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Purchase of Firms and Businesses - Buyers Agreement

Jonathan Fagan Business Brokers

Terms and Conditions of Business relating to the purchase of firms and businesses

1 Interpretation

In these terms of business (‘the Terms’) the following expression shall be given the following meanings:

The ‘Company’, ‘we’, ‘us’, ‘our’

means Jonathan Fagan Business Brokers Limited and includes its’ subsidiary, holding or associated companies unless otherwise stated;

‘Jonathan Fagan Business Brokers Limited'

means Jonathan Fagan Business Brokers Limited, registered in England and Wales, reg. no. 10750269. registered office is Jonathan Fagan Business Brokers Limited Ty Brith, Llandegla Road, Mold CH7 4QX and any of its agents or Affiliates. (tel: 01824 780937 or email: jf@jonathanfagan.co.uk);

'Affiliate'

means any Connected Person and any subsidiary or parent or holding company or associated company or business of a company (whether incorporated or formed now or in the future) and any shareholder in any such company or partner in or member of any such business and any director employee contractor consultant professional adviser or agent of any such party or any other party acting upon the instructions of or with the approval of or on behalf of a person firm or company and shall include any of the above whether before or after any reconstruction amalgamation administration receivership voluntary arrangement, liquidation, formation or incorporation;

'Asking Price'

means the price at which you instruct us to offer the Business for sale initially or as subsequently varied in writing during our appointment;

'Assets'

means all the property assets and rights owned by or used in or for the Business or which are sold to or otherwise acquired by a Buyer or are reserved as part of a Transaction including any land buildings fixtures and fittings goodwill raw materials stock work in progress plant machinery and equipment intellectual property rights tax losses or allowances franchises leasing and hiring agreements and any other contracts whatsoever cash and book debts and where the Business is a company or LLP the shares or other ownership interests or receivables in that company and any other shares or other ownership interests sold or retained together with the shares or interests of any other business which is sold or retained as a result of a Transaction;

'Business’

means the company or business trading under the name set out in the Schedule provided once these terms have been accepted by you, and/or the business carried on by that named individual, company or business and shall include all or any of the Assets and any other business or businesses assets or shares (whether or not owned by the Seller, the Business or by third parties) which we are instructed to sell or which are sold or otherwise form part of a Transaction;

'Buyer’, ‘you’, ‘yours’

means any person firm or incorporated body who or which completes a Transaction with a Seller. You enter into this agreement as the ‘Buyer’;

‘Candidate’

means a person introduced by the Company to the Client to be considered for an Engagement and for the avoidance of doubt an introduction shall be deemed to have taken place where the Company passes to the Client any information (including a curriculum vitae) which identifies a Candidate or where a Candidate is interviewed by the Client (by telephone or in person) following an instruction by the Client to the Company to search for a Candidate;

‘the Client’

means the ‘Buyer’ and/or any person, firm or corporation who approaches the Company with a view to purchasing a Business, completing a Transaction, or, if no Transaction occurs, engaging or otherwise employing a Candidate or to whom a Candidate is introduced by the Company;

'Connected Person’

means all of those persons incorporated bodies and other entities as are set out in section 249 of the Insolvency Act 1986 and/ or sections 252-253 of the Companies Act 2006 and/or section 839 of the Income and Corporation Taxes Act 1988 (and more than one provision may apply at any one time to give the broadest interpretation of whether in any situation a person is a Connected Person) and includes trusts and/or pension funds for the benefit of the Seller or the Buyer or any Affiliate of either and any other person in any form of trusteeship fiduciary business or personal relationship with you or the Buyer or any Affiliate;

'Data Protection Legislation'

all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time;

‘Engagement’

means the employment, hire, engagement or other use directly or indirectly of the Candidate by or on behalf of the Client or any third party on a permanent, temporary or other basis whether under a contract of service or contract for services, agency, licence, franchise agreement, joint venture, partnership agreement or otherwise, within 36 months of the date we disclose the identity of the Seller to you, the Buyer;

‘Fee’

