WeQual Global Ltd (“WeQual”)
Terms and Conditions for Introduction of Candidates
1.1 In these Terms –
“Client” means the person to whom WeQual Introduces a Candidate;
“Candidate” means the person Introduced by WeQual to the Client including, but not limited to, any officer or employee of the Candidate if the Candidate is a limited company, any member or employee of the Candidate if the Candidate is a limited liability partnership, and members of WeQual’s own staff;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
“Engagement” means the engagement, employment or use of the Candidate by Client or by any Third Party to whom or to which the Candidate was Introduced by Client (whether with or without WeQual’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which the Candidate is an officer or employee or through a limited liability partnership of which the Candidate is a member or employee; or indirectly through another company and “Engages” and “Engaged” will be construed accordingly;
“Fee” has the meaning given In clause 5.3.
“Introduction” means –
the passing of a curriculum vitæ, resume, or any information that identifies the Candidate; or
the interview of a Candidate in person, by telephone or video conferencing
and the time of the Introduction will be taken to be the earlier of (a) and (b) above; and “Introduced” and “Introduces” will be construed accordingly;
“Proposal” means the proposal document submitted by WeQual to Client and signed by the Client;
“Remuneration” includes base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, expat packages, inducement payments, shift allowances, location weighting and call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Candidate for work (or for services where applicable) to be rendered to or on behalf of Client.
“Terms” has the meaning given In clause 2;
“Third Party” means any person who is not Client. For the avoidance of doubt, subsidiary companies, holding companies, subsidiaries of holding companies and connected companies of Client (as defined by s.1159 of the Companies Act 2006 and s.1122 of the Corporation Tax Act 2010 respectively) are included within this definition; and
“Vacancy” means a specific role/s, work or position that Client requests WeQual to submit a person for consideration for such role/s work or position.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.3 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.4 A reference to writing or written includes email.
1.5 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.
2. THESE TERMS
2.1 These terms of business, together with the Proposal ( “Terms“) constitute the entire agreement between WeQual and Client in relation to the subject matter hereof and are deemed to be accepted by Client and to apply by virtue of (a) an Introduction to Client of a Candidate; or (b) the Engagement by Client of a Candidate; or (c) the passing of information about the Candidate by Client to any Third Party; or (d) Client’s interview or request to interview a Candidate; or (e) Client’s signature of a Proposal; or (f) any other written expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged by Client for the same type of work and/or Vacancy as that for which the Introduction was originally effected.
2.2 These Terms supersede all previous agreements between the parties in relation to the subject matter hereof. If there Is a conflict between the Proposal and these terms of business, the Proposal shall prevail.
2.3 These Terms prevail over any other terms of business or purchase conditions put forward by the Client save where expressly agreed otherwise by WeQual.
2.4 The Client authorises WeQual to act on its behalf in seeking a person to meet the Client’s requirements and, if the Client so requests, shall advertise for such a person through such methods as are agreed in writing with the Client and at the Client’s expense.
2.5 For the purposes of these Terms, WeQual acts as an employment agency as defined within the Conduct Regulations.
3. OBLIGATIONS OF WEQUAL
3.1 WeQual shall use reasonable endeavours to introduce at least one suitable person to meet the requirements of the Client for each Vacancy. WeQual cannot guarantee to find a suitable person for each Vacancy. Without prejudice to clause 3.2 below, WeQual shall use reasonable endeavours to ascertain that the information provided by WeQual to the Client in respect of the Candidate is accurate.
3.2 WeQual accepts no responsibility in respect of matters outside its knowledge and the Client must satisfy itself as to the suitability of the Candidate.
4. CLIENT OBLIGATIONS
4.1 The Client is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, for criminal records and/or background checks and for satisfying other requirements, qualifications or permission required by the law and regulations of the country in which the Candidate is engaged to work.
