In these terms :
- a) ‘Applicant’ means anyone who is referred or about whom information is supplied to a Client. It includes someone who may have been known or referred to that Client before Instructions are given or the Introduction made.
- b) ‘Client’ means the person or persons to whom an Introduction is made. It includes anyone who asks DMA for an Introduction, gives Instructions or interviews and Applicant on behalf of a Client (’Client Intermediary’)
- c) ‘Engagement’ means any contract under which (directly or indirectly) the Applicant agrees to provide services to or for the Client or at the Client’s direction.
- d) ‘Fee’ means a sum equivalent to a percentage of the remuneration package, calculated at the rates set out in the ‘Introduction Fees’ document provided. It includes any additional fees that may have to be charged under Clauses 6 b) 2 and 4. The fee is exclusive of any VAT, which must be paid by the Client at the prevailing rate.
- e) ‘Instructions’ means information about the Engagement, the remuneration package or the Client’s requirements concerning an Applicant’s qualifications or experience.
f ) ‘Introduction’ means the referral of an Applicant or the provision of any information about an Applicant to a Client by DMA or any associate, subsidiary or agent of DMA.
- g) ‘Losses’ means any kind of loss, cost, expense, charge, damage, liability or claim whatsoever other than liability for death or personal injury caused by negligence.
- h) ‘Remuneration package’ means the total amount, before the deduction of tax, of the salary, fees, profit share or equivalent remuneration and all commissions, bonuses, allowances (including car allowances) and benefits of any kind in respect to the first year of the Engagement.
- a) All Instructions are accepted and every Introduction is made subject to these terms. An Introduction is made when a referral or any information about the Applicant arrives at the Client’s office or is communicated to the Client intermediary, whichever is the earlier event.
- b) Giving instructions, arranging an interview with or requesting further information about or from the Applicant, is acceptance or and agreement to these terms by the Client.
- c) These terms are paramount. They prevail over any other terms or conditions which may conflict with their provisions or, but for this term, may have been incorporated into any agreement between DMA and the Client.
- a) An Introduction, and any information about an Applicant, is provided to the Client in strict confidence and for the purpose of considering whether it wishes to engage that Applicant. The Client must not disclose an Introduction or any information about an Applicant to anyone else. In particular, the Client must not approach an Applicant’s current employer until the Client has made an offer of Engagement to that Applicant and has the Applicant’s permission to do so.
- b) The Client must not re-introduce an Applicant to anyone else. If, within twelve months of the Introduction it does so, and this leads to a contract equivalent to an Engagement with someone other than the Client, the Client must pay the Fee as if there had been an Engagement under these terms (except that Clause 7 a will not apply), unless that other person pays DMA a sum equivalent to the Fee.
- a) DMA will use the due skill and care in locating and introducing Applicants. Beyond that, no other term or condition is to be implied concerning DMA’s services. In particular, DMA does not warrant or make any representations about the suitability of, or the accuracy of any information concerning an Applicant (as this information comes from the Applicant or other sources outside DMA’s control) and none is to be implied from anything DMA may undertake or provide.
- b) Any decision to proceed with an Introduction, enter into an Engagement or incur any expense is a matter for the Client. The Client agrees that the responsibility for assessing and ensuring an Applicant’s suitability for an Engagement, including taking up or confirming references, educational background, medical history, or obtaining any work and other permits and assessing or confirming qualifications, remains with the Client at all times. The Client is strongly advised by DMA to, and agrees to, take any of the steps referred to before offering or entering in an Engagement.
- c) DMA, its subsidiaries, associates, staff and agents (for whom DMA acts for the purpose of this and the following provision) shall not be liable, on any basis, for any Losses arising from, caused by or connected with DMA’s taking the Client’s Instruction, the Introduction, the acts or omissions of an Applicant or an Engagement, even if an Applicant acts or has acted negligently, dishonestly or fraudulently.
- d) However, if despite the previous provision, a Court determines that, for any reason and on any basis, DMA or any of its subsidiaries, associates, staff or agents is liable to the Client for any Losses, their aggregate liability shall be limited to the Fee actually paid by the Client.
- a) The Client agrees
- To give DMA the Instructions it may require from time to time to assist it in locating and introducing Applicants.
- To act promptly, reasonably and in good faith (including not applying any discriminatory standards or practices) when deciding whether it wishes to engage an Applicant.
- Not to prevent or impede DMA from making an Introduction or otherwise earning and receiving the Fee in any way.
- To indemnify DMA against Losses it incurs as a result of the Client’s delay in giving, changes in or failure to give adequate Instructions, or any breach of these terms by, or the negligence or other wrongful act, omission or statement of the Client.
- b) The Client intermediary warrants that he or she is duly authorised to agree these terms on behalf of the Client, give instructions and act for the Client in matters concerning the Introduction and Engagement.
