1.      GENERAL

 

(a)    Definitions of parties

(i)     “FreshtechIT” or “Freshtech” shall mean FreshtechIT Limited.

(ii)     A “Client” shall mean any person, firm or organisation or associated organisation to whom Freshtech have introduced a candidate.

(iii)    A “Candidate” shall mean anyone, including members of Freshtech staff introduced by Freshtech to a Client. 

(iv)    An “interview” shall represent any contact between a client and a candidate whether in person, via email, telephony, or video-conferencing facilities.

(v)     “Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998 or 2018, rules codes of conduct or guidance.

(vi)    “GDPR” means the General Data Protection Regulation ((EU) 2016/679).

(vii)  Freshtech will be acting as an employment agency for the purposes of these terms of business.

(viii)  These terms and conditions will be reviewed by Freshtech on an annual basis and may be updated from time to time upon Freshtech giving the client written notice of such updates.   

 

(b)    The client is deemed to have accepted these terms of business by agreeing to interview, interviewing, or engaging without an interview, a candidate for employment, introduced by Freshtech.

 

(c)    A candidate is deemed to have been introduced to the client when the client has been provided with the name of a candidate by email, verbally, their Linkedin profile or relevant social media profile or any other means.

 

(d)   The person interviewing on behalf of the client warrants that he/she is duly authorised to agree these terms and conditions on behalf of his/her company or employer.

 

(e)    Freshtech endeavours to ensure the suitability of any candidate introduced to the client by obtaining confirmation of the candidate’s identity; that the candidate has the experience, training, qualifications, and any authorisation which the client considers necessary, or which may be required by law or by any professional body; and that the candidate is willing to work in the position which the client seeks to fill.

 

(i)      At the same time as proposing a candidate to the client Freshtech shall inform the client of such matters in clause (f) as they have obtained confirmation. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any public or bank holidays) following save where the candidate is being proposed for a position which is the same as one in which the candidate has worked within the previous five business days and such information has already been given to the client.

(ii)     Freshtech endeavours to take all such steps as are reasonably practical to ensure that the client and candidate are aware of any requirements imposed by law or any professional body to enable the candidate to work in the position which the client seeks to fill.

(iii)    Freshtech endeavours to take all such steps as are reasonably practical to ensure that it would not be detrimental to the interests of either the client or the candidate for the candidate to work in the position which the client seeks to fill.

(iv)    Notwithstanding clauses f (i), (ii) & (iii) above the client shall satisfy itself as to the suitability of the candidate and the client shall take up any references provided by the candidate to it or Freshtech before engaging such candidate. The client is responsible for obtaining work permits and/or such other permission to work as may be require, for the arrangement of medical examinations and/or investigations into the medical history of any candidate, any satisfying any medical and other requirements, qualifications or permission required by law of the country in which the candidate is engaged to work.

 

(v)     To enable Freshtech to comply with its obligations under f (i), (ii) & (iii) above the client undertakes to provide to Freshtech details of the position which the client seeks to fill, including the type of work that the candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorisation which the client considers necessary or which are required by law or any professional body for the candidate to possess in order to work in the position; and any risks to health or safety known to the client and what steps the client has taken to prevent or control such risks. In addition, the client shall provide details of the date the client requires the candidate to commence, the duration or likely duration of the work; the minimum rate of remuneration, expenses and any other benefits that would be offered; the intervals of payment of remuneration and the length of notice that the candidate would be entitled to give and receive to terminate the employment with the client.

 

(f)    The client shall notify Freshtech immediately when a candidate introduced by Freshtech is engaged by the client.

 

(i)     If the client interviews a candidate for employment and subsequently agrees to engage or make use of a candidate within twenty four months of introduction by Freshtech, the client will be liable for the full introduction fee.

 

(ii)    If the client or a member of the client’s staff, refers a candidate introduced by Freshtech to a third party, and within twelve months of introduction to the client, the third party engages the candidate in any capacity by any means, the client will be liable for the full introduction fee at the date of notification or discovery by Freshtech if not notified. If payment is not received by Freshtech on the date it becomes due, Freshtech shall be entitled to charge interest at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of commercial Debts (Interest) Act 1998 (as may be calculated using the calculator on the website: www.payontime.co.uk) on any sums due but not paid by the client, from the date payment became due until the actual date of payment, without concession or prejudice to any of its other rights.   

 

(iii)   If details of the candidate’s salary and all other terms of employment have not been received by Freshtech within seven days of notification or discovery, Freshtech will estimate the candidate’s salary based on current market rates. 

 

(g)   If any employee of Freshtech accepts any offer of permanent employment from the client, associated company or subsidiary thereof within six months of commencement of the successful candidate’s employment (including the reintroduction by or use through another employment agency or consultancy) Freshtech will invoice the client for a recruitment service fee amounting to 40% of the first year’s gross salary (excluding benefits, bonuses & overtime).

 

 

2.      PLACEMENT TERMS

 

(a)   Payment terms are strictly fifteen days from the date of invoice, these payment terms shall hereafter be known as the agreed Freshtech payment terms. Our replacement policy will not be valid for late payments.   

 

(b)   If the client fails to pay on time any amount due on Freshtech shall be entitled to charge interest at the statutory rate as prescribed by the late payment of commercial Debts (Interest) Act 1998 (as may be calculated using the calculator on the website: www.payontime.co.uk) on any sums due but not paid by the client, from the date payment became due until the actual date of payment, without prejudice to any of its other rights. 

 

(c)   There are no refunds, or rebates payable in respect of the fees. All invoices must be paid in full by the client without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Credit notes will be cancelled if not taken or allocated within 2 years.

