Terms and Conditions

Mackenzie Stuart Limited Terms and Conditions

Section 1 – Definitions

• In these Terms

“Agreed Purpose” means the Company’s provision of, and the Client’s receipt of, employment agency and recruitment services, in accordance with these Terms;

“Advertised Selection Services” means services provided by the Company to the Client to locate one or more candidates to fulfil a particular role or roles within the Client. The Company will provide such services by any means it considers appropriate, including advertising for potential candidates in publications agreed between the Company and the Client or such other publications the Company considers appropriate;

“Applicant” means a person Introduced by the Company to the Client;

“Client” means the person, firm or body corporate together with any holding, subsidiary or associated company (holding company and subsidiary each as defined in section 1159 of the Companies Act 2006) to which an Applicant is Introduced or which appoints the Company to provide recruitment services under these Terms;

“Company” means Mackenzie Stuart Limited, a company registered in England and Wales with company number 06443393, acting as an employment agency;

“Data Discloser” means a party to these Terms who discloses Shared Personal Data to the other party;

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK which apply to a party relating to the use of Personal Data, including the General Data Protection Regulation ((EU) 2016/679);  the Data Protection Act 2018; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;

“Engagement” means the engagement, employment or other use of the Applicant by the Client (whether for the position originally advertised or otherwise) whether as an employee, partner, consultant or otherwise (and whether on a employed or self-employed basis) or an offer of the same by the Client which is subsequently accepted by the Applicant and “Engaged” and “Engages” shall have the equivalent meanings;

“Executive Search and Selection Services” means services provided by the Company to locate one or more candidates to fulfil a particular role or roles within the Client. The Company will provide such services by any means it considers appropriate, including at the Company’s discretion a direct approach to potential candidates;

“IPR” means patents, rights to inventions, copyright and related rights, trade marks business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of and all other intellectual property rights, whether registered or unregistered;

“Introduction” means receipt of a CV or profile of a potential candidate from the Company (whether in paper, electronic or other format) and “Introduced” shall have the equivalent meaning;

“Introduction Fee” means the fee payable by the Client when an Introduction results in an Engagement, (or in any other circumstances where a fee becomes payable in accordance with these Terms) as calculated by reference to clause 5.1:

“Non-Company Candidate” means any person Engaged by the Client who was not Introduced by the Company, including but not limited to candidates sourced by the Client itself, by third parties, other employment agencies or former employees re-engaged by the Client;

“Party” means a party to these Terms (being the Client and the Company respectively) and “Parties” shall be construed accordingly;

“Permitted Recipients” means the parties to these Terms, the employees of each party, and any third parties engaged by the parties to perform obligations in connection with these Terms;

“Shared Personal Data” means the personal data to be shared between the parties under clause 9 of these Terms, to include Personal Data provided within Applicant information and CVs;

“Terms” means these terms and conditions as amended from time to time in accordance with clause 15.1; and

“Total Annual Commencing Remuneration” means such amount as is equal to the first year’s annual remuneration including base salary or fees, allowances, one-off payments upon joining (including any relocation allowances), pension contributions, guaranteed bonuses or commissions, profit share or performance bonuses (which shall be based on projected values), the full monetary value of living or accommodation allowances (or the actual provision of accommodation which shall be deemed to be valued at £25,000), all weightings (including any compensation for living away from his/her home location), the full monetary value of car allowances (or the actual provision of a company car which shall be deemed to be valued at £8,000 per annum), the provision of private medical cover (which shall be deemed to be valued at £1,000 per annum), the value of any stock options that can be exercised within the first twelve months of the Engagement (which shall be valued at the difference between the option price and the closing mid-market price on the business day immediately preceding the day that the candidate commences the Engagement) and any other contractual benefits which form part of the total remuneration package or other taxable emoluments offered to the Applicant by the Client in relation to an Engagement.

• In these Terms words importing one gender shall be treated as importing any gender, words importing the singular shall be treated as importing the plural and vice-versa, words importing companies shall be treated as importing individuals and vice versa.
• Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
• The headings in these Terms are for convenience only and shall not affect their interpretation.

