T E R M S  O F  B U S I N E S S

For: Murray McIntosh Permanent Recruitment Services

These are the general terms and conditions of Murray McIntosh & Associates Limited a company incorporated in England and Wales under Company Number: 09319918  and whose registered office is located at First Floor, 5 Thames Court, Goring on Thames, RG8 9AQ, United Kingdom (Murray McIntosh) and they relate to the introduction of proposed permanent members of staff to the Client.

1.                       Interpretation

1.1                   Definitions. In these Terms, the following definitions apply:

1.2                   Construction. In these Terms, the following rules apply:

1.2.1                  a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2                  a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.3                  a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.  Any reference to a particular section or regulation are to the applicable sections or regulations within the relevant statute;

1.2.4                  any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5                  a reference to writing or written includes e-mails.

2.                       Basis of the Agreement

2.1                   The provision of the Services by Murray McIntosh to the Client shall at all times be subject to and in accordance with these Terms.

2.2                   Subject to clause 2.8, these Terms constitute the entire agreement between Murray McIntosh and the Client in relation to the subject matter hereof and are deemed to be accepted by the Client at the earliest of and to apply by virtue of (Commencement Date):

2.2.1                  an Introduction to the Client of, or the Engagement by the Client of, a Candidate; or

2.2.2                  the Client’s interview or request to interview a Candidate; or

2.2.3                  the passing of information about the Candidate by the Client to any Third Party; or

2.2.4                  the Client’s acceptance of these Terms howsoever recorded and/or expressed. 

For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged by the Client for the same type of work as that for which the Introduction was originally made.

2.3                   The Agreement constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Murray McIntosh which is not set out in these Terms.

2.4                   These Terms apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5                   The Client authorises Murray McIntosh to act on its behalf in seeking Candidates and, if the Client so requests, shall advertise for such Candidates through such methods as are previously agreed with the Client.

2.6                   For the purposes of the Agreement, Murray McIntosh acts as an employment agency as defined within the Regulations.

2.7                   The Client acknowledges and agrees that where Murray McIntosh are appointed by the Client to have total exclusivity on the agreed permanent roles (fixed term or open ended contracts) (as verified in writing between the Client and Murray McIntosh) such exclusivity shall be for each role, running from the date of the written instruction. For the avoidance of doubt, Murray McIntosh’s right of exclusivity shall prevail over any other introduction whether by internal promotion, another agency or a third party. Murray McIntosh’s priority shall also apply over a referral, direct contact with a candidate or via the Client’s internal network or recruitment facility. The Client’s failure to respect this clause and Murray McIntosh’s exclusivity shall render the Client liable to pay Murray McIntosh the sum of £5,000.00 for each breach immediately upon presentation of an invoice to this effect. The Client accepts that the provisions of this clause have been freely negotiated between the parties and its terms are reasonable in order to protect Murray McIntosh’s legitimate business interests and represent a reasonable reflection of Murray McIntosh’s anticipated loss.

2.8                   The Client acknowledges and agrees that where Murray McIntosh are appointed on a retained basis (Retained Instruction) the following additional terms shall apply:

2.8.1                  Murray McIntosh shall provide the “Retained Proposal” which are to be read alongside these Terms and will set out the retained role, the Services and proposed timeframe for the provision of Services in connection with the Retained Instruction, and the payment schedule in relation to the Fees in connection with the Retained Instructions (the Retained Proposal);

2.8.2                  the Fee payable in relation to the Retained Instruction shall be set out in the Retained Proposal, it shall still be a percentage of the applicable Candidates Remuneration applicable during the first 12 months of the Engagement however it shall be payable in three instalments as set out in the Retained Proposal and, if not detailed, to be paid equally on the following dates, (1) the date of the Retained Proposal, (2) the date that Murray McIntosh presents the list of shortlisted Candidates (and for Retained Instructions this may also include members of the Client’s own staff and employees) in relation to the applicable Retained Instructions, and (3) the final payment on the Engagement of the successful Candidate (include members of the Client’s own staff and employees);

2.8.3                  all potential candidates in relation to the Retained Instruction, whomever they may be including any internal employees, workers or existing consultants to the Client, are to be referred to and processed by Murray McIntosh in relation to the Retained Instruction and pursuant to the Retained Proposal and it is agreed that all such parties shall be deemed to be included within the definition of “Candidates” for the purposes of any Retained Instruction;

2.8.4                  where the Client has requested, as part of the Retained Instruction, the use of the Murray McIntosh video interview platform and/or any additional online advertising there shall be an additional Fee as detailed in the Retained Proposal payable on the dates specified in the Retained Proposal or, if not stated, at the same date as the third instalment referred to above in sub-clause 2.8.2; and

