TERMS OF BUSINESS – TARGET PRODUCT

1. DEFINITIONS & INTERPRETATION

1.1. In these Terms of Business (Terms) the following definitions apply:

Additional Candidate: has the meaning in clause 5.4.

Candidate: a person (including a legal person) who is Introduced to the Client by Rockbourne.

Client: the client to which the Search Services are provided, as specified in the Assignment Schedule.

Conduct Regulations: the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

Connected Party: any (i) holding, subsidiary, associated or connected company of the Client (ii) organisation or business within the same purchasing group as the Client (iii) organisation or business which is demonstrably connected to the Client through common ownership, management, or control.

Contingency Fee: the fee specified in the Assignment Schedule.

Minimum Fee: the Client agrees that a minimum fee of £30,000 will be charged for any Search Services provided by the Company, regardless of the salary or remuneration package of the Candidate.

Data Protection Legislation: the Data Protection Act 2018, the UK-GDPR and all other primary and secondary legislation relating to data privacy within the United Kingdom.

Employee: an employee or director of Rockbourne with whom the Client has had material dealings in connection with these Terms.

Engagement: the engagement, employment, hire or use of the Candidate by the Client or any Connected Party whether directly or through any party other than Rockbourne, pursuant to any agreement or arrangement whatsoever and whether on a temporary, permanent, fixed term, consultancy, contract, franchise, or any other basis. “Engage,” “Engaged” and “Engages” each have the corresponding meanings.

Introduction: (i) the submission of a Candidate’s details in a shortlist or longlist (ii) the submission of a Candidate’s CV or the disclosure of any other information to the Client by Rockbourne which expressly or impliedly identifies a Candidate with a view to bringing about an Engagement or (iii) any discussion or negotiation between the parties with a view to the Engagement of a specific Candidate. “Introduce” “Introduces” and “Introduced” each have the corresponding meanings.

Introduction Period: the 24-month period from Rockbourne’s most recent Introduction of the Candidate.

Payment Terms: the period specified in the Assignment Schedule.

Refund: a partial refund of the Placement Fee only.

Relevant Employee: any employee or director of the Client with whom Rockbourne has dealt in connection with the Search Services.

Remuneration: the gross annualised remuneration, drawings or services fee payable or receivable by the Candidate in respect of the Engagement comprising the total remuneration package, including (i) basic salary or fees, (ii) allowances, (iii) guaranteed bonuses, (iv) pension, (v) guaranteed profit share, (vi) if a bonus or profit share is not guaranteed, the median expected bonus or profit share, (vii) any signing on payment or equivalent, (viii) the provision of a company car, the benefit of which shall, for these purposes be valued at £7,500.

Replacement Candidate: a replacement Candidate who may be Introduced to the Client by Rockbourne following the termination of an Engagement within the Guarantee Period.

Rockbourne: Rockbourne Recruitment Ltd (Registered in England & Wales No. 10957624) of 4th Floor Radius House, 51 Clarendon Road, Watford, England, WD17 1HP.

Search Assignment: the specific position which the Client is seeking to fill as specified in the Assignment Schedule.

Search Services: the provision of services by Rockbourne under these Terms as specified in the Assignment Schedule.

Shared Data: personal data and special/sensitive personal data within the meaning of the Data Protection Legislation which is shared between the parties pursuant to these Terms.

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

1.3. A reference to a person includes both a natural person and a legal person.

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

1.5. Any reference to legislation includes any amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.

1.6. A reference to a party means either Rockbourne or the Client and a reference to parties means both Rockbourne and the Client.

1.7. The headings in these Terms are included for convenience only and do not affect the interpretation of any clause.

2. THE TERMS

2.1. These Terms form the entire agreement between the parties for the provision of Search Services to the exclusion of any terms or conditions of purchase proposed or issued by the Client unless otherwise agreed in writing by a director of Rockbourne.

2.2. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of Rockbourne and the Client, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which such varied Terms shall apply. Nothing in this clause shall prevent Rockbourne from updating or amending the Terms from time to time.

2.3. The Client shall be deemed to have accepted these Terms by (i) signing them or otherwise confirming their acceptance in writing or (ii) paying the Instruction Fee, whichever occurs first.

2.4. For the purposes of the Conduct Regulations, Rockbourne shall act as an employment agency when providing the Search Services.

3. SEARCH SERVICES

3.1. Rockbourne shall provide Search Services comprising (i) a two-stage Approach service or (ii) a three-stage Target service, as indicated in the Assignment Schedule.

3.2. The Client shall provide to Rockbourne all such information regarding the Search Assignment as Rockbourne shall reasonably require to assist Rockbourne in identifying potentially suitable Candidates, including the information specified in Regulation 18 of the Conduct Regulations.

