Terms

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Irwin and Colton Ltd. (Irwin & Colton) Definitions and Overview of Key Terms

DEFINITIONS:

In the Agreement the following definitions apply,

“Agreement” means, the agreement between the Company and the Client, incorporating the terms and conditions contained herein, its schedules, the Overview of Key Terms, and timesheets;

“AWR” means, the Agency Workers Regulations 2010;

“Candidate” means, the person(s) introduced to the Client;

“Client” means the person; firm or corporate body together with any subsidiary or associated Company as defined by the Companies Act 2006 to which the Candidate is introduced;

“Confidential Information” means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory stick and wherever located) in respect of the Company, the Client and its end clients, relating to their business methods, plans, systems, finances or projects, training and development and research or development projects, their trade secrets, the identity and business affairs of their customers and clients, potential customers and clients, the provision of products or services to which they attach confidentiality or in respect of which they hold an obligation to a third party which comes to either parties’ attention or possession and which is regarded or could reasonably be regarded as confidential, whether or not any such tangible information is marked ‘confidential;’

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

“Contractor” means, the person, firm or corporate body introduced to the Client by the Company to carry out an Interim Assignment and save where otherwise indicated, includes the Candidate(s) and any third party to whom the provision of the Interim Assignment is sub- contracted with the prior approval of the Client;

“Documents” means, but is not limited to, inventions, discoveries, improvements, promotions, formulae, designs, models, prototypes, programs, sketches, drawings, manuals, Source Codes and plans;

“Engagement” means, any Placement, Interim Assignment, engagement, employment, retention or use of a Candidate or the Contractor’s services directly or indirectly by the Client or by any third party to whom they have been introduced by the Client on a permanent or temporary basis which shall include under an employment contract, contract for services, licence, franchise or partnership arrangement, or via any other supplier and “Engage”, “Engages” and “Engaged” shall be construed accordingly;

“Fees” means, the fees payable by the Client to the Company as set out in the Overview of Key Terms and an Interim Assignment Schedule;

“Force Majeure” means acts, events, omissions, or accidents beyond a party’s reasonable control, including strikes or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, breakdown of equipment, fire, flood or storm;

“Intellectual Property” means, any intellectual property or other proprietary rights including but not limited to copyright, confidential information, patents, design rights and trademarks, any application or renewal for any of the foregoing, rights in goodwill, any right in respect of technical or commercial information including but not limited to rights in computer software, database rights, know how rights and any other forms of protection in each case whether registered or unregistered and equivalent rights which may now or in the future subsist in any part of the world;

“Interim Assignment Fees” means, the Fees as notified to the Client at the commencement of an Interim Assignment and which may be varied by the Company from time to time during an Interim Assignment. The fees include any travel, hotel or other disbursements as may have been pre-agreed with the Client and set out in an Interim Assignment Schedule or, if there is no such agreement, such expenses as are reasonable;

“Interim Assignment” means, all or any part of the work or services performed by the Contractor as set out in an Interim Assignment Schedule hereto or otherwise performed from time to time pursuant to this Agreement and shall include “Services”.

“Intermediaries Legislation” means, the amendments to the Income Tax (Earnings and Pensions) Act 2003 and the Social Security (Categorisation of Earners) Regulations 1978 enacted in the FinanceBill 2014 and National Insurance Contributions Act 2014;

“Placement” means, the direct engagement of a Candidate by the Client following an Introduction, whether on a permanent basis or fixed term basis;

Overview of Key Terms Fees:

Permanent Placement

These fees are payable on the start date of the placement.

Retained Search Placement (Executive Search):

Our ‘retained search’ services are predominantly used for Senior and Executive level (and highly specialised) roles. These business-critical positions often require an enhanced search process to secure the best talent available in the candidate market. As such our services are payable in three equal instalments:

Retainer fee: 1/3rd of Permanent Placement fee payable on acceptance of terms of the search Engagement by the Client.

Shortlist fee: 1/3rd of Permanent Placement fee payable on presentation of a suitable shortlist.

Completion fee: 1/3rd of Permanent Placement fee payable on start date of the engagement.

Retainer and shortlist fees are non-refundable.

Fixed Term Placement (pro rata as per contract duration)

Annual Remuneration Length of Fixed Term and Placement Fee %

These fees are payable on the start date of the placement and are non-refundable. Should a Fixed Term Placement be made Permanent, an overall fee equal to a full permanent placement fee shall be charged.

Interim Assignment Fees
Our Interim and Contract Assignment Fees shall be inclusive of; (i) the Contractor’s rate which shall include any applicable taxes, national insurance contributions, other statutory payments or benefits; and (ii) our margin is calculated on the Contractor’s rate.