 

(d)   Freshtech reserve the right that in the event that payment on any one or more invoices has not been received by Freshtech within the agreed Freshtech payment terms, interest at the prescribed rate will be payable by the client in full on all outstanding invoices.

 

(e)   For each candidate supplied by Freshtech and subsequently employed by the client a recruitment fee is charged upon acceptance of a contract of employment as follows:

 

                                                                                                   

                  Gross Basic salary                                                Fee %                                       

                  Up to £59,999                                                        25

                  £60,000 to £100,000                                             25

                  £100,001 +                                                               30

                       

 

(f)    VAT is payable on all fees at the prevailing rate.

 

(g)   In the event that a candidate's employment with the client is terminated for any lawful reason other than redundancy within the first 90 days of employment then, provided the recruitment fee has been paid within the agreed Freshtech payment terms, Freshtech will use our best endeavours to supply the client with a replacement candidate at no further charge to the client. The Client may exercise this right only, if the agency is notified of the reason in writing, within seven (7) days from the termination of the employment of the applicant and - issues a new assignment for the recruitment of the same position. The guarantee does not apply in any of the following cases: - the employment contract of the applicant is terminated due to group redundancy, - the position is eliminated, - the circumstances of the work specified in the employment contract or job description change fundamentally (eg. change in location, working hours, remuneration) and therefore the applicant is unable to continue his/her employment, - Client does not fulfil the basic obligations of the employment contract (e.g. salary payments), - in case of the death of the applicant.

 

(h)   Freshtech does not recognise trial or probationary periods for candidates.

 

(i)    A cancellation fee consisting of any expenses (Linkedin, advertising, communications) accrued during the campaign shall be payable by the client on the occurrence of any of the following

 

(i) Cancellation of services by the client

(ii) Cancellation of the services of Freshtech in the event of a significant modification to the scope of the role by the client

(iii) The occurrence of events outside the control of Freshtech, to the extent that it becomes impractical for the service to be completed. Including but not limited to reorganisation/restructuring or acquisition/disposal activity in relation to the clients business which effects its recruitment requirements. 

 

3.      DATA PROTECTION 

 

Both parties will comply with all applicable requirements of the data protection legislation. This clause 4 is in addition to, and does not relieve, remove, or replace, a party’s obligations under the data protection legislation.

 

The parties acknowledge that for the purposes of the data protection legislation, Freshtech is the data controller, the client is also the data controller (where data controller has the meaning as defined in the GDPR), when the client makes decisions regarding, and has responsibility for, the processing and handling of personal data (as defined in the GDPR). For the avoidance of doubt, personal data includes any information allowing a candidate to be identified.

This clause 4 sets out how the client and Freshtech share personal data as data controllers. Each party acknowledges that one party (the “data discloser”) will regularly disclose to the other party (the “data recipient”) collected by the data discloser during this agreement (“shared personal data”).

 

Any material breach of the data protection legislation by one party, if not remedied within 30 days of written notice from the other party, shall entitle the injured party to terminate this agreement with immediate effect.

 

Each Party shall:

(a)    ensure that it has all necessary grounds, notices and where applicable, consents, in place to enable lawful transfer of the shared personal data to the data recipient during the agreement.

(b)   give full information to any data subject (which shall have the meaning in the GDPR and shall include candidates) whose personal data may be processed under this agreement of the nature such processing.

(c)    process the shared personal data only for the purposes of the performance of the agreement and/or as agreed between the parties in writing from time to time.

(d)   not disclose or allow access to the shared personal data to anyone other than the data recipient unless the consent of the data discloser has been obtained.

(e)    ensure that in the event of any third-party data recipient, that such recipient is (i) approved by the other party; and (ii) is subject to written contractual obligations concerning the shared personal data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement and the data protection legislation.

(f)     ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

(g)   not transfer any personal data received from the data discloser outside the European economic Area unless the transferring Party: (1) complies with the provisions of Article 26 of the GDPR (in the event the third party is a joint controller); and (2) ensures that: (i) the transfer is to a country approved by the European commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to article 46 GDPR; or (iii) one of the derogations for specific situations in article 49 GDPR applies to the transfer.

 

Each party shall assist the other in complying with all applicable requirements of the data protection legislation.  Each party shall:

(a)    consult with the other party about any notices given to data subjects in relation to the shared personal data.

(b)    promptly inform the other party about the receipt of any data subject access request.

(c)    provide the other party with reasonable assistance in complying with any data subject access request.

(d)    not disclose or release any shared personal data in response to a data subject access request without first consulting the other party wherever possible.

(e)    assist the other party in responding to any request from a data subject and in ensuring compliance with its obligations under the data protection legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.

(f)     notify the other party without undue delay on becoming aware of any breach of the data protection legislation.

(g)    at the written direction of the data discloser, delete or return shared personal data and copies thereof to the data discloser. Such return of personal data shall occur automatically on termination of this agreement for whatever reason, unless otherwise required by law.

(h)    maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and its obligations under the data protection legislation; and

(i)      provide the other Party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the data protection legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the data protection legislation.

 

As regards data protection legislation and this clause 4, the client shall indemnify Freshtech against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Freshtech arising out of or in connection with any breach of the data protection legislation by the client, its employees or agents, or sub processors or third-party recipients.

 

4.      VARIATION

 

(a)      No variation of these terms of business is valid without the written agreement from Freshtech. Any agreed variation will be confirmed on email. If any conflict arises between these terms of business and any other terms of business, then these terms of business shall prevail unless expressly otherwise agreed in writing by Freshtech.

 

5.      ENGLISH LAW

 

The Terms & Conditions shall be deemed to have been made in England and shall be governed and construed according to English Law.