The following are the Recruitment Terms and Conditions referred to in the foregoing Recruitment Agency Order Form between Skyscanner and the Agency
1. DEFINITIONS
1.1. Agency means the agency listed on the Recruitment Agency Order Form;
1.2. Agency Group Company means any entity that directly or indirectly controls, is controlled by, or is under common control with the Agency;
1.3. Annual Remuneration means annualised base salary only of the successful Candidate;
1.4 Candidate means an individual Introduced by the Agency to Skyscanner for the Role in accordance with this Agreement (who is not an Excluded Candidate, unless expressly stated otherwise);
1.5 Commencement Date is as defined on the Recruitment Agency Order Form;
1.6 Confidential Information means all information designated as confidential or which ought reasonably to be considered confidential, which may include, without limitation, information relating to a Party’s business, products, developments, trade secrets, know-how or other matters connected with the Services;
1.7 Controller shall have the same meaning as in the GDPR and any replacement or successor legislation;
1.8 Data Protection Laws means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.9 EU Data Protection Laws means the GDPR and laws implementing or supplementing the GDPR;
1.10 Excluded Candidate means (i) any Skyscanner employee referrals, or (ii) any individual with whom Skyscanner has actively engaged during the six (6) months prior to an Introduction;
1.11 Fee means the fee due to the Agency as outlined on the Recruitment Agency Order Form;
1.12 GDPR means the EU General Data Protection Regulation 2016/679;
1.13 Introduction means successful submission of the Candidate’s details via Skyscanner’s online recruitment portal only (and Introduce and Introduced shall be construed accordingly);
1.14 Loss means all losses, liabilities, costs, charges, damages, expenses, actions, proceedings, claims or demands;
1.15 Party means either Skyscanner or the Agency (and Parties shall be construed accordingly);
1.16 Personal Data shall have the same meaning as in the GDPR and any replacement or successor legislation;
1.17 Recruitment Agency Order Form means the form signed by the Parties relating to the provision by the Agency of the Services;
1.18 Replacement Guarantee is as defined in Clause 4.4;
1.19 Role means the role(s) specified on the Recruitment Agency Order Form;
1.20 Services means the recruitment services as defined in Clause 1;
1.21 Shortlist means a written shortlist of Candidates, referred via an Introduction, in a manner as agreed in advance between Parties;
1.22 Skyscanner means the Skyscanner entity listed on the Recruitment Agency Order Form; and
1.23 Skyscanner Group Company means any entity that is controlled by, or is under common control with Skyscanner Limited, registered in England & Wales with Company Number 04217916.
2. SERVICES
2.1 The Agency shall provide recruitment services to Skyscanner in accordance with best industry standards, and in accordance with all applicable laws, codes and regulations relating to the engagement of workers. Such recruitment services may include (without limitation): role assessment and definition;
company branding guidance relative to the Role;
2.1.1 candidate and industry research;
2.1.2 candidate transition guidance;
2.1.3 candidate interviews and assessment;
2.1.4 candidate placement guidance; and
2.1.5 any other services that may be agreed in writing with Skyscanner
(collectively Services).
2.2 The Agency shall commence provision of the Services on the Commencement Date after which the Agency shall send a Shortlist to Skyscanner for acceptance in writing. Skyscanner shall have a period of seven (7) days from receipt of the Shortlist in which to notify the Agency in writing if any Candidate on the Shortlist is an Excluded Candidate.
2.3 For the avoidance of doubt, Skyscanner shall satisfy itself as to the suitability of any Candidate for all and any of the purposes for which he or she is required and Skyscanner shall be responsible for carrying out necessary background and reference checking and testing (including confirmation of academic and professional qualifications and any work permits) unless otherwise agreed in writing with the Agency.
2.4 Unless otherwise agreed in writing between the Parties, any individual who is an Excluded Candidate shall not be classed as a Candidate for the purposes of this Agreement.
2.5 Skyscanner reserves the right to contact any Candidate on a Shortlist, without the consent of the Agency, where it considers, in its sole opinion, that such contact shall expedite, or otherwise improve, the provision of the Services or the general recruitment process.
2.6 Skyscanner shall supply the Agency all information reasonably required for it to perform the Services in accordance with this Agreement, including without limitation, job descriptions and offer letters.
2.7 The Agency shall promptly make all changes requested by Skyscanner, acting reasonably, to the Services as may be requested from time to time.
3. FEE
3.1 Where the Agency:
3.1.1 is appointed on a Contingency Basis (as outlined on the Recruitment Agency Order Form), no Fee is incurred by Skyscanner until the successful Candidate commences employment with Skyscanner, at which point the Agency shall render an invoice to Skyscanner in the sum of the Fee. Unless otherwise agreed in writing between Parties, where the successful Candidate is engaged on a fixed term basis for less than 1 year, the Agency shall render an invoice for the Fee on a pro rata basis. Any extension to such Candidate’s engagement shall be invoiced on the same basis up to an aggregate maximum of twelve (12) months; or
3.1.2 is appointed on a Retainer Basis (as outlined on the Recruitment Agency Order Form), the Fee shall be invoiced in three (3) equal instalments as follows:
3.1.2.1 One third upon signing of this Agreement;
3.1.2.2 One third upon presentation of a Shortlist; and
3.1.2.3 One third upon commencement of employment of the successful Candidate; or
3.1.3 is appointed to source Candidates to be recruited on a temporary/contractor basis, the Fee shall be payable in the manner as detailed on the Recruitment Agency Order Form.
