Fresh Minds Talent Limited

whose company number is 08662856 and whose registered office address is at Kingsbourne House 229-231 High Holborn, London, WC1V 7DA (“Fresh Minds”)

Standard Terms and Conditions of Business  - Recruitment Services

Definitions

In this agreement the following terms shall have the following meanings:

"Accept" means the making of an offer of permanent or fixed-term employment or engagement by the Client to a Candidate. “Accepted” shall be construed accordingly;

"Assignment" means the period during which the Temporary supplied by Fresh Minds renders their services to the Client;

Assignment Services” means the services provided by the Temporary to the Client and for the avoidance of doubt does not include the Services rendered by Fresh Minds;

Assignment Schedule” means the document that sets out the details of the Assignment as more specifically set out in clause 3.6 of this agreement;

AWR” means the Agency Workers Regulations 2010;

"Candidate" means an individual who is submitted for a temporary, permanent or fixed-term position with the Client by Fresh Minds;

Client” means the recipient of Fresh Minds' Services;

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

"Engagement" means the employment, engagement or other use of a Candidate by the Client or another person, directly or indirectly, on a permanent, fixed-term or temporary basis. For the avoidance of doubt, in the case of Permanent and Fixed-Term Recruitment Services (as defined in clause 3.2(b)), a Candidate shall be considered engaged upon their entering into a contract of employment or, directly or indirectly, a contract for services with the Client. “Engage”, “Engages”, “Engaging” and “Engaged” shall be construed accordingly;

Extended Period of Hire” means, where there has been a supply of the Temporary, any additional period that the Client wishes Fresh Minds to supply the Temporary beyond the initial Assignment or series of Assignments as an alternative to paying the Transfer Fee, the length of which is set out in paragraph 3.1(d)(i) of Schedule 1 or, where there has been no supply of the Temporary, a period that the Client wishes Fresh Minds to supply the Temporary as an alternative to paying the Transfer Fee, the length of which is set out in paragraph 3.2(d)(i) of Schedule 1;

"Fixed-Term Candidate" means a Candidate introduced by Fresh Minds to the Client and employed or engaged for a fixed-term period directly by the Client as an employee or worker or via a company contractor with which the Client has a direct contract;

"Good Industry Practice" means in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances, applying the standards currently generally applied in the relevant industry;

"Introduce" means to effect an Introduction;

"Introduction" means the provision by Fresh Minds to the Client of any details of a Candidate whether in oral or written form, and whether for a temporary, permanent or fixed-term position. “Introduced” shall be construed accordingly;

Introduction Fee” means the fee payable in accordance with Schedules 1 and 2 of this agreement; and Regulation 10 of the Conduct Regulations;

"Permanent Candidate" means a Candidate introduced by Fresh Minds to the Client and employed and payrolled directly by the Client for an indefinite period;

"Permanent and Fixed-Term Recruitment Services" means as defined in clause 3.2(b);

"Permanent and Fixed-Term Recruitment Services Fee" means the fee payable by the Client to Fresh Minds for Permanent and Fixed-Term Recruitment Services calculated and payable in accordance with paragraph 4 of Schedule 1;

Personnel” means any employee of Fresh Minds that is involved in the delivery of the Services but who for the avoidance of doubt does not include a Temporary;

“Qualifying Period” means 12 continuous calendar weeks (calculated in accordance with Regulation 7 of the AWR) during the whole or part of which the Temporary is supplied by one or more temporary work agencies to the Client to work temporarily for and under the supervision and direction of the client in the same role;

"Remuneration" means all salary or fees, including base salary or fees, a figure for the value of guaranteed and/or anticipated benefits, contractual bonuses, commission, allowances and all other emoluments payable to or receivable by the Candidate for services rendered to or on behalf of the Client in their first year of Engagement (whether or not the Candidate is Engaged for a year) (and including any bonus or other inducement paid to the Candidate prior to the Candidate commencing his or her Engagement with the Client);

“Services” means the services provided by Fresh Minds to the Client as more fully set out in clause 3.1 and 3.2 of this agreement;       

“Role” means a permanent or fixed-term contract position where the Candidate is employed or engaged directly by the Client or via a company contractor with which the Client has a direct contract;

"Temporary" means a Candidate introduced by Fresh Minds to the Client to perform the Assignment Services via Fresh Minds;

"Temporary Recruitment Services" means as defined in clause 3.2(a);

Terms” means the provisions of this agreement as set out within this document; and

Transfer Fee” means the fee payable in accordance with Schedule 1 and 2 of this agreement and Regulation 10 of the Conduct Regulations.

