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Terms of Business - APEX RESOURCING

Apex Resourcing - Hospitality Recruitment Specialists

Terms of Business

1. Definitions and Interpretation

1.1 In this Agreement the following definitions apply:

“Agency Affiliate” means any parent, subsidiary, associate or affiliate company (or companies) of Apex Resourcing Ltd (company number 07462972 registered office is at Telecom House, 125-135 Preston Road, Brighton BN1 6AF;

“Agreed Rebate Period” means any period within the first 12 consecutive weeks following the commencement of an Engagement; “Assignment Term” means the period set out on the Assignment Schedule during which the Consultant is supplied by Apex Resourcing Ltd to render the Services to the Client;

“Candidate” means the individual Introduced by Apex Resourcing Ltd to the Client to be considered for an Engagement. For the avoidance of doubt, if the individual is Introduced to the Client via a limited company or limited liability partnership, the Candidate is the individual working through such limited company or limited liability partnership;

“Conduct Regulations” means Conduct of Employment Agencies and Employment Businesses Regulations 2003;

“Consultant” means the individual (operating through a limited company/intermediary) supplied by Apex Resourcing Ltd to provide the Services for the Assignment Term via Apex Resourcing Ltd, including any substitute supplied by such limited company/intermediary; “Engagement” means the direct or indirect (including but not limited to via another employment business or employment agency) employment or engagement in any capacity whatsoever (including but not limited to partnership and consultancy) or other use of a Candidate or Consultant by the Client or by any Third Party and “Engage”, “Engages”, and “Engaged” shall be construed accordingly; “Exclusivity” means Apex Resourcing Ltd will be the Client’s only employment agency engaged to Introduce or supply Candidates to fill the Permanent Placement;

“Fees” means the charges payable to Apex Resourcing Ltd by the Client. For a Permanent Placement, the terms agreed with the Client are referred to in clauses 6 to 8 of these Terms.

“Client’s Group” means the Client and its subsidiaries, any holding company of the Client’s and any subsidiary of such holding company (all as defined in s.1159 of the Companies Act 2006);

“Introduction” means Apex Resourcing Ltd or an Agency Affiliate has directly or indirectly introduced a Candidate or Consultant to a Client and such introduction has occurred when the earlier of any of the following take place: We provide You with the Candidate’s CV. We facilitate You being able to identify that Candidate by cross- referring to Your own or third party sources, or We can be reasonably considered to be the effective cause of an engagement. This will apply even if the Candidate is already known to You (including through any social media channels) unless that Candidate is already being actively progressed by You (and, if requested, You can provide Us with reasonable evidence of this) and You inform Us of this within 2 business days of Our introduction. Please note it is Your sole responsibility for checking whether a Candidate has been previously Introduced by another party.

a) the Client has interviewed or met with a Candidate or Consultant in person, by telephone, via Skype or any other method;

b) Apex Resourcing Ltd has passed/sent to the Client or uploaded onto the Client’s system the Candidate or Consultant’s curriculum vitae (“CV”); or

c) Apex Resourcing Ltd has passed any information about the Candidate or Consultant to the Client (including but not limited to details relating to the Candidate’s or Consultant’s name, contact information, experience, qualifications, current employer, biography or summary of past experience)

The time of the Introduction shall be taken to be the earlier of (a), (b) and (c) above and “Introduced” shall be construed accordingly;

“Introduction Fee” means the fee payable by the Client in accordance with clause 6.1 of these Terms;

“Permanent Placement” means a position where the Client or Third Party (where applicable) contractually Engages with the Consultant or Candidate directly;

“Remuneration” includes, without limitation, all gross basic salary or fees, bonuses (including but not limited to contractual or discretionary bonuses, guaranteed and/or anticipated bonus, sign-on bonus) and commission earnings, for services rendered by the Candidate or Consultant to or on behalf of the Client at any time during the (a) first year of the Engagement or (b) if the Engagement is shorter than a year, for the length of the Engagement;

“Terms” means this Framework Agreement for the supply by Apex Resourcing Ltd of recruitment services to the Client;

“Third Party” means any company or person who is not the Client, whom the Client has directly or indirectly passed any information about a Consultant or Candidate to (including but not limited to any details relating to the Consultant or Candidate’s name, contact information, performance during the Temporary Placement or Permanent Placement, experience, qualifications or biography). For the avoidance of doubt, Third Party can include any company in the Client’s Group;

1.2 Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.

1.3 The headings contained in this Agreement are for convenience only and do not affect their interpretation

1.4 Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after this Agreement) under it from time to time.