3.3. Upon receipt of the information set out in clause 3.2, Rockbourne shall commence the process of identifying and shortlisting potential Candidates and shall use reasonable endeavours to Introduce potentially suitable Candidates within a reasonable period.

3.4. The Client agrees that Rockbourne is exclusively retained in relation to the Search Assignment and that all potential candidates from other sources will be referred to Rockbourne for assessment, including internal candidates and those already known to the Client.

3.5. If, following commencement of the Search Services, the Client makes changes to the Search Assignment to the extent that Rockbourne needs to start a new search for Candidates:

3.5.1. The Client shall be deemed to have cancelled the original Search Services in accordance with clause 9.1; and

3.5.2. Rockbourne shall treat this as a new Search Assignment and shall be entitled to invoice the Client for a further Instruction Fee before recommencing the search for Candidates.

3.6. Rockbourne may advertise the Search Assignment in any print or digital format which Rockbourne may consider appropriate unless the Client has notified Rockbourne in writing that it may not advertise such position or otherwise specifies the information about the Search Assignment which may not be advertised.

3.7. Rockbourne and the Client shall review the progress of the Search Services at least once every two weeks.

3.8. Upon Rockbourne making an Introduction, the Client shall:

3.8.1. Notify Rockbourne without delay if the Client has already been in contact with the relevant Candidate in the previous twelve-month period and provide reasonable evidence of such prior contact if requested by Rockbourne;

3.8.2. Notify Rockbourne if the Client wishes to interview any Candidate; and

3.8.3. Not contact any Candidate directly to arrange an interview.

3.9. Following the interview of a Candidate, the Client shall provide feedback on the interview to Rockbourne as soon as reasonably practicable.

3.10. If the Client or any Connected Party makes or intends to make an offer of Engagement to a Candidate, the Client must:

3.10.1. Notify Rockbourne without delay and provide the relevant terms of such offer;

3.10.2. Notify Rockbourne without delay upon the acceptance of an offer of Engagement by a Candidate and in any event prior to commencement of the Engagement; and

3.10.3. Provide details to Rockbourne of the Remuneration agreed with the Candidate and, if requested by Rockbourne, a copy of the proposed contract or formal offer letter.

3.11. In respect of the Search Assignment, the Client acknowledges and agrees that Rockbourne shall be deemed to be the effective cause of any Engagement within the period for which these Terms are effective.

3.12. In respect of any Engagement other than the Search Assignment, an Introduction by Rockbourne shall be deemed to be the effective cause of any Engagement within the Introduction Period unless all three of the following conditions apply:

3.12.1. The Client was, in the 12-month period prior to the Introduction, in active discussions with the Candidate, directly or through another employment agency, with a view to Engaging the Candidate; and

3.12.2. The Client notifies Rockbourne and provides reasonable evidence of such prior active discussions within five working days of Rockbourne Introducing the Candidate; and

3.12.3. The Client has not arranged to interview the Candidate through Rockbourne or used Rockbourne to facilitate the Engagement of the Candidate in any way.

4. CANDIDATE VETTING

4.1. Rockbourne shall comply with its obligations under the Conduct Regulations and:

4.1.1. Take all reasonably practicable steps to ensure that the Candidate and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Candidate to enable the Candidate to work in the relevant position;

4.1.2. Make all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Candidate or the Client for the Candidate to work in the relevant position; and

4.1.3. Confirm that the Candidate is willing to work in the relevant position.

4.2. Where required to do so under the Conduct Regulations due to the specific nature of the Search Assignment, Rockbourne shall also take all reasonably practicable steps to:

4.2.1. Obtain copies of any relevant qualifications or authorisations of the Candidate and offer to provide copies of those documents to the Client;

4.2.2. Obtain two references from persons who are not relatives of the Candidate and who have agreed that the references may be disclosed to the Client; and

4.2.3. Confirm that the Candidate is suitable for the relevant position.

4.3. Notwithstanding Rockbourne’s obligations under clause 4.1 and, where applicable, clause 4.2, the Client acknowledges that the Client is exclusively responsible for deciding whether to Engage the Candidate and shall bear all costs associated with Engaging the Candidate. The Client must therefore make such enquiries and carry out such checks as are necessary for the Client to satisfy itself that the Candidate’s ability, experience, and character meet the Client’s requirements.

4.4. The Client must not and shall ensure that its employees, subcontractors, and representatives do not unlawfully discriminate against, harass, or victimise any Candidate.

5. FEES & INVOICING

5.1. Rockbourne shall invoice the Client for the fees specified in the Assignment Schedule. All invoices shall be subject to VAT at the standard rate.

5.2. The Client shall pay Rockbourne’s invoices within the Payment Terms and without deduction or set off. Time for payment shall be of the essence.