Section 2 – Contract

• All business undertaken by the Company for the Client is governed by these Terms.
• These Terms shall be deemed to be accepted by the Client when any of the following events occur (whichever is the earlier):
• the Client interviews an Applicant (or makes arrangements to interview an Applicant);
• the Client makes an offer of an Engagement to an Applicant; or
• the Client instructs the Company to provide Executive Search and Selection or Advertised Selection Services to it (whether orally or in writing).
• These Terms shall apply to the exclusion of any other terms that the Company seeks to impose or incorporate, or which are implied by law, trade, practice or course of dealing.

Section 3 – Applicant Placement

3.1               If the Company makes an Introduction to a Client (in a situation where the Company has not been appointed to carry out an Executive Search and Selection or an Advertised Selection) the Client shall, subject to the provisions of clauses 5.2 to 5.9, pay the Company the Introduction Fee calculated in accordance with clause 5.1 on the date the Client Engages the Applicant.

3.2            The Introduction Fee is payable if any Applicant is Engaged by the Client within 12 months of an Introduction irrespective of whether further interviews are organised by the Company and irrespective of whether or not the Company was the effective cause of the offer of Engagement.

Section 4 – Executive Search and Selection and Advertised Selection

4.1               Where a Client appoints the Company to provide Executive Search and Selection Services or Advertised Selection Services it shall do so on an exclusive basis. If notwithstanding this clause 4.1 the Client Engages a Non-Company Candidate to fulfil an Executive Search and Selection role or Advertised Selection role for which the Client has instructed the Company, the Client shall in relation to that Engagement,  pay the Company the Introduction Fee that would have been payable had the Non-Company Candidate been Introduced by the Company.

4.2              In consideration of the Company providing Executive Search and Selection Services or Advertised Selection Services, the Client shall pay the Company the Introduction Fee calculated in accordance with clause 5.1 (but subject to the provision of clause 5.2) unless a specific fee is agreed in writing between a Director of the Company and the Client prior to the services commencing.

4.3              The Introduction Fee due pursuant to clause 5.1 is payable in three (3) instalments: one third of the Introduction Fee is payable upon the Client giving instruction to the Company to act on its behalf; one third of the Introduction Fee is payable on the Company providing the Client with a shortlist of Applicants for interview; and the final balance of the Introduction Fee is payable on the earlier of a) an Applicant providing a written acceptance of the Client’s offer of an Engagement; or b) the date the Engagement of the Applicant commences.

4.4               The first two (2) instalments of the Introduction Fee will be based on an estimate of the Total Annual Commencing Remuneration applicable to the relevant role. Each instalment is non-refundable irrespective of whether any offer of Engagement or Engagement is made by the Client.

4.5                   For the avoidance of doubt and unless otherwise agreed between the parties, if an Applicant Introduced to the Client (pursuant to the role the Company was appointed to provide Executive Search and Selection Services or Advertised Selection Services in relation to (the “Original Instruction”)) is Engaged by the Client for:

(a) a different role to the role to be fulfilled under the Original Instruction, within 12 months of being Introduced to the Client; or

(b) for a different or additional role to the role offered to a successful Applicant in relation to the Original Instruction at any time between the Introduction of such Applicant and such date as is 12 months following the commencement date of the successful Applicant’s Engagement,

then the Client shall pay the Company an Introduction Fee relating to such Engagement in addition to the Introduction Fee (or withdrawal/ cancellation fee) applicable in respect of the Original Instruction (irrespective of whether or not the role under the Original Instruction has been filled).

4.6              If the Client withdraws its instruction to the Company to proceed with any Executive Search and Selection Services or Advertised Selection Services assignment, or materially alters its instructions to the Company once the Company has commenced the services (but the services have not yet concluded) then a withdrawal/cancellation fee equivalent to 50% of the remaining balance of the total estimated Introduction Fee or other agreed fee that would have been payable by the Client had an Applicant been Engaged, will be immediately payable by the Client.