Fee payable by you under the terms of this agreement as outlined in the covering email to which these terms are attached (unless an Introduction Fee applies as defined herein);

‘Introduction Fee’

The fee payable in accordance with clause 4.3;

‘Month’

means a calendar month;

'Notice'

means a notice in writing sent by a means of recorded delivery to the addressee and any such notice shall only be valid ii the sender retains confirmation of delivery in the form of a recorded delivery receipt and provides proof of delivery on request by the addressee (or if the addressee acknowledges receipt of the notice) and such notice shall be deemed to have been delivered on the date of actual delivery. Where any Notice is sent to you it shall be deemed served at your last known residence or place of business;

'Personal Data'

has the meaning provided to it in the Data Protection Legislation;

‘Remuneration’

means the aggregate remuneration payable to or receivable by the Candidate in respect of services rendered to or on behalf of the Client to include salary drawings or fees, commission and bonus earnings (guaranteed and/or anticipated), benefits in kind (including the provision of a company car), taxable (and, where applicable, non-taxable) emoluments, profit shares, incentives and all other payments and any financial benefit payable to or receivable by the Candidate where the Candidate acquires any interest in the business of the Client;

'Sale'

means the same as Transaction;

'Seller'

means the natural person(s) identified in the Schedule as the 'Seller' and their successors and where they instruct us in respect of a Transaction where the Business does not belong to them and/or where the Transaction relates to and/or includes a business or businesses assets or shares belonging to another party the Buyer shall remain liable for the fees due under these Terms unless that liability is entirely discharged by that other party. The identity of the Seller will only be disclosed to you, the Buyer, once these terms are agreed.

'Terms’

means these terms of business;

'Transaction’

means any transaction, transfer, sale or event that involves or affects the ownership, status, Assets or composition of the Business (whether for value or not) within 36 months of the date we disclose the identity of the Seller to you, including without limitation any of the following :

the transfer or any other disposition of the Business or any of the Assets whether to you, the Buyer, the Business of any Affiliate to you or any Affiliate; or
the transfer of any other asset or property from the Seller or any Affiliate to you or to your Affiliate or to the Business (other than the supply of a product or a service in the ordinary course of business) by one or more steps or stages;
a sale, exchange, option, transfer, lease, licence or franchise;
a company buy-back of its own shares or management buy-out or earn-out or any other form of merger demerger or reorganisation or reconstruction of the Business including the transfer of any Asset or Assets from one owner to another as a separate transaction or prior to transfer to a Buyer;
where you and/or the Business and a Seller or any Affiliate of either party enter into any other relationship whatsoever together including any joint venture management or financing arrangement option or subscription for shares or securities of any description or the allotment or agreement to allot any shares or other equity interests to any person, any combination of any of the above and whether the consideration for the same (if any) is in cash or in some other form (either wholly or partly) and whether receivable in whole or in part on completion or at any other date or dates.

A Transaction will include the employment and/or recruitment of Affiliates, Employees or Officers or Directors of the Seller’s staff by the Buyer or any Affiliate or Related Person as a result of the information provided by the Company to the Buyer or the Seller about the other party (the Seller or the Buyer). The Buyer will be liable for the Company’s standard recruitment fees detailed in Appendix 1 if it is determined that a Transaction has not occurred. The same applies if this is vice versa (recruitment of Affiliates to the Buyer by the Seller);

‘Transaction Value’

means: the total value of all or any consideration paid or payable in cash or in kind (whether or not it is received) and the total value of all other consideration or matters brought into account at any time in respect of a Transaction and in the event that any such value decreases after completion of a Transaction such decrease shall be disregarded for the purpose of the calculation of our fees under these Terms. If any such value increases after completion of a Transaction such increase shall be taken into account whether or not such increase is received and will include:

