Finiten Terms Of Business
CLIENT TERMS OF BUSINESS FOR THE INTRODUCTION OF PERMANENT AND FIXED-TERM STAFF
These Terms apply where Finiten Ltd acts as an employment agency / introduction agency only.
They apply to the introduction of individuals who are engaged directly by the Client, whether on a permanent basis or for a fixed term, including where the role is described as interim or freelance but the individual is engaged and paid by the Client through the Client’s own payroll.
They do not apply to the supply of temporary agency workers employed, engaged or payrolled by Finiten Ltd or by any other intermediary.
1. Definitions
1.1 In these Terms the following definitions apply:
“Agency” means Finiten Ltd of 167–169 Great Portland Street, 5th Floor, London, W1W 5PF.
“Applicant” means any person introduced by the Agency to the Client for an Engagement, including any individual engaged directly by the Client as an employee, fixed-term employee, consultant, interim employee, freelance worker on payroll, office-holder, or through any personal service company, limited company or other intermediary where that individual personally performs services for the Client.
“Client” means the person, firm, company or other organisation to whom the Applicant is introduced, together with any parent undertaking, subsidiary undertaking, holding company, associated undertaking, affiliate, group company, successor, assignee or any third party to whom the Client directly or indirectly passes information about the Applicant.
“Engagement” means the engagement, employment, hiring, appointment or other use of the Applicant by the Client or any third party, directly or indirectly, whether under a contract of service, fixed-term contract, contract of employment, contract for services, consultancy agreement, agency, licence, franchise, partnership, office-holder arrangement, statement of work, or any other arrangement under which the Applicant personally performs services for or on behalf of the Client or any third party.
“Introduction” means:
a) the passing to the Client of a curriculum vitae, profile, candidate summary, recommendation or other information which identifies the Applicant; or
b) the arrangement of any interview, meeting or contact between the Client and the Applicant; or
c) the Client’s knowledge of the Applicant being materially enhanced by the Agency,
which in any case leads to an Engagement of that Applicant.
“Basic Salary” means the Applicant’s gross basic annual salary, exclusive of bonus, commission, car allowance, pension contributions, private medical insurance, life assurance, share incentives, allowances, benefits in kind and any other non-basic or non-guaranteed payments or benefits.
“Terms” means these Terms of Business.
“Working Day” means any day other than a Saturday, Sunday or public holiday in England.
1.2 Unless the context otherwise requires, words importing the singular include the plural and vice versa.
1.3 Headings are for convenience only and do not affect interpretation.
2. The Contract
2.1 These Terms constitute the entire agreement between the Agency and the Client in relation to the Agency’s introduction of Applicants.
2.2 These Terms are deemed accepted by the Client upon the earliest of:
a) the Client instructing the Agency to search for, identify or introduce an Applicant;
b) the Client interviewing, meeting, contacting or otherwise considering an Applicant introduced by the Agency;
c) the Client receiving a CV, profile or other identifying information relating to an Applicant from the Agency;
d) the Client passing such information to any third party; or
e) the Engagement of an Applicant introduced by the Agency.
2.3 These Terms prevail over any terms of business, purchase conditions, vendor terms, portal terms, supplier onboarding terms, purchase order terms or any other terms put forward by the Client unless expressly agreed in writing and signed by a director of the Agency.
2.4 No variation to these Terms shall be valid unless agreed in writing and signed by a director of the Agency.
2.5 If the Client contends that it had prior knowledge of, or a prior introduction to, an Applicant, the Client must notify the Agency in writing within 5 Working Days of the Agency’s Introduction and provide clear written evidence dated prior to the Agency’s Introduction. If the Client does not do so, the Applicant shall be deemed introduced by the Agency for the purposes of these Terms.
3. Agency Status
3.1 The Agency acts as an employment agency introducing Applicants for direct engagement by the Client.
3.2 The Agency does not employ, supply, engage or payroll Applicants on behalf of the Client under these Terms.
3.3 These Terms do not apply to the supply of temporary agency workers engaged through an employment business model.
4. Client Obligations
4.1 The Client agrees:
a) to provide the Agency with sufficient details of the role, including duties, seniority, reporting line, location, working pattern, qualifications, experience, Basic Salary, benefits, notice period and any material compliance requirements;
b) to notify the Agency immediately of any offer made to an Applicant;
c) to notify the Agency immediately when an offer is accepted and to provide full details of the agreed Basic Salary and start date;
d) to notify the Agency immediately if the Engagement is varied, extended, renewed, converted, suspended or terminated; and
e) to comply with all applicable laws, regulations and professional requirements relating to the role and the Engagement.