1. Interpretation

In this agreement, unless it says otherwise:

(a) reference to a person includes a legal person (such as a limited company) as well as a natural person;

(b) reference to this agreement includes reference to the front sheet, schedules and appendices and other documents attached to it or incorporated by reference into it (all as amended or added to from time to time);

(c) reference to "including" in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;

(d) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation;

(e) references to clause numbers or schedules shall be to those in this agreement;
references to this agreement shall include reference to it after it has been amended, added to or replaced by a new agreement.

2. These Terms

2.1 These Terms shall be deemed to have been accepted by the Client and to apply by virtue of (a) an Introduction to or the Engagement by the Client of a Candidate; or (b) the passing of information about the Candidate by the Client to any third party; or (c) the Client’s interview or request to interview a Candidate; or (d) any written (including email or text) or other express acceptance of these Terms; or (e) the signature by the Client of a timesheet or invoice of a Temporary, whichever first occurs.  For the avoidance of doubt these Terms apply whether or not the Candidate is Engaged for the same type of work as that for which the Introduction was originally effected.

2.2 The Client agrees that Fresh Minds' Introduction will be the effective cause of any Engagement and the fee or fees (as appropriate) in accordance with these Terms will be charged and payable, if the Candidate becomes a Permanent Candidate or a Fixed-Term Candidate and the Client has:

(a) not notified Fresh Minds within 48 hours of the relevant Introduction that the Candidate is already known to the Client and/or has already been introduced to the Client by another employment agency or business and not provided Fresh Minds, within such 48 hour period, with satisfactory evidence of the same and with satisfactory evidence that the Candidate was identified to the Client with the Candidate's prior consent (and Fresh Minds reserves the right to ask the Candidate whether or not the Candidate gave such consent and the Candidate's response shall be final and binding); or

(b) notified Fresh Minds within the period set out in clause 2.2(a) that the Candidate is already known to the Client and, within such period, has provided Fresh Minds with the satisfactory evidence set out in clause 2.2(a), but the Client does not, within such period, provide Fresh Minds with satisfactory evidence that the Client has been in contact with the Candidate regarding relevant vacancies within the 3 months prior to the relevant Introduction. 

For the avoidance of doubt, Fresh Minds shall always be entitled to charge the Client fees (in accordance with these Terms) for the supply of a Temporary. 

2.3 These Terms contain the entire agreement between the parties in relation to the subject matter and unless otherwise agreed in writing (and signed by a duly authorised signatory), these Terms prevail over any previous terms of business, agreement or any purchase conditions put forward by the Client. This clause is without prejudice to any rights which have arisen prior to the termination of such and nothing shall operate to exclude or limit the liability of any party in respect of fraud.

2.4 If an Assignment Schedule conflicts with the provisions of these terms, then the provisions of that Assignment Schedule will take precedence in relation to the Services to be supplied in accordance with that Assignment Schedule.

2.5 If there is any dispute, conflict or inconsistency between these Terms and any Assignment Schedule or duly authorised variation to these Terms, the provisions of those documents shall, only to the extent of any such conflict or inconsistency, take precedence in the following order:

(a) an individual Assignment Schedule;

(b) the latest agreement amendment form varying the terms of this agreement; and

(c) the Terms of this agreement.              

3 Services to be provided by Fresh Minds

3.1 This is an agreement between Fresh Minds and the Client.  It covers the provision of recruitment services from time to time by Fresh Minds (the "Services").

3.2 The Services to be provided by Fresh Minds consist of the attraction, selection, introduction and recruitment of individuals by Fresh Minds on the Client's behalf on:

 (a) a temporary basis via Fresh Minds (the "Temporary Recruitment Services") which for these purposes shall mean Fresh Minds shall act as an employment business in accordance with the Conduct Regulations; and/or

(b) a permanent or fixed-term basis directly with the Client as an employee or worker of the Client or engaged by the Client via a company contractor with which the Client has a direct contract (the "Permanent and Fixed-Term Recruitment Services") which for these purposes shall mean that Fresh Minds shall act as an employment agency in accordance with the Conduct Regulations.

3.3 Before Fresh Minds provides any Services to the Client, the Client and Fresh Minds will in each case agree in relation to such Services:

(a) exactly what Services are required;

(b) specifications for a particular Candidate or Candidates;

(c) time scales (if required);

(d) charges;

(e) the terms of any Extended Period of Hire;

(f) subject to clause 3.4, whether Fresh Minds will provide the Services on a retained or non-retained basis; and

(g) any other relevant details.

3.4 Notwithstanding the provisions of clause 3.3(f), the Client agrees that, unless agreed otherwise in writing by the Client and Fresh Minds, in relation to any Permanent and Fixed-Term Recruitment Services for which the anticipated Permanent and Fixed-Term Recruitment Services Fee is £80,000 (eighty thousand pounds) or more, Fresh Minds will provide the relevant Permanent and Fixed-Term Recruitment Services on a retained and exclusive basis.

