RDR – Terms of Business

BACKGROUND:

These Terms and Conditions shall apply to the provision of Services by RDR to the Client.

In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the RDR in writing.

1. Definitions and Interpretation

1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

• “RDR” means Red Diamond Recruitment Ltd a company registered in England & Wales under number 13409596 whose registered office is at 42 Pitt Street Barnsley South Yorkshire S70 1BB;

• “Candidate” means any person introduced by RDR to the Client for an Engagement;

• “Client” means any person, firm or company including but not limited to any associates or subsidiaries to whom a Candidate is introduced;

• “Confidential Information” means any information concerning either Party and relating to its business methods, plans, systems, finances or projects; its trade secrets; its products or services; or any other information which is expressly described as confidential;

• “Engagement” means any employment, engagement or use by a Client of an Candidate whether part or full time, with or without a contract;

• “Introduction” an introduction will be deemed to have taken place immediately, where RDR has provided a Client with any information (with or without a CV) concerning a Candidate, by any medium, or where a Client interviews a Candidate, whether in person or virtually, following an instruction from a Client to locate a Candidate;

• “Introduction Fee” means the fee payable by the Client to RDR in accordance with these Terms and Conditions, on the introduction of a Candidate to a Client which results in the Engagement of a Candidate;

• “Notification” means the notification of the Introduction Fee to the Client, which forms part of these terms and conditions.

• “Relevant Period” means the period of 12 months from the latest to occur of: (i) the Client’s interview of an Applicant in person or by telephone, following the Client’s instruction to RDR to search for an applicant; (ii) the passing to the Client, directly or indirectly, of a curriculum vitae or information which identifies the Applicant; (iii) the last discussion between RDR and the Client relating to the Applicant; and (iv) the rejection by the Client of the Applicant;

• “Remuneration” means any salary, fees, bonuses, commission, allowances, or any other financial benefit payable to, or received by a Candidate for services to a Client and including (but not limited to) inducement payments, shift allowances, location weighting, call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Applicant, for services rendered to or on behalf of the Client. Where the Client provides a company car, a notional amount of £4000 excluding VAT which will be added to the salary in order to calculate RDR’s fee;

• “Services” means the RDR services provided by RDR to the Client as set out in these Terms and Conditions.

 

1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:

1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;

1.2.4 a Schedule is a schedule to these Terms and Conditions; and

1.2.5 the Notification of the Introduction Fee sent to the Client separately shall form part of these Terms and Conditions as if set out herein in full; and

1.2.6 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule; and

1.2.7 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

2. The Contract

2.1 Any and all business entered into by RDR is subject to these Terms and Conditions and in the event of any conflict with any other Terms and Conditions these terms shall prevail unless agreed otherwise in writing by a Director of RDR.

2.2 No modification or change to these Terms and Conditions will be valid unless the details of any such changes are in writing, signed on behalf of RDR and the Client, and state the date on or after which such new terms will apply.

2.3 In the event that any part(s) of these Terms and Conditions or part thereof is declared to be invalid, unlawful, void or unenforceable then such terms or parts shall be severed and the remaining terms and conditions shall continue to be valid and enforceable to the fullest extent of the law.

2.4 The Engagement or interviewing of a Candidate, by or on behalf of the Client, or the commencement of work or provision of services by a Candidate for the Client shall be deemed acceptance of these Terms and Conditions.

2.5 On appointing RDR the Client agrees that RDR shall be appointed exclusively to provide the Services for a minimum period of 4 weeks from the date of acceptance defined in Clause 2.4 above.

2.6 These Terms and Conditions supersede all previous terms of business.

3. Vacancies and Advertisements

3.1 RDR shall have the right to decline, cancel or otherwise remove any vacancy advertisement provided by the Client to RDR at any time, for any reason and without giving prior notice to the Client. RDR advertises at its discretion.

3.2 If any vacancy advertisement appears to demonstrate that the Client intends to discriminate on the grounds of gender, sexual orientation, race, religion or age, it will be declined unless the vacancy is exempted from the provisions of the Sex Discrimination Act 1975; the Employment Equality (Sexual Orientation) Regulations 2003; the Race Relations Act 1976; the Employment Equality (Religion and Belief) Regulations 2003; or the Employment Equality (Age) Regulations 2006. In the case of any applicable exemptions, the vacancy advertisement must be accompanied by a written statement explaining those exemptions and how they apply to the vacancy.

3.3 If, in the opinion of RDR, any vacancy advertisement indicates any illegal purposes on the part of the Client, RDR may, without notice, report the vacancy and the Client to the relevant authorities. Such authorities may include, but are not limited to, the Department for Work and Pensions, ACAS, the Information Commissioner’s Office; and the Recruitment and Employment Confederation.

