- Parties
These Terms of Business for the provision of executive and non-executive retained search services (“Terms”) are entered into by Audeliss Inc located at 1 Liberty Plaza, 1 Liberty St, New York, NY 10006, United States (“Agency”) and the Client (“Client”).
- Scope
These Terms and any agreed Assignment Brief describe the terms and conditions upon which the Agency will provide the executive or non-executive and board retained search services on a retained fee basis for an agreed Assignment (“Services”). These Terms shall be deemed to have been accepted by the Client, and Audeliss instructed to proceed with an Assignment, either upon it signing these Terms, upon its agreement to an Assignment Brief or its instruction to the Agency to commence the services whichever occurs first.
- Definitions
“Agency”
“Agency” means Audeliss Inc or a subsidiary company as appropriate to the Assignment. Should a legal entity other than Audeliss Inc. be used, this will be confirmed in Schedule 1 or the SOW relevant to the Assignment and agreed with the Client;
“Assignment”
means the executive, non-executive or board search assignment that the Agency agrees to fulfil pursuant to the Assignment Brief;
“Assignment Brief”
means the written proposal, if applicable, which details the Assignment; including the scope of Services to be provided, the Position, any specific information relevant to the planning or management of the Assignment and which has been accepted or deemed to have been accepted by the Client
“Client Group”
means the Client and any subsidiary or associated business firm or corporate body of the Client;
“Candidate”
means the person or persons engaged in the search process, howsoever arising, including any Candidates not introduced by the Agency directly, for any Position or for any Speculative Application including any officer, employee or other representative of the Candidate if the Candidate is a corporate body, or members of the Agency’s own staff;
“Engagement”
means the engagement, appointment, employment or use of a Candidate by the Client (or any third party to whom the Candidate has been referred by the client) whether under a service contract, a contract for services, or in any other capacity (whether directly or indirectly through another person; “Engages” and “Engaged” shall be interpreted the same;
”Referral” or “Introduction”
means the provision of details of a Candidate to the Client (in writing or orally) whether submitted directly by the Agency or received by the Client (including the details of any internal Candidate of the Client), or the Client’s interview or meeting with a Candidate (however this occurs) in respect of an assignment; “Referred” and “Refer” and “Introduced” and “Introduce” shall be interpreted the same;
“Remuneration”
as defined in Schedule 1;
“Services”
means the executive or non-executive services provided by the Agency to the Client including targeting and approaching Candidates; advertising the relevant position(s) in appropriate media; interviewing and assessing Candidates; and presenting recommended Candidates in the form of a shortlist to the Client as set out in the Assignment Brief; the submission of Candidates for Speculative Application;
“Speculative Application”
means the Introduction of a Candidate to the Client other than for a Position where the Agency believes the Candidate would be of interest to the Client for an Engagement.
- Fee
4.1 The Agency’s service fee will be calculated as set out in Schedule 1.
First Retainer Fee – 1/3 of the fee to be invoiced to initiate the Assignment.
Second Retainer Fee – 1/3 of the fee will be invoiced on the earlier of either a presentation of a slate of Candidates for a Position or the Client requesting the interview of a Candidate, or 30 days after the First Retainer Fee, whichever occurs first; and
Completion Fee – the remainder of the fee re-calculated to reflect the actual Remuneration offered to the Candidate, less the Retainer Fee and Shortlist Fee already paid by the Client, to be invoiced upon the Candidate’s acceptance of the Client’s offer or 60 days after the First Retainer Fee, whichever occurs first.
- Expenses
The Agency’s reasonable expenses incurred in the performance of the Services will be recharged to and are payable by the Client. Expenses may include, but shall not be limited to, reasonable Candidate expenses incurred during the services, travel and accommodation expenses, any testing requirements, and costs of advertising as agreed.
- Invoices
All invoices payable by the Client are subject to the addition of any sales tax (as applicable) and at prevailing rates. All invoices are payable in full within 14 days of the date of invoice. the Agency shall be entitled to charge interest on any unpaid balance of an invoice not settled within 30 days from the date of invoice at the rate of 1.5% per month from the due date until the amount due is paid in full. The Client agrees to pay all costs of collection, including the Agency’s reasonable attorney’s fee.
- Suspension, Cancellation & Changes
(a) If payment of the retainer fees is not received within 30 days of the date of invoice, the Agency reserves the right to suspend and / or withdraw its services on giving notice to the Client. The retainer fees shall remain due and payable.
(b) If the Client materially changes the Assignment or the scope of the Services required, or puts the Assignment on hold for more than 60 days, and it becomes necessary to repeat research and / or undertake additional candidate work (irrespective of the reason for the delay or change required by the Client), an additional and identical First Retainer Fee will be charged (in addition to the fee) representing fair compensation for the additional work anticipated by the Agency to ensure the Services are completed in accordance with the Assignment Brief.
(c) If the Assignment is withdrawn or is otherwise terminated by the Client, fees will be due to the Agency as detailed in the table below:
| Cancellation Point | Fees Due |
| Day 1-29 post instruction | 1st fee as per clause 4 |
| Day 30-59 post instruction | 1st and 2nd fee as per clauses 4 |
| Day 60+ post instruction | All fees as per clauses 4 |
For the avoidance of doubt, ‘Instruction’ shall be as defined in clause 2 and the day on which the instruction is given will be counted as day 1.
(d) The Agency shall be entitled to withdraw its Services giving notice to the Client, in the event the Client materially changes the Assignment or where the Client delays the Assignment for 60 days or more, in which case the fees as per the table at clause 7c remain payable in full.
- Exclusivity
(a) The Client acknowledges and agrees that the Agency has been exclusively retained in respect of the Assignment. Accordingly, the Client will not advertise or use any other recruitment method to attract or secure the referral of Candidates during an Assignment whether directly itself, or from any third-party contact with a recruitment agency, search firm or other provider.
(b) If the Client wishes to consider a Candidate whose details it has received previously (however this has occurred) the Candidate will be referred to the Agency for consideration, will be deemed to have been Introduced by the Agency, and the Agency shall be entitled to an Introduction Fee in respect of any Engagement of such Candidates.
(c) The Agency’s search activity may lead to the Client receiving direct applications from applicants (whether internal or external applicants) and the Client agrees that all applicants who submit their details directly to the Client will be referred to the Agency for consideration, will be deemed to have been Introduced by the Agency, and the Agency shall be entitled to an Introduction Fee in respect of any Engagement of such Candidates.
- Referral
(a) Engagement after a search
If the Client or any member of the Client Group engages any Candidate within a period of 12 months of either:
(i) the referral of a Candidate to the Client;
(ii) the Client’s withdrawal of an offer of Engagement;
(iii) the Candidate’s rejection of an offer of an Engagement; or
(iv) the date an Assignment has been cancelled or terminated, whichever occurs later (“Referral Period”)
the Client is liable to pay a fee to the Agency in accordance with Schedule 1. The fee becomes payable in full upon acceptance by the Candidate of an offer from the Client or member of the Client Group.
(b) Engagement by a third party
If the Client refers a Candidate to a third party and that referral results in the Engagement of that Candidate by the third party, the Client will be liable to pay a fee to the Agency in accordance with Schedule 1. The fee becomes payable in full upon acceptance by the Candidate of an offer from such third party.
(c) Engagement into a different position
If the Client or any member of the Client Group engages any Candidate within the referral period into a different position to that which the Candidate was originally Referred, the Client is liable to pay a fee to the Agency in accordance with Schedule 1. The fee becomes payable in full upon acceptance by the Candidate of an offer from the Client or member of the Client Group.
(d) The guarantee provisions in clause 10 shall not apply to the circumstances set out in sub-clause 9(a) and sub-clause 9(c) where such engagement occurs after the Assignment has ended, been cancelled, or otherwise terminated. No guarantee provisions shall apply to the circumstances set out in sub-clause 9(b).