2. Service Framework

2.1 Apex Resourcing Ltd shall, upon receipt of an instruction from a Client regarding a Permanent Placement vacancy, source and introduce Candidate(s) to the Client who, if suitable, the Client will engage directly. Apex Resourcing Ltd shall act as an employment agency for the purposes of the Conduct Regulations in this regard.

2.2 It is understood and agreed by the parties that Apex Resourcing Ltd shall be entitled to sub-contract any of the Services set out in these Terms to an Agency Affiliate, provided always that Apex Resourcing Ltd shall be responsible for procuring that the Agency Affiliate complies with these Terms.

2.3 Both parties acknowledge that, in entering into these Terms, neither do so on the basis of nor rely on any representation, warranty or other provision except as expressly provided in writing.

2.4 Unless otherwise agreed in writing by a director of Apex Resourcing Ltd these Terms shall prevail over and supersede any terms of business or purchase conditions (or similar) put forward by the Client and any previous agreements between the parties relating to Temporary Placements and / or Permanent Placements. No variation or alteration of these Terms shall be valid unless approved in writing by the Client and a director of Apex Resourcing Ltd.

2.5 Provided these Terms have been sent to the Client, these Terms are deemed to be accepted by the Client and to apply by virtue of the earlier of: a) their being signed by the Client; b) Apex Resourcing Ltd having Introduced a Candidate or Consultant to the Client; c) a Temporary Placement or Permanent Placement arranged by Apex Resourcing Ltd commencing, or (d) any other written expressed acceptance of these Terms.

2.6 These Terms consist of a framework agreement between Apex Resourcing Ltd and the Client. These Terms will continue to apply and be enforceable during, between and after Temporary Placements and Permanent Introductions until such time as either party terminates the Terms in accordance with clause 10. Notwithstanding this, save as expressly provided, termination of a Temporary Placement, a Permanent Placement or these Terms will not release either party from any obligation accrued on or before such termination. In addition, any obligation of a continuing nature in these Terms will remain in force after termination.

2.7 The Client will have a period of 24 hours from the time that Apex Resourcing Ltd submits a Consultant’s CV to the Client, to notify Apex Resourcing Ltd in writing of any duplication of representation of such Consultant or Candidate (e.g. by another employment business or agency). In the absence of receipt of such notification, the Client is deemed to have agreed that the Consultant or Candidate (as appropriate) has been introduced by Apex Resourcing Ltd and these Terms shall apply.

2.8 If any term herein conflicts with any term contained in the Appendix B: Variation to Terms, then the Appendix B: Variation to Terms shall take precedence over the specified terms only within this agreement.

3. Service Agreement

3.1 The Client authorises Apex Resourcing Ltd to act on its behalf in seeking Candidates to fill any Permanent Placement vacancy and, if the Client so requests, Apex Resourcing Ltd shall advertise for such Candidates through such methods as are agreed in advance with the Client.

4. Apex Resourcing’s Obligations

4.1 Apex Resourcing Ltd shall use reasonable endeavors to introduce one or more suitable Candidates to meet the requirements of the Client for any particular vacancy for a Permanent Placement. Apex Resourcing Ltd will endeavor to check that a Candidate has the right to work in the UK and shall endeavor to obtain appropriate proof of qualifications. All information given by Apex Resourcing Ltd about any Candidate is given in good faith and in reliance of information given to Apex Resourcing Ltd by the Candidate.

4.2 Notwithstanding clause 4.1, Apex Resourcing Ltd does not take up references nor seek independent verification of the information supplied by any Candidate. Therefore, no warranty either express or implied is given by Apex Resourcing Ltd as to the suitability of the Candidate for the purposes of the Client or as to the accuracy of any references supplied or qualifications of the Candidate. Apex Resourcing Ltd shall not be liable for any loss or expense by the Client (including direct loss, indirect or consequential loss, loss of profit, loss of anticipated revenue, loss of reputation or regulatory fines) arising from any incorrect, misleading or misrepresented information provided by the Candidate.

5. Client’s Obligations

5.1 It shall be the responsibility of the Client to take such steps as are necessary to satisfy itself of the suitability of the Candidate and to verify the accuracy of the information supplied by or any statement made by the Candidate. The Client is strongly advised to take up any references provided by the Candidate before Engagement.

5.2 The Client shall be wholly responsible for obtaining all right to work, security and other permits, verifying professional and academic qualifications, arranging examinations and/or investigations into the medical history of the Candidate (if the Client deems necessary) and obtaining verification with respect to any other requirements or qualifications required by the Client or law for the Permanent Placement vacancy.