4.2 The Client is responsible for making its own decision as to the suitability of any Applicant and for obtaining or procuring any references, right to work checks, medical checks, regulatory approvals, sanctions checks, qualification verification, DBS checks or other checks required for the role, unless expressly agreed otherwise in writing.
4.3 The Client warrants that all information it provides to the Agency about the role and the Engagement is complete, accurate and not misleading in any material respect.
5. Notification and Fees
5.1 The Client shall pay the Agency a fee where an Introduction results in an Engagement of the Applicant by the Client or by any third party to whom the Client has directly or indirectly supplied information about the Applicant.
5.2 Subject to clauses 5.4 to 5.8, the Agency’s fee shall be 25% of the Applicant’s Basic Salary.
5.3 VAT shall be added where applicable.
5.4 Where the Engagement is on a permanent basis, the fee shall be calculated on the Applicant’s gross Basic Salary applicable during the first 12 months of the Engagement.
5.5 Where the Engagement is for a fixed term of less than 12 months, the fee shall be calculated pro rata on the gross Basic Salary payable during the agreed fixed term.
5.6 If a fixed-term Engagement is extended, renewed or converted into a permanent Engagement within 12 months of the commencement date, the Client shall pay an additional fee such that the total fees paid to the Agency equal 25% of the gross Basic Salary actually payable during the first 12 months from the commencement of the original Engagement, taking into account any increase in salary, extension, renewal or change in status.
5.7 If the Applicant is re-engaged by the Client or any connected party within 12 months of the termination of the Engagement, the Client shall pay a further fee calculated in accordance with clause 5.2 based on the Basic Salary applicable to the new Engagement, less any fee already paid in respect of the same 12-month period where appropriate.
5.8 If the Applicant is engaged in a different role, on different terms, in another group company, division, location or jurisdiction, the fee remains payable.
5.9 Where the actual Basic Salary is not disclosed, the Agency may invoice based on:
a) the Basic Salary or salary range supplied for the role by the Client;
b) any offer details known to the Agency; or
c) the market rate reasonably applicable to a comparable role,
and that invoice shall be binding unless the Client provides full written evidence of the actual Basic Salary within 5 Working Days of request.
6. When Fees Become Payable
6.1 A fee becomes payable if an Engagement takes place within 12 months of the Introduction.
6.2 A fee also becomes payable if:
a) the Client withdraws an accepted offer;
b) the Client delays, restructures or redirects the hire in a way that results in the Applicant joining later, through another group company, or under a different title or arrangement;
c) the Applicant is engaged by a third party following disclosure of the Applicant’s details by the Client; or
d) the Client, having received the Applicant’s details from the Agency, later engages the Applicant following direct contact, indirect contact, referral back, re-approach or any other route.
6.3 The Client shall not avoid liability for a fee by engaging the Applicant through a probationary arrangement, consultancy label, fixed-term label, trial period, payroll variation, deferred start, or any other altered structure.
7. Invoices and Payment
7.1 The Agency may invoice the Client immediately upon:
a) the Applicant accepting an offer; or
b) the commencement of the Engagement,
whichever is earlier.
7.2 The Client shall pay all invoices within 30 days of the invoice date.
7.3 Payment shall be made in full without deduction, withholding, set-off or counterclaim.
7.4 If any invoice remains unpaid after the due date, the Agency reserves the right to charge interest at 8% per annum above the Bank of England base rate from the due date until payment in full.
7.5 The Agency reserves the right to suspend further work for the Client while any invoice remains overdue.
8. Offer Withdrawal and Cancellation
8.1 If, after the Client has made an offer to an Applicant and the Applicant has accepted that offer, the Client withdraws the offer for any reason other than:
a) the Applicant knowingly having provided false information; or
b) the Applicant failing a role-specific background, compliance or right to work check which was clearly disclosed to the Agency and the Applicant before acceptance,
the Client shall be liable to pay the Agency the full fee that would have been payable under clause 5.
8.2 If the Client places a role on hold, materially changes the brief, removes the role, fills the role internally, or otherwise prevents the recruitment process from proceeding after the Agency has introduced Applicants, no fee shall be payable unless an Applicant introduced by the Agency is subsequently engaged by the Client or a third party within the period set out in clause 6.1.