3.5 Should the Client decide to Accept a Candidate or Engage a Temporary then it shall notify Fresh Minds immediately. In the case of Permanent and Fixed-Term Recruitment Services, the Client should also provide details of:

 (a) the Remuneration offered or that is to be offered to the Candidate;

 (b) the terms of Engagement; and

 (c) the anticipated start date for the Candidate.

3.6 Where Fresh Minds and the Client have agreed that Fresh Minds will supply the Client with a Temporary, Fresh Minds shall provide the Client with an Assignment Schedule confirming the name of the Temporary, the agreed charge rate, term of the Assignment, description of the Assignment Services, notice periods and any other relevant details communicated and agreed between the parties.

3.7 Fresh Minds will provide its Services:

 (a) with reasonable care and skill; and

 (b) by means of appropriately qualified and skilled Personnel.

3.8 Fresh Minds shall use its reasonable endeavours to procure that the Temporary:

 (a) supplies their services in accordance with Good Industry Practice;

 (b) uses reasonable care and skill in performing their services; and

(c) complies with all the Client's regulations, policies and protocols as notified by the Client to Fresh Minds from time to time, including on health and safety, security and anti-bribery and corruption.

4  Client Obligations

4.1 The Client shall act reasonably and shall not discriminate on the grounds of any protected characteristic when deciding whether or not to Accept a Candidate and/or when Engaging a Temporary and shall be liable for and fully indemnify Fresh Minds against any breach of this obligation that results in any loss, damage or claim against Fresh Minds or any of its Personnel.

4.2 The Client shall give to Fresh Minds such information as Fresh Minds may reasonably request from time to time in order to comply with its legal obligations under the Conduct Regulations including information to enable Fresh Minds to properly consider the suitability of the Candidate Introduced to supply the Assignment Services or perform a Role including but not limited to:

(a) the identity of the Client and, if applicable, the nature of the Client’s business;

(b) the date on which the Client requires the Temporary to commence the Assignment and the duration or likely duration of the provision of the Assignment Services or the date on which the Client requires the Permanent Candidate or the Fixed-Term Candidate to commence performance of the Role;

(c) details of the Role or Assignment including, but not limited to, the type of work, the location and the hours during which the Assignment Services or the Role are to be provided;

(d) any risks to health and safety known to the Client and the steps taken by the Client to prevent or control such risks;

(e) the experience, training, qualifications, accreditations and any authorisation which the Client considers are necessary, or which are required by law or by any professional body for the Candidate to possess in order to provide the Assignment Services or to perform the Role;

(f) any expenses payable by or to the Candidate;

(g) the minimum rate of remuneration or fees and any other benefits which the Client would offer to a person in the Role which it seeks to fill, and the intervals at which such payment would be made;

(h) where applicable, the length of notice which the Permanent Candidate or Fixed Term Candidate (as applicable) in such a Role would be required to give and entitled to receive in order to terminate the Role with the Client;

(i) any site regulations or other policies and procedures the Client requires the Temporary to adhere to and the Client shall provide copies of the same to Fresh Minds before the commencement of the Assignment Services; and

(j) any other information that may affect the Introduction or the Candidate’s decision to accept the Assignment or Role offered.

4.3 Furthermore with respect to the provision of a Temporary to perform Assignment Services, the Client will be required to provide to Fresh Minds any details of relevant terms and conditions pursuant to its obligations under the AWR relating to:

(a) pay (including commission and/or bonuses that are in scope);

(b) the  duration of working time;

(c) night work;

(d) rest  periods;

(e) rest  breaks; and

(f) annual leave;

that are ordinarily included in the  contracts of employees or  workers  (as appropriate) of the Client  whether by collective agreement or otherwise and including (for the  avoidance of doubt and without limitation) such terms and any basic working and employment conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation that will enable Fresh Minds to comply with its obligations under the AWR.

4.4 If the Temporary has completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, and if the Candidate is entitled to any terms and conditions relating to pay, the duration of working time, night work, rest periods and/or rest breaks under the AWR which are different and preferential to rights and entitlements relating to the same under the Working Time Regulations 1998, any such terms and conditions will be as set out in the relevant Assignment Schedule (as appropriate) and the Client will give the Temporary any such entitlements.

4.5 The Client shall be responsible for providing the necessary resources and facilities for the Temporary and acknowledges that only the Client is in the position to monitor the quality and delivery of the Assignment Services on a day to day basis.

4.6  The Client shall ensure that it complies with all relevant health and safety legislation and acknowledges that it is solely liable for the provision of a safe place of work.