all or any payment or set off or other credit for the Business non-competition agreements employment engagement and/or consultancy agreements (or compensation for the termination of any such agreement) options of any type any consideration for freehold property; the total value of any lease including the value of any renewal; any lease premium; any reverse premium to end a lease payment for or in lieu of dilapidations the value of any licence or other permission for the use of any property buildings or other Asset or any other payments for land whatsoever; pensions or other benefits; dividends; benefits in kind; any royalties, franchise or licence fees earn-outs deferred or future consideration however calculated or payable together with the value of the assumption by the Buyer or any third party or the release or waiver of any of your and/or the Business's liabilities of any kind or vice versa (including the liability to pay rent or other sums for any land or buildings ) or the liabilities of any kind of any Affiliate of either party whether actual or contingent including the redemption of any mortgage or the repayment of any other loan or debt; the assumption of any obligations under any agreement or the novation of any contract including hire purchase, leasing and other finance agreements releases (including releases or waivers of liabilities) guarantees indemnities or any other consideration whatsoever passing or taken into account between you and/or the Business and the Buyer or any third party or any of their Affiliates in respect of a Transaction;
where a Transaction consists of a transfer to you of part of the Business or any rights derived from it the full value of that part of the Business or Assets which is retained by the Seller and/or the Business will be included in the Transaction Value;
if the Transaction shall be a sale transfer or exchange of any or all of the shares of a company or membership interests in an LLP or equity in a partnership the Transaction Value shall be computed by multiplying the price paid per share or interest by the total number of issued shares or interests in respect of that company or other entity and the value of any dividend or other distribution declared and paid in connection with or in contemplation of the Transaction and the value of the liabilities retained by the Business or otherwise assumed by you whether as principal or guarantor or otherwise and any other obligation or liability from which the Seller or the Business or any Affiliate is released but for the avoidance of doubt the provisions of this clause shall not limit the application of any other part of this clause which is relevant to the ‘Transaction’.
references to 'value' in this clause shall mean where consideration is paid or agreed to be paid the amount of that consideration and where consideration is not paid but is brought into account open market value in respect thereof and any dispute as to what constitutes open market value shall be determined by an expert to be appointed by agreement between the parties or in default of agreement within ten working days by the President for the time being of the Institute of Chartered Accountants in England and Wates and such person shall decide upon the procedure for determining the value in dispute and any provisions for payment of costs and shall act as expert not as arbitrator and his decision shall be final and binding on the parties.
in the absence of information to enable us to calculate the Transaction Value in the manner provided by the preceding provisions of this clause we shall be entitled to assume that the Asking Price is the Transaction Value.
References to 'shares' and 'shareholders' in this clause one shall include any legal or beneficial interest in any class of shares or other ownership interests or securities (whether or not convertible to shares) issued for debt in any incorporated body;

‘Week’

means seven consecutive days.

1.2 In these Terms words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.

1.3 All and any business undertaken by the Company is transacted subject to these Terms, all of which shall be incorporated in any agreement between the Company and the Buyer and Seller. In the event of any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed in writing by a Director or other authorised officer of the Company. No variation in these Terms shall be valid if made without the written consent of a Director or other authorised officer of the Company.

1.4 The provision of the identity of the Seller to the Buyer, whether by email, post, phone, or other communication, the occurrence of correspondence or any kind between the Seller and the Buyer or their agents, the interview of any employees or officers of the Seller by or on behalf of the Buyer or the Engagement of a Candidate or the commencement by a Candidate of work for or the provision of services to the Buyer (whichever first occurs) or the occurrence of a Transaction shall be deemed acceptance of an agreement to these Terms by the Seller.

1.5 The complete or partial invalidity or unenforceability of any provision herein for any purpose shall in no way affect the validity or enforceability of such a provision for any other purpose or the remaining provisions. Any such provisions shall be deemed to be served for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.

1.6 These Terms supersede all previous terms of business.

2 Obligations of the Company

2.1 The Company will use reasonable endeavours to ensure any Transaction progresses smoothly. We will use reasonable care, skill and diligence when doing this.

2.2 The Company shall donate a percentage of its annual profits, after tax has been paid, to The Ten-Percent Foundation, a registered charitable trust. This percentage is normally 10% but the Company reserves the right to alter this percentage from year to year.

