Mayfly Search Limited (‘Mayfly’) acts as an employment agency under the Conduct of Employment Agencies and Business Regulations 2003
These Terms and Conditions shall be the sole terms and conditions that apply to any supply of services by Mayfly to any Client. Terms and conditions on the Client’s order form or other similar document shall not be binding on the Client and any request for Mayfly to provide services to the Client including in particular interviewing or otherwise contacting any Person on behalf of the Client shall indicate unqualified acceptance of these Terms and Conditions.
1 Definitions
In these Terms and Conditions unless the context requires otherwise:
‘Affiliate’ means in relation to a company;
(a) a company which is either a holding company or a subsidiary of such company; or
(b) a company which is a subsidiary of a holding company of which such company is also a subsidiary;
‘Agreement’ means the agreement between Mayfly and the client into which these Terms and conditions are incorporated;
“Client” means a person, company or other type of entity (including any Affiliate of any such person, company or other type of entity): (i) which uses the services of Mayfly for the purpose of Engagement of a Person; or (ii) to whom Mayfly otherwise provides services; or (iii) to whom Mayfly introduces a Person;
“Confidential Information” means any and all information of a confidential nature disclosed by one party to the other including all information disclosed by Mayfly to the Client relating to any Person including in particular the provision of the name and CV of any Person by Mayfly to the Client and Mayfly’s methodology, know how, procedures and charging structure relating to its business;
“Engagement” means the engagement, appointment, employment, contracting, hire or other retention or utilisation of a Person by the Client or any Affiliate or associate of the Client on whatever basis whether temporary or permanent and whether or not the position is executive;
“Engagement Fees” means the fees payable by the Client in relation to Engagements as set out in Schedule 1 to these Terms and Conditions;
“Introduction” means the provision by Mayfly to the Client of any information which identifies a Person;
“Person” means any person or persons that Mayfly introduces to the Client including persons deemed to have been introduced to the Client pursuant to Clauses 7.3 and 7.4;
“Recruitment Retainer Period” shall have the meaning attributed to it in Schedule 1;
“Regulations” means The Conduct of Employment Agencies and Employment Business Regulations 2003;
“Retainer Fee” shall have the meaning attributed to it in clause 5.2;
“Search” means a search by Mayfly for a Person to be engaged by the Client.
2 Interpretation
In these Terms and Conditions:
2.1 References to clauses and Schedules are references to clauses and schedules of and to these Terms and Conditions;
2.2 References to “introduction”, “introducing” and other similar expressions shall be construed as including without limitation any communication by Mayfly to the Client in any format of any of the identity, name or Curriculum Vitae of any Person;
2.3 Any headings or subheadings are inserted for convenience only and shall not affect the construction of these Terms and Conditions;
2.4 All warranties, representations, indemnities, covenants, agreement and obligations are given or entered into jointly and severally; and
2.5 References to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification).
3 Services
3.1 Mayfly shall seek to identify and / or introduce Persons to the Client who are suitable for the Clients requirements.
3.2 Mayfly makes no representation or warranty that Persons it introduces to the Client are suitable for the Client’s requirements. The Client acknowledges that it is essential for the Client to undertake its own due diligence and make its own evaluation as to the appropriateness or suitability of the Person for the Client’s requirements.
3.3 Any use by the Client of information provided to it by Mayfly in relation to any Person shall amount to an acceptance of these Terms and Conditions.
3.3.1In the event that any candidate who is engaged by the Client, in relation to whom the Client has paid Engagement Fees to Mayfly, terminates his engagement with the Client within the first three months after the date on which he commenced work for the Client, Mayfly shall for a period of six months use all reasonable endeavours to seek to identify and/or introduce a replacement person to the Client without charging additional fees. For the avoidance of doubt Engagement Fees and Retainer Fees paid in relation to any candidate who ceases to be engaged by the Client for any reason shall not be refundable in whole or in part or otherwise be affected by such candidate ceasing to be engaged by the Client.
4 Client Requirements / Specifications
In order to enable Mayfly to provide the services the Client shall provide Mayfly with information regarding its requirements which shall include the information listed in Schedule 2.
