1.1. In these Terms of Business the following definitions apply: “Agency” means KPHR Solutions Limited of 1 The Dell, Ullesthorpe, Leicestershire, LE17 5BL (registered company no 09767876) E-mail address: contact@kphr.co.uk
“Cancellation Fee” means the fee payable by the Client to the Agency when the Client withdraws an offer of Engagement made to the Candidate before the Candidate has commenced the engagement and which is calculated in accordance with clause 3.10;
“Candidate” means the person introduced by the Agency to the Client for an Engagement including any officer or employee or other representative of the Candidate if the Candidate is a corporate body, and members of the Agency’s own staff;
“Client” means the person; firm or corporate body together with any subsidiary or associated Company as defined by the Companies Act 1985 to which the Applicant is introduced;
“Engagement” means the engagement, employment or use of the Candidate by the Client or any third party to whom the Candidate has been introduced by the Client, on a permanent or temporary basis, whether under a contract of service or for services; under an Agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Candidate is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“Introduction” means (i) the passing to the Client of a curriculum vitae or information which identifies the Candidate or (ii) the Client’s interview of a Candidate (in person, by telephone or by any other means), following the Client’s instruction to the Agency to search for a Candidate; and, in either case, which leads to an Engagement of the Candidate; and “Introduces” and “Introduced” shall be construed accordingly;
“Introduction Fee” means the fee payable by the Client to the Agency for an Introduction resulting in an Engagement;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Candidate for services rendered to or on behalf of the Client or any third party. Where the Client provides a company car, a notional amount of £4,000 will be added to the salary in order to calculate the Agency’s fee;
“Replacement Candidate” means any Candidate Introduced by the Agency to the Client to fill the Engagement following the Introduction of another Candidate whose Engagement either did not commence or was terminated during the first 4 weeks of the Engagement;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstances is in need of care or attention, and includes any person under the age of eighteen.
1.2. Unless the context requires otherwise, references to the singular include the plural.
1.3. The headings contained in these Terms of Business are for convenience only and do not affect their interpretation.
2.1. These Terms constitute the contract between the Agency and the Client for the supply of permanent or contract staff (to be engaged directly by the Client) and are deemed to be accepted by the Client by virtue of an Introduction or the Engagement of a Candidate, or the passing of any information about the Applicant to any third party following an Introduction.
2.2. These terms contain the entire agreement between the parties and unless otherwise agreed in writing by a manager of the Agency, these Terms prevail over any other Terms of Business or purchase conditions (or similar) put forward by the Client.
2.3. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Agency 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 Agency acts as an employment Agency (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for direct Engagement by that Client.
3.1. The Client agrees to:
3.1.1 notify the Agency immediately of any offer of an Engagement which it makes to the Candidate.
3.1.2 notify the Agency immediately that its offer of an Engagement to the Candidate has been accepted and to provide details of the Remuneration agreed with the Candidate together with any documentary evidence as requested by the Agency; and
3.1.3 pay the Introduction Fee, to be calculated in accordance with the provisions of clause 3, by the due date for payment in clause 3.7.
3.2. The Introduction Fee calculated in accordance with clause 3.3 below is payable if the Client Engages the Candidate within the period of 6 calendar months from the date of the Introduction.
3.3. The Introduction Fee is calculated in accordance with the Fee Structure Scale detailed below based on the Remuneration applicable during the first 12 months of the Engagement.
3.4. Where the actual Remuneration is not known, the Agency will charge an Introduction Fee calculated in accordance with clause 3.3 based on its determination of the remuneration taking into account the market rate level of remuneration applicable for the position in which the Candidate has been Engaged and with regard to any information supplied to the Agency by the Client and/or comparable positions in the market generally.
3.5. Any Candidate being Engaged on a fixed term contract basis by the Client following an Introduction shall attract a fee payable by the Client to the agency (the “FTC Fee”) calculated as follows:
(Remuneration x Introduction Fee percentage) ÷ 12 x Number of months of fixed term contract EXAMPLE An initial fixed term contract of 9 months with Remuneration set at £26,000 has been agreed. (£26,000 x 25%) ÷ 12 x 9 The FTC Fee payable is £4,875 Where the Engagement is on a fixed-term basis, and in the event that such Engagement contract is renewed or extended after its initial term, further fees will be payable in accordance with the provisions of these terms until such time as such contract ceases or is confirmed as a permanent position. In the latter case, a permanent fee will be payable and will be calculated based upon one year’s Remuneration and the applicable percentage. Where the Candidate is to be engaged on a part time basis, the fees (calculated for the avoidance of doubt by reference to the Remuneration) will be charged at the full time rate. All Engagements are subject to a minimum fee of £2,000 with the exception of Office Support and Contact Centre roles, for which a minimum fee of £1,200 shall apply. Where no Remuneration has been agreed or an amount is not readily ascertainable, the fee will be calculated based either on the Candidate’s last Remuneration (if data is available for the preceding 12 months) or, where no figures are available, a fee of £5,000 will be payable.
