FOX RODNEY SEARCH LIMITED STANDARD TERMS AND CONDITIONS
These terms and conditions are deemed accepted when a firm, company or other organisation instructs the Company on a Search Assignment (whether in writing or verbally) or offers an interview to the Candidate, whichever is the earlier.
In these terms these words shall have the following meanings:
“Search Assignment” the search assignment commissioned by the Client to the Company pursuant to these terms and conditions
“Retained Search Assignment” a Search Assignment for which a retainer is paid by the Client to the Company at the outset of the search.
“Exclusive Assignment” a Search Assignment for which no retainer is paid but exclusivity is granted by the Client to the Company for an agreed time period over a list of names.
“Client” any firm, company or other organisation which instructs or retains the Company or offers an interview to the Candidate.
“Company” Fox Rodney Search Limited.
“Candidate” an individual introduced and/or sourced by the Company to the Client.
“Documentation” a short list or long list of Candidates produced by the Company and delivered to the Client
“Introduction” notification of any Candidate’s details to a Client by the Company in writing or verbally or the identification by name of any individual on a list of individuals over which exclusivity has been agreed between the Company and the Client in relation to a Search Assignment.
“Candidate’s Remuneration” includes but is not limited to the Candidate’s projected first year’s gross remuneration including but not limited to salary or drawings (as the case may be) the gross value of any profit share, commission, bonus, (including sign-on or welcome bonus), overseas premiums, living/accommodation allowance, travel allowance and any other benefits or incentives (contractual or otherwise and whether guaranteed or not) reasonably estimated by the Company to be payable by the Client to the Candidate during the first year of the engagement of the Candidate by the Client or accrued during such first year (even if paid after such first year).
“Assignment Letter” the letter which, as appropriate, the Company will send to the Client, thereby initiating the Search Assignment.
“Contingent Placement” a private or contingent Placement of the Candidate by the Company, no pursuant to a Search Assignment.
“Partner” a partner of the Client at the date of the commencement of the Search Assignment who is not already the subject of a separate search assignment by the Company
“Placement” a placement of the Candidate pursuant to a Search Assignment with the Client whether as an employee, contractor, consultant or otherwise.
i. The Company’s fees are based on a percentage of the Candidate’s Remuneration and are as follows:
(a) for a Search Assignment, 30% of the Candidate’s Remuneration for Partner and Counsel recruitment, 25% for Associate recruitment. To the extent that the fee includes a non-refundable retainer (the amount of which shall be agreed between the Company and the Client, ‘the Retainer’) such Retainer shall be payable on acceptance of the Search Assignment. The balance of the Company’s fees, having deducted any Retainer paid, shall be due as to 50% one month from the date of resignation (whether verbal or written) of the Candidate from his/or her current firm (to join the Client) and the remaining 50% on the date the Candidate commences working with the Client.
(b) for a Contingent Placement, 30% of the Candidate’s Remuneration for Partner and Counsel recruitment, 25% for Associate recruitment, 50% of which is payable one month after the Candidate’s resignation and the remaining 50% which is payable on the Candidate’s start date.
ii. Fees shall be payable by the Client to the Company in respect of any Introduction made by the Company of a Candidate to the Client, and is engaged or retained by the Client within two years of either that introduction or the candidate’s last meeting with Company or the Client, whichever is later.
iii. The Client agrees to pay any value added tax or any other sales tax due in connection with any applicable transaction hereunder.
4. Termination Fees
In the event of the termination or suspension of a Search Assignment by the Client, then in addition to any fees already paid or due the Client shall also be responsible for payment of a termination fee which shall be equivalent to half of the next fee instalment due that would have fallen due under clause 3 had the Search Assignment successfully continued, as well as remaining responsible for reimbursement of any expenses due under clauses 9 and 10.
5. Terms of Engagement
5.1 The Company fournit des services de placement under article L5321-1 et suivant du code de travail.
5.2 Unless specifically agreed with the Client otherwise at the commencement of the Search Assignment, and unless otherwise terminated in accordance with these terms, the term of the Search Assignment will be 12 months (the ‘Term’). If the Search Assignment is not completed within the Term, the Company will review with the Client the basis upon which it may extend the Term and, where the Client and the Company agree to extend the Term, the Company shall confirm in writing to the Client the agreed amendment to the terms of the Search Assignment.
5.3 On the occurrence of an event which is outside the control of the Company which in the reasonable opinion of the Company has or will have a material adverse effect on the potential success of the Search Assignment, the Company shall be entitled to terminate the Search Assignment forthwith without return of any sums that have been paid to it, or agreed to be paid to it, by way of retainer. Such occurrences shall include, but without limitation, the departure of one of the Client’s key partners, or the merger of the Client with another firm.
5.4 The Client agrees that it shall, within a period of not less than 30 days following the presentation by the Company of any Documentation, advise the Company of which Candidates the Company is to contact forthwith on its behalf. If the Client does not so advise the Company, then the Company shall be entitled to contact such Candidates on behalf of other clients.