8.3 For the avoidance of doubt, clause 8.2 does not limit the Agency’s right to charge a fee where an Engagement occurs after a pause, re-brief, restructure or delayed start.
9. Refunds and Replacement
9.1 Subject to clauses 9.2 to 9.11, where an Applicant’s Engagement terminates before the expiry of 16 weeks from the commencement of the Engagement, the Client may elect either:
a) a partial refund of the fee in accordance with the Schedule; or
b) one replacement search at no additional fee for the same or a substantially similar role.
9.2 The Client shall only qualify for a refund or replacement if:
a) the Agency’s invoice has been paid in full within 30 days of the invoice date;
b) the Client notifies the Agency in writing of the termination within 7 days of the termination date;
c) the termination is not due to redundancy, restructuring, site closure, merger, acquisition, role change, budget withdrawal, change in reporting line, relocation, reduced hours, reduced pay, altered duties, misconduct known to the Client before start, or any breach by the Client; and
d) the Client has not re-engaged, retained, redeployed or otherwise continued to use the Applicant in any capacity.
9.3 Refunds and replacements do not apply where a fixed-term Engagement ends on the agreed fixed-term end date.
9.4 Refunds and replacements do not apply where the Applicant resigns because of a material change to the role, Basic Salary, reporting line, location, working pattern or other agreed terms.
9.5 If the Client elects a replacement search:
a) the Agency shall have a reasonable period to undertake that search;
b) the replacement search shall apply to the same or substantially similar role only;
c) only one replacement search shall be offered in respect of each original fee; and
d) the Client shall give the Agency a genuine and reasonable opportunity to undertake the replacement search before instructing any other recruitment business in relation to that replacement requirement.
9.6 If the Client elects a replacement search and subsequently fills the role other than through the Agency, or otherwise withdraws or prevents the Agency from undertaking the replacement search, the Client shall lose any entitlement to a refund or replacement in respect of the original fee.
9.7 If the replacement Applicant is engaged, no further refund or replacement shall be due in relation to the original fee.
9.8 If the Client elects a refund, the refund shall be the Client’s sole and exclusive remedy.
9.9 No refund or replacement shall apply where clause 8.1 applies.
9.10 Refunds shall not be made until the Client has paid all sums due to the Agency.
9.11 No refund or replacement shall apply to any additional fee invoiced under clause 5.6 following the extension, renewal or conversion of a fixed-term Engagement. Any entitlement to a refund or replacement shall be assessed solely by reference to the original Engagement and its commencement date.
10. Introductions and Anti-Circumvention
10.1 Introductions of Applicants are confidential.
10.2 The Client shall not disclose to any third party any CV, profile, details or other information relating to an Applicant introduced by the Agency without the Agency’s prior written consent.
10.3 If the Client discloses or permits disclosure of such information to a third party and that disclosure results in an Engagement of the Applicant within 12 months of the Introduction, the Client shall be liable for the Agency’s full fee with no entitlement to any refund or replacement.
10.4 A fee shall be due in relation to any Engagement arising directly or indirectly from an Introduction by or through the Agency, whether by the Client itself or through any group company, affiliate, associated undertaking, adviser, subcontractor, customer, supplier, portfolio company, outsourcing provider or any other third party.
11. Candidate Screening and Client Responsibility
11.1 The Agency’s service includes identifying and introducing Applicants whom the Agency believes may be suitable for the role based on the information provided by the Client and the Agency’s own screening discussions with the Applicant.
11.2 As part of its screening process, the Agency may ask Applicants about matters relevant to the role, including their experience, qualifications, right to work status, availability, remuneration expectations and other suitability criteria notified by the Client.
11.3 Unless expressly agreed otherwise in writing, the Agency does not:
a) obtain or provide copies of references, passports, right to work documentation, qualification certificates, licences or other supporting evidence;
b) independently verify the accuracy or completeness of information supplied by the Applicant;
c) carry out criminal records, sanctions, credit, medical or background checks; or
d) undertake formal onboarding or pre-employment compliance checks on behalf of the Client.
11.3A At the Client’s request, the Agency may agree to coordinate or obtain references, right to work documentation, qualification evidence, background screening or other pre-employment checks on the Client’s behalf. Any such services shall be subject to separate agreement and an additional fee quoted by the Agency, and shall not form part of the Agency’s standard introduction service unless expressly agreed in writing.
11.4 The Client is solely responsible for satisfying itself as to the suitability of any Applicant and for carrying out, or procuring the carrying out of, all references, right to work checks, qualification checks, regulatory checks, DBS checks, medical checks, background screening and any other checks or approvals required for the role or by law.