4.7  The Client undertakes to notify Fresh Minds immediately of its or any member of the Client’s group’s intention to:

(a) Engage a Candidate Introduced by Fresh Minds;

(b)  extend or re-extend the fixed-term period of any Fixed-Term Candidate or subsequently Engage a Fixed-Term Candidate on a permanent basis;

(c) extend an Assignment; or

(d) otherwise Engage directly or indirectly a Candidate and/or Temporary Introduced or supplied by Fresh Minds.

4.8 The Client acknowledges that it is solely responsible and liable for the provision of access to its collective facilities, amenities and job vacancies from the first day a Temporary commences an Assignment with the Client in accordance with the AWR.

5 Temporary Recruitment Services

5.1 A Temporary will either be engaged directly by Fresh Minds under a contract for services, in which case the Temporary will be a worker of Fresh Minds, or they will be engaged by Fresh Minds via a company contractor under a contract for services, in which case the relationship of the Temporary to Fresh Minds will be that of self-employed.  

5.2 Should the Client have a complaint about any Temporary it must notify Fresh Minds immediately. Where the Temporary is on a contract of service, it shall be the responsibility of Fresh Minds to discipline any Temporary as is appropriate on receipt of a complaint from the Client, and under no circumstances shall the Client be authorised to discipline any Temporary

5.3 If the Client reasonably wishes any Temporary supplied by Fresh Minds to be replaced before completion of an Assignment, the Client must give Fresh Minds at least three working days' prior written notice (giving the reason(s) for such a request). If any such notice is received by Fresh Minds:

(a) Fresh Minds will use reasonable efforts to provide a replacement at the earliest possible opportunity; and 

(b) any additional costs incurred by Fresh Minds as a result of such notice shall be borne by the Client.

5.4 In the event that any Temporary leaves an Assignment before completion of the period agreed between Fresh Minds and the Client, Fresh Minds shall use reasonable efforts to find a suitable replacement within three working days of the date the Temporary leaves the Assignment, but Fresh Minds shall not be liable in the event that a suitable replacement cannot be found.

5.5 The Client shall indemnify and keep  Fresh Minds fully indemnified against all actions, claims, demands, costs, charges and expenses incurred by or made against Fresh Minds by or on behalf of any Temporary under any employment legislation (including the AWR) due in whole or in part to any act or omission of the Client (or its employees, workers, agents, officers or contractors) or to the Client’s breach of any of these Terms or the Client's failure to comply with the AWR or to provide equal pay entitlements or the correct information relating to equal pay entitlements under the AWR.

5.6 If Fresh Minds is providing Temporary Recruitment Services to the Client, Fresh Minds shall be responsible for:

(a) obtaining any and all necessary permits (whether for work or otherwise) where the Temporary is on a contract of service; and

(b) undertaking any relevant referencing and background checks as may be specifically required by the Client or that may be required pursuant to Regulation 22 of the Conduct Regulations.

6 Permanent and Fixed-Term Recruitment Services

6.1  Once a Candidate has been Accepted by the Client as a Permanent Candidate or a Fixed-Term Candidate, and such Candidate has accepted an Engagement, that Candidate shall be an employee (or fixed-term employee or worker or contractor) of the Client and not Fresh Minds.  The Client shall be solely responsible for the payment of any wages or fees (or any other monies or benefits) to that Candidate and for the deduction of any income tax, National Insurance contributions and any other statutory deductions required by law.

6.2 Once a Candidate becomes a Permanent Candidate or a Fixed-Term Candidate, Fresh Minds shall have no further liability or responsibility in relation to such Permanent Candidate or Fixed-Term Candidate or for the performance of such Permanent Candidate or Fixed-Term Candidate.

6.3 If Fresh Minds is providing Permanent and Fixed-Term Recruitment Services to the Client, Fresh Minds shall be responsible for ensuring that any Permanent Candidate or a Fixed-Term Candidate (as applicable) has any qualifications that are required by law, and that the Permanent Candidate or Fixed-Term Candidate (as applicable) is willing to fulfil the Engagement.

6.4 If Fresh Minds is providing Permanent and Fixed-Term Recruitment Services to the Client, the Client shall be responsible for:

 (a) obtaining any and all necessary permits (whether for work or otherwise);

 (b) arranging any medical examinations or investigations if deemed appropriate and not in breach of current law; and

 (c) obtaining all the necessary references.

7 Charges

7.1 The Client will pay Fresh Minds for the Recruitment Services as described in Schedule 1 and Schedule 2.  These amounts will be calculated and will become due and payable as set out in Schedule 1 and Schedule 2.  With respect to the Engagement by the Client of a Temporary, Fresh Minds will stipulate in the Assignment Schedule the specific charges relating to that Temporary and the frequency of payments required.

7.2  Signature by the Client, or its representative, of the timesheets or other verification of hours worked is conclusive evidence of the amount of time worked by the Temporary. Failure to sign the timesheet does not absolve the Client of its obligation to pay the charges set out within these Terms.