Fees are negotiable based on duration and complexity of role.

The fees are invoiceable upon receipt by Irwin and Colton of an approved timesheet and are non-refundable. Should an Interim Assignment become permanent, our Introduction Fee shall apply.

Cancellation Fees

1. If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw it, the Client shall be liable to pay the Company a minimum fee of £1,000.

2. Where the Company has been retained, and the Client decides for any reason to cancel or postpone the vacancy, and if the Company by that time has already spent time in relation to the search, the Client shall pay the Company a cancellation fee of £1000 to compensate for the search work performed. This payment becomes immediately due upon cancellation.

Payment Terms: 21 days from invoice date

Permanent Placement Rebate Period:​

​Note your compliance with our terms, including payment terms, is required to trigger an entitlement to a rebate.

Candidate Ownership Period

Irwin and Colton will be entitled to a fee for 12 months following the introduction of the candidate or the termination or expiration of an Interim assignment whichever happens later in time.

An Introduction means the provision of information to you by us, whether in writing, orally or by referral, which identifies a permanent candidate or specialist consultant (collectively known as a Candidate) whether sent speculatively or following your request. An Introduction is confidential to you and the information should not be forwarded to a third party without our consent.

Our definition of Annual Remuneration includes first year’s gross annual remuneration payable to or receivable by the Candidate for services rendered to the Client including guaranteed bonuses and the provision of a car, or car allowance, (if exact value of car allowance unavailable we will value the car allowance at £5,000).

If you choose to make an Engagement other than through us within the twelve months following our Introduction or the termination of an Interim Assignment, then you agree to pay us a fee (Introduction Fee). You should get in touch to notify us of the Engagement. The Introduction Fee shall be 25% of the Candidate’s known or estimated Annual Remuneration for a permanent placement with you or in the case of an Interim assignment 25% of the Candidate’s anticipated annual charge rate (grossed up) plus VAT. If we cannot reasonably ascertain the Introduction Fee, then we shall levy a flat fee of £25,000 plus VAT.

This Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.

Terms of Business for Recruitment Services THE PARTIES:

(1) The “Company”: Irwin and Colton Ltd, a company incorporated in England & Wales under No. 10152279 whose registered office is at Cardinal Point, Park Road, Rickmansworth, Hertfordshire, England, WD3 1RE; and

(2) The “Client”: as defined in “DEFINITIONS” above.

1. THE AGREEMENT:

• 1.1. In this Agreement:

• 1.1.1. unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa;

• 1.1.2. a reference to a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.

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• 1.2. This Agreement is a framework agreement, the terms of which shall apply to any Introduction made, Placement and each Interim Assignment Schedule agreed between the parties.
  

• 1.3. In this Agreement:

• 1.3.1. the headings contained in this Agreement are for convenience only and do not affect their interpretation;

• 1.3.2. all agreements on the part of any of the parties to this Agreement which comprise more than one person or entity shall be joint and several;

• 1.3.3. if any terms herein conflict with any terms in the schedules or the Overview of Key Terms, then the Overview of Key Terms and then the schedules shall take precedence, and the terms in the Interim Assignment Schedule shall prevail in the event of conflict between terms in the schedules.

• 1.3.4. Definitions are listed in definitions above and in the Overview of Key Terms.

2. THE CONTRACT

• 2.1. This Agreement comprises the Overview of Key Terms, this agreement and its schedules. This Agreement constitutes the entire agreement between the Company and the Client and shall prevail over any terms of business or purchase conditions (or similar) proposed by the Client. These terms and conditions supersede all previous terms of business issued by the Company.

• 2.2. These terms shall be deemed to be accepted by the Client by virtue of an Introduction to the Client and shall apply to each and any Engagement, Place mentor Interim Assignment. For the avoidance of doubt, acceptance of these Terms can be demonstrated by an Introduction, an Engagement, a Placement, signature of the terms and/or a timesheet or Service Confirmation, by passing on of information about a Candidate to a third party or by conduct and these terms shall apply whether or not the Candidate is Engaged by the Client for the same type of work as that for which the Introduction was originally effected.

• 2.3. No variation or alteration to this Agreement shall be valid unless the details of such variation are agreed between a Director of the Company and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.

• 2.4. The Client undertakes to comply with all obligations, duties and regulations (whether statutory or otherwise) arising from, directly or indirectly connected with a Placement or Interim Assignment and shall assist the Company in complying likewise.