5.3. If the Client does not pay Rockbourne’s invoice within the Payment Terms, Rockbourne may (i) suspend the provision of Search Services (ii) charge late payment compensation on such invoice in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (iii) charge interest at the rate of 6% per annum above the base rate of the Bank of England from the due date until the date of payment; and (iv) refer the collection of such payment to a collection Company or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by Rockbourne in recovering payment from the Client.

5.4. Rockbourne shall be deemed to have fulfilled the Search Assignment upon a Candidate being Engaged for the Search Assignment. If more than one Candidate is Engaged for the Search Assignment within the Introduction Period, or if a Candidate is Engaged for any role other than the Search Assignment within the Introduction Period, such Candidate shall be an Additional Candidate. The Client shall be liable to pay an Additional Candidate Contingency Fee subject to clause 3.12.

5.5. If the Client introduces or passes a Candidate’s details to any third party within the Introduction Period and such Candidate is directly or indirectly employed or engaged by such third party as a result, the Client (i) must notify Rockbourne without delay and (ii) shall be liable to pay a Contingency Fee of 35% of the Remuneration to Rockbourne, calculated in accordance with clause 5.7 where applicable.

5.6. If the Client Engages any Employee within six months of such Employee leaving Rockbourne’s employment, the Client shall pay a fee to Rockbourne, which shall be a sum equivalent to 30% of the gross annualised remuneration which had been payable by Rockbourne to the Employee. Such fee shall be payable by the Client within the Payment Terms.

5.7. If the precise Remuneration is not known, if the Client fails to provide details of the Remuneration to Rockbourne or if it is impracticable to calculate the Remuneration, Rockbourne’s fees shall be based on the Remuneration which, in Rockbourne’s reasonable opinion, is the typical market rate for the Engagement.

5.8. If the Candidate’s Remuneration is not paid in Pounds Sterling, Rockbourne shall convert the Remuneration to Pounds Sterling using the exchange rate published by the Bank of England on the invoice date and shall submit the invoice in Pounds Sterling. The Client shall bear any bank charges and currency exchange costs when paying Rockbourne’s invoice.

6. SUCCESS GUARANTEE

6.1. If a Candidate’s Engagement with the Client terminates within the Guarantee Period, the Client may be entitled to a Replacement Candidate or Refund provided that:

6.1.1. The Client paid the Placement Fee within the Payment Terms;

6.1.2. The Client strictly complied with clause 3.10;

6.1.3. The Client notified Rockbourne in writing within 5 working days of the termination of the Engagement, giving the reasons for such termination and, if requested by Rockbourne, reasonable evidence that the Engagement has terminated;

6.1.4. The Candidate’s position is not redundant or no longer required due to any internal reorganisation, restructure or change of strategy;

6.1.5. The Candidate’s Engagement was not terminated in breach of contract or for discriminatory or automatically unfair reasons; and

6.1.6. The Candidate was not a Replacement Candidate or an Additional Candidate.

6.2. Subject to clause 6.1, Rockbourne may, at its discretion, offer to use reasonable endeavours to Introduce, on an exclusive basis, a suitable Replacement Candidate in the same role within six months of the original Engagement terminating and:

6.2.1. If Rockbourne endeavours to Introduce a Replacement Candidate but:

6.2.1.1. is unable to do so, Rockbourne shall, at the end of the six month period, give a Refund to the Client in accordance with the scale set out in the Assignment Schedule; or

6.2.1.2. the Client sources a replacement for the Candidate directly or through any third party within the six month period, Rockbourne shall have no further obligation to provide a Replacement Candidate or Refund under this clause 6.

6.2.2. If Rockbourne elects not to offer to Introduce a Replacement Candidate, Rockbourne shall give a Refund to the Client in accordance with the scale set out in the Assignment Schedule.

6.3. For the purposes of calculating any entitlement under this clause 6, the date of termination of the Engagement shall be the last day on which the Candidate is Engaged by the Client and not the date on which notice of termination is given.

6.4. If the Client Engages a Replacement Candidate and subsequently Engages the original Candidate again within 24 months, the Client must notify Rockbourne without delay and the Client shall then be liable to pay a Contingency Fee in respect of the Replacement Candidate. If the Client refuses or fails to notify Rockbourne in accordance with this clause, the Contingency Fee in respect of the Replacement Candidate shall be a sum equivalent to 35% of the Remuneration.

6.5. If the Client receives a Refund and subsequently Engages the original Candidate again within 24 months, the Client must notify Rockbourne and repay any Refund to Rockbourne without delay.

7. CONFIDENTIALITY & DATA PROTECTION

7.1. The Client shall treat all information relating to a Candidate which is provided by Rockbourne with the utmost confidentiality and, in particular, must:

7.1.1. not use such information for any other purpose without the prior consent of Rockbourne and the Candidate;

7.1.2. ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information; and

7.1.3. not disclose to any third party that the Candidate is seeking new employment or apply for a reference from the Candidate’s current employer without the Candidate’s express consent.