5.3 To enable Apex Resourcing Ltd to comply with its obligations under clause 4, the Client undertakes to provide to Apex Resourcing Ltd 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.

5.4 The Client shall provide Apex Resourcing Ltd with the start date of the Permanent Placement, the duration or likely duration of the Permanent Placement; 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 their employment with the Client.

5.5 The Client shall inform Apex Resourcing Ltd of any information it has that suggests it would 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.

5.6 The Client shall not, and shall not seek to cause Apex Resourcing Ltd to, unlawfully discriminate in relation to the services provided by Apex Resourcing Ltd to the Client in connection with these Terms and shall disclose any and all information requested by Apex Resourcing Ltd in the event a Candidate makes a complaint to Apex Resourcing Ltd.

6. Fees & Charges

6.1 In consideration for the search and supply of Candidates and a subsequent Engagement of a Candidate within 12 months of an Introduction, the Client shall pay Apex Resourcing Ltd the Introduction Fee, which shall be calculated as a percentage of the Candidate’s Remuneration, plus Value Added Tax. In order to calculate the Introduction Fee, the relevant percentage that shall be applied in each case will depend on which of the Remuneration bands referred to below, the Candidate’s Remuneration falls into.

Remuneration Band              Our Fee, being a percentage of that total remuneration

£0 to £99,999                             20%                             

£100,000+                                    25%                           

6.2 The Client shall inform Apex Resourcing Ltd in writing within 24 hours of receipt of the Candidate’s details from Apex Resourcing Ltd, if it has already received the Candidate’s details from another employment agency in relation to the same Permanent Placement vacancy. If Apex Resourcing Ltd has not received such notification from the Client then, in the event of an Engagement within 12 months of the Introduction of the Candidate, the Client agrees to pay Apex Resourcing Ltd the Introduction Fee.

6.3 Within 1 working day of the following events, the Client agrees to notify Apex Resourcing Ltd in writing:

6.3.1 that the Client or any Third Party has directly or indirectly offered any Consultant Engagement orally or in writing (whichever is earlier);

6.3.2 that the Client’s or any Third Party’s offer of an Engagement to the Candidate has been accepted either orally or in writing (whichever is earlier); and

6.3.3 of details of the Remuneration offered to the Candidate.

6.4 For the avoidance of doubt, the Client shall still be liable to pay Apex Resourcing Ltd the Introduction Fee where an offer of Engagement has been made verbally or in writing by the Client (directly or indirectly) to a Candidate where: (a) the Client through its own actions discourages the Candidate from accepting the Engagement after an offer of Engagement has been made; or (b) the offer is subsequently withdrawn by the Client after the Candidate has accepted it.

6.5 Introductions of Candidates are confidential. Where the Client discloses to a Third Party any details regarding a Candidate Introduced to the Client by Apex Resourcing Ltd and that Third Party subsequently Engages the Candidate within 12 months from the Introduction, the Client shall pay Apex Resourcing Ltd the Introduction Fee plus VAT and there shall be no entitlement to any rebate or refund to the Client or to the Third Party.

6.6 Where the amount of the actual Remuneration has not been disclosed to Apex Resourcing Ltd within the time period referred to in clause 6.3, Apex Resourcing Ltd will charge a fee calculated in accordance with clause 6.1 by replacing the unknown Remuneration figure with the maximum annual remuneration package that Apex Resourcing Ltd considers to be applicable to the Engagement with regard to the general marketplace.

6.7 Where the Engagement is for a fixed term of less than 12 months, the Client shall pay Apex Resourcing Ltd a fee, plus VAT equal to 30% of the candidate's total remuneration for the fixed term.

6.8 If the Engagement is initially for less than a year and Apex Resourcing Ltd charges an Introduction Fee on that basis, but that Engagement (the “First Engagement”) is extended beyond the initial term (the “Extended Period”) or where the Client re-Engages the Candidate within the 12 month period following the end of the First Engagement (the “Second Engagement”), the Client shall pay Apex Resourcing Ltd a further Introduction Fee plus VAT based on the Candidate’s Remuneration for the Extended Period or the Second Engagement (as applicable), provided in each case that the total Introduction Fee payable by the Client to Apex Resourcing Ltd is no more than it would have been had the Introduction Fee for the First Engagement been based on the Candidate’s Remuneration for the first year of the Engagement.