7.3 If the Client is unable to sign a timesheet produced for approval by the Temporary because the Client disputes the amount of time claimed, then the Client shall notify Fresh Minds within 2 working days of such refusal to sign the timesheet and shall co-operate fully and in a timely fashion with Fresh Minds to enable Fresh Minds to establish the veracity of the time and work claimed.

7.4 If, at any time, clause 3.4 applies or, in accordance with clause 3.3(f), the Client and Fresh Minds agree that Fresh Minds will provide Permanent and Fixed-Term Services on a retained basis in relation to a specific recruitment scheme, the Client and Fresh Minds will agree the number of Candidates that Fresh Minds is to Introduce to the Client in relation to such scheme and the Client agrees that:

(a) Fresh Minds will provide the relevant Services on an exclusive basis; and

(b) in recognition of the work involved in running any such scheme, the Client will pay Fresh Minds a Permanent and Fixed-Term Recruitment Services Fee in respect of each Candidate the Client Engages in connection with such scheme up to at least the number of Candidates agreed in accordance with this clause 7.4 whether or not Fresh Minds Introduced each such Candidate.

7.5 VAT shall be payable on charges/fees where applicable.

7.6 The Client acknowledges that Fresh Minds may increase its charges or fees where the cost of supply of the Temporary increases due to a change in legislation and/or where the cost of the Assignment Services increases due to equal pay rights or any other rights and entitlements under the AWR.

7.7 Fresh Minds shall invoice the Client for the charges/fees as soon as they become due.  The Client must pay the invoices within 14 days of the date of such invoice with respect to Temporary Recruitment Services and 30 days of the date of such invoice with respect to Permanent and Fixed-Term Recruitment Services (save where otherwise specified).

7.8 If the Client is late in paying any invoices, then Fresh Minds may charge interest on all unpaid amounts from the date of the invoice until the date of payment.  The rate of interest will be 2% per month above the base rate for the time being of NatWest Bank plc.

8 Exclusions and Limitations

8.1 Neither party's liability shall be limited for the following:

(a) death or personal injury caused by its negligence or the negligence of its personnel or agents;

(b) fraudulent misrepresentation; or

(c) anything else that cannot be limited by law.

8.2 Fresh Minds shall not be liable (whether for breach of contract, negligence or for any other reason) for any:

(a) loss of profits;

(b) loss of sales;

(c) loss of revenue;

(d) loss of any software or data;

(e) loss of use of hardware, software or data;

(f) loss or waste of management or staff time; or

(g) any other indirect, consequential or special loss.

8.3 Fresh Minds will not be liable for breach of any of the Terms in this agreement to the extent that the breach arises from any inaccuracy in any information provided by the Client or from any act or omission of the Client or where Fresh Minds was acting on the instruction of direction of the Client.

8.4 Fresh Minds total aggregate liability (including that assumed under any indemnity) to the Client under these Terms (whether the liability arises because of breach of contract, negligence or for any other reason) shall be limited to an amount equal to 125% of the total charges paid by the Client to Fresh Minds in the proceeding 12 month period in relation to the Services.  

9  Confidentiality and data protection

9.1  Fresh Minds will, and will procure that the Temporary will, keep confidential any confidential information which the Client supplies to Fresh Minds or the Temporary in connection with this agreement and the Client must do the same in relation to any confidential information which Fresh Minds or the Temporary supplies to the Client.   Confidential information will include all information marked as being confidential and any other information which might reasonably be assumed to be confidential.  The obligations as to confidentiality in this agreement will not apply to any information which:

(a) is available to the public other than because of any breach of this agreement;

(b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;

(c)  independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;

(d)  is trivial or obvious; or

(e) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure.

9.2 Each party will comply with all relevant requirements of any applicable data protection legislation.

10  Term and termination

10.1 This agreement will commence on the date when Fresh Minds first performs the Services for the Client including for the avoidance of doubt the Introduction by Fresh Minds to the Client of a Candidate.  

10.2 Termination of an Assignment shall not affect the continuation of this Agreement and any termination of an Assignment must be subject the agreed notice period as set out in the relevant Assignment Schedule.

10.3 Either party may terminate this agreement on giving 30 days' prior written notice to the other party.

10.4 This agreement may be terminated:

(a) by notice with immediate effect by either party if there is any breach of this agreement by the other party, which is, in the reasonable opinion of the terminating party, incapable of being remedied;

(b) by 14 days' notice by either party if there is any other serious or repeated breach of this agreement by the other party, which is, in the reasonable opinion of the terminating party, capable of remedy and which is not remedied within 14 days after an earlier notice requiring it to do so; or

(c) by notice with immediate effect by Fresh Minds if the Client goes into liquidation; makes a voluntary arrangement with its creditors; has a receiver or administrator appointed; suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

10.5 Termination of this agreement will not affect any accrued rights or liabilities which either Fresh Minds or the Client may have by the time termination takes effect and for the avoidance of doubt will not affect any Assignments already in place which will continue in accordance with the agreed Assignment Schedule.

