3rd Floor, 86-90 Paul Street, London, EC2A 4NE
3rd Floor, 86-90 Paul Street, London, EC2A 4NE
These Terms and Conditions (the “Terms”) will apply at all times and will form the contract (the “Contract”) between Totaco Ltd (“Totaco”) (acting as an Employment Agency) and (the “Client”)
1. In these Terms, the following expressions shall be given the following meanings:
1.1 “Applicant” means a person introduced by Totaco to the Client to be considered for an Engagement.
1.2 “Engagement” means the employment, hire or other use, directly or indirectly of the Applicant under a contract of service or contract for services on a permanent, temporary or other basis (communicated either orally or in writing), made immediately or at any time within a twelve month period following the date of final interview, or initial introduction by CV, whichever is the later; and “Engage” and similar expressions shall be interpreted accordingly.
1.3 “Introduction” means when the availability of an Applicant is communicated by Totaco to the Client (including and not limited to by post, facsimile, email or telephone or by any other means) whether directly or indirectly to the Client including but not limited to: the presentation via CV of an Applicant to the Client by Totaco or interviewing an Applicant introduced by Totaco by telephone or face to face whether or not that Applicant was known previously to the Client; and “Introduce” and similar expressions shall be interpreted accordingly.
1.4 If a Candidate that has been introduced to the Client by the Company is subsequently introduced to the Client by another recruitment agency, third party or via a direct approach by either the Candidate or Client and the Client employs the Candidate within twelve (12) months of the Introduction the Client is liable to pay a fee in accordance with Clause 8. For the avoidance of doubt, there is no requirement for an Introduction of a Candidate/Applicant to be the effective cause of their Engagement and any implied term to that effect is hereby excluded.
1.5 The client is required to keep a record of all Introductions made by the Agency and to reject any introductions of the same Candidate from other agencies and any direct approaches by the Candidate him or herself for a period of 12 months from the date of his/her Introduction by the Agency.
1.6 “Salary” is deemed to include the annual basic salary or wage or retainer paid plus any allowance or other payment made which forms part of taxable emoluments paid.
1.7 Headings do not affect the interpretation of this agreement.
1.8 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.9 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated.
1.10 Words in the singular include the plural and in the plural include the singular.
1.11 A reference to one gender includes a reference to the other gender.
1.12 A reference to writing or written includes faxes and emails.
1.13 A reference to a particular statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment and includes any statute, statutory provision or subordinate legislation which it amends or re-enacts and subordinate legislation for the time being in force made under it.
2 These Terms shall apply to and be incorporated into the Contract and prevail and supersede over any inconsistent terms or conditions contained, or referred to, in the Client’s terms and conditions ,or implied by law, trade custom, practice or course of dealing.
3 The parties agree that these Terms will govern every introduction by the Client, or an associated company of the Client of every Applicant notified by Totaco to the Client from time to The Terms may not be varied except in writing and must be signed by Totaco and the Client at a time prior to the Client interviewing an Applicant otherwise any such variation will not be valid, and these Terms shall prevail.
4 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between Totaco 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.
5 The Client shall be deemed to have accepted and agreed to these Terms on the earliest of the following events, whether or not it as signed and delivered the Terms to Totaco, if:
5.1 An Applicant has been Introduced to the Client by Totaco and/or
5.2 A CV of a prospective Applicant has been sent to the Client by Totaco by any means; and/or
5.3 The Client or any person on its behalf has taken steps to arrange an interview with the Applicant and/or
5.4 The Client or any person on its behalf has interviewed the Applicant either by telephone or face to face or by any other means; and/or
5.5 The Client or any person on its behalf has offered to Engage or has Engaged an Applicant whether directly or indirectly; and/or
5.6 The Client or any person acting on its behalf performs an act that constitutes an Introduction.
5.7 For the avoidance of doubt, there is no requirement for any Introduction to lead to or be the effective cause of any Engagement and any implied term to that effect is thereby excluded to the greatest extent permitted by law.