6.9 For the avoidance of doubt, the Client is required to pay the Introduction Fee whether or not the Candidate is Engaged during the 12 months immediately following the Introduction for the same type of work as that for which the Introduction was originally made.

6.10 Charges incurred by Apex Resourcing Ltd at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the Introduction Fee and the Client will pay such charges to Apex Resourcing Ltd irrespective of whether or not the Candidate is Engaged.

7. Invoices

7.1 Except in the circumstances set out in clause 6.5, no fee is incurred by the Client until the Candidate commences the Engagement; whereupon Apex Resourcing Ltd will render an invoice to the Client for its Introduction Fee plus VAT and any charges.

7.2 The Client agrees to pay Apex Resourcing Ltd’s invoices within 14 days of the date of the invoice.

7.3 All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated within clause 7.2 unless the Client notifies Apex Resourcing Ltd in writing within 5 working days of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify Apex Resourcing Ltd that it wishes to dispute part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with Apex Resourcing Ltd in order to resolve the dispute as quickly as possible.

7.4 Apex Resourcing Ltd reserves the right to charge interest on invoiced amounts overdue at the rate of 3% above the Bank of England’s base rate, calculated on a daily basis and compounded monthly;

8. Rebates

8.1 If the Permanent Placement of the Candidate who was Engaged by the Client terminates within the first 1 week of employment the client will have a choice of either 100% refund or a free replacement.

8.1.1 Where the client opts for a free replacement Apex Resourcing Ltd will be given Exclusivity for a period of 2 weeks to Introduce replacement Candidate(s) to the Client not exceeding the original candidates salary value. If Apex Resourcing Ltd fail to provide an acceptable replacement in that 2 period the client is entitled to claim 100% rebate.

8.1.2 Where the Client Engages a replacement Candidate at an increased salary value the Client shall pay Apex Resourcing a fee to cover the difference in accordance with clause 6.1 above.

8.2 Where the Client qualifies for a rebate in accordance with clauses 8.1 and 8.3, the Client shall be entitled to a rebate of the Introduction Fee paid by the Client to Apex Resourcing Ltd with respect to the original Candidate as follows:

Week Placement Ended                 Percentage Rebated

Week 1 to 4                                           75%

Week 5 to 8                                           50%

Week 9 to 12                                         25%

8.3 The following conditions must be met in order for the Client to qualify for a rebate:

a) the Client must notify Apex Resourcing Ltd in writing that the Candidate’s Engagement has ended within 7 days of the Engagement ending or within 7 days of notice being given to end the Engagement, whichever is earlier;

b) Apex Resourcing Ltd’s invoice for the Introduction Fee must have been paid in full within the payment terms in accordance with clause 7.2:

c) the Client has paid all sums owed to Apex Resourcing Ltd in relation to any other Temporary Placements or Permanent Placements and otherwise in accordance with these Terms;

d) the Candidate’s Engagement is not terminated by reason of redundancy (as defined in Section 139 of the Employment Rights Act 1996) or re-organisation or change in strategy of the Client;

e) where in week 1, the Client opted for a replacement candidate/s Apex Resourcing Ltd were given Exclusivity in accordance with clause 8.1;

f) the Candidate did not leave the Engagement because he/she reasonably believed that the nature of the actual work was substantially different from the information the Client provided prior to the Candidate’s acceptance of the Engagement; and

g) the Candidate’s reasons for leaving the Engagement as communicated to the Client or Apex Resourcing Ltd did not relate to any allegations of less favorable treatment, harassment or victimisation for any of the protected characteristics under the Equality Act 2010 or any other bullying by the Client or any of its staff.

8.4 Where the Client re-Engages the Candidate within the 12 month period immediately following the end of the Permanent Placement, any rebate paid to the Client under clause 8.2 with respect to that Candidate, shall be immediately repaid to Apex Resourcing Ltd by the Client (plus VAT).

9. Liability

9.1 Apex Resourcing Ltd shall not be liable under any circumstances for any loss, expense, damage, delay, costs or compensation (whether direct, indirect or consequential) which may be suffered or incurred by the Client arising from or in any way connected with Apex Resourcing Ltd seeking a Candidate for the Client or from the Introduction or Engagement of any Candidate by the Client or from the failure of Apex Resourcing Ltd to introduce any Candidate or from the Client’s disclosure to a Third Party of any details regarding a Candidate.