5 Fees and Expenses
5.1 The Client shall pay the Engagement Fees to Mayfly in relation to each Engagement, irrespective of whether either the Client or the Person has previously rejected the other, provided the Engagement occurs within 18 months of the Person being introduced to the Client by Mayfly.
5.2 In relation to each Search that the Client instructs Mayfly to undertake it shall pay Mayfly a retainer fee (the “Retainer Fee”) in accordance with Schedule 1. Subject to clause 7.6 the Retainer Fee shall be not be refundable in any circumstances (including in the event that the client does not Engage a Person introduced to it by Mayfly) but it will be credited against any Engagement Fee that becomes payable in relation to that Search.
5.3 All sums due or payable by the Client to Mayfly under these Terms and Conditions shall be paid free and clear of any deduction, set-off or withholding as may be required by law. No fees payable by the Client under these Terms and Conditions shall be rebated in any circumstances.
5.4 Invoices may be delivered by post, facsimile and /or email. All invoices shall unless otherwise specified in Schedule 1 be paid within 14 days of the date of delivery.
5.5 All sums payable by the Client under these Terms and Conditions are exclusive of Value Added Tax and accordingly the Client shall where VAT is applicable in addition pay Mayfly, upon presentation of a valid VAT invoice such VAT as is chargeable in respect of the payment in question.
5.6 The Client shall pay the reasonable expenses that Mayfly incurs in connection with any Search in accordance with Schedule 1 always provided Mayfly shall obtain the Client’s prior authorisation before incurring any individual expense item in excess of £200.
6 Interest
Without prejudice to any other rights or remedies which Mayfly may have in respect of non payment of any sum due under these Terms and Conditions Mayfly shall be entitled to charge the client interest on any amount that is overdue (incurred daily and compounded monthly) until such time as payment in cleared funds shall have been received by Mayfly at the rate applicable from time to time under the Late Payment of Commercial Debts (Interest) Act 1998.
7 Mayfly Protection
7.1 If the Client or any Affiliate, associate, employee or agent of the Client should pass on information relating to any Person to any third party which passing of information leads to the engagement of that Person by such third party or another third party, the Client shall be liable to pay Mayfly the Engagement Fee as if the Client had engaged the Person itself.
7.2 If the Client makes an offer to a Person in writing to engage him or her and the Person accepts the offer this shall constitute an Engagement on which the engagement Fee is payable by the Client irrespective of whether it decides to withdraw the offer of engagement to the Person save where such withdrawal is attributable to the fault of the Person.
7.3 The Client shall pay Mayfly the Engagement Fee in the event the Client engages any other person that is introduced to it by a Person that Mayfly has introduced to the Client as if that other person had been the Person and such other person shall be deemed to have been introduced to the Client by Mayfly.
7.4 The Client shall pay Mayfly the Engagement Fee in relation to a person that was identified or contacted by the Client if that person is treated as part of the search process undertaken by Mayfly.
7.5 The Client shall pay Mayfly the Engagement Fee in full in relation to a person that is engaged by the Client for the specified role (or a substantially similar role) in relation to which the Client has instructed Mayfly to carry out a Search irrespectively of whether the person that was engaged by the Client was introduced to the Client by Mayfly, to the extent such person is engaged within twelve months of the Search undertaken by Mayfly.
7.6 In the event that Mayfly should cancel a Search within 45 days of the instruction to initiate the Search being given to it by the Client otherwise than by reason of a breach or failure to perform by the Client, Mayfly shall promptly repay any Retainer Fee that it may have received from the Client in relation to that Search.
7.7 In consideration of Mayfly providing services to the Client, the Client undertakes not to interfere with or endeavour to entice away from Mayfly any senior employee or management staff of Mayfly for as long as Mayfly is providing services to the Client and for a period of 18 months following the termination of the provision of such services.
8 Liability
8.1 Neither Mayfly nor any director, employee or agent of Mayfly shall be in any way liable for any loss, damage, costs, claims, expenses and liabilities, howsoever and whensoever arising, and whether direct, indirect or consequential, arising from or connected in any way with the introduction of any Person to the Client or the Engagement of any such Person by the Client other than those losses, damages, costs, claims, expenses and liabilities caused by its gross negligence or wilful default (and in such cases its liability shall be limited to return of fees received by Mayfly in respect of the Engagement concerned).
