The Company: MGCOUK LIMITED (trading as Mandala Group) (the “Company”)

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Company Number: 14098304

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Registered Office: 197a Watford Road, Croxley, Hertfordshire, WD3 3EH

 

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Services:

Permanent Recruitment Services

Fee (exclusive of VAT):

15% of Basic Salary

 

Payment Terms: 14 days

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Rebate:

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Week of Termination     % Refunded of Fee

0-2                                               100%

3-4                                               75%

5-6                                               50%

7-8                                                25%

9+                                                 0%

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Rebate Period:

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8 weeks from the start date of Engagement

 

 

Background:

 

Company agrees to provide, and the Client agrees to engage the services of Company acting as an employment business as defined by section 13(2) of the Employment Agencies Act 1973 (as amended), on the terms and conditions set out in this Agreement.

1. Acceptance

   1. The Client shall be deemed to have accepted and agreed to these terms and Conditions (which will prevail over any other terms and conditions put forward by the Client), when any of the following events occurs:

 

1. the Client signs this Agreement; or

2. the Services commence.

 

1. Definitions

   1. In these terms and conditions:

 

Agreement: means the Agreement containing these terms and conditions;

Candidate: means a person Introduced by Company to the Client to be considered for an Engagement;

Client: means any person, firm or company who engages Company with a view to Engaging or otherwise employing a Candidate, or any person, firm or company to whom a Candidate is introduced by Company;

Conduct Regulations: means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;

Data Protection Legislation: means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, privacy and electronic communications including without limitation, (a) the Data Protection Act 2018; and (b) the UK General Data Protection Regulation (Retained Regulation (EU) 2016/679) (“UK GDPR”);

Engage(s) (or Engagement or Engaged): means the employment, hire or other use, 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;

[Exclusivity Period: means the duration of exclusivity set out in the Cover Sheet;]

Fee: means the Fee set out in the cover sheet and calculated in accordance with clause 4;

Introduce (or Introduction): means 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 and including the last date of contact with the Client;

Personal Data: means any information relating to a Candidate who can be identified, directly or indirectly, in particular by reference to:

(a)        an identifier such as a name, an identification number, location data or an online identifier, or

(b)        one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;

Remuneration: means base salary only;

Services: means conducting searches for Candidates for vacancies that the Client has notified to Company and Introduction of them to the Client by Company.

1. Services

   1. Company will provide the Services to the Client in consideration for the Client's paying the applicable Fee to Company, subject to the terms and conditions of this Agreement.

   2. Company will use reasonable endeavours to Introduce to the Client a Candidate suitable to carry out work of such nature as the Client notifies Company. Company does not represent, warrant or undertake to find a suitable or any Candidate for each vacancy notified to it by the Client.

   3. Company will:

      1. ensure that a Candidate has given explicit consent for their details to be submitted for any applicable vacancy;

      2. once a Candidate has been Introduced, provide the Client full access to the Candidate’s details that are held by Company; the Client shall contact the Candidate directly only upon prior written permission of Company;

   4. For the avoidance of doubt, if the Client has had contact with a Candidate through any social media platforms or other means, this does not constitute an introduction by the Client and would not disregard a valid Introduction by Company.

   5. By requesting Company to Introduce Candidates for a vacancy, the Client authorises Company to advertise such a vacancy. The Client agrees that Company shall utilise any vacancy content for marketing purposes. This may include posting on social media, creating case studies, gathering testimonials and the use of Client logos.

2. Fees and payment

   1. The Client shall pay a Fee to Company in respect of each Candidate Engaged by the Client. The Fee will be calculated as set out in the Cover Sheet.

   2. The Client shall pay all invoices within the Payment Terms specified on the Cover Sheet, the time for payment shall be of the essence. Should no payment terms be detailed on the Cover Sheet for any reason, the default payment terms will be fourteen (14) days of the date on the invoice issued by Company.

   3. Where the amount of the actual Remuneration is not known or disclosed, Company will charge a fee equal to a comparable position in the general marketplace.