4.7               For the purposes of clause 4.6 the Introduction Fee shall be based upon the Company’s estimate as to the total fee that would have been payable if each of the positions the Company was appointed to fill had been filled during the course of the services. The fees will be based on the Introduction Fee which would be due in accordance with clause 5.1, calculated on the basis of the estimated Total Annual Commencing Remuneration of the relevant positions. Where the estimated Total Annual Commencing Remuneration is calculated by reference to a salary band given for the relevant positions, the estimate will be based on the salary at the upper limit of the band.

4.7               For the avoidance of doubt, the withdrawal/cancellation fee applies to the remaining balance of the total Introduction Fee, and is payable in addition to any instalments already invoiced to or paid by the Client.

4.8              An additional charge will be made to the Client in respect of out of pocket expenses reasonably incurred by the Company in performing its obligations under these Terms including accommodation and travel expenses.

Section 5 – Introduction Fee

5.1               Subject to the terms of this clause 5 (including any applicable minimum fees stated as applying), and to any alternative calculation method referred to in these Terms, the Introduction Fee is calculated by reference to a proportion of the relevant Applicant’s Total Annual Commencing Remuneration (whether actual or estimated), as set out below:

5.2               For the avoidance of doubt, the Introduction Fee shall also be payable by the Client if a relevant Applicant or Non-Company Candidate is engaged  by an associated, holding or subsidiary individual, firm or corporation of the Client as defined in section 1159 of the Companies Act 2006.

5.3               If the Client Engages an employee of the Company (whether or not as a result of an Introduction) the Company shall be deemed to have Introduced that individual to the Client and the Client shall pay to the Company an Introduction Fee calculated by reference to clause 5.1. If the applicable Introduction Fee calculated is less than £15,000, notwithstanding this, the fee payable by the Client shall be £15,000.

5.4               The Introduction Fee in respect of any Applicants Engaged by the Client for non-executive directorships or consultancy roles will be equivalent to the Total Annual Commencing Remuneration payable to that Applicant, subject to a minimum fee of £25,000. Such Introductions will not have the benefit of the “replacement employee” facility provided in clause 7.1.

5.5               The Introduction of any Applicant Engaged in respect of commission-only role by the Client will be subject to a minimum Introduction Fee of £15,000.

5.6               If the period of an Engagement is for less than twelve months, the Introduction Fee payable shall be calculated on the annual equivalent value of the remuneration (including all elements specified in the definition of Total Annual Commencing Remuneration) to be paid to the Applicant under the applicable contract. The remuneration is for this purpose grossed up to provide a figure for the equivalent annual value.

5.7               If any Engagement for a period of less than twelve months should become permanent our standard Introduction Fee is applicable as per clause 5.1 irrespective of previous engagements.

5.8                   If by the date the Applicant begins his Engagement for whatever reason the Company is not in a position to ascertain the applicable Total Annual Commencing Remuneration, the Company shall be entitled to submit an invoice for, and the Client shall be obliged to pay, the greater of a) the Applicant’s previous remuneration package; or b) the highest salary at which the position was advertised (in each case including all items set out in the definition of Total Annual Commencing Remuneration).  The Client agrees that if the sum determined pursuant to this clause is greater than the actual Total Annual Commencing Remuneration it shall not be entitled to recover the excess from the Company but that if the sum is lower than the actual Total Annual Commencing Remuneration it shall pay to the Company the difference.

5.9               If the Client refers an Applicant to a third party who subsequently Engages such Applicant within 12 months of the Company’s latest contact with the Client regarding that Applicant, the Client will be liable to pay an Introduction Fee on the same basis that such fee would have been paid if the Engagement had been by the Client. The Client agrees and accepts that it is the Client’s responsibility to notify the third party of the Company’s involvement at the time of the referral.

Section 6 – Advertising Fees

6.1               The costs of any advertising that the Company arranges on behalf of the Client shall be charged to the Client, provided that such advertising has been agreed between the Client and the Company.

6.2               Additional advertisement costs incurred by the Company in connection with the preparation or production of advertisement material (including set up charges and artwork) will be charged to the Client. Any such charges will not normally exceed £500 unless specifically agreed between the Company and the Client.