11 Other Terms

11.1 Fresh Minds may:

(a) subcontract the performance of any of Fresh Minds’ obligations under this agreement;

(b) assign any of its rights or obligations under this agreement;

Fresh Minds will remain liable to the Client for any breach of this agreement if it sub-contracts.

11.2 Neither party will be liable to the other for any breach of this agreement which arises because of any circumstances which that party cannot reasonably be expected to control.

11.3 All notices and consents relating to this agreement must be in writing. All variations to this agreement must be agreed, set out in writing and signed on behalf of both Fresh Minds and the Client by an authorised signatory before they take effect.

11.4 The Client shall not during the term of this agreement or for a period of six months after the termination date directly or indirectly solicit or endeavour to entice away from Fresh Minds or directly or indirectly employ or engage any person who has been either employed or engaged as an employee, worker, personnel or consultant by Fresh Minds as at the termination date or up to 6 months before the termination date and with whom the Client had contact at any time during such period.

In the event the Client breaches this provision, then the Client will be liable to pay Fresh Minds the equivalent of 40% (forty percent) of the then annualised salary or fees and associated costs of employing or engaging such individual. The parties agree that this sum represents a genuine pre-estimate of the loss likely to be suffered by Fresh Minds as a result of the Client’s breach.

For the avoidance of doubt, the provisions of this clause 11.4 shall not apply in relation to any Temporary and the provisions of paragraph 3 of Schedule 1 will apply.

11.5 This agreement, any duly authorised and signed variation thereto and any relevant Assignment Schedule sets out all of the terms that have been agreed between Fresh Minds and the Client in relation to the subjects covered by it.  Subject to clause 2.3 no other representations or terms shall apply or form part of any contract between the parties.

11.6 No term of this agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this agreement.

11.7 This agreement is governed by English law.  Both Fresh Minds and the Client submit to the exclusive jurisdiction of the English courts in relation to any dispute concerning this agreement.

 

Schedule 1

Charges for Recruitment Services

1. Charges

1.1 The charges fall into three categories:

(a) the Temporary Recruitment Services Fee;

(b) the Transfer Fee, the Introduction Fee or the charges for the Extended Period of Hire; and

(c) the Permanent and Fixed-Term Recruitment Services Fee;

and the clauses below detail the terms relating to the calculation of each class of charges listed above.

1.2 Refunds or rebates are not payable to the Client, except as set out in this agreement.

2.  Temporary Recruitment Services Fee

2.1 The Temporary Recruitment Services Fee is calculated as follows:

(a) the number of days worked by the Temporary based on the daily rate as set out in the relevant Assignment Schedule; and

(b) travelling, hotel or other expenses as agreed and set out in the relevant Assignment Schedule.

2.2 The Temporary Recruitment Services Fee shall be invoiced weekly and shall be due from the Client within 14 days of the date of Fresh Minds' invoice.  Unless an invoice is queried within 7 days of issue then the Client is deemed to have accepted the invoice and payment shall be due as specified.

2.3 If the Client cancels an Assignment after 12 noon of the working day before the date that the Temporary was due to commence working for the Client, the Client shall pay a cancellation fee calculated in accordance with paragraph 2.4(a) or (b) of this Schedule 1 within 7 days of its cancellation of the Assignment in addition to any notice period as set out in the agreed Assignment Schedule.

2.4 The cancellation fee is calculated as follows:

(a) where the placement period is less than 4 weeks, the fee will be the daily rate (set out in the relevant Assignment Schedule) multiplied by one (1); or

(b) where the placement period is for 4 weeks or more, the fee will be the daily rate (set out in the relevant Assignment Schedule) multiplied by two (2).