   4. The Fee charged for the Introduction of any Candidate for an Engagement is applicable for one (1) Engagement only. For each additional Candidate Introduced by Company and Engaged by the Client, a further Fee will be payable.

   5. If, after an offer of employment has been accepted by a Candidate, the Client withdraws the offer, the Client shall be liable for 25% of the Fee.

   6. If, following a Candidate’s unsuccessful application to the Client via Company either:

      1. the Client, without notifying Company, Engages that Candidate in any capacity within six (6) months of Company's having Introduced a Candidate to the Client, or

      2. the Client or the Client's employee, agent or subcontractor refers or Introduces that Candidate to a third party (including any entity or affiliate), and that third party, entity or affiliate Engages the Candidate in any capacity within twelve (12) months of Company's having Introduced a Candidate to the Client, then the Client will be liable for a Fee as set out in the Cover Sheet.

   7. All amounts stated are exclusive of VAT and any other applicable taxes, which will if applicable be charged in addition at the rate in force at the time the Client is required to make payment.

   8. If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in this Agreement, then Company will be entitled:

      1. to charge interest on the outstanding amount at the rate of 5% a year above the base lending rate of The Bank of England, accruing daily;

      2. revoke any discounts offered under this Agreement or otherwise by Company to the Client;

      3. to require the Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and

      4. not to perform any further Services (or any part of the Services).

   9. Where the Candidate terminates within the Rebate Period set out in the Cover Sheet, Company will, at its sole discretion have twelve (12) weeks to find a suitable replacement on an exclusive basis. If a suitable replacement has not been found, the rebate set out in the Cover Sheet may apply. The Client may be entitled to a rebate in the event of a Candidate terminating or the Client lawfully terminating an Engagement within the Rebate Period outlined in the Cover Sheet, and provided that:

      1. [Company has been unable to Introduce the Client to a suitable replacement for said Candidate];

      2. all moneys due hereunder have been paid on time by the Client in accordance with this clause 4;

      3. such termination is not as a result of redundancy, pregnancy, injury, death or ill-health or by reason of discrimination against the Candidate;

      4. such termination has not arisen where the Client has entered into the Engagement with the prior or likely intention of disposing with the Candidate’s services or terminating employment either without proper cause or with a view to obtaining a refund unfairly;

      5. the Client is not or has not been in material breach of any clause of this Agreement;

      6. the Client serves notice on Company in writing advising of the termination of the Engagement within one (1) week of the termination event occurring; and

      7. neither the Client nor any person connected to or associated with the Client shall commence Engagement of the Candidate within six (6) months from the date of the termination of the Engagement.

   10. Company shall not issue refunds or replacements in the event of the Candidate having an Engagement Terminated, or choosing to leave the Engagement, should such event occur after the Rebate Period.

   11. For the avoidance of doubt, any applicable rebate shall apply from the date the Engagement ends.

   12. Rebates shall apply only once and shall be cancelled and/or repayable, where the Client subsequently re-engages the Candidate in any capacity.

 

1. Client’s obligations and acknowledgments

   1. The Client acknowledges and agrees that:

      1. by requesting Company to carry out an act on its behalf, the Client authorises Company to act on the Client's behalf for that purpose; and

      2. by requesting Company to Introduce Candidates for a position, the Client authorises Company to advertise that position, subject to the provisions of clause 3.6.

   2. When requesting Company to Introduce Candidates for a vacancy, the Client will provide to Company the following information:

      1. the nature of the vacancy, including the type of work involved, its location, the hours of work and the commencement date;

      2. the experience, training, qualifications and any authorisations which are required by the Client, including any qualifications or authorisations required by law or any applicable professional body.

   3. The Client will also provide all commercial details required by Company in order to provide a Candidate with the vacancy details and/or to calculate the Fee.

   4. The Client will notify Company immediately on the occurrence of the first of the following events:

      1. a Candidate accepts an offer of employment from the Client; or

      2. the commencement of an Engagement by a Candidate.

