GrowthKind Limited - General Terms and Conditions
These terms and conditions when read together with the provisions set out in the Statement of Work (as defined below), form the terms of contract (“Agreement”) between GrowthKind Limited with company number 16483518 and with registered office at 1 Meadow View, High St, Burbage, Marlborough SN8 3AF (“GrowthKind”) and the Client, as defined in the Statement of Work.
The Agreement sets out the basis upon which GrowthKind will provide the Services to the Client, and in turn the Client’s obligations to GrowthKind. GrowthKind acts as an employment agency in relation to the Introduction and supply of Candidates pursuant to the Agreement.
1. DEFINITIONS
In this Agreement the following definitions apply:
“Assignment Fee” means the fee payable to GrowthKind on commencement of the Search Services;
“Candidate” means any person who shall be considered for Placement by the Client who is Introduced to the Client by GrowthKind;
“Coaching Fee” has the meaning given to it in the Statement of Work;
“Completion Fee” means the fee payable to GrowthKind on the Candidate’s written acceptance of an offer of a Placement with the Client;
“Fees” means the fees payable for the Search Services pursuant to clause 6 of this Agreement, collectively referred to as the Assignment Fee, Shortlist Fee and Completion Fee, and if applicable, the Growth Advisory Fee as set out further in the Statement of Work and any other fees payable in accordance with this Agreement;
“Growth Advisory Fee” means the fee payable to GrowthKind for advisory services, if applicable, as outlined in the Statement of Work;
“Instruction” means the instruction given (whether verbally or in writing) by the Client to GrowthKind requesting GrowthKind to carry out the Search Services for a Specific Role;
“Introduction” means (without limitation) the provision of any details whether written or oral of a Candidate by GrowthKind to the Client or any joint venture, partner, consultant, contractor, representative or affiliate of the Client (“Affiliate”) for possible Placement. This applies regardless of whether the candidate is previously known to the Client or any of its Affiliates. “Introduce” and “Introducing” shall be construed accordingly;
“Placement” means an offer of employment and/or engagement of a Candidate by the Client (or by one of its Affiliates or other such third party connected to the Client who has learned about the Candidate from GrowthKind’s introduction), whether on a temporary, permanent or self-employment basis, following an Introduction by GrowthKind;
“Remuneration” includes actual gross annual salary including, without limitation, any weighting allowances, guaranteed income, guaranteed or estimated bonuses or incentives or equivalent, overseas uplift bonuses, allowances, incentive payments;
“Search Services” means the search services for Candidates to be carried out by GrowthKind pursuant to this Agreement;
“Service Commencement Date” means the date from which GrowthKind agrees with the Client to commence the Search Services, if different from the date of this Agreement;
“Service Levels” means any service levels identified in the Statement of Work;
“Shortlist Fee” means the fee payable to GrowthKind upon delivery of the shortlist, as outlined in the Statement of Work;
“Specific Role(s)” means the role set out in the Statement of Work that the Client seeks GrowthKind to fill pursuant to this Agreement;
“Statement of Work” means the specific details applicable to the Search Services as agreed in writing between the Parties;
“Term” shall have the meaning given in clause 4.
2. INTERPRETATION
2.1 References to the singular include the plural; references to the masculine include the feminine; reference to any clause is to a clause of this Agreement. References to either party shall include its subsidiaries or holding companies where appropriate. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
2.2 This Agreement includes the Statement of Work, and subsequent amendments to this Agreement (including to a Statement of Work) shall be construed as an integrated part of this Agreement.
3. SCOPE OF SERVICE
3.1 GrowthKind specialises in the search for candidates for employers. In reliance on the skill, knowledge and experience of GrowthKind, the Client wishes to engage GrowthKind to provide the Search Services in accordance with the terms of this Agreement.
3.2 From the Service Commencement Date, GrowthKind shall provide the Search Services and shall meet any applicable Service Levels as set out in the Statement of Work.
3.3 GrowthKind acts as an employment agency (as defined in Section 13(2) of the Employment Agencies Act 1973) when Introducing Candidates to the Client for a Placement.
4. TERM
This Agreement shall take effect from the earlier of the date of signature of this Agreement or the Services Commencement Date, and shall continue in effect for the period set out in the Statement of Work or if no such term is specified, until it is terminated in accordance with clause 15.
5. THE SERVICES
5.1 GrowthKind agrees to deliver the Search Services in accordance with the items set out in the Statement of Work and shall commence the Search Services on the Services Commencement Date on the basis of the terms of this Agreement.