11.5 The Agency does not warrant or guarantee:
a) the accuracy or completeness of any information supplied by an Applicant or third party;
b) the continuing availability of an Applicant;
c) the performance of an Applicant once engaged; or
d) that an Applicant meets any requirement not specifically disclosed to the Agency in writing by the Client.
11.6 The Agency shall not be liable for any loss arising from any act, omission, misrepresentation, inaccuracy or non-disclosure by an Applicant or third party, or from the Client’s failure to carry out appropriate checks before or during the Engagement.
12. Special Situations
12.1 Where a role requires specific qualifications, authorisations, regulatory approvals or safeguarding checks, the Client must notify the Agency of those requirements in advance.
12.2 The Agency may ask the Applicant about such requirements as part of its screening process, but unless expressly agreed otherwise in writing, the Agency shall not be responsible for obtaining, verifying or retaining documentary evidence of qualifications, authorisations, regulatory approvals or safeguarding checks.
12.3 Where the role involves working with children or vulnerable persons, the Client remains solely responsible for ensuring that all safeguarding, vetting and legal requirements applicable to the role are fully satisfied before the Applicant commences work.
13. Confidentiality and Data Protection
13.1 All candidate information supplied by the Agency is confidential and is provided solely for the purpose of assessing the Applicant’s suitability for the relevant role.
13.2 The Client shall:
a) use Applicant information only for recruitment purposes connected with the relevant role or any substantially similar role within the Client’s organisation;
b) keep Applicant information secure and confidential;
c) not share Applicant information with any third party except where lawfully required or with the Agency’s prior written consent; and
d) comply with all applicable data protection legislation.
13.3 Each party acts as an independent controller of personal data it processes under these Terms, unless otherwise agreed in writing.
13.4 The Client shall indemnify the Agency against any loss, liability, cost, claim or expense suffered by the Agency arising from the Client’s unlawful or unauthorised use, disclosure or retention of Applicant personal data.
14. Liability
14.1 Nothing in these Terms shall exclude or limit the Agency’s liability for:
a) death or personal injury caused by its negligence;
b) fraud or fraudulent misrepresentation; or
c) any other liability which cannot lawfully be excluded or limited.
14.2 Subject to clause 14.1, the Agency shall not be liable for:
a) any indirect, special or consequential loss;
b) loss of profits, revenue, business, opportunity, goodwill or anticipated savings;
c) any loss arising from the acts, omissions, dishonesty, misconduct, negligence or lack of skill of any Applicant;
d) any hiring decision made by the Client;
e) any failure by the Client to conduct appropriate checks; or
f) any failure by the Agency to introduce any Applicant.
14.3 Subject to clause 14.1, the Agency’s total aggregate liability to the Client arising out of or in connection with these Terms, whether in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the fee actually paid by the Client to the Agency in respect of the relevant Engagement.
15. Force Majeure
15.1 The Agency shall not be liable for any delay or failure in performance arising from events beyond its reasonable control, including acts of God, flood, fire, industrial action, epidemic, pandemic, power failure, telecommunications failure, cyber incident, war, civil unrest, government action or supplier failure.
16. General
16.1 Severance
If any provision of these Terms is found by any court or competent authority to be invalid, unlawful or unenforceable, that provision shall be deemed severed and the remainder of the Terms shall continue in full force and effect.
16.2 Waiver
No failure or delay by the Agency in exercising any right or remedy shall operate as a waiver of that right or remedy.
16.3 Assignment
The Agency may assign, transfer or subcontract any of its rights or obligations under these Terms. The Client may not assign or transfer any of its rights or obligations without the Agency’s prior written consent.
16.4 Third Party Rights
A person who is not a party to these Terms shall have no right to enforce any term under the Contracts (Rights of Third Parties) Act 1999, except that any group company of the Agency may enforce any right expressly stated to be for its benefit.
16.5 Notices
Any notice under these Terms shall be in writing and sent by email or pre-paid first-class post to the recipient’s usual business address or last notified email address. Notices sent by email shall be deemed received on the same Working Day if sent before 5.00 pm, otherwise on the next Working Day. Notices sent by post shall be deemed received two Working Days after posting.
17. Governing Law and Jurisdiction
17.1 These Terms and any dispute or claim arising out of or in connection with them shall be governed by and construed in accordance with the law of England and Wales.
17.2 The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms.