AthleteMannies Ltd - Terms and Conditions 2018/19
Please read this document carefully as it sets out the terms and conditions between AthleteMannies ltd (the Agency) and the employer (the Client) relating to the introduction of temporary and permanent staff to you (the client) by AthleteMannies ltd (the Agency), which is a legally binding contact.
The following expressions shall have the following meanings:
“Agency” means AthleteMannies ltd of Office 2, Crest House, 102-104, Church Road, Teddington, TW11 8PY;
“Client” means any person or family, or third party appointed by such people to represent them, who engage with the Agency either through written or verbal instruction and request that the Agency introduce the Client to a nanny or male nanny to provide childcare services;
“Services” means the introduction of a Candidate by the Agency to the Client in the accordance with this Agreement;
“Terms and Conditions” means the terms and conditions of supply of Services as set out in this document and any subsequent terms and conditions agreed in writing by the Agency;
“Agreement” means the contract between the Agency and the Client for the provision of the Services incorporating these Terms and Conditions;
“Data Protection Legislation” means (i) the Data Protection Act 1998 (the “Data Protection Act”), and (ii) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679), (iii) and any applicable national implanting laws;
“Candidate” means any nanny or male nanny, or other childcare professional introduced to the Client by the Agency;
“Introduction” means the Clients interview of a Candidate in person or by telephone and/ or the passing by the Agency to the Client via email, phone, post or other means of a Candidate’s details, Curriculum Vitae or other personal information;
“Placement” means an agreement between a Client and Candidate that the client will employ or use the services of the Candidate. Such agreement may be oral or in writing (whichever is the earlier) and shall have occurred whether or not a written contract is subsequently entered into;
“Engagement” means the engagement, employment or use of the Candidate by the client or any third party on a permanent or temporary basis, whether or not a written contract is subsequently entered into;
“Monthly Membership Fee” means the charge made by the Agency to a Client on a monthly basis.
2. The Contract
2.1 These Terms and Conditions constitute the contract between the Agency and the Client and are deemed to be accepted by the Client by virtue of an Introduction to a Candidate or the Placement of a Candidate with the client by registering with the Agency either verbally or through written instruction, whichever happens first.
2.2 These Terms and Conditions shall in all respects apply to and govern all contracts or agreements made verbally or in writing between The Client and The Agency and shall supersede any other documentation or communication between parties.
2.3 No variation or alteration to these terms and conditions (including an special terms and conditions agreed between the parties) shall be binding unless the details of such variation are agreed between the Agency and the Client and are set out in writing by the Agency stating the date on or after which such varied terms shall apply.
2.4 Nothing in these Terms and Conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Agency may be entitled in relation to the Services, by virtue of any statute, law or regulation.
3. Obligations of the Client
3.1 The Client acknowledges that the Agency provides an introductory service only to introduce suitable candidates to work as nannies and male nannies or other childcare professionals and it is the Client who employs the Candidate. The Agency does not employ any of the Candidates directly or indirectly. Candidates are introduced to Clients on the basis that they will be employed by the Client, unless the Candidate is self-employed.
3.2 The Client shall provide full details to the Agency of its exact requirements relating to the proposed employment by providing full details of the work for which the Candidate is required and in particular by notifying the Agency of any special skills required for such work when placing its request.
3.3 The Client untakes to notify the Agency immediately upon any offer of employment to a Candidate that she been accepted and to provide details of the remuneration to the Agency.
3.4 It is the obligation of the Client to immediately inform the Agency if a Candidate introduced by the Agency has already been introduced by a third party. If the client fails to inform the Agency, then it will be presumed that this introduction has been affected by the Agency and the relevant fee will become payable.
3.5 The Client is solely responsible for ensuring compliance with all employment, fiscal, and other relevant legislation and regulations and all taxation obligations including, without limitation, National Insurance contributions relating to the Engagement and any and all payments made to a Candidate and in any other way relating to the Engagement.
3.6 The Client is responsible for agreeing remuneration and must provide the Candidate with a written contract of employment, prior to the commencement of the Candidate’s employment. The Client in any event warrants that conditions relating to tax, National insurance, working hours, holiday and sickness benefits, accommodation, remuneration, notice, grievances shall be notified in writing to the Candidate on Engagement.
3.7 If the Client requires the Candidate to work abroad during the period of Engagement, then the terms must be detailed and agreed by the Client and the Candidate in the contract of Employment. It is the Client’s responsibility to pay for the Candidate’s travel costs, medical and travel insurance, car insurance (if applicable) and provide adequate food and water for every mealtime, unless alternative arrangements are agreed otherwise and set out in the Contract of Employment.
3.8 The Client is responsible for obtaining any medical certificates, work permits or other approvals necessary for the Candidate prior to the commencement of employment.
3.9 For live-in positions, the Client accepts and understands its obligations to adequately insure with a company of good repute the Candidate’s property, contents and any other items of value to the Candidate and shall also ensure that such insurance remains in full force and effect for the duration of the Candidate’s employment.
4 Obligations of the Agency
4.1 It is standard procedure that we request our Candidates to provide written reference, a Disclosure and Barring Service (DBS) check (previously CRB check), an up-to-date CV, proof of ID and proof of qualifications. If we have not been able to check these yet, we will inform you. If the Candidates cannot provide any of these documents or are in the process of obtaining one, we will inform you before you agree to interview them. If you request a Candidate with a certain skill/ documents (such as first aid training, driving licence, childcare diploma, ect.) but she/he is in the process of obtaining these we will inform you. The Agency does not directly employ the Candidate and are not able to insist upon DBS checks. If a candidate who does not have an up-to-date DBS and/or are in the process of obtaining one,
then the agency will inform the Client of the DBS status of the Candidate before you agree to interview them.
4.2 The Agency will take all reasonable steps to introduce Candidates who are of sound character, honest and reliable but cannot be held responsible for the conduct of a Candidate.
4.3 The Agency endeavours to ensure the suitability of the Candidate based on the information the Client has provided but the Agency does not guarantee the suitability of any Candidate introduced to the Client and make no warranty or representation expressed or implied in respect of any Candidate. The final decision to employ a candidate is the sole responsibility of the Client. The Client shall therefore satisfy themselves as to the suitability of the Candidate and the Client shall take up any references provided by the Candidate and/ or the Agency before employing a Candidate. The Agency does not accept any liability for any inconvenience, damage or loss arising whether caused directly or indirectly from any act or omission of a Candidate introduced to the Client by the Agency. The Agency offers no warranty for a Candidate character, honesty, reliability, suitability or capacity.
4.4 The Agency can provide for the Client and the Candidate a draft standard Contract of Employment but makes no representations whatsoever in relation to that document and cannot provide any legal advice to either party as to its content or the terms of employment between the Client and the Candidate or in face any terms and conditions therein.
4.5 The Agency does not operate a payroll system but can refer the Client to a nanny payroll tax specialist if requested.
5 Membership Fee and Details
5.1 There is no VAT to pay on any monthly Agency Fee (AthleteMannies Ltd is a non-VAT registered entity below the VAT registration threshold for the tax year 2018/2019).
5.2 The membership fee is a monthly rolling retainer fee made payable by direct debit only. The fee is due for any calendar month that you use a nanny or male nanny introduced to you by the Agency. Your membership payment will be taken at the beginning of each calendar month (between the 1st-5th). Your membership payments will be taken every month that you are using our candidates unless you give AthleteMannies a full calendar months’ notice to end your membership.
5.3 If the Client is happy to accept two Candidates to divide the role between the Candidates, there is an additional charge of £10 + the monthly membership fee.
The Agency may cancel your membership at any time if your circumstances change and you do not need our candidates help anymore. To cancel your membership, please email or call us immediately.
5.4 The agency will happily replace any candidate that we introduce you to as long as your membership payments have been made in fullfor that given month. If you require a replacement nanny or male nanny, please contact us immediately via email or phone (firstname.lastname@example.org and 07817780423).
5.5 The Clients membership will come into force when a Candidate introduced by the Agency is offered and accepts employment with the Client, either by verbal or written agreement, and not at the commencement of employment or signing of an employment contract. It is the Clients full responsibility to inform the Agency once an offer of employment has been accepted by a Candidate.
5.6 If a Candidate is solicited to work for the Client with the intention of bypassing the Agency’s Fees, then the Client will be invoiced the membership fee then chargeable by the Agency for the relevant placement.
5.7 The Client acknowledges and understands that the Agency Fees do not include any part of the Candidate’s salary.
5.8 In the event of default or non-payment, the Agency reserves the right to take any lawful and necessary actions, up to and including legal action, to recover debts.
5.9 The Agency Fees charged relate to one engagement only. Where a Candidate is engaged on a temporary basis and the Candidate’s employment is extended either beyond the original period of Engagement or the Client subsequently re-engages the Candidate in any capacity within 12 months from the date of the initial introduction, the Client undertakes to inform the Agency within 7 days and pay the relevant Introduction fee again in accordance with the Agency Fee Structure for a new Placement. The Agency will then raise an invoice for the appropriate introduction fee as set out in these Terms and Conditions less any fees already paid in respect of the original Engagement.
5.11 If a Candidate is engaged on a trial basis for a period of up to a maximum of 1 day and the Placement does not become permanent, then the Agency will not charge a fee.
All information provided by the Agency including personal details of Candidates should be treated as strictly confidential and must not be passed either directly or indirectly to other potential Clients or Candidates.
5.12 The disclosure by the Client to a third party of any details regarding a Candidate from the Agency which results in the subsequent Engagement of that Candidate by the third party within 12 months of the initial Client introduction will render the Client liable for full payment of the Agency Fee relevant to the exact period of engagement.