7.2. Rockbourne confirms that it shall be entitled to provide the Candidate’s personal data to the Client when making an Introduction under these Terms.

7.3. Rockbourne and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall:

7.3.1. Control and process the Shared Data in accordance with the Data Protection Legislation;

7.3.2. Place the Candidate on notice of their data processing activities through notices which comply with the Data Protection Legislation and Rockbourne shall assist the Client in this regard if requested to do so;

7.3.3. Take appropriate technical and organisational measures to safeguard the security of Shared Data under their control;

7.3.4. Co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data; and

7.3.5. Co-operate with the other party where any Candidate seeks to exercise their statutory rights respect of the Shared Data.

8. SUSPENSION

8.1. The Client may suspend the Search Services for an aggregate period not exceeding 30 days by notifying Rockbourne in writing.

8.2. If the Client:

8.2.1. Suspends the Search Services for an aggregate period exceeding 30 days;

8.2.2. Repeatedly refuses or fails to communicate or co-operate with Rockbourne in relation to the Search Services; or

8.2.3. Fails to make a hiring decision within 60 days of Rockbourne providing a shortlist of Candidates

the Client shall be deemed to have cancelled the Search Services in accordance with clause 9.1 below.

9. CANCELLATION

9.1. The Client may cancel the Search Services at any time and without notice by notifying Rockbourne in writing.

9.2. If the Client cancels or is deemed to have cancelled the Search Services:

9.2.1. Within 30 days of commencement and prior to submission of the Candidate shortlist, the Client shall be liable to pay all invoices raised or due to be raised by Rockbourne up to that point together with a cancellation fee equivalent to 25% of the remaining estimated fees which would have been invoiced by Rockbourne upon successful completion of the Search Services; or

9.2.2. After 30 days from commencement or after submission of the Candidate shortlist, the Client shall be liable to pay all invoices raised or due to be raised by Rockbourne up to that point together with a cancellation fee equivalent to 50% of the remaining estimated fees which would have been invoiced by Rockbourne upon successful completion of the Search Services.

9.3. Rockbourne may cancel the Search Services at any time, without liability, by notifying the Client in writing if the Client (i) commits a material breach of these Terms which is incapable of remedy or (ii) commits a material breach of these Terms which is capable of remedy but the Client fails to remedy such breach within five working days of being asked to do so in writing by Rockbourne.

9.4. Any provision of these Terms that expressly or by implication is intended to continue in force on or after cancellation of the Search Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by Rockbourne prior to such termination and Rockbourne’s right to charge a Placement Fee or Contingency Fee in respect of any Engagement which may result.

10. LIABILITY & INDEMNITY

10.1. Whilst Rockbourne will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the criteria specified by the Client, Rockbourne offers no warranty, whether express or implied, as to the ability, integrity or character of the Candidate.

10.2. Subject to clause 10.4, Rockbourne shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, loss of business loss of anticipated savings or loss of reputation howsoever arising.

10.3. Subject to clause 10.4, the aggregate liability of Rockbourne to the Client in respect of any claim or series of claims arising out of or in connection with the performance or non-performance of these Terms and whether in contract, tort (including negligence) or otherwise, is limited to the fees paid by the Client to Rockbourne in respect of the Engagement in relation to which such claim arises or, if there was no Engagement or if the claim does not relate to an Engagement, the sum of £10,000.

10.4. Rockbourne does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other liability which may not be limited or excluded by law.

10.5. Save as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

10.6. Any claim which the Client may bring against Rockbourne pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.

10.7. The Client shall indemnify Rockbourne against all losses, damages, costs, and fees (including legal fees) suffered or incurred by Rockbourne as a result of any third party claim (actual or threatened) arising from the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.

11. BUSINESS ETHICS

11.1. The Client and Rockbourne each warrant that they shall:

11.1.1. comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

11.1.2. promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms; and

11.1.3. take reasonable steps and carry out appropriate checks to ensure that their respective businesses and business supply chains are free of slavery and human trafficking.

12. GENERAL PROVISIONS

12.1. The Client shall not assign any of its rights or obligations under these Terms without the written consent of Rockbourne.

12.2. Rockbourne may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company and, if relevant, these Terms may be enforced by such third party.

12.3. Subject to clause 12.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.

12.4. Rockbourne has no authority to enter into any commitment or incur any liability on behalf of (i) the Client unless otherwise agreed between the parties in writing or (ii) the Candidate.

12.5. If any part of these Terms is determined by any competent authority to be unenforceable to any extent, such part shall, to that extent, be severed from these Terms, which shall continue to be valid to the extent permitted by law.

12.6. No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

12.7. Neither party shall be in breach of these Terms nor liable for any delay in performing or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

12.8. These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation or performance of these Terms.