Terms & Conditions – Avery Fairbank

These Terms and Conditions (the “Terms”) apply to the recruitment services provided by Avery Fairbank.

1. Definitions

The following definitions apply:

Applicant: a person We Introduce to You for an Engagement.
Avery Fairbank (We/Us/Our): Taylor Fairbank Limited t/a Avery Fairbank (Company number: 13604456).
Contract: these Terms combined with the relevant Agreement.
Data Protection Legislation: Where UK GDPR applies, the law of the United Kingdom (“UK”) or of a part of the UK which relates to the protection of personal data. Where EU GDPR applies, the law of the European Union or any member state of the European Union to which We or You are subject, which relates to the protection of personal data.
Domestic Law: the law of the UK or a part of it.
Engagement: your engagement, employment, hire or use of the Applicant (whether for the position originally advertised or otherwise) as an employee, partner, consultant, director, non-executive director or otherwise (and whether on an employed or self-employed basis, directly or through a limited company which the Applicant is an officer or employee of) or your offer of this which is accepted by the Applicant (Engaged and Engages have the equivalent meanings).
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
EU Law: the law of the European Union or any member state of the European Union.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Fees: the fees You will pay for the supply of the Services (set out in clause 6).
Services: the recruitment and/or introduction services We will provide You with.
You: the party detailed in the Agreement.

2. Basis of contract

2.1 We’ll agree with You whether We’re providing a “Contingency Appointment” or “Retained Appointment” Service before the Introduction occurs.

2.2 The Contract comes into existence on the earliest of: (i) Us confirming acceptance of Your instructions in writing, (ii) You interviewing an Applicant (or arranging to), or (iii) You offering an Applicant an Engagement.

3. Supply of Services

3.1 We’ll use reasonable endeavours to introduce suitable Applicant(s) to You. But as You will appreciate, We cannot guarantee to find a suitable Applicant or warrant their suitability.

4. Your obligations

4.1 You’re responsible for satisfying Yourself of the suitability, experience, and skills of any Applicant. You’re also responsible for carrying out any checks You feel are necessary, including taking up references, checking medical requirements and the validity of qualifications, obtaining any work and/or other permits and checking the Applicant’s eligibility to work in the relevant country.

4.2 You’ll tell Us as soon as:

(a) You make an offer of an Engagement; and
(b) when the offer is accepted (or upon the start of an Engagement (whichever happens first)),

and will provide full details of the Remuneration and copies of related documents. If You don’t, We’ll charge Our Fee on the typical level of remuneration applicable for that position with regard to any information supplied by You and/or comparable positions.

4.3 If We can’t carry out any of our obligations under the Contract because of anything You do or don’t do, We may suspend performance of the Services until You remedy that default.

5. Exclusivity

You engage Us on an exclusive basis to provide the Services. You won’t engage anyone else in respect of the same vacancy without Us agreeing in writing first.

6. Fees and payment

6.1 The Fees for the Services are:

(a) Contingency Appointment: 27.5% of Candidate’s first year Remuneration, invoiced when the offer letter of Engagement is signed by the Applicant, or the Applicant commences work, whichever is earlier.
(b) Retained Appointment: 27.5% of Candidate’s first year Remuneration with a minimum Fee of £10,000 if the Remuneration is less than £25,000 per annum. If the Engagement is for less than 12 months, the Remuneration will be applied pro-rata to calculate the Fee.
(c) In addition to clauses 6.1 (a) and (b) above, where the Applicant is granted shares (or an option for shares) in Your business (or a member of Your group), however the shares or share options are granted at the time of the Engagement, or at any time within 12 months of the Engagement (Investment), You will also pay Us the greater of:
- 2% of the amount paid or payable by the Applicant (or You on the Applicant’s behalf) towards the Investment;
- 2% of the market value of the total shares comprising the Investment; or
- £15,000.

6.2 Invoices are payable in full and in cleared funds within 14 days of the date of the invoice.

6.3 You can’t deduct any sums owed to You from any of Our invoices.

6.4 If estimated Remuneration is used to calculate the initial invoice, the final invoice will be calculated to reflect the actual Remuneration package accepted by the Applicant.

6.5 If You introduce or pass details of an Applicant to another party (directly or indirectly including to a member of Your group) and that party Engages the Applicant, You will tell Us straight away and pay Us the Fees set out in clause 6 (unless the Engagement takes place more than 12 months after the later of (i) We introduced the Applicant to You or (ii) the date of the Applicant’s last interview with You).

6.6 You will pay the Fees if within 12 months of the Introduction You:

(a) reject an Applicant, withdraw Your offer, or the Applicant rejects Your offer of Engagement, but You (or a member of Your group) later Engage the Applicant;
(b) engage (or a member of Your group engages) an Applicant in any vacancy or role, even if the role is different to Your initial requirement.

7. Replacement Applicants

If an Engaged Applicant leaves You within the first 25 weeks of their Engagement, We’ll take reasonable steps to introduce a replacement Applicant for no additional Fee, if: (i) all Our invoices have been paid as per clause 6, (ii) You tell Us within 7 days of the departure, (iii) the termination is lawful, not due to redundancy, constructive dismissal or a material change in the job description, and (iv) the Engagement is for a fixed period of more than 25 weeks.

8. Restrictions on Engaging Our Staff

You won’t employ or try to employ Our staff. If a member of Our staff accepts an Engagement with You within 3 months of leaving Our employment then You will pay Our Fees as if We had Introduced that person, subject to a minimum fee of £15,000.

9. Intellectual property rights (“IPRs”)

We own all IPRs arising from the Services (other than IPRs in any of Your materials).

10. Data protection and processing

10.1 Both parties will comply with all applicable Data Protection Legislation and clause 10.

10.2 The parties acknowledge that We are the Data Controller and You are the Data Processor (as defined in Data Protection Legislation).