5.2 After commencement of the Search Services, if the Client requests any changes to the Search Services, GrowthKind shall use commercially reasonable endeavours to accommodate such requests to the extent that they do not require any significant changes to the Search Services. The Client understands and agrees that GrowthKind shall not be required to agree to any changes that would reasonably be considered significant to the Search Services, and any such agreement to accommodate such changes shall be subject to agreement of revised Fees. GrowthKind shall send a revised Statement of Work for acceptance by the Client in such circumstances.
5.3 In the event that the Client's search criteria are requested to be amended to such an extent that it results in a significant change to the target market, requiring GrowthKind to initiate a new search, GrowthKind will provide the Client with a new Statement of Work and shall charge Fees as though it were a new Instruction. Any fees previously incurred and paid by the Client will not be credited towards the new Instruction.
5.4 If, after a period of 70 days, a market map of over 100 potential Candidates, and the presentation of six (6) or more Candidates selected by the Client for interview, the Client has still not reached a hiring decision, GrowthKind reserves the right to terminate the Search Services and charge the remaining balance of the Fee. Any work subsequently requested by the Client after this point shall be deemed a new search and GrowthKind reserves the right to charge as if were a new Instruction.
5.5 If the Client is unable to follow the process as outlined in the Statement of Work, GrowthKind reserves the right to terminate the Search Services and charge the remaining balance of the Fee. In particular, this clause will be applicable if:
5.5.1 The Client is unable to attend two (2) or more weekly progress sessions.
5.5.2 The Client with less than 24 hours’ notice, cancels, is late to, or fails to attend four (4) or more interviews during the Term.
5.5.3 The Client delays the timeline by two (2) or more weeks as per the timeline set out in the Statement of Work.
6. NOTIFICATION AND FEES
6.1 The Client agrees to notify GrowthKind immediately after its offer of Placement to the Candidate has been verbally accepted and shall provide details of the full Remuneration package to GrowthKind. Where the precise Remuneration is not known in advance, for the purposes of the first two instalments of the Fee, GrowthKind will estimate the Remuneration taking into account the market rate level of remuneration applicable for the relevant position, current market conditions and any information supplied by the Candidate and/or the Client. Where the precise Remuneration becomes known to GrowthKind prior to the Candidate’s commencement of the Placement, the final instalment of the Fee will be based on the actual Remuneration and any necessary adjustments will be made.
6.2 Fees are payable as outlined in the Statement of Work and are exclusive of any applicable VAT.
6.3 For any subsequent Placements resulting from the Search Service mandate, GrowthKind shall become entitled to a lump sum fee equivalent to 30% of the first year’s Remuneration of that Candidate. The Client shall inform GrowthKind within five (5) days of the Candidate’s acceptance and GrowthKind shall be entitled to invoice upon such acceptance by the Candidate.
6.4 All Fees are non-cancellable and non-refundable, with the exception of the Completion Fee which is only refundable as outlined in clause 7 and in the Statement of Work.
6.5 The Client remains liable for payment due (but not yet paid) under this clause 6 is not entitled to a refund for any sums already paid to GrowthKind where the Client decides not to proceed with the Search Services or Placement or where the Placement once commenced is terminated by the Candidate or the Client for any reason.
6.6 In addition to the Fees, the Client shall pay GrowthKind such expenses as may be agreed between them.
6.7 All fees and any other charges payable under this Agreement are calculated in Great British Pounds Sterling GBP (£), irrespective of the currency in which the Remuneration package is expressed and are exclusive of any applicable VAT. Where applicable, the exchange rate used to calculate GrowthKind’s fees will be taken from the issue of the Financial Times as at the date the fees become due. Fees shall be paid in full on the date on which they fall due without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.8 The Client is responsible for all agreed expenses incurred by the Candidates in connection with the interview with the Client. Any expenses initially incurred by GrowthKind or the Candidate shall be reimbursed at cost the Client within 14 days of receipt of GrowthKind’s invoice.
6.9 All invoices relative to all elements of the Fees are payable in full within 14 days from the receipt by the Client of GrowthKind’s invoice. Failure by the Client to settle any amounts owing by the due date shall entitle GrowthKind to put the Search Services on hold with immediate effect, in turn delaying the timeline as agreed in the Statement of Work. If the Client fails to pay after an additional 14 days (28 days total) GrowthKind reserves the right to terminate the Search Services and charge the remaining balance of the Fee.