3.51. KPHR Talent Finder resourcing service (Available for companies with 10 employees or less)
The fee for the KPHR Talent Finder resourcing service is fixed at £1500 + vat. The agency will source suitable candidate(s) for the client and provide a shortlist for the client to approve. Once the client has approved and agreed to interview 1 or more of the candidates included in the shortlist the assignment is complete and final. All payments for each KPHR resourcing service assignments are due after the agency has sent a client a suitable shortlist by email and the client has selected one or more candidates to interview.
The client can only employ 1 candidate for each KPHR Talent Finder resourcing service assignment. An additional charge of £1500 + vat applies for each additional candidate introduced by the agency during the KPHR Talent Finder resourcing service assignment that is offered employment by the client. There is no replacement guarantee or rebate offered or agreed to at any time and under no circumstances, without exception by the agency for the KPHR resourcing service.
3.6. The Client’s obligations under this clause 3 shall be performed without any right of the Client to invoke set-off, deductions, withholdings or other similar rights.
3.7. The Introduction Fee shall be payable within 14 days of the date of the Agency’s invoice which shall be rendered once the Candidate commences the Engagement.
3.8. VAT is charged at the standard rate on all fees.
3.9. The Agency reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
3.10. If, after an offer of Engagement has been made to the Candidate, the Client decides for any reason to withdraw it prior to the Candidate commencing the Engagement, the Client shall be liable to pay the Agency a Cancellation Fee of £350 where the annual Remuneration is £19,999 or less and £600 where the annual Remuneration is £20,000 and above.
3.11. In the event that the Agency staff with whom the Client has had personal dealings accepts an Engagement with the client while employed by the Agency or within 6 months of leaving the Agency, the Client shall be liable to pay an Introduction Fee to the Agency calculated in accordance with Clause 3.3.
4.1. If the requirements set out in this clause are met, the Agency shall extend a replacement guarantee for Candidates recruited and placed as Permanent employees with the Client.
4.2. This guarantee means that if the successful Candidate ceases employment with the client within two months of commencement of such employment and the requirements set forth below are met, Agency will endeavour to find a replacement Candidate for the position without charging additional placement fees.
4.3. In circumstances where the fee is paid on acceptance of offer by the Candidate, and a Candidate withdraws their acceptance of an offer of employment from the Client prior to commencing such employment, the replacement guarantee may also apply, subject to the terms set out below.
4.4. The replacement guarantee only applies if: a) all fees, charges and expenses owing by the Client in respect of the placement of the original Candidate have been paid in full in accordance with the payment terms set forth in these Terms of Business, and the Client has no other amounts outstanding to the Agency; b) the request to replace the Candidate is given exclusively to the Agency; c) The Agency is notified as soon as practicable that the client wishes to invoke the guarantee, and in any event within the Guarantee Period; d) the original job description and assignment specification does not alter; and e) there is not an unreasonable delay by the Client in instructing the Agency to source the replacement Candidate.
4.5. The replacement guarantee does not apply: a) if the Candidate’s employment ceases for reasons beyond Agency’s control such as redundancy, restructuring, economic circumstances, company closure, change of management or substantial change from the original job description; or b) if the Candidate is engaged by the Client in an On-Hire Employee capacity through the Agency immediately prior to the acceptance of a Permanent position with that client; or c) to replacement Candidates provided under this Clause.
4.6. The replacement guarantee is not transferable to other placements or recruitment services, and the Client is not entitled to any credit or refund for replacement guarantees that the Client does not wish to pursue or which are undertaken by the Agency but not completed.
4.7. Any additional advertising costs are not included in this replacement guarantee.
4.8. If the remuneration package of the replacement Candidate increases from the original Candidate, the invoiced amount will be adjusted appropriately. Responsibilities After Permanent Placement
4.9. Once a Candidate is placed as an employee with a Client, the Client is the Candidate’s employer and has sole responsibility for the employee. The Agency has no liability or obligations in respect of the Client’s employee, including, without limitation, in respect of the termination of employment of the employee for any reason by the Client. This also applies to Fixed Term Placements.
5.1. If, after an offer has been made and accepted, and the Engagement has commenced, the engagement is terminated by either the Candidate or the Client (except in circumstances where the Candidate is made redundant) before the expiry of 8 weeks from the date of commencement of the Engagement; then subject to the terms of clause 4.2 the Agency will refund the Introduction Fee in accordance with the Scale of Rebates detailed below.