• 2.5. The Client is responsible for ensuring that its Candidates have the right to work and leave to remain in the country in which the services are physically undertaken. The Client is responsible for the arrangement of medical examinations and/or investigations into the medical history of a Candidate and any other requirements, qualifications or permissions required by any laws of the country in which the Candidate is Engaged to work whether in a Placement or on Interim Assignment.

• 2.6. In the event that a Candidate has been introduced to the Client by other agencies or identified by the Client in any other way then the Company may support its Introduction and right to claim a Permanent Fee, Interim Assignment Fee or Introduction Fee by providing a Confirmation of Representation signed by the Candidate expressing his/her wishes to be represented by the Company. It is agreed by the parties that this document shall be used as the predominant evidence for identifying the correct party which made the Introduction leading to the relevant Engagement.

3. CLIENT ACKNOWLEDGEMENTS FOR PERMANENT, RETAINED AND FIXED TERM PLACEMENTS

• 3.1 The Company endeavours to ensure the suitability of any Candidate introduced to the Client: by obtaining confirmation of the Candidate’s identity, reviewing that the Candidate has the experience, training, qualifications and any authorisation which the Client considers necessary or which may be required by law or by any professional body and checking that the Candidate is willing to work in the position which the Client seeks to fill.

• 3.2 Notwithstanding Clause 3.1, the Client undertakes to satisfy itself as to the suitability of the Candidate and the Client shall take up any references provided by the Candidate to it or the Company before engaging such Candidate.

• 3.3 To enable the Company to comply with its obligations, the Client undertakes to provide to the Company: 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 which 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.

• 3.4 The Client agrees;

• 3.4.1. To notify the Company immediately of any offer of an Engagement which it makes to a Candidate.

• 3.4.2 To notify the Company immediately that its offer of an Engagement to a Candidate has been accepted and to provide details of the Remuneration to a Candidate.

4. CLIENT ACKNOWLEDGEMENTS FOR INTERIM ASSIGNMENTS

• 4.1. The Company shall seek to ensure that the Contractor is suitably skilled to deliver the Interim Assignment with reasonable skill and care and in this regard has made reasonable enquiries of the Candidate concerning suitability and technical competence. The Company does not test the Contractor’s technical skills and it is for the Client to satisfy itself as to the Contractor’s overall capacity to fulfil the Interim Assignment when interviewing the Contractor and/or during the first week of the Interim Assignment. The Company will accept no responsibility for information relating to the Contractor. The Contractor should be treated as having opted out of the Conduct Regulations unless the Client is notified otherwise.

• 4.2. Nothing in the Agreement shall serve to create any employer/employee relationship or principal/agent relationship between the Client and the Company; or the Contractor, the Candidate(s) and the Client.

5. FEES

• 5.1. The Fees are set out in the Overview of Key Terms attached. The Fees are payable within 21 days of date of issue.

• 5.2. The Company reserves the right to charge interest on invoiced amounts unpaid by the due date at the rate of 8% calculated on a daily basis until date of receipt of payment. If there is a statutory entitlement to charge interest at a higher rate than the contractual rate, then the Company reserves the right to levy interest at the higher statutory rate from the due date.

• 5.3. The Client agrees to pay the Fees plus applicable sales tax.

• 5.4. Without prejudice to the Company’s termination rights, in the event of late payment of any invoice it shall have the right to immediately suspend performance of this Agreement, including all Interim Assignments and prospective Placements until such time as the Client pays all invoices due to the Company together with providing such security, whether financial or otherwise, as the Company reasonably considers necessary to secure its position in respect of future Fees. The Company may assign to a third party the right to render invoices and receive payment.

• 5.5. All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated unless the Client notifies the Company in writing within five days of receipt of any dispute and the reason for dispute. In the event the Client does so notify the Company that it wishes to dispute part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with the Company in order to resolve the dispute as quickly as possible.

• 5.6. The Client will indemnify the Company from and against any and all loss, damage, cost or expenses (including legal expenses) which the Company may incur as a failure of the Client to pay the Company’s account on time or in taking steps to effect recovery of sums due from the Client.

• 5.7. In order to qualify for a fee rebate, the Client must notify the Company in writing of the termination of the Engagement within 7 days of its termination. The Client must have paid the Companies invoice within 21 days of issue to qualify for a refund. If the Engagement terminates before the expiry of 8 weeks from the commencement of the Engagement (except where the Candidate is made redundant, is terminated for no reasonable cause by the Client or is terminated for reasonable cause by the Candidate) the fee will be refunded in accordance with the Permanent Placement Rebate Period set out in the Overview of Key Terms.