3.4 Vacancy advertisements shall remain open and viewable by prospective Candidates as agreed between RDR and the Client.

3.5 All vacancy advertisements shall contain details of no more than one single vacancy unless otherwise agreed in writing between RDR and the Client.

4. RDR’s Obligations

4.1 RDR shall use its best and reasonable endeavours to find suitable and willing Candidates to fill such vacancies as are notified to RDR by the Client or to notify the Client if RDR believes it is unable to assist with the Client’s requirements.

4.2 RDR will endeavour to ensure that all Candidates introduced to the Client have the experience, qualifications, and authorisations which are required by the Client, by law or by any professional body, for the position(s) that the Client wishes to fill. However, RDR does not take up references nor seek independent verification identity or of the information supplied by an Applicant. No warranty either expressed or implied is given by RDR as to the suitability of the Applicant for the purposes of the Client or as to the accuracy of any references supplied or qualifications of the Applicant. The RDR accepts no responsibility in respect of matters outside its knowledge. It shall be the responsibility of the Client to ensure the suitability of the Applicant for any given role.

4.3 At the same time as proposing a Candidate to the Client RDR will inform the Client of such matters as detailed in sub-Clause 4.2 that RDR has obtained confirmation of.

4.4 RDR will endeavour to take all reasonable steps to ensure that Clients and Candidates are aware of any requirements imposed by law or any professional body on the vacancy/vacancies that the Client seeks to fill.

4.5 RDR cannot guarantee to find a suitable Candidate for each vacancy and gives no warranties as to the suitability of any Candidate.

4.6 Where a Candidate is offered or applying for Engagements that involve working with or caring for any persons under the age of 18, the elderly, the infirm or anyone in need of care and attention, RDR will take all reasonably practical steps to ensure that it obtains and makes available to Clients copies of all necessary authorisations required for the Engagement, two references from persons unrelated to the Candidate, and confirmation that the Candidate is not unsuitable to work with vulnerable people.

5. The Client’s Obligations

5.1 The Client shall provide to RDR all information which is reasonably required for RDR to provide the Services. The Client shall use its best and reasonable endeavours to ensure that such information is complete, accurate and up-to-date.

5.2 The Client shall ensure that all information provided to RDR does not contain any material which could be regarded as offensive, indecent, obscene, illegal, dishonest, untruthful, defamatory or discriminatory.

5.3 The Client shall ensure that all information provided to RDR does not contain any material which infringes the rights of any third parties (including, but not limited to, intellectual property rights).

5.4 The Client must provide RDR with details of the vacancies that the Client wishes to fill, which must include the type of work required, the date of commencement, the duration, the hours, rates of pay and location as well as the training, qualifications and other authorisations required by law, the Client and any professional body for the position(s).

5.5 The Client must inform RDR of any Health and Safety risks or requirements of the vacancies the Client wishes to fill, as well as the action taken by the Client to minimise and control such risks.

5.6 The Client must not seek to employ any member of RDR’s staff, but in the event that any member of staff accepts an Engagement with the Client, the Client must pay an Introduction Fee in accordance with Clause 6.

5.7 The Client warrants that it shall immediately, and in any event within 24 hours of RDR’s first provision of information relating to the Candidate’s identity, inform RDR if the Client believes that it is aware of the identity of

the Candidate other than via information supplied by RDR. The Client agrees that it will be deemed not to have been aware of the identity of the Candidate prior to RDR’s provision of the information relating to the Candidate’s identity if the Client fails to provide such a notice within the aforementioned 24 hours.

5.8 The Client acknowledges that RDR is under no obligation to provide the Services until all required information has been provided by the Client in accordance with sub-Clause 5.1.

5.9 The Client shall inform RDR immediately in the event that any relevant information changes following the submission of that information to RDR.

5.10 Subject to the provisions of sub-Clauses 4.2 and 4.6, RDR shall not verify or otherwise check any Candidate details, howsoever they may be provided to the Client.

5.11 It shall be the sole responsibility of the Client to ensure that Candidates are suitable for the relevant vacancies and to obtain any references required.

5.12 It shall be the sole responsibility of the Client to obtain any required permits (including, but not limited to, work permits).

5.13 It shall be the sole responsibility of the Client to arrange for any required medical examinations or investigations.

5.14 The Client must notify RDR immediately of any offer of an Engagement that it makes to a Candidate.

5.15 The Client must notify RDR immediately of the acceptance of any offer of Engagement that is made to a Candidate and provide details of the Candidate’s remuneration.

5.16 The Client must notify RDR immediately if, following the Engagement of a Candidate, the Candidate’s remuneration increases at any time during the first 12 months of the Engagement, and the introduction fee detailed in clause will be increased accordingly.