4.2 To enable WeQual to comply with its obligations under clause 3 the Client undertakes to provide to WeQual details of the position which the Client seeks to fill, including the type of work that the Candidate would be required to do; the location and hours of work; 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; and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks.
4.3 The Client shall inform WeQual of any information it has that suggests it would be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the position which the Client seeks to fill.
4.4 The Client shall provide written notice to WeQual within 3 working days where it receives details of a Candidate from WeQual which it has already received from (a) another person; or (b) the Candidate; or (c) any other source including from social media, job boards or advertisements placed by Client. Client further agrees that if no such notice is given by the Client to WeQual then in the event of an Engagement of the Candidate by the Client, howsoever arising, the Client agrees to pay WeQual a fee in accordance with clause 5.2.
4.5 Where the Client notifies WeQual in accordance with clause 4.5 above and provides evidence to WeQual that the receipt of such details by the Client is in direct relation to the Vacancy, the Client will not be liable to pay WeQual a fee for that Candidate in respect of the Vacancy. The Client acknowledges and agrees that where the Client is unable to evidence such or freely admits their possession of the Candidate’s details was not in relation to the Vacancy, Client shall pay WeQual’s fee in accordance with clause 5.2.
4.6 The Client agrees to –
a) notify WeQual as soon as possible (and in any event, no later than 7 days from the date of offer or from the date the Engagement takes effect; whichever is earlier) of any offer of an Engagement which it makes to the Candidate; and
b) notify WeQual immediately when its offer of an Engagement to the Candidate has been accepted and to provide details of the Candidate’s Remuneration to WeQual; and
c) pay WeQual’s fee in accordance with clause 6.
4.7 The Client shall not, and shall not seek to cause WeQual to, unlawfully discriminate in relation to the services provided by WeQual to the Client in connection with these Terms and shall disclose any and all information requested by WeQual in the event a Candidate makes a complaint to WeQual.
4.8 The Client warrants that it shall not, and shall procure that its employees and agents shall not, pass any information concerning a Candidate to any Third Party. The Client acknowledges that Introductions are confidential and that failure to comply with this clause 4.8 may cause WeQual to breach the Conduct Regulations and/or the Data Protection Legislation and accordingly, Client agrees to indemnify WeQual from any and all liability in connection with the Client’s breach of this clause 4.8.
5.1 Where the Client discloses to a Third Party any details regarding a Candidate and that Third Party subsequently Engages the Candidate within 36 months from the date of the Introduction, Client agrees to pay WeQual’s fee as set out in clause 5.3. There is no entitlement to any rebate or refund to Client or to the Third Party in relation to fees paid in accordance with this clause 5.1.
5.2 The Client agrees to pay WeQual a fee calculated in accordance with clause 5.3 where it Engages, whether directly or indirectly, any Candidate within 36 months from the date of WeQual’s Introduction.
5.3 The fee will be equal to 30 percent of the Candidate’s Remuneration during the first 12 months of the Engagement (“Fee”). The Fee (and any other fees and charges under these Terms) is exclusive of VAT.
5.4 Where the amount of the actual Remuneration is not known or disclosed, WeQual will charge a fee calculated in accordance with clause 5.3 on the maximum level of remuneration applicable –
a) for the Vacancy; or
b) for the type of position the Candidate had been originally submitted by WeQual to the Client for; or
c) for a comparable position in the general marketplace.
5.5 Where the Engagement is for a fixed term of less than 12 months, the Fee will apply pro-rata. Where the Engagement is extended beyond the initial fixed term or where Client re-Engages the Candidate within 6 months from the date of planned or actual termination (as applicable) of the first Engagement, the Client shall pay a further fee based on the Candidate’s Remuneration for the period of Engagement following the initial fixed term period up to the termination of the second Engagement calculated in accordance with clause 5.3.
5.6 Where the Client withdraws an offer of an Engagement made to the Candidate, the Client agrees to pay WeQual a minimum fee of 5 percent of the Remuneration intended to be paid to the Candidate for the services provided by WeQual prior to the Client’s withdrawal. The Client further agrees to indemnify and hold harmless WeQual from any all liability in connection with the Client’s withdrawal of such an offer.