- Guarantee
(a) Should the Candidate:
(i) not commence the Engagement (having accepted an offer);
(ii) resign from the Engagement; or
(iii) the Engagement of any Candidate is terminated by the Client due to the unsuitability of the Candidate within 16 weeks of the commencement of the Engagement
the Client will give the Agency the opportunity to replace the candidate (the “Replacement Service”). The Agency shall be given a period of 8 weeks exclusivity from the date of notice of non-commencement or termination of the Engagement to find a suitable replacement Candidate based upon the Assignment Brief. If the termination of the Engagement happens before the end of 16 weeks of commencement, and the Agency is unable to find a suitable replacement within 8 weeks (and provided that such inability has not been caused by the act, error, and or omission of the Client or the Client acting unreasonably in refusing to consider a replacement Candidate) then the Client will be eligible to a refund of the Completion Fee based on the following scale of refund:
Week Engagement ends % of Completion Fee due
0-2 90%
3-5 60%
6-9 40%
10-13 30%
14-16 20%
17+ nil
There will be no refund available where the Candidate’s Engagement is terminated after the 16th week of the Engagement.
(b) The date of termination shall be the date that the Engagement ends or the date the Engagement would have terminated but for any period of garden leave or payment in lieu of notice.
(c) The guarantee provisions of this clause shall not apply if:
(i) the Client terminates the engagement for reasons other than for the fault or suitability of the Candidate;
(ii) if the Client does not give the Agency the opportunity to replace the Candidate; and / or
(ii) if any Candidate fails to commence an Engagement or resigns due to the Client seeking to change the terms of or scope of duties of any Engagement, due to any business reorganization, merger, sale, or acquisition of the Client, or due to any act, error, or omission of the Client following an offer having been accepted.
(d) This guarantee is conditional upon the fee having been paid in accordance with clause 4 and clause 6 and the Client having notified the Agency in writing of the non-commencement or termination within 7 days of the termination of the Engagement.
(e) If the Client re-Engages any Candidate in respect of whom the Client has received a refund under the guarantee provisions within a period of 12 months of the termination of the Engagement, the Client shall repay the refund to the Agency on demand and no further guarantee shall apply in respect of such re-Engagement.
- Client Responsibilities
The Client undertakes it will:
(a) provide the Agency with appropriate information required to complete the Assignment Brief, and relevant documentation as part of the Services including a detailed description of the requirements of the Assignment and relevant statistical data if necessary and permitted;
(b) notify the Agency of its intention to engage a successful Candidate and provide details of the actual remuneration offered and accepted by the Candidate together with any documentary evidence such as offer letter and or service contract;
(c) be responsible for the ultimate determination of the suitability of any Candidate referred to the Client, and completing all prudent employer pre-employment screening checks including taking up references, undertaking any criminal and or financial background screening checks, confirming the ability of the Candidate to work in the US and the State concerned and where required arranging work permits and or visas (unless otherwise pre-agreed in writing within the Assignment Brief).
(d) The Client agrees not to approach the candidate’s present employer unless the candidate has given their express written consent or has resigned from their position; and
(e) in receiving and processing personal information of Candidates referred by the Agency it will keep such personal data confidential, only process such personal information for the purpose of considering and or making an offer to a Candidate for a position and will not divulge personal information relating to any Candidate to any third party without the written consent of the Agency.
- Agency Responsibilities
The Agency undertakes it will:
(a) Refer Candidates who meet the requirements of the Assignment Brief and who are considered suitable for interview by the Client;
(b) Ensure Candidates have been interviewed (whether in person, by video conference, and or by telephone) by the Agency prior to being Referred, have been fully appraised of the position and its requirements and are willing to be referred to the Client;
(c) Organize interviews and provide feedback to the Client and Candidates during the recruitment process; and
(d) Keep the Client regularly updated on its progress with any Assignment.
- Liability
(a) The Agency and the Client agree that they will not unlawfully discriminate against any Candidate, whether directly or indirectly, on grounds of sex, sexual orientation, marital or civil partner status, pregnancy, gender reassignment, race, religion, ethnic or national origin, disability, military/veteran status, or age. Each party will ensure that each Candidate is considered and or assessed for positions based on the Candidate’s merits, qualifications, and technical abilities to fulfil the position.