10. Termination of Agreement

10.1 This Agreement may be terminated by either party giving 1 weeks written notice.

10.2 This Agreement may be terminated by either party by written notice with immediate effect:

10.2.1 If the other commits any material breach of this Agreement or the Assignment Schedule and fails to remedy the breach within seven (7) days of being required in writing to do so; or

10.2.2 If an order is made or an effective resolution is passed for the winding up of that other party (other than for the purpose of restructuring) or a receiver, administration or administrative receiver is appointed over the undertaking or any of the property or assets of that other party.

11. Liability in all cases

11.1 The Client shall indemnify and keep indemnified Apex Resourcing Ltd against any costs (including legal costs), claims or liabilities incurred directly or indirectly by Apex Resourcing Ltd arising out of or in connection with these Terms including (without limitation) as a result of:

a) any breach of these Terms by the Client, any company within the Client’s group or by its employees or agents;

b) any breach by the Client, any company within the Client’s group or a Third party, or any of its employees or agents, of any applicable statutory provisions (including but not limited to those relating to right to work in the UK checks and the Equality Act 2010); and/or

c) any unauthorised disclosure of a Candidate or Consultant’s details by the Client or a Third party, or any of its/their employees or agents.

11.2 Neither party will be liable for any loss or damage whatsoever or howsoever caused arising from any innocent misrepresentation, except to the extent that such liability may not be lawfully excluded.

11.3 Neither party shall be liable for any claims made against the other unless they are notified within 12 months of the action arising.

11.4 Neither party excludes or limits liability for death or personal injury caused by its negligence, for breach of confidentiality or damages caused by intentional misconduct or gross negligence, any other indemnities included within these Terms or any other type of liability which cannot by law be excluded or limited.

To the extent permitted by law, Apex Resourcing Ltd shall not be liable to the Client for any indirect or consequential loss or damage of any kind, or for loss of profit (direct or indirect), loss of business, revenue, goodwill or anticipated savings.

11.5 Apex Resourcing Ltd shall not be liable for failure to perform its obligations under these Terms if such failure results by reason of any cause beyond its reasonable control.

11.6 If any exclusion of liability in Apex Resourcing Ltd’s case in these Terms will be held to be invalid for any reason or Apex Resourcing Ltd becomes liable for loss or damage that is capable of being limited in law, such liability will be limited to £1,000,000 for all claims, costs, damage and losses under or in connection with a Temporary Placement or Permanent Placement.

12. Confidentiality and Data Protection

12.1 All information relating to a Candidate and Consultant is confidential and where that information relates to an individual is also subject to the Data Protection Act 1998 and is provided solely for the purpose of providing services to the Client. Such information must not be used for any other purpose nor divulged to any third party and the Client undertakes to abide by the provisions of the Data Protection Act 1998 in receiving and processing the data at all times.

12.2 Both parties recognise that information disclosed to the other in the course of the negotiation of and the performance of a Temporary Placement or Permanent Placement will contain and incorporate confidential information in which the other has an interest.

12.3 Both parties agree that they will keep such information confidential, and will neither use nor disclose to a third party any part or the whole of such information (or information gained from such disclosure), until or unless such information becomes public knowledge through no fault of the party using such information.

All information contained within these Terms shall remain confidential and the Client shall not divulge it to any Third Party save for its own employees and professional advisers and as may be required by law.

12.4 The Client shall not without the prior written consent of Apex Resourcing Ltd provide any information in respect of any Candidate or Consultant to any Third Party whether for employment or engagement purposes or otherwise.

13. General

13.1 Any failure by Apex Resourcing Ltd to enforce at any particular time any one or more of these Terms shall not be deemed a waiver of such rights or of the right to enforce these Terms subsequently nor shall it prejudice Apex Resourcing Ltd’s right to take action in respect of the same or any later breach. No provision of these Terms shall be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act 1999 but this does not affect any right of Apex Resourcing Ltd to enforce any provision of these Terms against the Client. If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining provisions, which shall continue to be valid to the fullest extent permitted by applicable laws.

13.2 Apex Resourcing Ltd shall not be liable for any delay or non-performance of its obligations under these Terms to the extent that such delay or non-performance is caused by Force Majeure Event. For the purposes of these Terms, “Force Majeure Event” shall mean any event beyond Apex Resourcing Ltd’s reasonable control including without limitation, fire, floods, storms, earthquakes, natural physical disasters, acts of war, acts of terrorism or threats of, or industrial action or acts of government.

14. Governing Law & Jurisdiction

14.1 These Terms shall be construed in accordance with the law of England & Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.

14.2 Where these Terms are also provided in a language other than English, whilst the translation is believed to be accurate, no warranty to that effect is given, and the English language version will prevail.