6.10 If a Candidate Introduced by GrowthKind is rejected by the Client at any stage, or the Candidate rejects an offer made by the Client, and the Candidate is subsequently engaged or employed by the Client in any capacity whatsoever, within 12 months of the rejection, including when a Candidate is re-introduced from another source, the Client shall be liable to pay GrowthKind’s Fees in full as calculated above, excluding any Advisory Fee and Coaching Fee.
6.11 If GrowthKind makes an Introduction of a Candidate to GrowthKind outside the scope of the Search Services, whether speculative or otherwise, and such Introduction results in a Placement, a fixed fee of 30% of the Candidate’s Remuneration shall become due and payable by the Client to GrowthKind on the Candidate’s written acceptance of such Placement, which the Client must notify GrowthKind in writing and within 5 days of such acceptance.
7. SATISFACTION GUARANTEE
7.1 Should the Placement of a successful Candidate terminate within the first three (3) months from the commencement date of the Placement for any lawful reason, then GrowthKind shall conduct a search for a replacement at no additional charge to Client provided that:
7.1.1 GrowthKind has received payment of its Fees within 14 days from receipt of the invoice;
7.1.2 the Client did not employ or engage the Candidate with the intention or likelihood of terminating their engagement or employment or dispensing with the Candidate’s services without proper cause or with a view to obtaining unfairly from GrowthKind a refund;
7.1.3 the Client shall have duly honoured all obligations made to the Candidate at the time of the Placement;
7.1.4 GrowthKind is notified within seven (7) days from the date of termination of the Placement;
7.1.5 the Candidate is not employed or engaged by a third party pursuant to clause 9.1; and/or
7.1.6 the Client has not made the Candidate redundant, changed the working pattern or job description, or restructured the organisation such that the Candidate’s role is considered to have materially changed resulting in them leaving the organisation.
8. SERVICE LEVELS
8.1 The Client acknowledges that provision of the Search Services relies on shared responsibilities and obligations between GrowthKind, the Client and the Candidate.
8.2 Such Service Levels shall be set out in the Statement of Work.
9. INTRODUCTIONS
9.1 An Introduction Fee will be charged in relation to any Candidate engaged or employed in any manner by the Client or any other third party to whom the Client has introduced the Candidate, as a consequence of or resulting from an Introduction by or through GrowthKind, whether direct or indirect, within 12 months from the date of GrowthKind’s Introduction.
9.2 Any Candidates which the Client wishes for GrowthKind not to include in the Search Services must be disclosed prior to commencement of the Search Services. For the avoidance of doubt, if a Candidate has not been disclosed prior to commencement of Search Services, the full Fee shall be due in respect of that Placement.
10. SUITABILITY AND REFERENCES
10.1 GrowthKind endeavours to ensure the suitability of any Candidate Introduced to the Client by obtaining confirmation 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 to work in the position which the Client seeks to fill.
10.2 GrowthKind endeavours to take all such steps as are reasonably practicable 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.
10.3 Notwithstanding clauses 10.1 and 10.2 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 GrowthKind before engaging such Candidate. The Client is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, and satisfying any medical and other requirements, qualifications or permission required by law of the country in which the Candidate is engaged to work.
10.4 To enable GrowthKind to comply with its obligations under clauses 10.1, 10.2, and 10.3 above the Client undertakes to provide to GrowthKind 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; working pattern/hours (hybrid/flexible/remote/on-site); the duration or likely duration of the work (if applicable); 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.
11. EXCLUSIVITY
11.1 The Client agrees GrowthKind is exclusively retained under this Agreement in relation to the Search Services and that all potential candidates from all other sources will be referred to GrowthKind for assessment, including candidates seeking work directly from the Client and internal candidates and those already known to the Client other than those disclosed to GrowthKind in accordance with clause 9.2.
11.2 The Client agrees that during the Term of this Agreement, it will exclusively use the services of GrowthKind for the Introduction of candidates for the Specific Role as set out in the Statement of Work. The Client will not use the services of any other employment agency in relation to the Specific Role, directly or indirectly, other than GrowthKind save in circumstances where GrowthKind has searched for Candidates but is unable and has agreed in writing with the Client that it is unable to Introduce suitable Candidates for a Placement. In the event that another employment agency introduces a candidate or the Client receives a direct application for the Specific Role during the term of GrowthKind’s exclusive retention, GrowthKind reserves the right to issue an invoice for the full remaining balance of the agreed Fees as if the search had continued to completion in accordance with the original terms of this Agreement.