The fee and all other payments must be made as follows:
- a) The Fee becomes payable by the Client if an Applicant accepts any offer of Engagement at any time within twelve months of the Introduction being made. However, a Fee is not payable if an Applicant accepts an offer but fails to commence the Engagement through no fault of the Client.
- b) The Client must:
- Notify DMA immediately an Applicant is offered an Engagement and provide full details of the remuneration package (and copies of any relevant contract and other documents if DMA so requests) and when a commencement date for the Engagement is agreed.
- Update DMA immediately if there is any change in the offered or agreed remuneration package or the commencement date. DMA reserves the right to adjust the Fee or require the payment of an additional fee if there is a change.
- Pay the Fee within 30 days of the Applicant’s acceptance of an offer of Engagement, or within 14 days of the commencement of the Engagement, whichever is the earlier (’the payment date’).
- If asked to do so, provide DMA with full details of the remuneration package actually received by or paid to the benefit of the Applicant for the first year of his or her Engagement (and copies of any relevant contract and other documents if DMA so requests). DMA reserves the right to charge an additional fee on the difference between the remuneration package and actually received (if it is higher) and thta used for the calculation of the Fee.
- c) DMA will calculate and invoice the Client for the Fee and for any other sum payable by the Client under these terms. Unless there is an obvious error in any calculation shown on any invoice, the invoiced sum will be final and binding as the sum due from the Client. It is absolutely essential that the Fee and any other invoiced sum is paid, without deduction, by the payment date or, if for any reason it is issued later that the payment date, within 15 days from the date of any invoice.
- d) The Client must not make any deduction from, or assert or exercise any set-off, lien or other right or claim against the Fee, any other invoiced sum or any interest that may become payable under clauses 6 e)1.
- e) If the Fee or any other invoiced sum is not paid within the time specified in Clause 6 c) (’the due date’) and in full, then
- Interest shall be paid on any outstanding balance, for the first 30 days, at the rate of 5% above, and thereafter, at the rate of 8% above the Midland Bank’s (or its successor’s) prevailing base lending rate, that interest accruing daily from the due date until payment (whether before or after judgement) and, while any part of the balance or interest remains outstanding.
- DMA may give notice to the Client terminating or, at its option, suspending, in either case with immediate effect, its performance of and any of its obligations under this and any other agreement then in force between itself and the Client, until the outstanding balance and any interest has been paid in full. DMA will not incur any liability, upon any basis or for any reason, for any Losses resulting from, and the Client will indemnify DMA against any Losses it incurs as a result of , any termination or suspension. A termination or suspension will not release the Client from performance of, or any of its obligations under, or otherwise vary the terms of any agreement.
- DMA may also recover from the Client, as a sum due under these terms, any costs or other expenses it incurs, in enforcing and recovering any payments due from the Client.
- a) If an Applicant terminates the Engagement within twelve weeks after the commencement date, for any reason (other than redundancy or the Applicant’s death), DMA will refund : week 1-4 100 % and week 5 – 12 weeks 25% of the fee.
- b) Any refund is conditional upon:
- The Fee and any other invoiced sum having been paid by the due date.
- The Client’s notify DMA in writing within seven days of the termination and the reason for it and
- The Applicant’s not being re-engaged in any capacity by the Client or any parent, subsidiary or associated company of the Client within twelve months of the Introduction.
- c) If the Applicant is re-engaged as set out in Clause 7 b) 3, the Client shall notify DMA immediately and repay the refunded amount as if the date of notification was the payment date for the purposes of these terms.
- a) This is the entire agreement between the parties. The agreement may not be cancelled and these terms may not be varied or their application or any breach of them waived other than by a document signed by a Director of DMA. No-one else has authority to agree to any variation waiver.
- b) If a specific fee or payment arrangement has been made between DMA and the Client, which includes a variation of any of these terms and the Client breaches any term of that arrangement, then all of these terms shall be substituted for and form part of that arrangement with immediate effect.
- c) In addition to and without prejudicing any of its other remedies, DMA may terminate the agreement between the parties with immediate effect if the Client breaches any of its terms or (in DMA’s view) materially alters the Instructions.
- d) If the agreement is cancelled or terminated because of material alteration to the Instructions. the Client must indemnify DMA against Losses incurred by it to that date or resulting from the cancellation or termination.
- e) DMA shall not incur any liability to the Client for any Losses if the performance of DMA’s obligationsis prevented or delayed by the acts of omissions of others or other events, which are beyond it’s control.
f ) If any of these terms is or becomes invalid or unenforceable for any reason, the others shall continue in full force and effect.
- g) These terms supersede any other terms previously issued by DMA or applied to any permanent placement business between the parties.
- h) The terms and any agreement between the parties are governed by and are to be construed in accordance with English law. DMA and the Client submit to the exclusive jurisdiction of the English courts and proceedings must be brought in London.