These Terms and Conditions have effect between SmileWisdom Ltd, a company incorporated in England with registered number 10621593 trading as SmileWisdom (“the Company”) and the Client. If not otherwise signed as agreed, these Terms and Conditions are deemed to be accepted and are accepted by the Client upon the earlier of (a) the Client’s interview of an Applicant in person or by telephone, following the Client’s instruction to the Company to search for an Applicant (including the Company’s CV search service) or (b) the passing to the Client of a CV or other information (whether orally or in writing) which identifies the Applicant.
The Company trade only under these Terms and Conditions, which can be varied only in writing by a Director of the Company. No other agent and no employee of the Company has any authority to alter, vary or qualify these Terms and Conditions in any way. No other terms or conditions whether express or implied form any part of the agreement between the parties.
In these Terms and Conditions the following words and expressions shall have the following meanings:
“Applicant” means a person introduced directly or indirectly by the Company to the Client;
”Assignment” means an instruction by the Client to the Company for the Company to introduce Applicants or of the provision of CVs for an Applicant, in each case with a view to their Engagement by the Client or a third party;
“Associated Employer” has the meaning given by Section 231 of the Employment Rights Act 1996;
“Client” means the person, firm or corporate body specified above;
“Earnings” means the aggregate of the gross amount of the remuneration package that an Applicant will receive or become entitled to in the first year of Engagement with the Client including but not limited to gross salary or fees, guaranteed bonuses, car allowances, employer pension contributions and any other payments or emoluments as may be agreed upon the commencement of the Engagement. (Where the Client provides a company car, a notional amount of £6,000 will be added to the calculation of the Earnings, and where the Client offers private medical insurance cover, a notional amount of £1,500 will be added to the calculation of the Earnings);
“Engagement” means the employment or engagement under any agreement or arrangement for the provision of services of any Applicant;
“Fee” means the respective fees payable by the Client for an Engagement set out at 4 below;
“Period” means the period of 12 months following commencement of an Engagement.
Where the context admits, or requires the singular shall include the plural and the masculine shall include the feminine.
3. Client Obligations
The Client agrees with the Company as follows:
- a) to notify the Company in writing forthwith upon the acceptance by an Applicant of an offer of Engagement by the Client or any Associated Employer and to provide the Company with full details of the Applicant’s Earnings;
- b) to pay to the Company within 14 days of the acceptance by an Applicant of an offer of Engagement the Fee;
- c) an introduction of an Applicant to a Client shall be deemed to have been effected where the Company sends or provides information relating to an Applicant whether orally or in writing, sufficient to identify them and a Fee will be charged by the Company in respect of each and every resulting Engagement made within a period of 12 months after that introduction howsoever effected and in respect of each and every resulting Engagement made after the expiry of that 12-month period if such Engagement can reasonably be regarded by the Company as having been brought about as a consequence of or resulting from its introduction. The Client acknowledges that in the event of a CV search the Fee shall be due for each Engagement that results unless otherwise agreed in writing;
- d) an Applicant shall be deemed to have been introduced to the Client exclusively by the Company whether the Applicant was previously known to the Client or not and the Engagement of an Applicant shall be taken to have been solely by reason of that introduction.
IMPORTANT NOTE: Use of personal data other than as provided for under these terms is a use other than for its permitted purpose and may breach the General Data Protection Regulations, which the Company shall be obliged to notify to the Information Commissioners Office as part of our data protection processes.
The fee rates payable by the Client to the Company in respect of an Engagement shall be calculated as the agreed percentage plus VAT of Earnings for bespoke searches and the agreed fixed fee of £750 plus VAT per Engagement for CV searches. The fee for a CV search shall be payable regardless of the termination of any Engagement and clause 6 shall not apply.
The benefit of an Introduction made by the Company shall not be capable of assignment by a Client and, if a Client passes the benefit of such introduction to any other party resulting in an Engagement of the relevant Applicant by that third party, the Client will be charged a fee in accordance with the terms of clause 4, on the same basis as if the Client had employed or engaged the Applicant.
6. Rebates (Bespoke Searches only)
If an Applicant’s Engagement with the Client is terminated by the Applicant within 12 weeks of commencement of the Engagement (“Termination Period”) or if an Applicant does not commence an Engagement for no reason or fault relating to the Client, then the Client will be entitled to request that the Company provide a refund as follows:
0-4 weeks 75%
4-8 weeks 50%
8-12 weeks 25%
12+ weeks 0%
a) the Client did not employ or engage the Applicant with the intention or likelihood of terminating his/her engagement or employment or dispensing with his/her services without proper cause or with a view to unfairly requiring the Company to undertake a further search;
b) the Fee payable by the Client in respect of that Engagement has been duly paid in full in accordance with these Terms and Conditions (for which time shall be of the essence);
c) the Client has notified the Company in writing within 7 days of the cessation of the Engagement;
d) the Client shall have duly honoured all obligations/commitments made to the Applicant at the time of the Engagement;
e) no other sums shall be due and outstanding by the Client to the Company whether relating to the Applicant or otherwise; and
f) where the Engagement has been terminated, the reason is the deficient suitability or capability of the relevant Applicant.