6. Replacement Guarantee and Refunds
6.1 The Clients first membership payment will be taken within 7 days of the Candidates start date which will be issued immediately after the Client has accepted either verbally or in writing a Candidate for employment. If settlement is not received within this time-scale, the replacement and refund provisions detailed below will not apply.
6.2 Should the Candidate fail to take up an Engagement a full refund will be made without fail provided the Client advises the Agency by email of the fact within 2 days. Should the Agency have already been paid by the Client a full refund will be made within 7 days of the Agency being advised of the Candidates failure.
6.3 The Agency cannot guarantee that the Candidate will complete his or her proposed length of Engagement.
6.4 The Agency fees are non-refundable if the Candidate leave the position within 8 weeks of commencement of a permanent placement. The Agency shall provide the Client with a replacement candidate. Such profiles will be selected by reference to the Client’s original job specification and will be provided as promptly as possible. The Agency accepts no liability and is not obliged to offer a replacement or any refund if the Client finds the candidates unacceptable and does not want to engage any of the potential Candidates. If for any reason the Client changes the terms and conditions of the original job specification and what was outlines in the employment contract, and a candidate resigns for this reason, no refund or replacement is given (i.e. reducing or adding hours, changing the job description, failing to pay National insurance or any other associated employer’s taxes, or changing the designated days).
6.5 In the event that the Agency puts forward a Candidate that it considers to be suitable by references to the Client’s original job specification and the Client unreasonably fails to offer the Candidate a position on the same terms as the previous Candidates terms, then the agency shall under no further obligation offer further replacements.
6.6 If the Client finds the Candidate unsuitable yet retains the Candidate in their employment the Client is liable to pay the Full Agency fee and the Agency will offer no refund.
6.7 No refund or free replacement will be applicable if the Client has failed to honour a previously agreed start date or has prevaricated over the date to such an extent that the Candidate has sought employment elsewhere.
6.8 If the Client has to delay the commencement of the Engagement of the Candidate, then the Client shall be liable to pay the Candidate the full agreed weekly salary from the agreed date of commencement and no refund of the Agency membership fee or any part thereof shall be payable.
6.9The Client will be charged for the month that you begin using our service pro rata and for the following month if we introduce you to a candidate after the 21st.
7. Privacy Notice (GDPR 2018)
7.1 The information that you provide us with to match your family with a nanny or male nanny is strictly confidential and we will not, under any circumstance share that information with anyone else. The information that you provide us with will be kept on file, on a password protected encrypted computer and stored only for the duration of time that you are using our service. If we do not successfully match you with a candidate, we will happily destroy the information that you have provided us with.
7.2 The Agency we will destroy any information we hold at any point in time and you can request any information that you have given to us for free at any duration of our service. We will only use the relevant information that you provide us with to share with our nannies and male nannies to find you a suitable candidate. Under no circumstances will any private or confidential information be share to our nannies and male nannies.
7.3 The Clients direct debit mandate will be kept safe on a password protected computer and under no circumstance will your bank details be shared with any third-party companies.
8. Limitation of Liability
8.1 Nothing in these terms and conditions shall exclude or limit the liability of the Agency for death or personal injury, however the Agency shall not be liable for any direct loss or damage suffered by the Client or any third party howsoever caused, as a result of any negligence, breach of contract or otherwise in excess of the sum insured under the professional indemnity insurance policy held by the Agency in the insurance year in which the Clients claim is first notified.
8.2 The Agency accepts no liability for any loss, damage, expense or compensation suffered or incurred of any nature by the client, arising directly or indirectly from an act or omission by an Candidate introduce to the Client by the Agency.
9.1 The Client shall indemnify the Agency against all claims, costs and expenses which the Agency may incur and which arise directly or indirectly from the Clients breach of any of its obligations under these terms and conditions.
10. Force Majeure
10.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, locks outs accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
11.1 Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Registration Form or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or is sent by post shall be deemed to have been delivered in the ordinary course of post.
12.1 If any term of provision of these Terms and conditions is held invalid, illegal or unenforceable for any reason by any reason by any court of competent jurisdiction such provision shall be severed, and the remainder of the provisions hereof shall continue in full force and effect as if these terms and conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
13.1 The client shall not be entitled to assign its rights or obligation or delegate its duties under this Agreement without the prior written consent of the Agency.
14. Third Party Rights
14.1 It is not intended that any of the terms and conditions of this agreement will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person not a party to it.
15.1 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions.
16. Entire Agreement
16.1 There Terms and Conditions supersede any previous agreements, arrangements, documents or other undertakings either written or oral.
17. Governing Law
17.1 These Terms and Conditions of Business are governed by and construed in all respects in accordance with the law of England and Wales and the Client agrees to submit to the exclusive jurisdiction of the Court of England and Wales.