5.5 The Client shall provide to the Company all information which the Company may reasonably require to enable the Company to search for a suitable individual for the position which the Client seeks to fill including in particular the following information:
(a) the position which the Client seeks to fill, including the date on which the Client requires the Candidate to commence work and the duration, or likely duration, of the work, the type of work the Candidate in that position would be required to do, the location at which and the hours during which he would be required to work and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(b) the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Candidate to possess in order to work in the position.
5.6 The Company may give to Candidates the information provided under clause 5.5. The Client shall keep the Company updated regarding any changes to the information the Client is required to provide under clause 5.5.
6.1 During the course of an Exclusive Assignment:
i) the Client undertakes and agrees that it shall not instruct any other recruitment or search intermediary, firm company or third party (whether search or selection) in relation to the Client’s requirement which is the subject of the Search Assignment and agrees that, if any such third parties have already been instructed at the time the Assignment Letter is signed, or the Search is otherwise commenced, the Client shall immediately disinstruct such third parties. If it is not possible to immediately disinstruct such third party, then the Client agrees that if it does receive CVs or candidate descriptions (whether named or anonymous) from any such third party, then these will be sent immediately (and before any contact or further contact is made with such third party) to the Company which will deal with those candidates and agencies exclusively on the Client’s behalf.
ii) All direct approaches to the Client by potential candidates must be referred to the Company and will be treated as an Introduction in the Search Assignment, unless they are listed as excluded in the Assignment Letter (see below) or it has otherwise been agreed in writing they do not form part of the Search Assignment prior to commencement of the Search.
iii) In addition, the Client agrees that any Assignment Letter will list any individuals who are to be outside the scope of the assignment. Anyone not listed in the Assignment Letter, who would reasonably be seen as falling within the ambit of the Search Assignment, will be treated as an Introduction by the Company as part of the Search Assignment.
6.2 For an Exclusive Assignment the Client agrees that all Candidates listed in any agreed list shall be treated as Introductions and shall be pursued exclusively through the Company for the duration of any agreed exclusivity period. For the avoidance of doubt Clause 3(ii) shall apply in relation to such Candidates unless otherwise agreed between the Company and the Client in writing.
7. Fee corrections
Should the actual Candidate’s Remuneration be higher than the figure used to calculate the fee invoiced by the Company the Client shall provide details to the Company within 1 month of the end of the relevant year and the Company shall be entitled to an additional fee equal to the relevant percentage of the excess of the Candidate’s Remuneration.
The Client undertakes to notify the Company immediately of any intention to engage, contract or consult with, employ or otherwise whether directly or indirectly, the Candidate.
Any disbursement, expense and/or other reasonable cost incurred in the course of the Search Assignment, such as out of pocket expenses in relation to dealing with Candidates and (where agreed) research costs, will be charged to the Client on a monthly basis.
Any advertising costs will be agreed separately between the Company and the Client. Once the Client has confirmed a booking of advertising space whether verbally or in writing then any advertising costs must be paid by the Client to the Company unless cancelled within the published deadline relevant to the media concerned.
If it is not possible to calculate the Candidate’s Remuneration under clause 2 above, for example because the Client and the Candidate enter into an association or referral relationship of mutual benefit, the fee shall be agreed between the Company and the Client acting in good faith but shall not be less than £50,000 (excluding VAT). The Company reserves the right to decide whether the fee should be determined in accordance with this paragraph. If in fact the relationship between the Client and the Candidate turns out to be different from that envisaged when such fee is determined and the Company would have been entitled to a higher fee, then the Client shall pay to the Company a fee equivalent to the difference between that already charged and the fee to which the Company would have been entitled.
12. Payment Terms, Interest and Currency
The Client shall pay the fee and any expenses (together with any VAT applicable) without deduction within 14 days of the date of invoice. Invoices not paid within this period may incur, at the Company’s discretion, a surcharge of 2.5% per month or part thereof compounded monthly. Fees expressed in a currency other than Euros shall be converted into Euros to calculate the fee at the selling exchange rate of HSBC on the date of invoice.
13. Early Termination
13.1 If a Placement terminates on or before the expiry of 4 weeks from its commencement the Company will refund that instalment or portion of the fee referred to in clause 3 as being payable on the date that the Placement commences. If the Placement terminates after 4 weeks but before the expiry of 13 weeks the Company will refund 7.7% of that instalment or portion of the fee for each complete week that falls after the termination of the Placement but before the expiry of that 13-week period.
13.2 No refund will be made in accordance with clause 13 unless all fees (including both retainer and success fees) and expenses have been paid within 14 days of the date of the respective invoices, and no refund will be due if termination of the Placement is due to redundancy or the amalgamation, bankruptcy or liquidation of the Client or the wrongful dismissal of the Candidate. The Client confirms that neither it nor any subsidiary, associate or successor will re-engage, employ contract with or consult with the Candidate within 12 months of the date of termination.