   5. By agreeing to Engage or make use of a Candidate in any way, the Client will be liable for the Fee.

   6. If the Client effectively Introduces any Candidate to any subsidiary company, affiliated company or third party, whether directly or indirectly, and that Introduction results in an Engagement of the Candidate by that third party, the Client will:

      1. immediately notify the Engagement to Company; and

      2. pay to Company a Fee in accordance with clause 4, unless the Engagement occurs more than twelve (12) months after the Introduction of the Candidate to the Client by Company, or the date of the Candidate’s last interview with the Client, whichever is the later.

2. Confidentiality

   1. All Introductions are confidential. All work undertaken by Company for the Client in respect of the Introduction of a Candidate to the Client will be for the private and confidential use of the Client only and should not be reproduced in whole or in part or relied upon by third parties for any use whatsoever, without the express written authority of Company.

   2. Each Party (‘Receiving Party’) will keep the confidential information of the other Party (‘Supplying Party’) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party will only use the confidential information of the Supplying Party for the purpose and for performing the Receiving Party’s obligations under this Agreement.

   3. The obligations set out in this clause 7 will not apply to any information that:

      1. was known to or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;

      2. is, or becomes, publicly available through no fault of the Receiving Party;

      3. is provided to the Receiving Party without restriction on disclosure by a third party who did not breach any confidentiality obligations by making such a disclosure;

      4. was developed by the Receiving Party, or on its behalf by a third party who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or

      5. is required to be disclosed by order of a court of competent jurisdiction.

   4. The obligations in this clause 7 will survive termination of this Agreement.

3. Data protection

   1. The parties will comply with their respective obligations under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018, or other applicable data protection legislation. Company will provide Candidates with information about how their Personal Data will be processed, including:

      1. the purpose of the processing and the legal basis for it;

      2. if the basis for the processing is the legitimate interests of Company or the Client, what those legitimate interests are;

      3. any recipients of the Personal Data (including the Client); and

      4. the period for which the Personal Data are retained (or the criteria used to determine that period);

      5. co-operate fully with the Client in order to enable the Client to comply with its obligations under applicable data protection legislation;

      6. implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of Personal Data and against accidental loss and destruction of or damage to Personal Data;

      7. immediately upon notification by the Client, take all appropriate action to enable the Client to properly comply with any request from a data subject in relation to access to and/or rectification or erasure of Personal Data;

      8. immediately notify the Client of any data breach relating to Personal Data about which Company becomes aware;

      9. not transfer any Personal Data outside of the UK unless, in accordance with the Data Protection Legislation, Company ensures that (i) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or (ii) there are appropriate safeguards in place for the transfer of Personal Data; or (iii) binding corporate rules are in place; or (iv) one of the derogations for specific situations applies to the transfer; 

      10. immediately provide such evidence of its compliance with the obligations under this clause 8 as the Client may from time-to-time reasonably request;

      11. if before an Introduction is made the Client so requests, provide the Client with anonymised details of Candidates, and before providing full details of the Candidates to the Client, will inform the Candidate of the Client’s name and provide the Candidate with a copy of the Client’s data protection privacy notice; and

      12. if no request as set out in clause 8.1.11 is made, before providing the Client with full details of the Candidates, inform the Candidate of the Client’s name and provide the Candidate with a copy of the Client’s data protection privacy notice.

4. Warranties, liability and indemnities

   1. The Client accepts and agrees that Company gives no warranty as to the suitability of any Candidate for any vacancy.

   2. Company confirms that, in Introducing any Candidate to the Client, it is not aware of anything which will cause any detriment to the interests of that Candidate or the Client if the Client Engages the Candidate to fill a vacancy except as notified to the Client.

   3. Neither Company nor any of its staff will be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with the Introduction to or the Engagement by the Client of a Candidate, unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of Company. In particular, but without limiting the generality of the foregoing, Company will not be liable for any loss, injury, damage, expense or delay arising from or in any way connected with:

      1. any failure of the Candidate to meet the Client's requirements for all or any of the purposes for which the Candidate is required by the Client;

      2. any act or omission of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; or

      3. any loss, injury, damage, expense or delay suffered by a Candidate.