3 Obligations of the Buyer

3.1 You confirm, warrant and undertake that you:

have full authority to negotiate with the Seller with a view to entering into a Transaction, undertake Recruitment and/or purchase the Business;
will notify us immediately in the event that your contact details change;
have the authority to enter into contracts with the Seller.

3.2 All information which you or your agents supply to us, is and will be correct, complete not misleading and free of any material omissions and you shall advise us in writing of any omission or change promptly upon discovery of it including change of name or change to the shareholders members or directors or partners or any of the Assets which renders any information previously provided to us incorrect incomplete misleading or subject to material omissions.

3.3 You will provide all approvals and certificates which are requested by the Seller with a view to progressing the sale of their Business.

3.4 You will notify us immediately at any time after the date you sign or agree these Terms if you exchange contracts in relation to any Transaction and on completion of any Transaction You will supply a copy of the contract and any other document relevant to any Transaction immediately on request (at your expense) and will supply full details of all aspects of the Transaction and the Transaction Value. You will also provide us with details of any Engagements that occur following the introduction and identification of the Seller.

3.5 You will keep these Terms and all dealings between you, the Seller and us confidential and shall not disclose them except as may be required by law.

4 Fees

4.1 If a Transaction occurs then the Buyer will be responsible for our fee. No fees are due from the Seller other than as agreed in clause 4.6 below.

4.2 The fee payable pursuant to this clause shall be agreed specifically for each Seller or Business identified to the Buyer and will vary according to the Business for Sale. Our Fee will be indicated in an email when the Buyer makes a specific enquiry about a Business For Sale. This email will include a section with the heading "Fees".

4.3 Fees are also due in the form of an Introduction Fee if, as an alternative to a Transaction, any Engagement occurs following our introduction of the Seller to you in accordance with our Standard Recruitment Terms and Conditions contained in Appendix 1.

4.4 Where a Transaction occurs with an Affiliate of a Buyer, the Buyer shall be liable for our Fee under this clause.

4.5 Unless otherwise stated herein, our fee shall be paid in full on completion of a Transaction irrespective of the date on which all or any of the Transaction Value is received or due to be received.

4.6 If a Buyer agrees with the Seller that the Seller is responsible for our Fee, the Buyer will remain joint and severally liable for our Fee.

4.7 Value Added Tax shall be payable thereon at the prevailing rate where applicable.

4.8 Where the Engagement of staff by either the Seller or the Buyer occurs as a result of our Introduction rather than a Transaction occurs, the party employing the staff or entering into arrangement with them will be joint and severally liable for our introduction fees due under our standard recruitment terms, whether this is the Seller or the Buyer. These terms are included in Appendix 1.

4.9 All monies due hereunder shall be paid by the Buyer within 21 days of the date of invoice by the Company. The invoice shall be issued as soon as the Transaction occurs or an Engagement takes place.

4.10 If the Client fails to pay the Company any sum due the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

5 Liability and Indemnity

5.1 Neither the Company nor any of its staff shall be liable to the Buyer for any loss, injury, damage, expense or delay incurred or suffered by the Buyer arising directly or indirectly from or in any way connected with a Transaction and, in particular, but without limitation to the foregoing, any such loss, injury, damage, expense or delay arising from or in any way connected with:

(a) failure of the Buyer to meet the requirements of the Seller for all or any of the purposes for which he or the Business is required by the Seller (subject to clause 5 hereof);

(b) any act or omission of the Buyer, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;

PROVIDED THAT nothing in this clause 5 shall be construed to purporting to exclude or restrict liability of the Company to the Buyer for personal injury or death resulting from negligence (as defined in the Unfair Contract Terms Act 1977) nor any statutory liability or any exclusion or limitation which is prohibited by law.

5.2 In consideration of the Company entering into an agreement with the Buyer into which these Terms are incorporated, the Buyer hereby undertakes to indemnify the Company in respect of any and all liability of the Company for:

(a) any loss, injury, expense or delay suffered or incurred by a Seller, howsoever caused; and

(b) any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of the Buyer, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;

PROVIDED THAT this indemnity is given only in respect of any such loss, injury, damage, expense or delay caused during or arising directly or indirectly out of or in any way connected with an Engagement or Transaction.

