- 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 One Liberty Plaza 165 Broadway, Suite 2310 New York, NY 10006 (“Audeliss”) and Client (“Client”) located at Address United States
- Scope
These Terms and any agreed assignment brief describe the terms and conditions upon which Audeliss 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 either upon it signing these Terms, upon its agreement to an assignment brief or its instruction to Audeliss to commence the services whichever occurs first.
- Definitions
“Assignment” means the executive, non-executive or board search assignment that the Client instructs Audeliss to fulfil as described in the Assignment Brief (Addendum 2);
“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, 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” means the provision of details of a candidate to the Client (in writing or orally) whether submitted directly by Audeliss 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 referred shall be interpreted the same;
“Remuneration” means the anticipated first year’s total compensation which includes but is not limited to any hiring bonus, relocation expenses, commission earnings, stock options, other bonus earnings (whether contractual or not, and whether guaranteed or not) which is anticipated to be payable to the Candidate during their engagement as set out in the assignment brief. If the remuneration has not been fully defined by the Client or the remuneration falls within a range of figures, then the Client and Audeliss shall agree a projected remuneration within the assignment brief for the purposes of calculating the retainer fee and shortlist fee
- Fee
4.1 Audeliss’ service fee shall be 33% of Remuneration (“Fee”) unless stated otherwise in Addendum 1:
Retainer Fee – 1/3 of the Fee to be invoiced to initiate the search for an 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 Introduced by the Agency, 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
Audeliss’s expenses incurred in the performance of the Services will be recharged to and are payable by the Client as set out in the assignment brief. Expenses may include, but shall not be limited to, travel and accommodation expenses, any testing requirements 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 I4 days of the date of invoice. Audeliss 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 Audeliss’ reasonable attorney’s fee.
- Suspension, Cancellation & Changes
(a) If payment of the retainer fee is not received within 30 days of the date of invoice, Audeliss reserves the right to suspend and or withdraw its services on giving notice to the Client. The retainer fee 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 Audeliss 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) Audeliss 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 Audeliss has been exclusively retained to source candidates 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. If the Client wishes to consider a candidate whose details it has received previously (however this has occurred) the candidate will be passed to Audeliss and will be referred to Audeliss for consideration.
(b) The Client agrees that all candidates who submit their details directly (including any internal candidates of the Client) for a role which is the subject of an assignment will be referred to Audeliss for consideration. All candidates referred to Audeliss by the Client shall be considered referred candidates for the purposes of the assignment.
- 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 20% fee to Audeliss. 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 the fee to Audeliss. 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 of 20% to Audeliss. 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 not commence the engagement (having accepted an offer) or resigns from the engagement, or 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 Audeliss the opportunity to replace the candidate (the “Replacement Service”). Audeliss 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 Audeliss 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 Audeliss 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 reorganisation, 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 Audeliss 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 Audeliss on demand and no further guarantee shall apply in respect of such re-engagement.
- Client Responsibilities
The Client undertakes it will:
(a) provide Audeliss 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 Audeliss 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). 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
(d) in receiving and processing personal information of candidates referred by Audeliss 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 Audeliss.
- Audeliss Responsibilities
Audeliss 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 Audeliss prior to being Referred, have been fully appraised of the position and its requirements and are willing to be referred to the Client;
(c) Organise 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) Audeliss 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 Audeliss’ s liability cannot be limited in law, Audeliss 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 Audeliss to refer a candidate.
(c) Neither Audeliss 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. Audeliss 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, Audeliss’ 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 Audeliss for the assignment under which such liability arises.
- General
(a) These terms and the assignment brief constitute the entire agreement between Audeliss 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 Audeliss 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.
ADDENDUM 1
| Type of Position | Fee % | Minimum Fee |
| Board / Non-Executive | 100% of Remuneration* subject to a minimum fee | $100,000 for a standard Board seat $125,000 for a Chair seat |
| Executive | As per section 4 of this contract | $100,000 |
| 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) |
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 (other than for the 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.