8.2 In particular and without prejudice to the more general limitation set out in clause 8.1 Mayfly shall not be liable for: (i) any act or omission of the Person whatsoever; or (ii) the Person not meeting the Client’s requirements in any respect.
8.3 Nothing in these Terms and Conditions shall exclude restrict or limit the liability of Mayfly for death or personal injury caused by its negligence, its fraudulent misrepresentation or any liability which it is not as a matter of law allowed to exclude.
9 Indemnity
The Client shall indemnify and keep Mayfly indemnified (on an after tax basis) against all damage, losses, claims, proceedings, demands, liabilities, costs, damages, orders and out of pocket expenses (including costs reasonably incurred in investigating or defending any claim, proceedings, demand or order and any expenses reasonably incurred in preventing, avoiding or mitigating loss, liability or damage) incurred or suffered by Mayfly as a result of:
(a) any act or omission of any Person; or
(b) any Person suffering any damages, losses or liabilities,
in each case to the extent such damage, losses, claims, proceedings, demands, liabilities, costs, damages, orders and out of pocket expenses arise directly or indirectly from the Engagement or are in any way caused by the Engagement.
This indemnity shall not apply to the extent any such damage, losses, claims, proceedings, demands, liabilities, costs, damages, orders and out of pocket expenses result from the gross negligence of Mayfly.
10 Force Majeure
If and to the extent that either party is prevented or delayed by any circumstances beyond its reasonable control which were not foreseeable at the date of the contract into which these Terms and Conditions are incorporated including without prejudice to the generality of the foregoing strikes, civil commotion, riots, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, epidemic or other natural physical disaster (‘force majeure’), from performing any of its obligations under the contract into which these Terms and Conditions are incorporated it shall be relieved of liability for the failure to perform such obligations or the delay in performing such obligations with effect from the date it gives notice to the other party of the occurrence of such force majeure specifying how it is anticipated the force majeure will affect the performance of the notifying party’s obligations. If the event of force majeure continues for more than 2 months following notice of the occurrence of such event the party that is not affected by force majeure may terminate the contract to which these Terms and Conditions apply by notice in writing to the party that is affected by force majeure.
11 Confidentiality
11.1 Each of the parties shall keep confidential and shall not disclose to any other person nor use for any purpose except the purposes contemplated hereunder (the Engagement by the Client of a Person), any Confidential Information obtained from the other party save to the extent it:
(i) is required to be disclosed by operation of law or any binding judgments or order, or any requirement of a competent authority;
(ii) is reasonably required to be disclosed in confidence to a party’s professional advisors for use in connection with matters contemplated herein; or
(iii) is or becomes within the public domain otherwise than through default of the recipient party.
11.2 No public announcement or press release in connection with the subject matter of these Terms and Conditions (including for the avoidance of doubt the Engagement by the client of any Person) shall be made or issued by or on behalf of a party without the prior approval of the other except such as may be required by law or by any governmental authority.
The use of publicity/presentation material relating to or referring to the relationship between the Client and Mayfly shall be agreed by both parties in writing prior to its use.
On termination of any contract incorporating these Terms and Conditions each of the parties undertakes to promptly return to the other all information of a confidential nature provided to it by the other including all working papers, information relating to any Persons supplied by Mayfly to the Client and information relating to any opportunity at the Client that may have been provided to Mayfly or other confidential material exchanged between the parties. The obligations of each party under this clause 11 shall survive termination of any contract incorporating these Terms and Conditions and continue thereafter without limit in time.
11.3 Each of the parties shall treat the contract into which these Terms and Conditions are incorporated as being confidential.
11.4 The Client acknowledges and agrees that no representation or warranty has been or will be made by Mayfly as to the accuracy, reliability or completeness of any of the Confidential Information supplied to the Client by it.
12 Termination
Either party may terminate the contract into which these Terms and Conditions are incorporated by notice to the other party.