In any other circumstance the full Fee is due regardless of any basis on which such Engagement may end (and furlough is not the end of an Engagement).
In the event that the Company refunds a fee or undertakes a further search pursuant to this clause, and in the event that the Client or an Associated Employer re-employs or re-engages the Applicant within a period of 12 months after the date of termination of their original Engagement, then the Client will be charged a fee in accordance with clause 4 in respect of the further search that the Company was requested to undertake, as if that were an independent Assignment.
The Client shall be responsible for:
a) obtaining references (including the confirmation of any professional or academic qualification), work permits or security clearances for an Applicant; and
b) any health, fitness or other tests required by the Client; and
c) verifying the accuracy and bona fides of any qualifications, career history or right to work of an Applicant.
- a) The Company to the fullest extent permitted by law shall not be liable to the Client for any loss, liability, damage, costs, claims or expense suffered or incurred by the Client arising from or connected with the recruitment or Engagement of any Applicant, however arising; and
b) subject to the other provisions of these Terms and Conditions, the Company shall endeavour to ensure the suitability of any Applicant introduced to the Client and to maintain a high standard of service and integrity, but the Company to the fullest extent permitted by law makes no warranty, representation expressed or implied as to the suitability of any Applicant introduced to the Client or the bona fides of any following or contacts which the Applicant is held out as having. The Client must rely on its own enquiry in these respects with regard to any Applicant introduced to it.
Where the Client instructs the Company to arrange media advertising (unless the Company agrees otherwise), all media costs attributable to such instruction may be invoiced by the Company prior to the scheduled publication date of any relevant advertisement and shall be paid by the Client within 14 days of the invoice date. Should the Client subsequently wish to cancel any media advertising which it has instructed the Company to arrange, the Company shall use its reasonable endeavours to cancel such advertisement with the relevant media publisher. However, the Company shall not be responsible nor liable to the Client (to the fullest extent permitted by law) in the event that such cancellation is not possible. The Client shall be responsible for all costs, cancellation charges etc attributable to such advertising and/or its cancellation (unless otherwise agreed in writing by the Company).
10. Further introductions
In the event that the Applicant introduced by the Company subsequently introduces any other individual to the Client (whether or not that individual has registered their details with the Company), who is then employed or engaged by the Client in any capacity whatsoever within a period of 12 months from the day the original Applicant commenced their Engagement with the Client, the Client shall pay a fee to the Company in accordance with the provisions of clause 4 above, based on the Earnings of the individual in question. Similarly, if at any time during the currency of an Assignment pursuant to these Terms and Conditions or for a period of 12 months after the relevant Engagement, the Client employs or engages any employee of the Company with whom they had material dealings in the course of such Assignment, the Client shall pay a fee to the Company equivalent to the gross remuneration package of the individual in question (calculated as necessary to include the benefits set out in the definition of Earnings above).
11. Late payment
Save as otherwise expressly provided, all monies due hereunder shall be paid by the Client within 14 days of the relevant invoice date. Interest will be payable on overdue sums in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 or at a rate of 4% over the base rate of the Bank of England applicable at the date of the invoice, whichever is the higher.
12. Confidentiality and Data Protection
- a) An Applicant’s CV is provided in strict confidence to the Client only for its information and on the basis that the contents are not to be disclosed in any way to any other person without the written consent of the Company. The Client further agrees not to approach an Applicant’s current employer until the Client has made a written offer of Engagement to the Applicant, which has been accepted.
- b) The Client will only use, and process information provided by the Company in relation to Applicants for recruitment purposes and in accordance with UK DataProtection The Client is only provided with information on Applicants for the use in relation to a potential Engagement where the Company are instructed and have no further basis for lawful processing under these terms. The Client is not a Data Processor for the Company and shall act in compliance with UK Data Protection Legislation in relation to all personal data provided to it under these terms. In the event there is a data breach concerning any Applicant the Client shall inform the Company without delay.
13. Trading under T&Cs
The Company trade only under these Terms and Conditions, which can be varied only in writing by a Director of the Company. No other agent and no employee of the Company has any authority to alter, vary or qualify these Terms and Conditions in any way. No other terms or conditions whether express or implied form any part of the agreement between the parties. In the event that any variations for the benefit of the client are negotiated with the Company, those beneficial variations will only apply if the invoice referred to in clause 11 above is paid within 14 days of the relevant invoice date. If the invoice is not paid within 14 days, the clause which has been beneficially varied will revert to these Terms and Conditions.
- a) All amounts payable under these Terms and Conditions are exclusive of VAT which shall be charged at the applicable rate.
- b) If any of these Terms and Conditions are found by any court or body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other Terms and Conditions which shall remain in full force and effect. If any Terms and Conditions are so found to be invalid or unenforceable but would be valid or enforceable if some part of the Terms and Conditions were deleted, the Terms and Conditions in question shall apply with such modification(s) as may be necessary to make them valid and enforceable.
- c) These Terms and Conditions shall be governed and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.