6.1 Totaco does not warrant the suitability, the skill, ability or experience of the Applicant.
6.2 Totaco cannot guarantee to find a suitable Applicant for the Client’s requirements.
7.1 The Client will provide Totaco with sufficient information in good time to enable Totaco to find suitable Applicants, including and not limited to the following: the experience, qualifications, ability of the Applicant that the Client considers are necessary and/or required by law, information in relation to when and where work is to commence and what the remuneration payable is.
7.2 The Client unconditionally consents to information about itself being provided to the Applicant.
7.3 The Client will notify Totaco immediately if an offer to Engage an Applicant has been made or the Applicant has been Engaged by the Client (whichever occurs first). Details of such job offers, including and not limited to the level of remuneration and benefits that the Applicant will receive and whether or not he will have the use of /is provided with a company vehicle, must be put in writing to Totaco prior to the Engagement of any successful Applicant.
7.4 The Client will immediately notify Totaco if an Applicant is Introduced to a Client by another employment agency, and warrants and undertakes to Totaco that it will not act on any information that it receives about the said Applicant from that other employment agency and shall appoint Totaco as the sole agent to act on the said Applicant’s behalf in relation to any Engagement of the said Applicant by the Client.
7.5 The Client is responsible for ensuring that references are taken up to satisfy it self that the Applicant has the necessary qualifications and skills to perform the duties required of the Applicant by the client.
7.6 The Client is responsible for obtaining any work permits necessary, for satisfying any medical requirements and for ensuring that all legal obligations and requirements connected to the vacancy are met and for ensuring that it pays all payments in relation to the Applicant including and not limited to National Insurance Contributions, other taxes and emoluments.
7.7 The Client undertakes to inform Totaco immediately if the remuneration offered to the Applicant is more than was notified to Totaco within the 12 month period from Engagement. In such a case the Fee payable will be recalculated and the Client will pay a revised fee in accordance with Condition 8.
7.8 The Client undertakes that if it directly or indirectly Introduces the Applicant to another entity, including and not limited to any associated company of the Client then the terms of Condition 8 shall apply.
7.9 The Client undertakes to notify Totaco immediately if an Applicant leaves its employment but is later re-employed by the Client with in a six-month period commencing from the time that the Applicant left the Engagement of the Client.
7.10 In the event that the Client fails to abide by its obligations under this Condition7 (Obligations of the Client), the terms of Conditions 9 and 10 will apply.
8. A fee calculated in accordance with this Condition (the “Fee”) will be payable by the Client to Totaco in respect of the Engagement of an Applicant.
8.1 The Fee payable will be calculated in accordance with the scale below.
SALARY RANGEFEE
| 0-19,999 | 15% |
| 20,000-29,999 | 17.5% |
| 30,000-39,999 | 20% |
| 40,000-74,999 | 25% |
| 75,000-99,999 | 30% |
| 100,000+ | 35% |
All placements are subject to a minimum fee of £3,500
If the Applicant is to have the use of/is provided with a company vehicle then an additional £6,000 will be added to the salary package and the fee charged accordingly.
VAT will be payable on the above Fee at the prevailing rate at the time.
8.1 The Fee payable will be calculated in accordance with the scale below.
8.2 If the Salary paid to the successful Applicant is lower than his previous salary, then Totaco reserves the right to charge a fee calculated in accordance with Condition 8 based on the Applicant’s previous salary.
8.3 If it is not possible to determine the Salary being paid, an automatic fee will be charged based on the Applicant’s previous salary plus 25%. In this case, the Rebate under Condition 11 shall not apply.
8.4 If a client engages an individual that is currently employed by Totaco Ltd within 6 months of their last day of employment, then Totaco Ltd will charge the client a flat fee of £10,000.00 plus VAT.