5.2. In order to qualify for the refund set out in clause 4.1, then the client must comply with the provisions of clause 3.1 and must notify the Agency in writing to the address detailed in Clause 1.1 of the termination of the Engagement within 7 days of its termination and the original fee was paid within 14 days of date of invoice. There will be an administration charge of £350.00 on all refunds up to and including 5 weeks.
5.3. For the purposes of this clause 4 the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client, but for any period of garden leave or payment in lieu of notice, whichever is the later.
5.4. In circumstances where clause 3.5 applies, there shall be no entitlement to a refund.
5.5. If subsequent to the Client receiving a refund the Candidate is re-Engaged within a period of 6 calendar months from the date of termination then the refund shall be repaid to the Agency. The Client shall not be entitled to any further refunds in relation to the reengagement of this Candidate
6.1. Introductions of Candidates are confidential. If a Client discloses a Candidate’s details to a third party, that will be deemed to be a “Third Party Introduction”. If that Third Party Introduction results in an Engagement of the Candidate by the third party within 6 months of the Agency’s Introduction of the Candidate to the Client, then the Client will be liable to the Agency for payment of an Introduction Fee in accordance with Clause 3. Neither the Client nor the third party shall be entitled to a refund of the Introduction Fee under Clause 4 in any circumstances.
7.1. The Agency endeavours to ensure the suitability of Candidates introduced to the Client to work in the position which the Client seeks to fill by taking reasonably practicable steps to
7.1.1 ensure that it would not be detrimental to the interest of either the client or the candidate
7.1.2 ensure that both the Client and the Candidate are aware of any requirements imposed by law or by any profession body; and
7.1.3 confirm that the Candidate is willing to work in the position
7.2. Notwithstanding clause 6.1, the Client shall be obliged to satisfy itself as to the suitability of the Candidate for the position they are seeking to fill. The Client is responsible for:
7.2.1 taking up any references provided by the Candidate before Engaging the Candidate
7.2.2 checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work
7.2.3 the arrangement of medical examinations and/or investigations into the medical history of any Candidate; and
7.2.4 satisfying any medical and other requirements, qualifications or permission required for the Candidate to work in the Engagement.
7.3. To enable the Agency to comply with its obligations under 6.1 above the Client undertakes to provide to the Agency details of the position which the Client seeks to fill, including the following:
7.3.1. the type of work that the Candidate would be required to do;
7.3.2. the location and hours of work;
7.3.3. 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;
7.3.4. any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
7.3.5. the date the Client requires the Candidate to commence the Engagement;
7.3.6. the duration or likely duration of the Engagement;
7.3.7. the minimum rate of Remuneration, expenses and any other benefits that would be offered;
7.3.8. the intervals of payment of Remuneration; and
7.3.9. the length of notice that the Candidate would be entitled to give and receive to terminate their employment with the Client.
7.4. Where the Candidate is Introduced for a position which involves working with, caring for or attending a Vulnerable Person the Agency shall, in addition to the obligations in clause 6.1, take reasonably practicable steps to:
7.4.1. obtain confirmation of the Candidate’s identity;
7.4.2. obtain confirmation 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
7.4.3. obtain and offer to provide copies to the Client of two references from persons who are not relatives of the Candidate and who have agreed that the references they provide may be disclosed to the Client; and any relevant qualifications or authorisations of the Candidate. If the Agency has taken all reasonably practicable steps to obtain such information and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event.
8.1. When the Agency Introduces a Candidate to the Client the Agency shall inform the Client that they have obtained confirmation of the matters set out in clause 6.1 [and in the case of a position which involves working with Vulnerable Persons the matters in clause 6.4.1 and 6.4.2]. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Candidate is being Introduced for an Engagement which is the same as one in which the Candidate has worked within the previous 5 business days and such information has already been given to the Client.
9.1. All information relating to a Candidate is confidential and subject to the Data Protection
Act 1998 (“DPA”) and is provided solely for the purpose of providing work-finding services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the DPA in receiving and processing the data at all times. In addition, information relating to the Agency’s business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.
10.1. The Agency 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 the Agency seeking a Candidate for the Client or from the Introduction to or Engagement of any Candidate by the Client or from the failure of the Agency to introduce any Candidate. For the avoidance of doubt, the Agency does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
11.1. The Agency embraces diversity and will seek to promote the benefits of diversity in all of our business activities and will not treat any individual less favourable on the grounds of sex, sexual orientation, gender reassignment, marital or civil partnership status, age, disability, colour, race, nationality, ethnic or national origin, religion or belief or political belief.
11.2. The Agency will not accept any instruction that may indicate an intention to discriminate unlawfully.
12.1. 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 (as detailed in Clause 1.1) of the party upon whom the notice is to be served, by email 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 email or facsimile transmission, when that email or facsimile is sent.
13.1. If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
14.1. These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.