2.8.5                  in the event that the Client, following the appointment of a Retained Instruction and issuance of the Retained Proposal, either cancels the appointment, breaches any of the terms of these Terms (including the payment duties under clause 5), and/or alters the scope of the Retained Instruction such that the timeframe is delayed in excess of two calendar weeks, the Client shall be required to pay a total sum equal to the Cancellation Fee (as detailed in clause 5.8) immediately upon presentation of an invoice to this effect and in addition to and along with any invoice already raised.  Where the Client wishes, following any such delay, to start the Retained Instruction once more, the applicable Retained Proposal shall be updated and the Client shall be required to pay new fees as detailed in the updated Retained Proposal. The Client accepts that the provisions of this clause have been freely negotiated between the parties and its terms are reasonable in order to protect Murray McIntosh’s legitimate business interests and represent a reasonable reflection of Murray McIntosh’s anticipated loss.

3.                       Murray McIntosh Duties

3.1                   Murray McIntosh shall supply the Services to the Client in accordance with these Terms.

3.2                   Murray McIntosh shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.

3.3                   Subject to clause 4, Murray McIntosh will, as part of the Services:

3.3.1                  use reasonable endeavours to introduce one or more suitable Candidates to meet the requirements of the Client for any particular vacancy.  Albeit, the Client acknowledges and agrees that Murray McIntosh cannot guarantee to find a suitable Candidate for each vacancy and the Client must satisfy itself at all times as to the suitability of the Candidate (whether in relation to team fit, experience, qualifications);

3.3.2                  use reasonable endeavours to ascertain that the information provided by Murray McIntosh to the Client in respect of the Candidate is accurate and verification checks in relation to a Candidate’s references, and eligibility to work in the relevant territory required and expressed by the Client.

3.4                   Murray McIntosh accepts no responsibility in respect of matters outside its knowledge and/or that is concealed by Candidates and the Client must satisfy itself at all times as to the suitability of the Candidate.

4.                       Client's Obligations

4.1                   The Client shall:

4.1.1                  co-operate with Murray McIntosh in all matters relating to the Services and shall operate in accordance with all applicable laws in the relevant territory in which the Candidate is likely to be Engaged and to ensure that it does not and shall ensure that Murray McIntosh is not caused to act unlawfully;

4.1.2                  inform Murray McIntosh, within 48 hours of the time it receives details of a Candidate from Murray McIntosh which it has already received from another agency or with whom the Client was in bona fide negotiations with a view to engaging the relevant Candidate in the 3 calendar months prior to the Introduction. If no such notification is given by the Client then, in the event of an Engagement, the Client agrees that Murray McIntosh is entitled to charge a fee in accordance with clause 5;

4.1.3                  provide Murray McIntosh with access (at all reasonable times) to such of the Client’s personnel who can assist or shall have the authority to progress matters relating to the Services;

4.1.4                  provide Murray McIntosh with such information and materials as Murray McIntosh may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

4.1.5                  provide Murray McIntosh all necessary information in relation to any vacancy or potential Engagement, 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; the date the Client requires the Candidate to commence, and 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 proposed Engagement with the Client;

4.1.6                  at all times, remain solely responsible for satisfying itself as to the suitability of the Candidate including, but not limited to, team fit, experience, qualifications, medical conditions and/or criminal records;

4.1.7                  be 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 other requirements, qualifications or permission required by law of the country in which the Candidate is engaged to work;

4.2                   If Murray McIntosh’s performance of any of its obligations under the This Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

4.2.1                  Murray McIntosh shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Murray McIntosh’s performance of any of its obligations;

4.2.2                  Murray McIntosh shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Murray McIntosh’s  failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3                  the Client shall reimburse Murray McIntosh on written demand for any costs or losses sustained or incurred by Murray McIntosh arising directly or indirectly from the Client Default.

4.3                   The Client agrees to:

4.3.1                  notify Murray McIntosh as soon as possible (and in any event, not later than 7 days from the date of the offer or from the date the Engagement takes effect; whichever is earlier) of any offer of an Engagement which it makes to the Candidate or of which it is aware; and

4.3.2                  notify Murray McIntosh immediately that its offer of an Engagement to the Candidate has been accepted and to provide details of the Remuneration to the Candidate; and

4.3.3                  pay Murray McIntosh’s Fee within the period set out under clause 5.