5.3 The Buyer acknowledges that the limitations and exclusions of the obligations and liabilities of the Company set out herein are reasonable and reflected in the fee payable to the Company hereunder and shall accept risk and/or insure accordingly.

6 Miscellaneous

6.1 The Company reserves the right to review and to revise these Terms without prior notice.

6.2 These Terms shall be governed by and construed in accordance with the laws of England and Wales and the Company and the Client agree to submit to the exclusive jurisdiction of the courts of England and Wales.

6.3 You acknowledge and agree that no promises representations statements or undertakings of any kind not included in these Terms form any part of the agreement between us.

6.4 You acknowledge and agree that you have had an opportunity to make such alterations to these Terms as you may wish and all agreed variations are contained in these Terms and duly signed.

6.5 You acknowledge and agree that you are acting in the course of business.

6.6 These Terms do not create any right enforceable by any person who is not a party to them under the Contracts (Rights of Third Parties) Act 1999.

Appendix 1

Recruitment Terms and Conditions (referenced in main terms above)

Standard Recruitment Terms and Conditions

Terms of Business relating to the placement of candidates for vacancies by Jonathan Fagan Business Brokers Limited (as referred to in the terms above).

Ed 1st October 2014.

Interpretation

1.1 In these terms of business (‘the Terms’) the following expression shall be given the following meanings:

‘Candidate’	means a person introduced by the Company to the Client to be considered for an Engagement and for the avoidance of doubt an introduction shall be deemed to have taken place where the Company passes to the Client any information (including a curriculum vitae) which identifies the Candidate or where a Candidate is interviewed by the Client (by telephone or in person) following an instruction by the Client to the Company to search for a Candidate;
‘The Client’	means any person, firm or corporation who approaches the Company with a view to engaging or otherwise employing a Candidate or to whom a Candidate is introduced by the Company;
The ‘Company’	means Jonathan Fagan Business Brokers Limited and includes its’ subsidiary, holding or associated companies unless otherwise stated;
‘Engagement’	means the employment, hire, engagement or other use directly or indirectly of the Candidate by or on behalf of the Client or any third party on a permanent, temporary or other basis whether under a contract of service or contract for services, agency, licence, franchise agreement, joint venture, partnership agreement or otherwise;
‘Introduction Fee’	Mean the fee payable by the Client under the terms of this agreement;
‘Month’	means a calendar month;
‘Remuneration’	means the aggregate remuneration payable to or receivable by the Candidate in respect of services rendered to or on behalf of the Client to include salary drawings or fees, commission and bonus earnings (guaranteed and/or anticipated), benefits in kind (including the provision of a company car), taxable (and, where applicable, non-taxable) emoluments, profit shares, incentives and all other payments and any financial benefit payable to or receivable by the Candidate where the Candidate acquires any interest in the business of the Client;
‘Week’	means seven consecutive days.

1.2 In these Terms words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine gender and vice versa.

1.3 All and any business undertaken by the Company is transacted subject to these Terms, all of which shall be incorporated in any agreement between the Company and the Client. In the event of any conflict between these Terms and any other terms and conditions, these Terms shall prevail unless expressly otherwise agreed in writing by a Director or other authorised officer of the Company. No variation in these Terms shall be valid if made without the written consent of a Director or other authorised officer of the Company.

1.4 The interviewing by or on behalf of the Client or the Engagement of a Candidate or the commencement by a Candidate of work for or the provision of services to the Client (whichever first occurs) shall be deemed acceptance of an agreement to these Terms.

1.6 These Terms supersede all previous terms of business.

Obligations of the Company

2.1 The Company will use reasonable endeavours to introduce to the Client a suitable Candidate to carry out work for the Client of such nature as the Client shall notify to the Company of the vacancy in respect of which the Candidate has been introduced. The Client accepts that no warranty as to the suitability of the Candidate can be given by the Company. The Company cannot guarantee to find a suitable Candidate for each vacancy.