(b) Except in circumstances in which the Agency’s liability cannot be limited in law, the Agency shall not be liable to the Client for any loss, liability, damage, costs, claims or expenses incurred by the Client whether arising in respect of contract, tort (including negligence), statute, misrepresentation or otherwise in connection with the Referral or Engagement of any Candidate to the Client or the failure by the Agency to refer a Candidate.
(c) Neither the Agency nor the Client shall be liable to the other for any incidental, special, consequential, exemplary, punitive, or indirect damages arising out of or in connection with these Terms of Business and or any Assignment Brief, even if the other party has been appraised of the likelihood of such damages, including any consequential and or indirect damages arising from the termination or resignation of any Candidate. The Agency shall not be liable for any failure to perform its obligations where the same arises from matters which are beyond its control. The guarantee set out in clause 10 shall be the Client’s sole remedy with respect to a Candidate whom has resigned or whom the Client has terminated.
(d) In any event, without prejudice to sub-clauses 13(b) and 13(c), and subject to any liability which cannot be excluded in law, the Agency’s total liability arising under or in connection with these Terms of Business or an Assignment Brief will not exceed the fee that would have been payable to the Agency for the Assignment under which such liability arises.
- General
(a) These terms and the Assignment Brief constitute the entire agreement between the Agency and the Client for the provision of the Services.
(b) No variation or amendment of these Terms or the scope of any Assignment Brief will be binding unless such variation or amendment is agreed in writing by duly authorized representatives of the Agency and the Client.
(c) All notices given hereunder shall be in writing and may be delivered personally, by first class prepaid post or by email to the intended recipient. Any such notice shall be deemed to have been served: if by hand when delivered; if by first class post 48 hours following posting; and if by email when that email is sent.
(d) Any reference to a person includes a reference to any individual, company, partnership, trust, joint venture, association, government or local authority department or other authority or body (whether corporate or unincorporated). Words include, including, and in particular shall not be interpreted as limiting the generality of any foregoing words.
(e) The Terms and any Assignment Brief shall be governed by the laws of New York State. The parties agree to submit to the exclusive jurisdiction of the Courts of New York State. Failure to exercise or enforce any right under these Terms or any Assignment Brief shall not be construed to be a waiver. If any provision is found to be invalid by a court of competent jurisdiction, all other provisions will remain effective.
Schedule 1 – Fees
| Type of Position | Fee % | Minimum Fee |
| Board / Non-Executive | 100% of remuneration | $100,000 for a standard Board seat $125,000 for a Chair seat |
| Executive | 33% of remuneration | $100,000 |
For calculation of the fees, Remuneration shall be determined as follows:
| Type of Position | Remuneration |
| Executive | Base salary and target bonus |
| Board / Non-Executive | First year’s gross compensation which includes but is not limited to the base salary or annualized fees payable to the Candidate for any ancillary or connected services or appointment rendered to or on behalf of the Client (e.g. where the Client separately compensates the Candidate for an additional fee e.g. as Chair of Audit Committee, such fee will be added to the overall compensation payable to the Candidate) |
The parties acknowledge there may be occasions where the Remuneration cannot be defined prior to instruction on an Assignment Brief or the Remuneration falls within a range of figures. In this circumstance, and to ensure the Agency may proceed with an instruction, the Client and the Agency will agree an estimated Remuneration for the purposes of calculating the Retainer Fees.
Multiple Engagements
If the Client Engages more than one of the Candidates Introduced by the Agency, the Client shall pay to the Agency an Introduction Fee for each additional Candidate appointed to any other position by the Client.
Fixed Term Engagements
(a) Where an Assignment Brief is for a fixed term Engagement of less than 12 months or where prior to the commencement of the Engagement the Agency and the Client agree that the Engagement will be on the basis of a fixed term of less than 12 months, the Introduction Fee will apply pro-rata.
(b) If the Client (i) extends the Engagement beyond the initial fixed term or (ii) re-Engages the Candidate within six calendar months from the date of termination of the initial fixed term Engagement, then the Client shall be liable to pay a further Introduction Fee based on the additional Remuneration applicable for the extended period of Engagement or the period of the second and any subsequent Engagement.