5.17 The Client must simultaneously with offering an Engagement to a Candidate provide RDR with a copy of the job offer or contract given to the Candidate.

5.18 Notwithstanding sub-Clauses 4.2 and 4.6 above the Client must satisfy itself as to the suitability of a Candidate for any vacancy, and the Client must be responsible for taking up references and checking the validity of qualifications.

5.19 The Client is responsible for payment of remuneration to the Candidate.

6. Fees and Payment

6.1 The Introduction Fee payable by the Client to RDR upon the commencement of an Engagement by a Candidate shall be as set out in writing to the Client by RDR in the Notification. By instructing RDR the Client is deemed to have agreed all Fees notified. The Notification of the Introduction Fee shall form part of the Terms & Conditions herein accepted by the Client as though set out herein in full.

7. Confidentiality

7.1 Each Party undertakes that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, it shall, at all times:

7.1.1 keep confidential all Confidential Information;

7.1.2 not disclose any Confidential Information to any other party;

7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to these Terms and Conditions;

7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

7.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 7.1.1 to 7.1.4 above.

7.2 Either Party may:

7.2.1 disclose any Confidential Information to:

7.2.1.1 any sub-contractor or supplier of that Party;

7.2.1.2 any governmental or other authority or regulatory body; or

7.2.1.3 any employee or officer of that Party or of any of the aforementioned persons;

to such extent only as is necessary for the purposes contemplated by these Terms and Conditions, or as required by law, and in each case subject to that Party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 7.2.1.2 above or any authorised employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

7.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is, or has become, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.

7.3 The provisions of this Clause 7 shall continue in force in accordance with their

terms, notwithstanding the termination of these Terms and Conditions for any reason.

8. Data Protection

8.1 In this Clause 8:

8.1.1 “Data Protection Legislation” means 1) the Data Protection Act 2018; the Privacy & Communications Regulations 2003 as amended collectively known as the “UK GDPR” and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) any legislation which succeeds GDPR; and

8.1.2 “personal data” means personal data as defined in the Data Protection Legislation.

8.2 All personal data that either RDR or the Client (“First Party”) may use will be collected, processed, and held by that First Party in accordance with the provisions of Data Protection Legislation and the rights under the Data Protection Legislation of the other party being, as the case may be, either RDR or the Client (“Other Party”) and the rights under the Data Protection Legislation of any third party.

8.3 For complete details of the First Party’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Other Party’s and any third party’s rights and how to exercise them, and personal data sharing (where applicable), the Other Party should refer to the Privacy Notice of the First Party.

9. Data Processing

In this Clause 9:

“Data Protection Legislation” means all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (the “UK GDPR”), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018; the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended.

9.1  In this clause 9 “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4 of the UK GDPR.

9.2 Both parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause 9 shall not relieve either Party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.

9.3 For the purposes of the Data Protection Legislation and for this Clause 9 and RDR is the “Data Controller” and the Client is the “Data Processor”.

9.4 The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in these Terms and Conditions.

9.5 The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under these Terms and Conditions:

9.5.1 Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.

9.5.2 Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken shall be agreed between the Data Controller and the Data Processor.

9.5.3 Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and

9.5.4 Not transfer any personal data outside of the UK without the prior written consent of the Data Controller and only if the following conditions are satisfied:

9.5.4.1 The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;

9.5.4.2 Affected data subjects have enforceable rights and effective legal remedies;

9.5.4.3 The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and

9.5.4.4 The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.

9.5.5 Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);

9.5.6 Notify the Data Controller without undue delay of a personal data breach;

9.5.7 On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller unless it is required to retain any of the personal data by law; and

9.5.8 Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 9 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.

9.6 The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 9.

9.7 The Data Processor shall not sub-contract any of its obligations to a sub-contractor with respect to the processing of personal data under this Clause 9 without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub-contractor, the Data Processor shall:

9.7.1 Enter into a written agreement with the sub-contractor, which shall impose upon the sub-contractor the same obligations as are imposed upon the Data Processor by this Clause 9 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and

9.7.2 Ensure that the sub-contractor complies fully with its obligations under that agreement and the Data Protection Legislation.

10. Liability

With the exception of death or personal injury RDR shall not be liable or responsible for any loss or damages of any nature whether direct or indirect including any loss of profits or any consequential damages suffered or incurred by the Client as a result of the Introduction of a Candidate to the Client by RDR, the Engagement of a Client Introduced by RDR or the failure of RDR to Introduce any Candidate to the Client.

The Client shall indemnify RDR against any costs, liability, damages, loss, claims or proceedings which may arise out of its use of the Services or out of any breach of any part of these Terms and Conditions.

12. Force Majeure

Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

13. Law and Jurisdiction

13.1 These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

13.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.