5.                       Fees and Payment

5.1                   Subject to clause 2.8, clause 5.8, and/or clause 5.15, the Client shall pay Murray McIntosh a fee calculated in accordance with clause 5.2 where it Engages, whether directly or indirectly, any Candidate Introduced by or through Murray McIntosh within the Relevant Period.

5.2                   Subject to clause 2.8, clause 5.8, and/or clause 5.15, the Client acknowledges and agrees that Murray McIntosh shall be entitled to receive the Fees, to be paid and calculated, as follows.  The Fee shall be the greater of £5,000 plus Vat or a sum equal to thirty percent (30%) of the Candidate’s full time Remuneration applicable during the first 12 months of the Engagement (or would be paid if the Engagement was for a 12 month period and/or on a full time basis).  The Client further acknowledges and agrees that Murray McIntosh will charge VAT on the Fee where applicable.

5.3                   Introductions of Candidates are confidential.  Where the Client discloses (whether as an Introduction or otherwise) to a Third Party any details regarding a Candidate Introduced to the Client by Murray McIntosh and that Third Party subsequently Engages the Candidate within the Relevant Period, the Client shall pay Murray McIntosh’s Fee as set out in clause 5.2, and there shall be no entitlement to any rebate or refund to the Client or to the Third Party.

5.4                   Where the amount of the actual Remuneration is not known or disclosed, Murray McIntosh will charge a fee equal to the Fee, in accordance with clause 5.8, for the maximum level of Remuneration applicable for the position or type of position the Candidate had been originally submitted to the Client for and/or comparable position in the general marketplace.

5.5                   For the avoidance of doubt, the Fee will be payable in full in accordance with clause 5.2 even where:

5.5.1                  the Engagement is for a fixed term of less than 12 months, and the Remuneration will be increased and calculated by reference to a 12 month period; and/or

5.5.2                  the Engagement is for a part time role, and the Remuneration will be increased and calculated by reference to an equivalent full time role (5 day working week) and for the full 12 month period.

5.6                   Where the first Engagement it is extended beyond the initial fixed term or where the Client re-engages the Candidate within 6 months from the date of planned or actual termination (as applicable) of the first Engagement, the Client shall pay a further Fee to Murray McIntosh based on the Remuneration applicable for the period of Engagement following the initial fixed term period up to the termination of the second Engagement and so on and so forth mutatis mutandis for each further Engagement thereafter.  The further fee for the second and each subsequent Engagement of the same Candidate shall be calculated as per clause 5.2 but pro-rated according to the length of the relevant extended term. By way of example only, where a Candidate’s Remuneration is an annual salary of £50,000 but the further extended/new term is for a 6 month period, the Fee will be £7,500 (((£50,000 x 30%) / 12) x 6).

5.7                   Charges incurred by Murray McIntosh at the Client’s written request in respect of advertising or any other matters will be charged to the Client in addition to the Fee and such charges will be payable whether or not the Candidate is Engaged.

5.8                   If, after an offer of Engagement has been accepted by a Candidate, the Client withdraws the offer or terminates the Engagement prior to its start date (howsoever arising), the Client shall remain liable to pay Murray McIntosh an altered fee equal to thirty five percent (35%) of what the Candidate’s Remuneration would have been applicable during the first 12 months of the Engagement (Cancellation Fee) and shall become due immediately upon the withdrawal or termination by the Client.  The Client further acknowledges and agrees that Murray McIntosh will charge VAT on the Cancellation Fee where applicable.

5.9                   Except in the circumstances set out in clause 2.8 and/or clause 5.8, no Fee is incurred by the Client until the Candidate accepts the offered Engagement (whether by email acceptance by the Candidate or a signed Engagement), whereupon Murray McIntosh will render an invoice to the Client for its Fees.

5.10                Unless otherwise stated within these Terms, the Client shall pay each invoice submitted by Murray McIntosh:

5.10.1               within 14 days of the date of the invoice; and

5.10.2               in full and in cleared funds without any deductions or set off to such bank account as is nominated by Murray McIntosh (from time to time), and

time for payment shall be of the essence of the Agreement.

5.11                Where applicable, the Client agrees to supply Murray McIntosh with any required Purchase Order within 2 Business Days of the offer of employment being accepted by the Candidate and no later than the start date of the Engagement. Where the Client fails to provide a required Purchase Order, Murray McIntosh is authorised to raise a new invoice or, if applicable, immediately increase the amount of the original invoice supplied to the Client and the new total rate shall be the same as the Cancellation Fee (as detailed in clause 5.8) and Murray McIntosh shall be entitled to raise and issue such increased invoice, and the date of which shall be deemed to be the date of the original invoice (if applicable) and shall be due and payable by the Client immediately on receipt (for the avoidance of doubt and for the purposes of clause 5.13 the due date for payment for the calculation of late payment interest shall be deemed the date of the original invoice if applicable).