5.7 Charges incurred by WeQual at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the fee and such charges will be payable whether or not the Candidate is Engaged.
5.8 The Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to WeQual under or in connection with these Terms.
6.1 Except in the circumstances set out in clause 5.1, 5.6 and 5.7 no fee is incurred by the Client until the Candidate commences the Engagement; whereupon WeQual will render an invoice to the Client for its fees and charges incurred.
6.2 WeQual shall send to Client:
a) an invoice for the total fees due, plus charges incurred by WeQual in accordance with clause 5.7, on commencement of the Engagement;
6.3 The Client agrees to pay the amount due within 30 days of the date of the invoice.
6.4 All invoices will be deemed to be accepted in full by Client in accordance with the payment terms stated within clause 6.3 unless the Client notifies WeQual, in writing within 5 days of receiving the invoice, stating the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify WeQual that it wishes to dispute part of an invoice, the Client agrees to pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with WeQual in order to resolve the dispute as quickly as possible.
7.1 Subject to clause 7.2, if a Candidate ceases to be Engaged by the Client within twelve weeks of the start of the Engagement, the Client will be entitled to a rebate of part of the Fee equal to 1/12th of the Fee for each complete week not worked during the guarantee period of twelve weeks.
7.2 The following conditions must be met in order for Client to qualify for a rebate –
a) Client must notify WeQual that the Candidate’s employment has ended within 7 days of the employment ending or within 7 days of notice being given to end the employment (whichever is earlier) together with a reason for the premature end of the employment;
b) WeQual’s invoice for the fee must have been paid within the payment terms in accordance with clause 6.2;
c) the Candidate’s employment is not terminated by reason of redundancy or re-organisation or change in strategy of the Client;
d) the Candidate’s employment is not terminated by reason of poor performance prior to the completion of any induction or training period;
e) if the Candidate’s employment is terminated by reason of misconduct, rebate is only due where such misconduct was reasonably foreseeable by WeQual;
f) the Candidate did not leave the employment because he/she reasonably believed that the nature of the actual work was substantially different from the information Client provided prior to the Candidate’s acceptance of the employment;
g) the Candidate did not leave the employment as a result of discrimination or other acts against the Candidate; and
h) the Candidate was not at any time in the 12 months prior to the start of the employment employed or hired (whether on a permanent or contract basis, directly or indirectly) by Client.
7.3 Where the Client re-engages the Candidate on an employment, worker or indirect (via a Third Party) basis, the Client agrees that any rebate paid to the Client under clause 7.1 in respect of that Candidate, will be immediately repaid to WeQual by the Client.
8. LIABILITY AND INDEMNITY
8.1 WeQual shall use reasonable endeavours to ensure Candidate has the required standard of skill, experience and necessary qualifications as stated in the Vacancy; nevertheless, WeQual is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of WeQual or of the Candidate to evidence such to the Client nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill, experience or qualifications of the Candidate.
8.2 WeQual is not liable for any indirect or consequential losses or damage including but not limited to; loss of profits, revenue, goodwill, anticipated savings or for claims by third parties arising out of WeQual’s performance or failure to perform any of its obligations in these Terms.
8.3 Notwithstanding clause 8.2 above, nothing in these Terms will be deemed to exclude or restrict any liability of WeQual to Client for personal injury, death or fraud directly caused by WeQual.
8.4 WeQual shall not be liable for failure to perform its obligations under these Terms if such failure results by reason of any cause beyond its reasonable control.
8.5 The Client will indemnify and keep indemnified WeQual against any costs (including legal costs), claims or liabilities incurred directly or indirectly by WeQual arising out of or in connection with these Terms including (without limitation) as a result of –
a) any breach of these Terms by the Client or by its employees or agents;
b) any breach by the Client or by Third Party, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation, the Conduct Regulations and Data Protection Legislation); or
c) any unauthorised disclosure of a Candidate details by the Client or by Third Party, or any of its employees or agents.