3.  Fee on Engagement of Temporary by Client

3.1 Where there has been a supply of a Temporary to the Client in accordance with these Terms:

(a) save where paragraph 3.1(e) of this Schedule 1 applies, in the event of the Engagement by the Client of a Temporary supplied by Fresh Minds either (1) directly or (2) pursuant to being supplied by another employment business (as defined under the Conduct Regulations), within either:

(i) the duration of the Assignment; or

(ii) whichever of the following periods ends later:

(aa)  14 weeks from the start of the first Assignment (the first Assignment being each new assignment where there has been a break of more than 42 days (6 weeks) since the end of the previous Assignment); and

(bb) 8 weeks from the day after the last day the Temporary worked on the Assignment;

the Client shall be liable, to either an Extended Period of Hire or a Transfer Fee in accordance with paragraph 3.1(d) of this Schedule 1;

(b) the Client must give Fresh Minds 5 days’ written notice in advance of the Engagement of whether it has elected to take the period of Extended Period of Hire or to pay the Transfer Fee;  

(c) if the Client does not give such notice before the Temporary’s Engagement, the parties agree that the Transfer Fee shall be due;

(d) the Extended Period of Hire and the Transfer Fee shall be calculated as follows:

(i) the length of the Extended Period of Hire shall be 12 months during which the Client shall pay either the current hourly or daily charge (whichever is applicable to the Temporary and as set out in the relevant Assignment Schedule) agreed pursuant to paragraph 2 of this Schedule for each hour or day the Temporary is so Engaged; and

(ii)  the amount of the Transfer Fee shall be calculated in accordance with Rate Card 1 in Schedule 2 (subject to a minimum fee of £3,600); and

(e)  in the event that the Temporary has opted out of the Conduct Regulations or the Conduct Regulations do not apply in relation to the Temporary, the Client shall be liable to a Transfer Fee in accordance with paragraph 3.1(d)(ii) of this Schedule 1 should an Engagement take place at any time during an Assignment or within 12 months of the last day of an Assignment.

3.2  Where there has been an Introduction but no supply:

(a) in the event that there is an Introduction of a Temporary to the Client which does not result in the supply of that Temporary by Fresh Minds to the Client, but which leads to an Engagement by the Client of the Temporary either (1) directly or (2) pursuant to being supplied by another employment business (as defined under the Conduct Regulations) within 12 months of the date of the Introduction the Client shall be liable to either an Extended Period of Hire or an Introduction Fee determined in accordance with paragraph 3.2(d) of this Schedule 1;

(b) the Client must give Fresh Minds 5 days’ written notice in advance of the Engagement of whether it has elected to take the Extended Period of Hire or to pay the Introduction Fee;

(c) if the Client does not give such notice before the Temporary’s Engagement the parties agree that the Introduction Fee shall be due;

(d) the Extended Period of Hire and the Introduction Fee shall be calculated as follows:

(i)   the length of the Extended Period of Hire shall be 12 months during which the Client shall pay either the current hourly or daily charge (whichever is applicable to the Temporary and as set out in the relevant Assignment Schedule or, where such charge is not set out in the relevant Assignment Schedule or there is no Assignment Schedule, the current market rate) agreed pursuant to paragraph 2 of this Schedule for each hour or day the Temporary is so employed or supplied; and

(ii) the amount of the Introduction Fee shall be calculated in accordance with Rate Card 1 in Schedule 2 (subject to a minimum fee of £3,600).

3.3  Where there has been an introduction to and Engagement by a third party following supply of a Temporary to the Client:

(a) save where paragraph 3.3(e) of this Schedule 1 applies, in the event that the Temporary supplied to a Client is introduced by the Client to a third party which is not an employment business (as defined under the Conduct Regulations) which results in the Engagement of the Temporary by the third party within either:

(i) the duration of the Assignment; or

(ii) whichever of the following periods ends later:

(aa)   14 weeks from the start of the first Assignment (the first Assignment being each new assignment where there has been a break of more than 42 days (6 weeks) since the end of the previous Assignment); and

(bb) 8 weeks from the day after the last day the Temporary worked on the Assignment;

the Client shall be liable to pay a Transfer Fee; 

(b) the Transfer Fee will be calculated  in accordance with Rate Card 1 in Schedule 2 (subject to a minimum fee of £3,600);

(c) no refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates;

(d) VAT is payable in addition to any fee due;

(e) in the event that the Temporary has opted out of the Conduct Regulations or the Conduct Regulations do not apply in relation to the Temporary, the Client shall be liable to a Transfer Fee in accordance with paragraph 3.3(b) of this Schedule 1 should an Engagement take place at any time during an Assignment or within 12 months of the last day of an Assignment.

3.4 In the event that there is an Introduction of a Temporary to the Client which does not result in the supply of that Temporary by Fresh Minds to the Client, but the Temporary is introduced by the Client to a third party which results in the Engagement of the Temporary by the third party within 12 months from the date of Introduction, the Client shall be liable to an Introduction Fee calculated in accordance with Rate Card 1 in Schedule 2. No refund of the Introduction Fee will be paid in the event that the Engagement subsequently terminates. VAT is payable in addition to any fee due.

4.  Permanent and Fixed-Term Recruitment Services Fee

4.1  The Client shall notify Fresh Minds immediately the Client Engages the Candidate as a Permanent Candidate or a Fixed-Term Candidate.

