CONDUCT
The parties must not act or allow their associated persons to act in any manner that is not compliant with all applicable laws and regulations, including but not limited to: the Equality Act 2010, the Bribery Act 2010, the Immigration Asylum and Nationality Act 2006, the Working Time Regulations, the Health and Safety at Work Act 1974, Mint Selection Workers Regulations 2010, the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and the Income Tax (Pay As You Earn) Regulations 2015 or such other obligations as the parties are ordinarily subject to in respect of their own staff, including the provision of Employer’s and Public Liability Insurance.
THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
NOTICES
Any notice required to be given under this Agreement shall be delivered by email in the case of the Client to the usual email address of their representatives, in the case of Mint Selection tohello@mintselection.comor to either party by registered post to their registered office address or as otherwise notified from time to time to the sender by the recipient for the purposes of this Agreement.
GOVERNING LAW & JURISDICTION
This agreement and any dispute arising out of it are governed by the laws of England & Wales. The parties agree that the courts of England & Wales shall have the exclusive jurisdiction over any litigation arising out of this agreement or otherwise.