9. If the Client fails to fulfill its obligations under the terms of the Contract and in particular Condition 7 (Obligations of the Client) then:
9.1 Totaco reserves the right to charge the Client the Fee calculated in accordance with Condition 8 (Fees) and no refunds will be given should the Applicant leave in the period covered by Condition 11 (Rebate); and
9.2 any discounts or variations offered previously in relation to the Engagement of the Applicant will be null and void;
10. All introductions are confidential. If a Client or any employee or representative of the Client refers the Applicant to a third party within twelve months of the Introduction, Totaco reserves the right to charge the Fee to the Client calculated in accordance with Condition 8 (Fees) as though the Client had itself engaged the Applicant.
In order to qualify for a Rebate
It is a condition precedent to any post Engagement benefit, such as Rebate, Refund, Replacement, Discount Guarantee or any other form of warranty mentioned in or otherwise inferred from these Terms of Business that the relevant invoice is paid to terms.
11.1 Totaco does not recognize trial periods. Should an Applicant leave within eight weeks of commencing work, the Client will, subject to Condition 9 & 10, be entitled to a rebate as detailed below (the "Rebate").
11.2 The Rebate will not be given against Fees charged under Conditions 9 or 10, or those arising in accordance with clause 7.8 or in respect of any discounted or negotiated fees.
11.3 If an Applicant leaves and is re-employed by the Client within a six-month period, the period of Engagement will be considered continuous for the purpose of the above rebate calculation.
11.4 A Rebate will not be payable unless notification in writing from the Client detailing when and why the Applicant has left its Engagement is received by Totaco within 10 calendar days of the Applicant leaving the Engagement of the Client. Totaco has the absolute discretion in determining whether such notification is sufficient for the purposes of this Condition.
11.5 Payment of a Rebate is at the absolute discretion of Totaco.
11.6 In these Terms, a Rebate means assumed to be rebated by Totaco to the Client in certain circumstances to discount future invoices raised to the Client.
11.7 Irrespective to any proven or claimed right to a Rebate, all invoices must be paid within their credit terms to Totaco and there is no right to set off any proven or claimed right to a Rebate.
11.8 The Client must pay the Company’s fee within the credit terms of the invoice. Note: If payment is not received within the credit terms, no Rebate shall apply.
12.1 The Client must pay all invoices within 30 calendar days of the date of invoice.
12.2 For the avoidance of doubt, all invoicing raised to the client should be paid within the credit terms of the invoice.
12.3 The Agency reserves the right to charge interest on invoiced amounts unpaid by the due date in accordance with “The Late Payment of Commercial Debt (Interest) Act 1998”.
12.4 In the event of a discounted or negotiated fee (agreed between Totaco and the Client) applying, which shall be confirmed on the invoice sent to the Client, the discounted fee must be paid within 10 calendar days of the receipt of the invoice or within any other period agreed in writing by Totaco. If payment of the discounted or negotiated fee has not been made within the time stipulated, then the discounted or negotiated fee will no longer apply and Totaco will be at liberty to recalculate the fee due by the Client in accordance with the terms of Condition 8 (Fees).
13.1 Totaco shall not be liable to the Client for the following, arising out of or in connection with this Contract in relation to the Engagement or use of the Applicant howsoever arising:
13.2 Nothing herein shall have the effect of excluding or restricting liability for death or personal injury resulting from the negligence of Totaco.
14.1 The Client shall indemnify and keep indemnified Totaco against all liabilities, costs, expenses, damages and losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Totaco arising out of or in connection with:
15.1 This Contract shall be governed by the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English and Welsh Courts in respect of any dispute arising regarding the construction and application of these Terms.
15.2 Telephone calls to and from the offices of Totaco are recorded for training and monitoring purposes.
15.3 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
15.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
15.5 Any failure of Totaco to enforce any of its rights under the Contract shall not be deemed to be a waiver of such rights or of the right to subsequently enforce the terms of this Contract.
15.6 This Contract is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, anyone else.
15.7 Totaco will not be liable to the Client for any liability, failure or delay of its obligations under this Contract where this arises from matters outside of its control.
15.8 This Contract may not be assigned by the Client.