4.2 The Permanent and Fixed-Term Recruitment Services Fee shall be due if the Client Engages a Permanent Candidate or a Fixed-Term Candidate at any time in the 12 months following the Introduction of the Permanent Candidate or Fixed-Term Candidate.

4.3 In the case of a Permanent Candidate, the Permanent and Fixed-Term Recruitment Services Fee is calculated as a percentage of the Permanent Candidate's annual Remuneration in accordance with the applicable Rate Card in Schedule 2 (subject always to a minimum fee of £3,600) and, in the case of a Fixed-Term Candidate, the Permanent and Fixed-Term Recruitment Services Fee will be negotiated and agreed between Fresh Minds and the Client on a case by case basis (subject always to a minimum fee of £3,600). 

4.4 Where in accordance with the terms of this agreement Fresh Minds is providing the relevant Permanent and Fixed-Term Recruitment Services on a retained basis, the Client will pay Fresh Minds the Permanent and Fixed-Term Recruitment Services Fee in the following three instalments:

(a) one third upon Fresh Minds' acceptance of the Client's instructions;

(b) one third upon Fresh Minds' delivery of a shortlist of Candidates to the Client; and

(c) the final third upon the date of commencement of the Candidate's Engagement with the Client, save that Fresh Minds will increase or reduce the amount of such final third if necessary if either or both of the first two instalments were based on a Permanent and Fixed-Term Recruitment Services Fee calculated on the basis of anticipated instead of actual Remuneration.

4.5 The Client shall pay Fresh Minds the Permanent and Fixed-Term Recruitment Services Fee or any instalment within 30 days of the date of Fresh Minds' invoice. 

4.6 Provided that the Client has paid the Permanent Services Fee in full in accordance with paragraphs 4.1 to 4.5 above, then if:

(a) the Candidate who was the subject of the Permanent Services Fee terminates the Engagement voluntarily or is justifiably dismissed for unsatisfactory work or gross misconduct; and

(b) the Client notified Fresh Minds within 14 days of such termination or dismissal;

provided that such termination or dismissal is not as a result of redundancy, reorganisation, injury or ill-health or any unlawful discrimination under the Equality Act 2010, nor is such termination or dismissal by reason of a dismissal classed as an automatic unfair dismissal by virtue of the Employment Rights Act , then Fresh Minds shall use its reasonable endeavours to find a replacement at no extra cost to the Client, save that, if Fresh Minds is unable to find a replacement within a reasonable time, Fresh Minds shall provide the Client with a refund of the Permanent Services Fee on a pro-rata basis as follows:

 

Date of Notice of Termination of Engagement (number of weeks after the date of commencement of the Engagement)

Refund

0-4 weeks

75%

4-8 weeks

50%

8-13 weeks

25%

13 weeks plus

0%

 

Rebates in the case of Fixed-Term Candidates, or Permanent Candidates sourced via a retained search shall not be subject to these refunds.  Any refunds for retained searches will be payable only in relation to the final instalment of the Permanent Services Fee paid in accordance with paragraph 4.4(c) above and not, for the avoidance of doubt, in relation to the first two instalments of the Permanent Services Fee paid in accordance with paragraphs 4.4(a) and (b) above.  No rebates will be paid for Fixed-Term Candidates unless specifically agreed on a case-by-case basis.

 

Schedule 2

Rate Cards

In relation to Permanent and Fixed-Term Recruitment Services, the parties will have agreed whether Fresh Minds will act on either a retained or non-retained basis in accordance with the following rate cards.

In relation to Temporary Recruitment Services:

(a) where the Remuneration is known, the Transfer Fee or the Introduction Fee (as applicable) will be calculated as a percentage of the Remuneration based on the amount of experience of the Candidate as set out in Rate Card 1; and

(b) where the Remuneration is not known, the Transfer Fee or the Introduction Fee (as applicable) will be calculated by multiplying the Candidate’s hourly or daily rate (whichever is applicable to the Candidate and as set out in the relevant Assignment Schedule or, where such rate is not set out in the relevant Assignment Schedule, the current market rate) by a set percentage based on the amount of experience of the Candidate as set out in Rate Card 1.

Rate Card 1

Non-retained search fees:

Percentage of Remuneration  where Remuneration is known

Graduate & Early Career Recruitment (≤£39,999)

24%

Experienced Hire Recruitment (£40,000 - £49,999 Remuneration)

26%

Experienced Hire Recruitment (≥£50,000 Remuneration)

28%

 

Rate Card 2

Retained search fees:

Percentage of Remuneration  where Remuneration is known

Graduate & Early Career Recruitment (≤£39,999)

26%

Experienced Hire Recruitment  (£40,000 - £49,999 Remuneration)

28%

Experienced  Hire Recruitment (≥£50,000 Remuneration)

30%