6.3               The Company will invoice the Client for advertising costs incurred under this clause 6 upon receipt of written confirmation of the order from the Client for the advertisement, or as soon as reasonably practicable thereafter. All advertising (and all related fees, charges and costs) cannot be cancelled unless agreed in writing by a Director of the Company.

Section 7 – Replacement Employee Facility

7.1               If an Applicant leaves the Client’s employment within the first 8 weeks from the date on which their Engagement commenced (save where the Engagement is for a fixed period of less than 8 weeks) then the Company will use reasonable endeavours to provide a replacement Applicant for no additional fee provided that:

7.1.1           the Client has paid all Company invoices by the relevant due dates;

7.1.2           the Company has received notification of the Applicant leaving their employment, by recorded delivery, within 7 days of the Applicant’s departure;

7.1.3           the Applicant has not left their employment due to redundancy or a material change in the job description; and

7.1.4           the Client does not re-Engage the Applicant in any capacity in the 12 months following the Applicant’s departure.

7.2                   If the Client does re-Engage the Applicant after a replacement has been provided by the Company, the Client shall pay the Company an Introduction Fee in relation to the appointment of the replacement, calculated in accordance with clause 5.1.

Section 8 – Copyright and Confidentiality 

8.1.              Title to and all of the IPR in all reports and information provided to the Client by the Company shall at all times remain vested in the Company and the Client shall acquire no IPR whatsoever therein. The Client shall be entitled to make such copies of any reports and information provided by the Company as it may reasonably require for those purposes permitted under clause 8.2.

8.2               The Client undertakes that it shall use any information provided by the Company solely for the internal purposes of considering candidate details for recruitment purposes and agrees to:

8.2.1        keep such information strictly confidential;

8.2.2        not publish all or any part of the information;

8.2.3        not allow any Applicant to see all or any part of the information;

8.2.4        not divulge or disclose all or any part of the information to any third party; and

8.2.5        permit access to the information only to those of its officers or employees who need to know the information and, without limiting the liability of the Client for breach of this clause, the Client shall ensure that its officers and employees also comply with the provisions of this clause.

8.3               If requested by the Client, the Company will assume responsibility for gaining consent from the candidate to be reference checked. This will otherwise be the responsibility of the Client.

Section 9 – Data Protection

9.1               For the purposes of this clause 9 the terms Controller, Processor, Data Subject, Data Subject Access Request, Personal Data, Personal Data Breach, Processing and Appropriate Technical and Organisational Measures shall have the definitions as set out in the Data Protection Legislation.

9.2               Each party acknowledges that it shall act in the capacity of a Controller for the purposes of the Data Protection Legislation and shall comply with all the obligations imposed on a Controller under the Data Protection Legislation.

9.3               Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

9.4               Each party shall:

9.4.1            ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

9.4.2            give full information to any data subject whose personal data may be processed under these Terms of the nature of such processing. This includes giving notice that, on the termination of these Terms, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

9.4.3            process the Shared Personal Data only for the Agreed Purposes;

9.4.4            not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

9.4.5            ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by these Terms;

9.4.6            ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and

9.4.7            not transfer any personal data received from the Data Discloser outside the EEA.

9.5               Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

9.5.1            consult with the other party about any notices given to Data Subjects in relation to the Shared Personal Data;

9.5.2            promptly inform the other party about the receipt of any Data Subject Access Request and provide the other party with reasonable assistance in complying with any Data Subject Access Request;

9.5.3            not disclose or release any Shared Personal Data in response to a Data Subject Access Request without first consulting the other party wherever possible and assist the other party, at the cost of the other party, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation;

9.5.4            notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

9.5.5            at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination or expiry of these Terms unless required by law to store the Personal Data;

9.5.6            use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers; and

9.5.7            maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and provide the other party with contact details of a point of contact for all issues arising out of the Data Protection Legislation.

9.6               Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.

Section 10 – Liability of the Company and Client 

10.1             The Client agrees and acknowledges that the information provided to it by the Company is provided on the assumption that it is not used as the sole basis of the decision of the Client regarding whether to Engage an Applicant. The Company does not take up references on Applicants unless it specifically agrees to do so, and the Client is advised and recommended to do so before making any offers of Engagement.