3.2 Payment by Skyscanner of any expenses of any Candidate shall be agreed on a case by case basis. Unless otherwise agreed in writing, Skyscanner shall not be liable for any expenses incurred by the Agency in the course of the provision of the Services and Parties expressly agree that all such expenses (including without limitation, advertising and interview expenses) shall be deemed included in the Fee.
3.3 For the avoidance of doubt, Skyscanner shall not be liable to pay the Agency in respect of any Excluded Candidate.
3.4 Unless otherwise agreed in writing between Parties, all payments due under this Agreement shall be paid to the respective Party within thirty (30) days of receipt of the respective invoice. All payments due to the Agency under this Agreement shall be paid exclusive of any applicable taxes, except where Skyscanner is required by law to make such payment subject to the deduction of withholding tax, in which case the sum paid to the Agency shall be reduced by an amount equal to such withholding tax.
4. GUARANTEE
4.1 If a successful Candidate subsequently terminates their employment with Skyscanner, or is deemed by Skyscanner, in its sole discretion, unsuitable within the Candidate’s agreed probationary period, the Agency shall, at the sole request of Skyscanner:
4.1.1 provide a refund to Skyscanner in accordance with Clause 4.2 or Clause 4.3 (as applicable); or
4.1.2 provide the Replacement Guarantee
4.2 Where the Agency is appointed on a Contingency Basis, any refund due to Skyscanner shall be on the following scale:
Where the respective Candidate was subject to a three (3) month probationary period:
| MONTH OF EMPLOYMENT IN WHICH THE CANDIDATE’S EMPLOYMENT ENDS | PROPORTION OF THE FEE TO BE REFUNDED TO SKYSCANNER |
| Within 1 month | 100% |
| Between months 1 and 2 | 75% |
| Between months 2 and 3 | 50% |
| Month 3 onwards | 0% |
Where the respective Candidate was subject to a six (6) month probationary period:
| MONTH OF EMPLOYMENT IN WHICH THE CANDIDATE’S EMPLOYMENT ENDS | PROPORTION OF THE FEE TO BE REFUNDED TO SKYSCANNER |
| Between the Candidate’s commencement date and month 2 | 100% |
| Between months 3 and 4 | 75% |
| Between months 4 and 6 | 50% |
| Month 6 onwards | 0% |
4.3 Where the Agency is appointed on a Retainer Basis, the refund due to Skyscanner under shall be an amount equal to the instalment due under Clause 3.1.2.3.
4.4 Where requested by Skyscanner under Clause 4.1.2, the Agency shall use all reasonable endeavours to seek a replacement Candidate based on instructions of Skyscanner (Replacement Guarantee). If the Agency cannot find a suitable replacement Candidate within a period of three (3) months of the commencement of the replacement search, it shall refund Skyscanner in accordance with 4.2 or 4.3 (as applicable).
4.5 For the avoidance of doubt, no refund or Replacement Guarantee shall be due to Skyscanner where the Candidate’s employment ends as a result of any material change, or wilfully negligent act or omission of Skyscanner or Skyscanner Group Company, as the case may be.
4.6 In the event that a replacement Candidate is engaged under the Replacement Guarantee, the Fee shall be adjusted accordingly, and the Agency shall issue an invoice or refund in respect of the differing amount accordingly upon commencement of employment of such replacement Candidate. No additional Replacement Guarantee shall apply to any replacement Candidate.
5. SUBSEQUENT EMPLOYMENT
5.1 In the event that any Candidate Introduced by the Agency is rejected or not employed by Skyscanner, or the Candidate rejects an offer of employment with Skyscanner, and is subsequently employed by Skyscanner or any Skyscanner Group Company within six (6) months of the Introduction, Skyscanner will pay to the Agency the Fee in respect of such Candidate. For the avoidance of doubt, Parties expressly agree that this Clause 5.1 shall not apply to any Candidate appointed as a result of any Replacement Guarantee.
5.2 In the event that Skyscanner Introduces a Candidate, who was initially Introduced by the Agency, to any third party, resulting in the employment or engagement of that Candidate within six (6) months from the Introduction, Skyscanner will pay to the Agency the Fee in respect of such Candidate. For the avoidance of doubt, Parties expressly agree that this Clause 5.1 shall not apply to any Candidate appointed as a result of any Replacement Guarantee.
6. SUSPENSION AND TERMINATION
6.1 Unless otherwise agreed in writing between Parties, Skyscanner reserves the right to suspend the Services upon written notice to you, for any business reason.
