Terms of Business
Standard Terms & Conditions of Business for Permanent Employment Placements in Luxembourg
These Terms and Conditions of Business for Permanent Placements (the “Standard Terms”) regulate the relationship between Anderson Wise and the Client. They are effective from January 2020 and supersede all previous terms issued by Anderson Wise. Save as expressly provided for below, these form the entire agreement between the parties.
Anderson Wise shall endeavour to Introduce to the Client, for an Introduction Fee, a Candidate for Engagement with the Client into a permanent placement (“the Assignment”). These Standard Terms regulate permanent placements by Anderson Wise to the Client only.
It is Agreed that:
‘Associated Employer’ means any employer bound by an employment contract pursuant to Article 1779-1° of the Civil Code and Article L.121-1 paragraph 2 of the Labour Code, and any other entity having the authority to issue orders and guidelines, supervising and imposing sanctions towards its employees.
‘Anderson Wise’ means Anderson Wise SARL of 21 Rue Glesener, L-1631 Luxembourg
‘Candidate’ means the person introduced by Anderson Wise to the Client for permanent employment
‘Client’ means the person to whom Anderson Wise is Introducing Candidates.
‘Confidential Information’ means any information provided by either party to the other party relating to the Candidate or the Assignment and which is either expressly or by its very nature confidential.
‘Contingent Recruitment’ means an instruction to Anderson Wise by the Client to introduce Candidates for a permanent placement on the basis that no Introduction Fee will be payable by the Client until or unless an Engagement is made. This includes marketed and speculative CVs.
‘Engage, Engaged or Engagement’ means to employ, engage, retain or otherwise accept services from a Candidate Introduced by Anderson Wise whether directly or indirectly, in any capacity whatsoever, within a period of 12 months from the date of an Introduction.
‘Introduced, Introduces or Introduction’ means the provision by Anderson Wise to the Client of any details relating to and identifying a Candidate whether written or oral.
‘Remuneration Package’ means a Candidate’s projected total gross remuneration in the first year of Engagement, being the aggregate value of his/ her salary, any agreed bonus or commission payments (whether guaranteed or anticipated and even if payment is made in the subsequent year of Engagement), car or car allowance, relocation allowance, pension, health insurance and any other emoluments. If the value of any part of the projected remuneration is uncertain the best estimate available to Anderson Wise shall be used. If a car is provided by the Client to the Candidate as part of his/her remuneration a minimum value of 12,000€ will be added to his/her total remuneration for the purposes of calculating the Remuneration Package.
‘Retained Assignment’ means an instruction to Anderson Wise by the Client for a permanent placement whereby Anderson Wise are retained on an exclusive or non-exclusive basis and whereby payment is made in three equal stages according to Clause 6 and which may involve a Candidate search outside Anderson Wise’s existing database and/or advertising.
- These Standard Terms are deemed to be accepted by the Client from the time Anderson Wise Introduces a Candidate or the Client interviews or Engages a Candidate Introduced by Anderson Wise or when the Client signs these Terms (whichever shall be the earlier). They apply whether or not the Candidate is Engaged by the Client for the same type of work for which the Introduction was originally made and whether or not the Client is also seeking to fill the relevant vacancy by other means such as internal or external advertising.
- The Client undertakes to notify Anderson Wise immediately of its intention to Engage a Candidate Introduced by Anderson Wise.
- For Contingent Recruitment, the Client shall pay Anderson Wise a fee in respect of each Candidate Engaged by the Client (the “Introduction Fee”). The Introduction Fee shall be 30% of the Remuneration Package, provided always that the minimum Introduction Fee shall be 12,000€. The Introduction Fee will be invoiced when the Candidate and the Client have each signed the contract of employment or such other contract for services and is payable within 21 days of the date of the invoice
- If a Contingent Recruitment assignment has been stopped, frozen or cancelled after the assignment where Anderson Wise has presented and the Client has met its first candidate a project cancellation fee of 3,000€ to cover all time and administration costs shall become due and payable.
- Retained Assignments: the agreed fee for Retained Assignments is calculated at 30% of the Remuneration Package and is payable in accordance with the following framework and is split into three equal payments:
- 1 a fee is invoiced on acceptance of the assignment by Anderson Wise (“Retainer Fee”) and is payable within seven days of date of invoice; and
- 2 a fee is invoiced on presentation by Anderson Wise to the Client of a shortlist (“Shortlist Fee”) and is payable within seven days of date of invoice; and
- 3 when a Candidate is Engaged then a fee is invoiced on the execution of the employment agreement or other contract for services by the Candidate and
the Client and is payable within 21 days of the date of the invoice, adjusted to reflect the final agreed Remuneration Package (“Completion Fee”).