Obligations of the Client

3.1 The Client will notify the Company immediately of any offer of an Engagement which it makes to the Candidate.

3.2 The Client shall notify the Company immediately of the acceptance of its offer of an Engagement to the Candidate and provide to the Company full and complete details of the Candidate’s Remuneration. If the level of the Candidate’s Remuneration increases at any time during the first 12 months of the Engagement the Client shall immediately notify the Company and the fee detailed in clause 4.2 shall be recalculated accordingly.

3.3 The Client shall, on request from the Company, provide a copy of the job offer and/or contract sent to the Candidate to offer the employment to them.

3.4 The Client shall, on request from the Company, provide a copy of the first month's wage slip for the Candidate, or, alternatively, a certified copy of a computer printout detailing the amount paid.

3.5 Notwithstanding clause 2.1 above, the Client shall satisfy itself as to the suitability of any Candidate for the purposes of the vacancy for which the Candidate has been introduced. Without prejudice to the generality of the foregoing, it is acknowledged by the Client that it is for the Client to take up references and to check the validity of qualifications. The Client shall be responsible for obtaining any work and other permits and for ensuring that the Candidate satisfies any medical requirements or other qualifications that may be appropriate or required by law.

3.6 The Client undertakes not to employ or seek to employ members of staff of the Company but if any such member of staff accepts an Engagement within 3 months of such member leaving the employment of the Company, then the Client shall be liable to pay the Company’s scale fees as if such member had been introduced by the Company.

3.7 The Client undertakes that in the event of the Client effectively introducing (directly or indirectly) any Candidate to another person, firm or corporation, including any subsidiary, associated or holding company of the Client, resulting in an Engagement by that person, firm or corporation (which the Client shall immediately notify the Company) the Client shall pay to the Company an introduction fee in accordance with clause 4 hereof, unless the Engagement occurs more than 12 months after the introduction of the Candidate to the Client by the Company or from the date of the Candidate’s last interview with the Client whichever is the later.

Fees

4.1 The Introduction Fee payable shall be calculated as 18% of the Candidate’s Remuneration applicable during the first 12 months of the Engagement and become due immediately upon the commencement of an Engagement.

4.2 Value Added Tax shall be payable thereon at the prevailing rate where applicable.

4.3 If a Client employs a Candidate on a contract for a fixed term of less than 12 months, the fee in clause 4.2 shall be calculated pro rata, unless the position is a locum position to cover holiday or annual leave, maternity leave, an employee on sick leave, a period of time prior to a permanent employee commencing a position, or a period of time of less than 3 months, in which case any fee will be agreed in writing between the parties prior to the commencement of employment.

4.4 Where the precise amount of the Remuneration is not known the Company will charge a fee calculated in accordance with clause 4.2 based on the minimum remuneration applicable for the position in which the Candidate has been engaged having regard to comparable positions in the market and the information (if any) supplied to the Company by the Client in accordance with clauses 3.2 and 3.3.

4.5 Charges for advertising must be separately agreed in writing before the advertisement is placed and will be payable irrespective of whether a Candidate is engaged. All other charges must be separately agreed in writing and will be payable irrespective of whether or not a Candidate is engaged.

4.6 All monies due hereunder shall be paid by the Client within 21 days of the date of invoice by the Company. The invoice shall be issued as soon as the Client has notified the Company of the Candidates' acceptance of an offer of Engagement by the Client.

4.7 Provided the prior written consent of the Company is obtained by the Client, monies owed to the Company by the Client may be paid over six months by monthly instalments.

4.8 In the event that the Client fails to pay any monthly instalment when it is due and owing then the Company reserves the right to withdraw its consent to payment by instalments and all remaining monies owed to the Company by the Client will become payable on demand by the Company.

4.9 If an unconditional job offer made by the Client in writing and accepted by the Candidate is subsequently withdrawn by the Client prior to the commencement of employment by the Candidate, an administration fee is owed to the Company by the Client of £1,500 plus VAT.