5.12                All invoices will be deemed to be accepted in full by the Client unless the Client notifies Murray McIntosh in writing within 3 Business Days of the date of receipt of the invoice of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify Murray McIntosh 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 Murray McIntosh in order to resolve the dispute as quickly as possible.

5.13                If the Client fails to make any payment due to Murray McIntosh under these Terms by the due date for payment, then at Murray McIntosh’s discretion, the Client shall pay interest on the overdue amount at the rate of 8% per cent per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

5.14                The Client shall pay all amounts due to Murray McIntosh in full without any set-off, counterclaim, deduction or withholding.

5.15                The parties both acknowledge and agree that in the event that any special terms are agreed between the parties that vary the standard terms of these Terms (including any discounted rates, extended payment terms) (Special Terms), that such Special Terms shall be recorded in a Retained Proposal, a supplementary side letter or via a direct email from Murray McIntosh alongside these Terms and on the understanding and agreement that such Special Terms are subject to the Client’s continued compliance with all other provisions and requirements of these Terms, including the following:

5.15.1               Murray McIntosh receiving written notification from the Client of an Engagement prior to the commencement of the Engagement of a Candidate by the Client; and

5.15.2               Murray McIntosh’s invoice for Fees being paid within the payment terms in Clause 5.10 stated above or as otherwise agreed as part of the Special Terms.

The parties both acknowledge and agree where the Client fails to comply with this clause 5.15, the Special Terms shall immediately cease to apply and Murray McIntosh reserves the right to immediately resubmit their invoice with immediate payment terms to the Client and (subject to the requirement to pay such invoice immediately) based upon and in accordance with the standard terms contained in these Terms and at the standard rate of Fees charged in accordance with clause 5.2 regardless of any Special Terms  previously agreed.

6.                       Cancellation Rights

6.1                   At any time following the Commencement Date the Client may terminate the Agreement by giving Murray McIntosh two (2) weeks’ prior written notice. On termination of the Agreement, pursuant to this clause 6.1:

6.1.1                  all Fees shall become immediately due and owing and/or, for the avoidance of doubt, where an Engagement occurs after termination of the Agreement pursuant to this clause 6.1 the Client shall remain liable to and shall pay to Murray McIntosh all Fees in accordance with clause 5; and

6.1.2                  the Client shall not be entitled to a refund of any Fees already paid or a rebate or credit note for any invoices already raised.

6.2                   The Agreement may be terminated by either party by giving to the other immediate notice in the event that the other party goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where Murray McIntosh has reasonable grounds to believe the Client will not pay Murray McIntosh’s invoice within the payment terms detailed in clause 5.

6.3                   On termination of the Agreement for any reason:

6.3.1                  the Client shall immediately pay to Murray McIntosh all of Murray McIntosh’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Murray McIntosh shall submit an invoice, which shall be payable by the Client immediately on receipt;

6.3.2                  the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and

6.3.3                  clauses which expressly or by implication survive termination shall continue in full force and effect.

7.                       Indemnity & Limitation of Liability: The Client's Attention Is Particularly Drawn to this Clause – Please Read Very Carefully

7.1                   Murray McIntosh shall under no circumstances whatsoever be liable to the Client whether in this Agreement, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Agreement, including (but not limited to):

7.1.1                  failure of a Candidate to meet the requirements of the Client for all or any of the purposes for which the Candidate is required by the Client;

7.1.2                  any act or omission of a Candidate, whether wilful, negligent fraudulent, dishonest, reckless or otherwise; or

7.1.3                  any loss, injury, damage, expense or delay incurred or suffered by a Candidate.  

7.2                   Notwithstanding clause 7.1 above, nothing in these Terms shall be deemed to exclude or restrict any liability of Murray McIntosh to the Client for personal injury or death.

7.3                   Murray McIntosh’s total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in this Agreement, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of the Fees actually received by Murray McIntosh.

7.4                   The Client shall indemnify and keep indemnified Murray McIntosh against any costs (including reasonable legal costs), claims or liabilities incurred directly or indirectly by Murray McIntosh arising out of or in connection with the Agreement including (without limitation) as a result of -

7.4.1                  any breach of the Agreement by the Client or by its employees or agents; and/or

7.4.2                  the enforcement of the Agreement by Murray McIntosh and/or arising under Murray McIntosh enforcing its rights under either of clauses 5.8 or 5.11; and/or

7.4.3                  any breach by the Client or Third Party, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation and the Regulations); and/or

7.4.4                  any unauthorised disclosure of a Candidate details by the Client or Third Party, or any of its employees or agents.