13 Consequences of Termination
Upon any termination of the contract into which these Terms and Conditions are incorporated:
a. The rights and obligations of the parties under this Agreement shall terminate;
b. Clauses 1, 2, 3.2, 3.3, 5 to 11 inclusive and 13 to 16 inclusive shall remain in effect ;
c. Any accrued rights or obligations to which any party may be entitled or be subject before its termination shall remain in full force and effect;
d. The Client shall remain liable to pay Mayfly’s fees in respect of any engagement of any Person occurring after termination of the contract that falls within the scope of clause 5 or clause 7;
e. No fees already paid to Mayfly shall be refundable save as expressly provided otherwise in clause 7;
f. Termination shall not affect or prejudice any right to damages or other remedy which any party may have in respect of any breach of this Agreement which existed at or before the date of termination.
14 Miscellaneous
14.1 Neither of the parties hereto may assign his rights or obligations in whole or in part hereunder without the prior written consent of the other party hereto.
14.2 A person who is not party to the contract into which these Terms and Conditions are incorporated shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the contract into which these Terms and Conditions are incorporated. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
14.3 The contract into which these Terms and Conditions are incorporated constitutes the entire agreement between the parties hereto with respect to the matters dealt with therein and supersedes any previous agreement between the parties hereto in relation to such matters. Each of the parties hereto herby acknowledges that in entering into this agreement it has not relied on any representation or warranty save as expressly set out herein or in any document introduced to herein. No variation of this Agreement shall be valid or effective unless made by one or more instruments in writing signed by such of the parties hereto which would be affected by such variation.
14.4 No failure to exercise and no delay in exercising on the part of any of the parties hereto any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights or remedies otherwise provided by law.
14.5 The restrictions contained in these Terms and Conditions, as qualified by any exceptions thereto, are considered reasonable by the parties and necessary to protect the business of Mayfly but in the event that any such restriction shall be found to be void or voidable but would be valid and effective if some part or some parts thereof were deleted, such restriction shall apply with such modification as may be necessary to make it valid and effective.
14.6 The illegality or un-enforceability of any provision of these Terms and Conditions shall not affect the validity and enforceability of the remaining sections and legal or enforceable provisions hereof.
14.7 All notices under these Terms and Conditions shall be in English language and shall be in written form and given by registered mail, return receipt requested, and addressed to the parties at the addresses indicated herein, or to such other addresses of which either party may advise the other in writing. Notices will be considered delivered: if by post, 72 hours after posting, if by delivery when left at the relevant address or if by facsimile upon transmission subject to the correct code being received on the transmission report.
14.8 The Client shall comply with the requirements of the Data Protection Act 1998 and any superseding or repealing legislation, and with Regulation (EU) 679/2016 (General Data Protection Regulation), in relation to any information it provides to Mayfly or Mayfly provides to it which relates to any Person. The Client shall indemnify Mayfly against any claims brought against Mayfly as a result of the Client’s failure to comply with data protection law.
14.9 Nothing in these Terms and Conditions shall constitute or be deemed to constitute a partnership or agency relationship between any of the parties hereto and neither of the Client or Mayfly shall have any authority to bind the other of them in any way.
15 Process agent
If the client is from outside the European Union it shall be a condition of Mayfly acting for that client that he appoints an agent as his process agent to receive on his behalf service of process of any proceedings in England commenced by Mayfly. Service on the process agent shall amount to good service on the Client irrespective of whether it is forwarded to and received by the Client or not. If the process agent ceases to have an address in England or otherwise ceases for any reason, to be able to act as the process agent, the Client irrevocably agrees to appoint a substitute process agent with an address in England acceptable to Mayfly and to deliver to Mayfly a copy of the substitute process agent’s confirmation of agreement so to act within seven days. If the Client fails to appoint a substitute process agent, it shall continue to be effective service for Mayfly to serve the process on the last known address in England of the last known process agent for the Client appointed in accordance with the terms of this Clause 15, even though such process agent is no longer found at such address or has ceased to act.
16 Governing Law and Jurisdiction
These Terms and Conditions shall be governed by and construed in accordance with English Law. Each of the parties irrevocably submits to the exclusive jurisdiction of the courts of England always provided Mayfly shall be entitled to commence proceedings in such other courts as it considers appropriate.