10.3 We’ll ensure that We have all necessary consents and notices to enable the lawful transfer of Personal Data (as defined in Data Protection Legislation) to You for the duration and purposes of the Contract.

10.4 Without prejudice to clause 10.1, You will, in relation to any Personal Data You process in connection with the Contract:

(a) Process that Personal Data only on Our written instructions unless You are required to by any Domestic Law or EU Law. Where You rely on Domestic Law or EU Law as the basis for processing Personal Data, You will promptly notify Us before performing the processing unless the Domestic Law or EU Law prohibits You doing so.
(b) Ensure that You have appropriate technical and organisational measures in place, reviewed and approved by Us, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss, disclosure, destruction or damage to Personal Data, appropriate to the potential harm and the nature of the data, considering the state of technological development and the cost of implementation.
(c) Ensure that all personnel who have access to and/or process Personal Data will keep the Personal Data confidential and understand the processes required to keep that Personal Data secure and confidential.
(d) Not transfer any Personal Data outside of the UK or European Economic Area unless You have Our prior written consent and the following conditions are fulfilled:
- (i) You or We have provided appropriate safeguards in relation to the transfer;
- (ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
- (iii) You comply with your obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- (iv) You comply with reasonable instructions We notify You of in advance with respect to the processing of the Personal Data;
(e) Assist Us when responding to requests from Data Subjects and when ensuring compliance with Your obligations under the Data Protection Legislation with relation to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
(f) Delete or return all Personal Data to Us following Our written request or on termination of the Contract (unless required by Domestic Law or EU Law to store the Personal Data).
(g) Notify Us immediately if You become aware of a Personal Data Breach.
(h) Maintain complete and accurate records to demonstrate Your compliance with clause 10.

10.5 You are not authorised to appoint any third-party processors of Personal Data under the Contract.

11. Limitation of liability

11.1 We don’t warrant (express or implied) the accuracy of any information provided on any Applicant.

11.2 We’re not liable for any loss, damage, or liability You incur or suffer arising directly or indirectly from (i) an Engagement, (ii) Your use of any information We provide in relation to an Applicant, (iii) failure of the Applicant to meet Your requirements, (iv) any act or omission of an Applicant, or (v) any loss, injury, damage, expense or delay incurred or suffered by an Applicant.

11.3 We’re not liable for loss of profits, sales or business, agreements or contracts, anticipated savings, use or corruption of software, data or information, damage to goodwill, or any other forms of indirect or consequential loss.

11.4 Our total liability to You won’t exceed the Fees payable in respect of the Introduction in question.

11.5 You agree to indemnify Us against all loss, damage or liability suffered by Us resulting from (i) a breach of this Contract by You, or (ii) any loss, damage or liability suffered by an Applicant or by anyone arising from the acts and omissions of an Applicant, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise during or arising directly or indirectly out of the Contract and/or an Engagement.

12. Termination

12.1 Either of Us can terminate the Contract immediately by giving written notice if the other party: (i) commits a material breach of any Contract term and fails to remedy it within 7 days of being notified in writing to do so, or (ii) becomes insolvent or ceases to carry on its business.

12.2 We can terminate the Contract immediately by giving You written notice if You (i) don’t pay any amount by the due date for payment or (ii) breach clause 5.

13. Consequences of termination

13.1 On termination, any outstanding invoices, interest, and Fees not yet invoiced are immediately payable and You will return all of Our materials straight away.

13.2 Termination of the Contract will not affect any rights, remedies, obligations or liabilities that have accrued up to that date. Any provision of the Contract that is intended to come into, or continue in, force on or after termination will remain in full force and effect.

14. General

14.1 Interpretation. A reference to a statute is to it as amended/re-enacted and includes all subordinate legislation. The terms “include”, “in particular”, and “for example” are illustrative and don’t limit the sense of preceding terms.

14.2 Force majeure. Neither party will be in breach of the Contract if a failure results from circumstances beyond its reasonable control.

14.3 Assignment and other dealings. We may assign, charge, subcontract or deal in any other manner with any or all of Our rights and obligations under the Contract.

14.4 Confidentiality. You’ll only use information We provide for internal recruitment purposes and will keep the information strictly confidential, not publish all or any part of the information, allow any Applicant to see it, or divulge or disclose all or any part of it to any third party. You’ll permit access to the information on a need-to-know basis, and will make sure that Your officers and employees comply with these Terms. We both agree that during the Contract and for 5 years after termination, neither party will disclose any confidential information concerning the business, affairs, clients or employees of the other.

14.5 Entire agreement. The Contract constitutes the entire agreement between Us. No other agreements, assurances, promises, representations, statement, warranties are part of this Contract. Neither of us will have a claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

14.6 Variation. These Terms can only be varied by one of Our directors in writing.

14.7 Waiver. A waiver of any right or remedy is only effective if given in writing and isn’t a waiver of any subsequent right or remedy. Failure or delay to exercise any right or remedy will not waive that or any other right or remedy. No single or partial exercise of any right or remedy will prevent or restrict the further exercise of that, or any other, right or remedy.

14.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If not possible it will be deemed deleted. Any modification or deletion of a provision or part-provision under this clause will not affect the Contract’s validity and enforceability.

14.9 Notices. Any notices must be in writing and delivered by hand (deemed received on signature of a delivery receipt) or first-class post (deemed received on the 2nd Business Day after posting) to its registered office (if a company) or its principal place of business (in any other case).

14.10 Third party rights. Unless expressly stated otherwise, the Contract doesn’t give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.

14.11 Governing law and jurisdiction. The Contract is governed by the laws of the state of Nevada, whose courts will have exclusive jurisdiction.