11.3 If the Client is in breach of its obligations under clause 11.2, GrowthKind shall be entitled to terminate this Agreement in relation to the Specific Role without further liability to the Client and shall be further entitled to invoice the Client for the remaining balance of all Fees that would otherwise have been due and payable should the Search Services have been delivered in full and such invoice shall be payable by the Client within 14 days of receipt.
12. RESTRICTIONS
During the provision of Search Services and for a period of 12 months from the later of an Introduction resulting in a Placement or the last recorded date GrowthKind carried out Search Services for the Client, each of GrowthKind and the Client agree not to solicit, employ or instigate the employment or engagement of any person who is, or has been during that time, engaged either as an employee, consultant or subcontractor of the other party and who has worked on or been engaged with the Search Services or engaged in a Placement with the Client as a result of an Introduction by GrowthKind, whether or not such person would be in breach of contract as a result of such employment or engagement.
13. LIABILITY
13.1 GrowthKind 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 GrowthKind seeking a Candidate for the Client or from the Introduction to or Placement of any Candidate by the Client or from the failure of GrowthKind to Introduce any Candidates.
13.2 For the avoidance of doubt, neither party excludes liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude by law.
13.3 GrowthKind’s maximum liability to the Client under this Agreement shall be an amount equivalent to the Fees payable in respect of the Search Service to which such claim relates.
14. CANCELLATION
The Client may cancel an instruction at any time. If an Instruction is cancelled by the Client within 60 days from the Services Commencement Date, GrowthKind will charge 50% of the remaining Fees that would otherwise have been due and payable in addition to any Fees that have already been incurred. GrowthKind will be entitled to render its invoice for the cancellation fee set out in clause 14 at any time after receipt of the Client’s notification of cancellation.
15. TERMINATION
15.1 GrowthKind may terminate an Instruction and/or this Agreement with immediate effect if the Client acts in any way as to limit GrowthKind’s ability to carry out its obligations and/or complete the Search Services, including but not limited to clause 11.2. Upon such termination, the provisions of clause 15.3 shall apply.
15.2 Either party may terminate this Agreement with immediate effect by serving notice on the other party if the other party:
15.2.1 commits a material breach of its obligations under this Agreement which if capable of remedy has not have been remedied within 14 days of receipt of a notice from the innocent party identifying the breach and requiring its remedy; and/or
15.2.2 is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the party resulting from such reconstruction or amalgamation if a different legal entity shall agree to have this Agreement assigned to it and to take on all liabilities and obligations thereunder whether actual or contingent) or ceases or threatens to cease to carry on with the whole or a substantial part of its business.
15.3 In the event of termination of this Agreement, howsoever caused, the Client remains liable to pay to GrowthKind for all outstanding costs (including expenses and Fees) incurred up to the termination date owed to GrowthKind in accordance with the terms of this Agreement, irrespective of whether such Fees relate to an Introduction made before or after this Agreement is terminated.
15.4 Termination or expiry of this Agreement, howsoever caused, shall not affect any provision of this Agreement which is expressly, or by implication, intended to come into effect on, or to continue in effect after, such termination or expiry and shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
15.5 Notwithstanding the termination or expiration of this Agreement, the provisions of clauses 6, 7.1, 9.1, 12, 13, 15.3, 15.4, 16 and 17 and/or any other clauses expressly stated to survive termination, shall remain in full force and effect. The Parties acknowledge and agree that these provisions shall continue to apply after the termination of this Agreement, to the extent necessary to give effect to their terms, and shall be enforceable in accordance with the laws of England and Wales.
16. CONFIDENTIALITY
In this clause 16, “Confidential Information” means any information that is directly or indirectly disclosed (however conveyed) by one party to the other party which would appear to a reasonable person to be confidential and which relates to the business and affairs of the disclosing party, including in relation to GrowthKind, all details relating to and/or identifying a Candidate.
16.1 Each of the parties undertakes that it, and its employees, officers, or representatives, shall in relation to all Confidential Information: (a) keep the Confidential Information strictly confidential; (b) only use Confidential Information for the purpose of this Agreement; (c) not use, copy, reproduce, or record it in any medium or form except to the extent strictly necessary for the purposes of this Agreement; and (d) not disclose it to any third party other than as may be required by law, or by an order of a court of competent jurisdiction or any governmental or regulatory authority. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 16.