   4. Except in the case of death or personal injury caused by Company's negligence, the liability of Company under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever will not exceed in aggregate, the Fee(s) paid in the preceding twelve (12) months by the Client to Company under this Agreement. The provisions of this clause 9.4 will not apply to clause 9.6.

   5. Neither Party will be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause 9.5 will not apply to clause 9.6.

   6. The Client shall indemnify and keep Company indemnified against any costs (including legal costs), claims or liabilities incurred directly or indirectly by Company arising out of or in connection with this Agreement including (without limitation) as a result of:

      1. any breach of this Agreement by the Client or by its employees or agents; 

      2. any breach by the Client or by a third party, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation, the Conduct Regulations and Data Protection Legislation);

      3. the withdrawal by the Client of a vacancy or any information supplied by the Client; or

      4. any unauthorised disclosure of a Candidate details by the Client or by a third party, or any of its employees or agents.

   7. The Client agrees and undertakes to indemnify Company for and against any and all costs, fees, charges and expenses Company may incur as a result of or arising from late or non-payment of charges payable under this Agreement, including, but not limited to, for the avoidance of doubt, any and all legal and other professional fees and expenses it may incur as a result of instituting legal or other proceedings against the Client for non or late payment of charges due and owing to it under this Agreement.

5. Termination

   1. Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice (that will take effect as specified in the notice) to the other Party (‘Other Party’):

      1. if the Other Party is in material breach of its obligations under this Agreement and, if the breach is capable of remedy within fourteen (14) days, the breach is not remedied within seven (7) days of the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or

      2. if the Other Party passes a resolution for its winding up or for the appointment of an administrator, a liquidator or administrator is appointed or a winding up order is made in relation to the Other Party (other than in circumstances of a solvent amalgamation or reconstruction), a receiver or administrative receiver is appointed in relation to the Other Party or its assets, the Other Party has a freezing order made against it or becomes insolvent, or becomes subject to a moratorium or a company voluntary arrangement under the Insolvency Act 1986 or a restructuring plan under Part 26A of the Companies Act 2006, or the Other Party makes any arrangement or composition with or for the benefit of its creditors or takes or suffers any similar or analogous action in consequence of debt.

   2. Either Party may terminate this Agreement on giving the Other Party thirty (30) days written notice.

   3. On termination of this Agreement, the Client will pay for all Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by Company for the performance of the Services prior to the date of termination.

6. Non-solicitation

   1. In order to protect the legitimate business interests of the Parties, neither Party shall (except with the prior written consent of the Other Party) employ or engage or otherwise facilitate the employment or engagement of any Restricted Person of the Other Party.

   2. The Parties shall be bound by the covenant set out in clause 11.1 during the term of this Agreement and for a period of six (6) months after termination of this Agreement.

   3. For the purposes of this clause 11, a Restricted Person shall mean any firm, company or person employed or engaged by the Other Party during the term of this Agreement who has been engaged in the provision of the Services or the management of this Agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement.

7. General

   1. Neither Party will have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances will promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than three (3) months, either Party may terminate this Agreement by written notice to the other Party.

   2. No amendment or variation of this Agreement will be valid unless confirmed as agreed, in writing, by an authorised signatory of each Party.

   3. The Client shall not assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of Company.

   4. This Agreement contains the whole agreement between the Parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.

   5. This Agreement will not constitute or imply any partnership, joint venture, Company, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

   6. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

   7. Any notice to be given under this Agreement must be in writing and signed by or on behalf of the party giving it and must be sent to the address at the top of this Agreement.

   8. If any dispute arises between the parties in relation to the Services, then both parties shall in good faith promptly discuss the dispute with a view to its resolution. If any dispute cannot be resolved, then either party may request that the dispute be escalated for resolution.

   9. The validity, construction and performance of this Agreement is governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the Parties submit.

   10. For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.