6.2 Either Party may terminate this Agreement at any time upon thirty (30) days’ advance written notice to the other Party.
6.3 Skyscanner shall be entitled to terminate this Agreement with no further liability to the Agency in the event that the Agency commits a material breach of its obligations under this Agreement, and such material breach remains unremedied on the date fourteen (14) days following written notification of such material breach.
7. DATA PROTECTION AND CONFIDENTIALITY
7.1 Data Protection.
7.1.1 Both Parties acknowledge and agree that in respect of any Personal Data processed by either Party in the course of this Agreement (including, without limitation, Personal Data of Candidates), each Party (and/or its respective Group Company as applicable) are each acting as independent Controllers in respect of that Personal Data.
7.1.2 Notwithstanding any other provision of this Agreement, in exercising their respective rights and performing their respective obligations under this Agreement, the Parties shall comply with the Data Protection Laws, and shall not do or omit to do anything which has the effect of placing the other Party in breach of any such Data Protection Laws.
7.2 Confidentiality. Each Party undertakes to keep the other Party’s Confidential Information confidential and shall not use or disclose such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement. For the avoidance of doubt, Skyscanner acknowledges and agrees that an Introduction of a Candidate by the Agency is Confidential Information of the Agency.
8. WARRANTIES AND INDEMNITIES
8.1 The Agency warrants, on behalf of itself and any Agency Group Company involved in the provision of the Services (i) it has full capacity and authority to enter this Agreement (ii) it will perform the Services in accordance with best industry standards and (iii) it will comply with all applicable laws, codes and regulations (including without limitation, those relating to the engagement of workers and Data Protection Laws). The Agency makes no other warranty of any kind, and makes no warranties regarding the suitability of a Candidate, except as expressly outlined in this Agreement or to the extent attributable to the negligence or wilful misconduct of the Agency and/or any Agency Group Company.
8.2 Skyscanner warrants that (i) it has full capacity and authority to enter this Agreement, and (ii) it will comply with all applicable laws, codes and regulations (including, without limitation, those relating to the engagement of workers). Skyscanner makes no other warranty of any kind, except as expressly outlined in this Agreement or to the extent attributable to the negligence or wilful misconduct of Skyscanner and/or any Skyscanner Group Company.
8.3 The Agency hereby agrees to indemnify Skyscanner from and against all Loss it suffers as a result of breach by the Agency and/or Agency Group Company of any of its warranties under this Agreement.
9. LIMITATION OF LIABILITY
9.1 Subject to Clause 9.2, neither Party will be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, including but not limited to damages for lost data, lost profits or costs of procurement of substitute goods or services, however caused and under any theory of liability, including but not limited to contract or tort (including strict liability and negligence), and whether or not such Party was or should have been aware of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein.
9.2 Nothing in these Terms will limit either Party’s liability for death or personal injury caused by: its negligence; Loss caused by fraud or fraudulent misrepresentation; any other liability which cannot be excluded or limited by law; breaches of data protection and/or confidentiality obligations under clause 7; or liability under the warranty and indemnity obligations set out in Clause 7.2.
10. MISCELLANEOUS
10.1 Assignment and Subcontracting. Neither Party shall, with the prior written consent of the other Party (such consent not to be unreasonably conditioned, withheld or delayed), assign, sub-contract novate or otherwise transfer any of its rights and obligations under or arising out of this Agreement or purport to do any of the same, except that Skyscanner shall be entitled, at any time, to so assign, sub-contract, novate or otherwise transfer any of its rights and/or obligations under this Agreement to any Skyscanner Group Company.
10.2 Entire Agreement. This Agreement constitutes the entire agreement between Skyscanner and the Agency, and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
10.3 Third Party Rights. Except as expressly outlined in this Agreement, this Agreement is made for the benefit of the Parties and (where applicable) their successors and permitted assigns, and is not intended to be enforceable by anyone else. In the event of any negligence or breach of these Terms by the Agency which results in any Loss being suffered by any Skyscanner Group Company, that Loss will be deemed to have been incurred by Skyscanner and be recoverable by Skyscanner or a Skyscanner Group Company from the Agency as if it was loss or damage of Skyscanner. Skyscanner or any Skyscanner Group Company will be able to recover any Loss from Agency subject to any limits on the Agency’s liability contained in this Agreement. For this purpose, any Loss suffered by any Skyscanner Group Company will not be treated as being indirect, special, incidental, consequential, exemplary or punitive because it has been suffered by a Skyscanner Group Company and not by Skyscanner directly.
10.4 Force Majeure. Either party may defer the date for performance of, or payment for, the services, or terminate this agreement, if it is prevented from, or delayed in, carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.5 No Partnership. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any party to make or enter into any commitments for or on behalf of any other Party except as expressly provided in this Agreement.
10.6 Severance. If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.7 Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of location of the registered office of Skyscanner signing this Agreement. Skyscanner and the Agency agree that the courts of location of the registered office of Skyscanner signing this Agreement shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