- If a Retained Assignment is cancelled by the Client after Anderson Wise has commenced performance of the Retained Assignment or the Client materially alters the terms of the Retained Assignment, all Retainer Fees incurred up to the date of cancellation (or material alteration) shall become due and payable. In addition, the next stage of the Retained Assignment fee structure shall also be due and payable by the Client.
- In the event that the Client hires an additional Candidate submitted within the shortlist of a Retained Assignment (or a shortlist Candidate into a position other than the position which was the focus of the Retained Assignment), an Introduction Fee shall be payable in addition to the Retainer Fee.
- Any other charges (including charges for advertising) will be agreed separately in writing and are payable by the Client within seven days of invoice whether or not a Candidate is Engaged.
- Fees and other sums payable under these Standard Terms are exclusive of value added tax (“VAT”).
- The full amount of Anderson Wise’s fees (including any VAT) for a) an Introduction Fee; and b) a Completion Fee shall be paid by the Client without any deductions within twenty-one days of the date of Anderson Wise’s invoice. Anderson Wise reserves the right to charge interest on all overdue invoices at the rate of 8% and to recover all legal costs incurred in recovering sums due and overdue under these Standard Terms on an indemnity basis.
- Information regarding Candidates is provided in the strictest confidence. If an offer of an Engagement is made by (a) the Client; or (b) any third party; or (c) any Associated Employer as a result of an Introduction by Anderson Wise to the Client then the Client shall (where possible) notify Anderson Wise of any such offer of Engagement within seven days of it being made and pay an Introduction Fee to Anderson Wise. If a Candidate is Engaged by any of the above, without the prior knowledge and consent of Anderson Wise, an Introduction Fee will be due from the Client.
- Anderson Wise will use its reasonable endeavours to ensure that Candidates are efficient, honest and reliable but Anderson Wise gives no warranty in this regard and it remains the Client’s entire responsibility to ensure that the Candidate is suitable for the Client’s requirements. Save as for (a) in the event of Anderson Wise’s own negligence in the recruitment process; or (b) in the event of death or personal injury neither Anderson Wise nor its staff shall be liable (to the extent permitted by law) for any loss or damage caused to the Client, the Client’s staff or property or any third party as a result of an Introduction of or failure to Introduce a Candidate or from the negligence, dishonesty, misconduct or lack of skill of the Candidate.
- Anderson Wise will take out and maintain throughout the term of these Standard Terms, Public Liability insurance to the sum of €1,000,000
- Subject to clause 16, neither party shall be liable to the other for any of the following types of loss or damage arising under or in relation to these Standard Terms: (a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or
(b) any indirect or consequential loss or damage whatsoever, even if that party was advised in advance of the possibility of such loss or damage.
- Subject to clause 16, the entire liability of Anderson Wise under or in connection with these Terms is limited, in aggregate and in any 12-month rolling period, to the lesser of either (i) 2 (two) times the total monies paid under this Agreement; or (ii) such sums as are recoverable under the insurance stipulated in clause 14 above.
- No limitation or exclusion of liability in the Agreement is intended to be nor should be interpreted as being a limitation or exclusion of either party’s liability for fraud, death or personal injury arising from its or its employees’ or agents’ negligence.
- Anderson Wise and the Client shall individually comply with its obligations with regard to personal data under any applicable laws relating to data protection and privacy in connection with its activities and/or services under this Agreement and/or in connection with the recruitment services. Anderson Wise and the Client acknowledge and agree that each party acts as a data controller in its own right with respect to its processing of personal data in connection with the provision and receipt of the recruitment services. Each party, as data controller, may disclose personal data to the other party under this Agreement. Anderson Wise and the Client are individually responsible (i) for providing all necessary notices to individuals, including its employees, officers and representatives, to the extent that their personal data is required to be disclosed to, or processed by, the other party in connection with the recruitment services; and (ii) for ensuring that in respect of such personal data, it has a valid processing ground under applicable laws relating to data protection and privacy to share their information with the other party.
- No third party shall have any rights under Article 1165 of the Civil Code in connection with these Standard Terms.
- The parties agree that a failure or delay by either party to enforce any of the provisions set out in these Standard Terms shall not be construed as a waiver.
- Each clause of these Standard Terms, defined by punctuation, is separate, distinct and severable and to give meaning to the intention of the parties the Court may modify any portion that may otherwise be void; subject thereto, any void portion may be severed and the remaining provisions shall continue in force. Words appearing in the plural shall mean the singular where appropriate and vice versa.
- For the purposes of these Standard Terms Anderson Wise acts in the capacity of an Employment Agency.
- Anderson Wise acts as an introductory agency and does not have the authority to bind a Candidate.
- These Standard Terms cannot be varied save in writing by a director of Anderson Wise and an authorised representative of the Client.
- These Standard Terms shall be governed and construed in accordance with Luxembourg Laws and are subject to the exclusive jurisdiction of the courts of Luxembourg.