6. DATA PROTECTION
   
   6.1 The Client shall observe the provisions of all relevant data protection laws and regulations and consents to the Company processing relevant personal data connected to its employment business services, including receipt of relevant marketing, and exporting and/or processing personal data outside of the European Economic Area, which shall include storage of the personal data.

7. INTELLECTUAL PROPERTY RIGHTS

   The parties agree that all Intellectual Property in all the documents produced by or on behalf of the Contractor in connection with or relating to an Interim Assignment and/or placement shall vest in and belong to the Client. The Company shall seek to procure, by contracting with the Contractor on the same terms as stated herein, that the Contractor irrevocably assigns to the Client all present and future rights with full title guarantee throughout the world, free from all encumbrance, save such rights as may be expressly owned or retained by the Contractor and set out in an Interim Assignment Schedule.

8. CONFIDENTIALITY
   
   8.1. Both parties shall use reasonable endeavours to ensure that they shall at all times keep confidential (and take reasonable steps to procure that their Contractors, workers, suppliers, contractors, employees and agents shall keep confidential)and shall not at any time for any reason disclose, publish or permit to be disclosed to any person, or published, or otherwise make use of, or permit to be made use of, any Confidential Information.

9. INTRODUCTION AND OWNERSHIP
   
   9.1 Should the Client, within the Candidate Ownership Period (12 months), wish to Engage the services of the Contractor and/or the Candidate(s) other than through the Company then it shall pay the appropriate Introduction Fee.
   
   9.2 Should any associated company of the Client, an end client, any client of the Client or any other third party to whom the Client has introduced the Contractor and/or the Candidate(s), within the Candidate Ownership Period Engage the services of the Contractor and/or the Candidate(s) other than through the Company then the Client shall pay the appropriate Introduction Fee.
   
   9.3 This Clause shall survive the termination of the Agreement for the respective Candidate Ownership Period.

10. LIABILITY AND INSURANCES

• 10.1 The Company 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 an Introduction of or Engagement of any Candidate by the Client or from failure of the Company to introduce any Candidate.

• 10.2. The Company’s total liability under this Agreement shall in all circumstances be limited to three (3) times the Fees levied under an Interim Assignment in respect of which the liability allegedly accrues.

• 10.3. The Company shall not be liable for any Losses arising out of any special, indirect, consequential damages or any loss of profit, business, revenue, good will or anticipated saving of the Client or any third party.

• 10.4. For the avoidance of doubt, the Company does not exclude liability under this Agreement for its own gross negligence or default, death or personal injury arising from its own negligence or for any other loss that it is not permitted to exclude by relevant law.

• 10.5. The Client shall indemnify and keep indemnified the Company against any costs, claims, damages, expenses or liabilities incurred by the Company arising out of any non-compliance with and/or as a result of any breach of this Agreement by the Client, including such liability for taxes and NICs the Company may incur under the Intermediaries Legislation or any other legislation enacted in the United Kingdom if the Client is reasonably believed to have exercised supervision, direction and/or control over a Candidate.

• 10.6. The Company confirms that it has the following insurances in place: Public Liability and Professional Indemnity Insurance. The Company shall upon request provide the Client with evidence of cover.

11. NOTICES

    All Notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the Notice is to be served or any other address that the party has notified the other party in writing, by e-mail or facsimile transmission. Any such Notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by e-mail or facsimile transmission, when that e-mail or facsimile is sent or 9 a.m. the following business day of the sender if sent out of business hours.

12. GENERAL

• 12.1. If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining provisions, which shall continue to be valid to the fullest extent permitted by applicable laws.

• 12.2. Except as expressly provided in this Agreement a person who is not a party to this Agreement shall have no rights to enforce any term of this Agreement.

• 12.3. The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under this Agreement. The Client may do likewise with the Company’s consent, not to be unreasonably withheld.

• 12.4. Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in relation to the Services, if the delay or failure is due to Force Majeure.

• 12.5. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

• 12.6. Clauses 6, 7,8,9,10 and 13 shall survive the termination of this Agreement.

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13. BRIBERY AND CORRUPTION

• 13.1. The Client shall:

• 13.1.1. comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption (Anti Bribery Laws)

• 13.1.2. not offer, give or agree to give to any Contractor, Candidate, employee or representative of the Company any gift or other consideration which could act or be perceived to act as an inducement or a reward for any act or failure to act connected to the performance of this Agreement; and

• 13.1.3. promptly report to the Company any request or demand for a facilitation payment, financial or other advantage of any kind received by it, the Contractor and/or the Candidate in connection with the performance of this Agreement or any other circumstances which mean they can no longer comply with the terms of this Clause.

Schedule 1 - Interim Assignment Schedule