16.2 The obligations set out in clause 16.1 shall not apply to Confidential Information that was in the public domain at the time it was disclosed or becomes available in the public domain without breach of any obligation of confidentiality, or that is given to the receiving party by a third party who is lawfully entitled to disclose it, or that was already known or independently generated by the receiving party.
17. DATA PROTECTION
In this clause 17, “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including (but not limited to) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) to the extent it remains applicable in the UK; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the defined terms used in this clause shall have the meanings given in such Data Protection Legislation.
17.1 All Personal Data provided by GrowthKind to the Client is provided solely for the purposes of an Introduction. Where the Client intends to process any Personal Data for any other purpose or by any means other than under the written instructions of GrowthKind, it will assume responsibility of such data as a Controller and must ensure that it complies with its obligations as a Controller under the Data Protection Legislation (including having a legal basis for processing and providing any notices and obtaining any consents necessary).
17.2 Personal Data must not be used by the Client for any other purpose nor divulged to any third party or outside the UK. The Client will (and will procure that any of its directors, officers, employees and any permitted agents, licensees and contractors will) process Personal Data only on the written instructions of GrowthKind and comply with (i) all applicable obligations and requirements under the Data Protection Legislation; and (ii) any reasonable request from GrowthKind in relation to Personal Data and the Data Protection Legislation, including in relation to any complaint, request, breach, audit (and shall maintain a record of any processing and retain and make available all information required to demonstrate compliance with the Data Protection Legislation). This term is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
17.3 The Client will ensure that it has in place appropriate administrative, organisational, technical, training and contractual measures to ensure compliance with the requirements of the Data Protection Legislation and in particular the security of Personal Data (and to guard against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data).
17.4 The Client will not knowingly or negligently do or omit to do anything which places GrowthKind in breach of its obligations under the Data Protection Legislation and indemnifies and holds harmless GrowthKind against any loss, actions, costs, expenses, claims, proceedings and demands arising as a result of such breach or otherwise under the Data Protection Legislation so far as it is caused by any action or omission of the Client. The Client will notify GrowthKind immediately if it becomes aware of or reasonably suspects a breach of this clause 17 or if it considers that an instruction of GrowthKind would result in a breach of the Data Protection Legislation.
17.5 The Client will ensure it has an appropriate legal basis to allow the processing and disclosure of Personal Data and GrowthKind will ensure that it has provided any notices, and obtained any consents, necessary for the lawful transfer of Personal Data to the Client. At the end of this Agreement subject to these terms and any legal obligations to retain Personal Data, the Client shall, at the choice of GrowthKind, delete or return to GrowthKind all Personal Data and copies thereof that it has within its power, ownership or control, and ensure that any such return or deletion is carried out securely and in accordance with current best practice.
18. VARIATION
This Agreement can be varied only in writing by a Director of GrowthKind.
19. MARKETING AND PUBLICITY
19.1 The Client grants GrowthKind a non-exclusive, worldwide, royalty-free, perpetual license to use the Client’s name, logo, and other trademarks in GrowthKind’s marketing and promotional materials. This includes, without limitation, use on websites, social media platforms, case studies, presentations, and other digital or printed marketing collateral. GrowthKind may use such materials provided that such marketing collateral complies with any brand guidelines the Client provides in writing or such other stipulations as requested by the Client.
19.2 GrowthKind may also request that the Client provide a testimonial regarding their experience with GrowthKind for use in its marketing materials..
20. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between GrowthKind and the Client for the Introduction of Candidates for the Specific Role and is deemed to commence on the Service Commencement Date and prevail over any other terms of business or purchase conditions (or similar) put forward by the Client or which are howsoever implied including by trade, customer practice or course of dealing. Any subsequent set of terms and conditions embedded in any Client purchase orders or other acceptance documentation shall not apply.
21. SEVERABILITY
In the event that any of the terms and conditions of this Agreement are determined invalid, unlawful or unenforceable to any extent, the offending term shall be severed from the remaining terms and conditions of this Agreement which shall continue to be valid to the fullest extent permitted by law.
22. RIGHTS OF THIRD PARTIES
It is not intended that any third Party should have the right to enforce any provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
23. WAIVER
Any delay or failure by a party in exercising, or any waiver by a party of, its rights under or in connection with this Agreement will not limit or restrict the future exercise or enforceability of those rights.
24. GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of its subject matter or formation (including non-contractual disputes) shall be governed by, construed and interpreted in accordance with the laws of England and Wales, and shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.