4.10 If the Client fails to pay the Company any sum due the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

Termination

5.1 In the event of a Candidate or the Client lawfully terminating the Engagement within 12 weeks of the date upon which such Candidate commenced work for the Client (including probationary periods) and provided that:

(a) all monies due hereunder have been paid by the Client in accordance with clause 4 hereof;

(b) such termination is not as a result of redundancy, pregnancy, injury or ill-health or by reason of the Candidate’s race, sex or any disability;

(c) such termination has not arisen where the Client has entered into the Engagement with the prior or likely intention of disposing with the Candidate’s services or terminating employment either without proper cause or with a view to obtaining a refund unfairly;

(d) the Client serves notice on the Company in writing at its registered office of the termination of the Engagement within 7 days thereof giving full details as to the reason for the termination together with any further information relating to the termination requested by the Company thereafter; and

(e) neither the Client nor any subsidiary associated or holding company of the Client shall commence Engagement of the Candidate within 12 months from the date of the termination of the Engagement,

then the Client shall receive a rebate calculated in accordance with the Company’s scale of rebates in force from time to time.

5.2 The scale of rebates due to the Client is (as at 12th May 2006):

100% Less than 24 hours employment

90% Less than 1 week

50% Less than 8 weeks

75% Less than 4 weeks

25% Less than 12 weeks

Under no circumstances will any expenses be refunded. If the Candidate is employed by the Client as a locum (temporary employee), the rebates do not apply and any rebate must be agreed on an individual basis.

5.3 No rebate shall be payable by the Company in the event of failure by the Client to adhere to the time limits provided for in clause 5.1 above.

5.4 No rebate shall be made in respect of an Engagement where the Candidate was previously engaged in any capacity by the Client through the Company.

5.5 The rebate shall be repayable in full where the client subsequently re-engages the Candidate in any capacity.

5.6 In the event of a Candidate or the Client lawfully terminating the Engagement after the period of 12 weeks from the date upon which such Candidate commenced work for the Client (including probationary periods) and provided that the conditions in clause 5.1 (a) to 5.1(e) (inclusive) are fulfilled then the Client shall be entitled to use the Retained Consultancy Services detailed in clause 7 at a discounted price to be agreed between the parties.

Liability and Indemnity

6.1 Neither the Company nor any of its staff shall be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with an Engagement and, in particular, but without limitation to the foregoing, any such loss, injury, damage, expense or delay arising from or in any way connected with:

(a) failure of the Candidate to meet the requirements of the Client for all or any of the purposes for which he is required by the Client (subject to clause 5 hereof);

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

(c) any loss, injury, damage, expense or delay incurred or suffered by a Candidate;

PROVIDED THAT nothing in this clause 6 shall be construed to purporting to exclude or restrict liability of the Company to the Client for personal injury or death resulting from negligence (as defined in the Unfair Contract Terms Act 1977) nor any statutory liability or any exclusion or limitation which is prohibited by law.

6.2 In consideration of the Company entering into an agreement with the Client into which these Terms are incorporated, the Client hereby undertakes to indemnify the Company in respect of any and all liability of the Company for:

(a) any loss, injury, expense or delay suffered or incurred by a Candidate, howsoever caused; and

(b) any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Candidate, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;

(c) any legal costs and other expenses incurred by the Company arising out of any breach of these Terms by the Client;

PROVIDED THAT this indemnity is given only in respect of any such loss, injury, damage, expense or delay caused during or arising directly or indirectly out of or in any way connected with an Engagement.

6.3 The Client acknowledges that the limitations and exclusions of the obligations and liabilities of the Company set out herein are reasonable and reflected in the fee payable to the Company hereunder and shall accept risk and/or insure accordingly.

Miscellaneous

7.1 The Company reserves the right to review and to revise these Terms without prior notice.

7.2 These Terms shall be governed by and construed in accordance with the laws of England and Wales and the Company and the Client agree to submit to the exclusive jurisdiction of the Courts of England and Wales.

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20/12/2018 10:36 BST

Purchase of Firms and Businesses - Buyers Agreement Uploaded by Jonathan Fagan - jbfagan@ten-percent.co.uk IP 82.68.255.158