If the Candidate introduces (whether directly or indirectly) any other individual(s) (a ‘Further Candidate’) to the Client during the period starting with the date of introduction of the Candidate and finishing two years from the date the Candidate joins the Client, or within 12 months of the Candidate being introduced to the Client (whichever is later), and such Further Candidate is employed by, engaged by, works for or becomes a partner with the Client, then the Client will remain responsible for payment of an introductory fee for such Further Candidate.
A fee is also payable by the Client (together with reimbursement of any expenses incurred) if the Client refers the Candidate to a third party and the Candidate is employed by, engaged by, works for or becomes a partner with such third party whether directly or indirectly and the early termination provisions at clause 13 shall not apply in these circumstances.
15. 3rd Party Introductions
If a candidate has been introduced to the Client other than by the Company and expressly advises the Client that he wishes to proceed with his application through the Company then a fee will be payable on any Placement as if the Company had introduced that candidate and these terms shall apply.
All details concerning the Candidate are provided to the Client in the strictest confidence and shall not be disclosed to any third party.
17. Suitability etc
While the Company shall take all reasonable steps to assess the suitability of Candidates, the Company gives no warranty as to the suitability, availability, immigration status, qualifications, health, standard of skill, integrity and reliability of the Candidate and it shall be for the Client to satisfy itself as to all such matters. The Company shall not be responsible for the accuracy of the Candidate’s CV or other information which are presented in good faith, either as original, in the Company’s format, or otherwise. The Client is also responsible for arranging all medical examinations and other investigations and for obtaining any work or other permits. The Client agrees to hold the Company harmless in respect of all such matters regarding the suitability of the Candidate.
18.1 Neither the Company nor any of its associates, staff or agents shall be liable to the Client for any loss, liability, damage, costs, claims or expenses whatsoever suffered or incurred by the Client arising from or connected with the Placement of the Candidate howsoever arising. Notwithstanding any other provision of these terms and conditions and irrespective of any fault or negligence by the Company, the Company shall not be liable to the Client for any indirect, incidental, consequential or special damages (including, without limitation, damages for harm to business, lost revenues, lost savings, or lost profits), regardless of the form of action, whether in contract, warranty, or tort, including, without limitation, negligence of any kind whether active or passive.
18.2 Nothing in these terms and conditions shall exclude or limit in any way:
(a) the Company’s liability for death or injury arising from its negligence; or
(b) fraud or any other liability which it is prohibited from excluding or limiting by law.
18.3. Each of the Client and the Company agrees and acknowledges that the sums payable under these terms and conditions have been calculated on the basis that the Company shall exclude or limit liability as set out in these terms and conditions.
No variation to these terms and conditions shall be accepted unless expressly agreed in writing by a director of the Company.
All notices hereunder shall be in writing and shall be sent by registered post, return receipt requested, overnight courier, messenger, facsimile (with confirmation of receipt), or e-mail (with confirmation of receipt), to the applicable address. If the notice is sent by mail, the effective date of the notice will be the third day after the date of posting. If the notice is sent by overnight courier, the effective date of the notice will be one day after the notice was given to the courier service, as shown by the courier service’s records. If the notice is hand delivered, the effective date of the notice will be the date shown on a written receipt given by the recipient to the messenger. If the notice is sent by facsimile or e-mail, the effective date of the notice will be the date shown on the confirmation of receipt.
20.2 Relationship of the Parties
Each party is acting as an independent contractor and not as an agent, partner, employee or part of a joint venture with the other party for any purpose. Except as provided in these terms and conditions neither party has the authority to enter into any commitment or incur any liability on behalf of the other.
If any provision of these terms and conditions are held to be inconsistent with any present or future law, ruling, rule or regulation of any court or authority having jurisdiction over the subject matter of these terms and conditions such provision shall be deemed to be rescinded or modified to the minimum extent necessary to comply with such law, ruling rule or regulation, and the remainder of these terms and conditions shall not be affected thereby.
20.4 Entire Agreement
These terms and conditions set forth the entire understanding between the parties with respect to the subject matter hereof and shall supersede all letters and/or other communications by and between the parties hereto (including, without limitation, by and between their respective agents, attorneys and so forth) prior to the date hereof regarding the subject matter hereof.
20.5 Governing Law
This Agreement shall be construed in accordance with the laws of France and the parties irrevocably submit to the exclusive jurisdiction of the courts of France to settle any disputes which may arise in connection with this Agreement.
Each of the Client and the Company may, at its respective election and upon notifying the other party, assign this Agreement or any of its rights hereunder to any parent, subsidiary, affiliate or any subsidiary of such parent. Any other proposed assignment by the Client or by the Company requires the written consent of the other party to this Agreement, such consent not to be unreasonably withheld.
No failure to exercise, and no delay in exercising any right, power or privilege under these terms and conditions shall operate as a waiver, nor shall any single or partial exercise of any right, power or privilege hereunder preclude the exercise of any other right, power or privilege hereunder.
Fox Rodney Search Limited