8.6 Save as required by law, the sole aggregate liability of WeQual arising out of or in connection with these Terms is limited to £10,000.00.
9.1 These Terms may be terminated by either party by giving to the other immediate notice in the event that either WeQual or the Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where WeQual has reasonable grounds to believe the Client will not pay WeQual’s invoice within the payment terms agreed within clause 6.2.
9.2 Without prejudice to any rights accrued prior to termination, the obligations within clauses 1, 4.8, 5, 6, 7.3, 8, 11, 12, 13, 14, 15 and 16 will remain in force beyond the cessation or other termination (howsoever arising) of these Terms.
10. EQUAL OPPORTUNITIES
10.1 WeQual is committed to equal opportunities and expects the Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.
11.1 All information contained within these Terms will remain confidential and the Client shall not divulge it to any Third Party save for its own employees and professional advisers and as may be required by law.
11.2 The Client shall not without the prior written consent of WeQual provide any information in respect of a Candidate to any Third Party whether for employment purposes or otherwise.
12. DATA PROTECTION
12.1 For the purposes of this clause 12:
“Agreed Purpose” means the purpose of considering and assessing Candidates for a Vacancy.
“Controller”, “data controller”, “processor”, “data processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures” have the meaning set out in the Data Protection Legislation.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
“Permitted Recipients” means WeQual and the Client and the employees of WeQual and the Client.
“Shared Personal Data” means the personal data to be shared between the parties under these Terms. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: name, contact details and age of the Candidate.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
12.2 This clause 12 sets out the framework for the sharing of personal data between the parties as Data Controllers. Each party acknowledges that one party (the “Data Discloser“) will regularly disclose to the other party (the “Data Recipient”) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
12.3 WeQual and the Client shall comply with all the obligations Imposed on a controller under the Data Protection Legislation.
12.4 Each party shall:
a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purpose;
b) give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, 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;
c) process the Shared Personal Data only for the Agreed Purpose;
d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
g) not transfer any personal data outside of the EEA he Data Receiver may not transfer Shared Personal Data to a third party located outside the EEA unless it: (a) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and (b) ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 of the GDPR; or (iii) one of the derogations for specific situations in Article 49 of the GDPR applies to the transfer.
12.5 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
b) promptly inform the other party about the receipt of any data subject access request;
c) provide the other party with reasonable assistance in complying with any data subject access request;
d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
e) 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 with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
i) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and allow for audits by the other party or the other party’s designated auditor; and
j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including [the joint training of relevant staff, ]the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
12.6 The Client will indemnify and keep indemnified WeQual against any and all costs, claims or liabilities incurred directly or indirectly by WeQual arising out of or in connection with any failure to comply with clause 12.
13.1 Any failure by the WeQual to enforce at any particular time any one or more of these Terms will not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.
13.2 Headings contained in these Terms are for reference purposes only and will not affect the intended meanings of the clauses to which they relate.
13.3 If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms will remain in full force and effect to the extent permitted by law.
13.4 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14.1 Any notice required to be given under these Terms (including the delivery of any information or invoice) will be delivered by hand, sent by e-mail or prepaid first class post to the recipient at the address specified in the Proposal (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms).
14.2 Notices will be deemed to have been given and served –
a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 10.00am on the next business day after the day of delivery; or
b) if sent by e-mail, at the time of despatch if despatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of despatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the recipient informs the sender that the e-mail message was received in an incomplete or illegible form; or
c) if sent by prepaid first class post, 48 hours from the time of posting.
15.1 No variation or alteration of these Terms will be valid unless approved in writing by the Client and WeQual.
16. APPLICABLE LAW
16.1 These Terms and any dispute or claim arising out of or in connection with these Terms or their subject matter will be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.