8.                       Data Protection

8.1                   The following definitions apply in this clause 8:

Agreed Purposes: the review and consideration of the Candidate in relation to the proposed Engagement.

Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data 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 the privacy of electronic communications.

Permitted Recipients: the parties to these Terms, the employees of each party, and any third party provided prior written consent is obtained from the other party to these Terms as to the identity of such third party.

Shared Personal Data: the personal data to be shared between the parties under these Terms including, but not limited to, personal data relating to each Candidate and personnel at Murray McIntosh and/or Client.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

8.2                   This clause 8 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

8.3                   Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.

8.4                   Each party shall:

8.4.1                  ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;

8.4.2                  give full information to any data subject whose personal data may be processed under these Terms of the nature such processing. This includes giving notice that, on the termination of these Terms, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

8.4.3                  process the Shared Personal Data only for the Agreed Purposes;

8.4.4                  not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

8.4.5                  ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by these Terms;

8.4.6                  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; and

8.4.7                  not transfer any personal data outside of the European Economic Area unless the transferor:

(a)           complies with the provisions of Article 26 of the General Data Protection Regulation (in the event the third party is a joint controller); and

(b)           ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the General Data Protection Regulation; (ii) there are appropriate safeguards in place pursuant to Article 46 of the General Data Protection Regulation; or (iii) one of the derogations for specific situations in Article 49 of the General Data Protection Regulation applies to the transfer.

8.5                   Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

8.5.1                  consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

8.5.2                  promptly inform the other party about the receipt of any data subject access requests;

8.5.3                  provide the other party with reasonable assistance in complying with any data subject access request;

8.5.4                  not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;

8.5.5                  assist the other party, at the cost of 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;

8.5.6                  notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation; and

8.5.7                  at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of these Terms unless required by law to store the personal data.

8.6                   Each party shall indemnify the other 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 reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents (and in relation to the Client this shall also include reference to any Third Party), provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.

9.                       Non-Solicitation of Employees

9.1                   In order to protect the legitimate business interests of Murray McIntosh, the Client covenants with Murray McIntosh, that it shall not (except with the prior written consent of Murray McIntosh) attempt to solicit or entice away from the employment or service of Murray McIntosh the services of any Restricted Person other than by means of a national advertising campaign open to all and not specifically targeted at such staff of Murray McIntosh.

9.2                   The Client shall be bound by the covenant set out in clause 9.1 during the term of these Terms, and for a period of 12 months after termination or expiry of these Terms, or the last Introduction made by the Murray McIntosh, whichever is the earlier.

9.3                   For the purposes of this clause 9, a “Restricted Person” shall mean any firm, company or person employed or engaged by Murray McIntosh during the term of these Terms, who has been engaged in the management of these Terms or involved in relation to the Introductions either as principal, agent, employee, independent contractor or in any other form of employment or engagement.

9.4                   If the Client commits any breach of this clause 9, the Client shall, on demand, pay to Murray McIntosh a sum equal to a year's salary of the applicable Restricted Person (salary including base salary or fees, and the benefit of a company car and all other payments or emoluments payable to or receivable in the ordinary course by the relevant Restricted Person) representing the genuine estimate of recruitment costs likely to be incurred by Murray McIntosh in replacing such person.  The parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interest of Murray McIntosh.

10.                   General

10.1                Assignment and other dealings.

10.1.1               Murray McIntosh may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

10.1.2               The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

10.2                Notices.

10.2.1               Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.

10.2.2               A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

10.2.3               The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

10.3                Severance.

10.3.1               If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

10.3.2               If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

10.4                Waiver. A waiver of any right under the Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.5                No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

10.6                Third parties. A person who is not a party to the This Agreement shall not have any rights to enforce its terms.

10.7                Variation. No variation to the This Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Murray McIntosh.

10.8                Confidentiality.

10.8.1               Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the Candidates, Services, business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.8.2.

10.8.2               Each party may disclose the other party's confidential information:

(a)           to its employees and/or officers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees and officers to whom it discloses the other party's confidential information comply with this clause 10.8; and

(b)           as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.8.3               No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.  For the avoidance of doubt the Client shall not be entitled to disclose Murray McIntosh’s confidential information (including, but not limited to, Candidate information) to any member of the Client’s group of companies without first obtaining Murray McIntosh’s prior written consent.

10.9                Governing law. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

10.10            Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the This Agreement or its subject matter or formation (including non-contractual disputes or claims).