10.2            The Client shall not make any approach to any Applicant’s present or prior employers (whether to obtain a reference or for any other reason) without the Applicant’s prior written consent.

10.3             The Client acknowledges that information supplied to the Client regarding Applicants will represent or be based on information provided to the Company by third parties, which is therefore outside of the Company’s control.

10.4                 The Client acknowledges and agrees that:

10.4.1          The Company does not make any warranty (express or implied) as to the accuracy or completeness of any information provided in relation to an Applicant or the validity of any advice given or opinion expressed on the basis of such information or as to the suitability of any Applicant for any Engagement by the Client;

10.4.2          Subject to clause 10.4.4 below, the Company shall not be liable to the Client for any loss, liability, damage, costs, claims or expenses suffered or incurred by the Client arising (either directly or indirectly) from or connected with: (i) its use of any information provided by the Company in relation to an Applicant or its reliance upon any advice or opinion expressed on the basis of such information or otherwise; (ii) the interviewing or Engagement of any Applicant (including in relation to any claim made by an Applicant); (iii) any act or omission of an Applicant in pursuing his/her employment duties.

10.4.3          Subject to clause 10.4.4 below, the Company will not be liable for any indirect or consequential loss or loss of profits incurred by the Client.

10.4.4          The Company does not exclude its liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation, or for any other liabilities which cannot be excluded at law.

10.4.5          The Client shall fully and effectively indemnify and keep indemnified the Company on demand for any and all losses, damages, liabilities, penalties, suits and expenses whether direct or indirect and including all reasonable legal fees, arising out of or relating to: (a) any breach by the Client of its obligations under these Terms; or (b) the Engagement of any Applicant and any act or omission of any Applicant in pursing his/her employment duties.

Section 11- Co-operation and Assistance 

11.1             The Client shall at its own cost co-operate with the Company to such extent and provide to the Company such information and assistance as the Company shall reasonably require to enable the Company to perform its obligations under these Terms and to enable Total Annual Commencing Remuneration to be calculated.

Section 12 – Payment

12.1          Unless otherwise agreed in writing, all invoices must be paid by the Client within 7 days of the invoice date. If invoices are not settled within 7 days then, without prejudice to its right to recover that payment from the Client, the Company reserves the right to:

12.1.1          charge interest on the amount that remains unpaid at the rate of 3% above HSBC minimum lending rate from time to time;

12.1.2          suspend provision of any services to the Client and shall be under no obligation to provide the replacement employee facility referred to in clause 7;

12.1.3          remove any discount given from the standard Introduction Fees referred to in clause 5.1; and

12.1.4          pass any overdue accounts to a debt recovery agency, and the Client agrees that all reasonable costs incurred by the Company in recovering monies from any such overdue accounts will be recoverable from the Client.

12.2            The Company reserves the right at any time to withdraw or amend any credit terms granted to the Client.

12.3            All sums referred to in these Terms are subject to VAT where applicable.

Section 13 – Termination

13.1          Upon termination or expiry of these Terms the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of any Introduction Fees for which the Client is liable but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.

13.2          Termination or expiry of these Terms shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination.

Section 14 – Notice

14.1          Any notice given to a party under or in connection with these Terms shall be in writing and shall be:

14.1.1       delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business; or

14.1.2       sent by email to the address specified by the parties for this purpose.

14.2         Any notice shall be deemed to have been received if delivered by hand, at the time the notice is left at the proper address, if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting and if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.

Section 15 – General

15.1            These Terms form the entire agreement between the parties and any variations (including any additions) to the Terms must be in writing and signed by a director of the Company.

15.2            In the event that any variations to these Terms have been agreed in accordance with clause 15.1 above, and the Client subsequently Engages an Applicant without notifying the Company of such Engagement in writing within 14 days of its commencement, then the agreed variations to these Terms shall cease to have effect, and the original terms set out herein shall apply.

15.3             Neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms  without the prior written consent of the other party.

15.4             These Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Terms.

15. 5 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms. If any provision or part provision of the Terms is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

15.6             Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

15.7            A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.

15.8            These Terms shall be governed by the law of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.