PortSwigger standard terms for working with recruitment agencies

Terms and conditions for recruitment agencies

These terms and conditions ("Terms") constitute the terms and conditions on which PortSwigger Ltd ("Company", "we", "us" or "our") will engage with and recruit Candidates from a recruitment agency ("Agency", "you" or "your"). In these Terms "party" means either you or us and "parties" shall be construed accordingly.

1. Definitions

"Application" means the successful upload by the Agency of the Candidate's details (including a curriculum vitae (CV) with email and mobile phone number) on the Company's jobs dashboard with a reference to the Vacancy, in each case on the application tracking system used by the Company;

"Candidate" means the person introduced by the Agency to the Company for an Engagement;

"Data Protection Laws" means any law, enactment, regulation or order concerning the processing of data relating to living persons including: (i) the UK GDPR; (ii) the UK Data Protection Act 2018; (iii) the EU GDPR; and (iv) other EU Data Protection Laws, in each case to the extent applicable to the activities or obligations under or pursuant to these Terms;

"Engagement" means the engagement, employment or use of the Candidate by the Company (or any of its affiliates) to fill the Vacancy (or a role substantially similar to the Vacancy) on: (i) a permanent basis as an employee under an employment contract or (ii) a temporary basis as a contractor under a contract for service between us and the Candidate or their personal service company, in both cases following an Introduction;

"Introduction" means the submission of an Application which leads to an Engagement of that Candidate for the Vacancy within 6 months of the date of the Application, unless prior to the Application, the Company has received an application relating to the Candidate either directly from the Candidate or from any third party in which case the Application for that Candidate will not constitute an "Introduction";

"Remuneration" means: (i) in respect of Candidates engaged by us as full time, part time or fixed term employees, the annualised basic gross salary of the Candidate for the first year of employment; and (ii) in respect of Candidates engaged by us as contractors, an amount determined by calculating the annualised basic gross salary that the Candidate would have received had he or she been hired as an employee;

"Recruitment Fee" means an amount equivalent to 23% of the Candidate's Remuneration; and

"Vacancy" means a new position at the Company for which you are engaged to search for prospective Candidates.

2. Acceptance of terms

2.1 You confirm that, prior to the submission by you of any Application on our website, you have confirmed your acceptance of these Terms and therefore agree to comply with them.

2.2 No Agency who has failed to confirm its acceptance to these Terms in accordance with clause 2.1 may submit Applications to the Company, unless otherwise approved by us in writing.

2.3 These Terms will supersede and replace any existing agreements between the parties as of the date on which these Terms are accepted by you, other than in respect of applications submitted to us by you prior to such date.

3. Company obligations

3.1 We agree:

3.1.1 to provide reasonably sufficient information to the Agency so as to enable the Agency to seek a suitable Candidate for the Vacancy, either through us posting the information on the Company's website or providing it directly to the Agency. Such information may include:

• 3.1.1.1 details of the position;

• 3.1.1.2 the commencement date;

• 3.1.1.3 nature of the work involved;

• 3.1.1.4 working conditions and requirements;

• 3.1.1.5 in respect of Vacancies for employees, the salary and benefit details;

• 3.1.1.6 in respect of Vacancies for contractors, the daily rate(s);

• 3.1.1.7 the key attributes, experience, training and qualifications required of the Candidate; and

• 3.1.1.8 any relevant health and safety issues.

3.2 The Company will inform the Agency promptly after receipt of an Application if it has already received an application relating to the Candidate either directly from the Candidate or from any third party prior to the Agency's Application.

3.3 We agree to keep the Agency informed of any direct contact (whether by email, phone, through any social media platform or otherwise) between the Candidate and the Company during the Application process up until the commencement date of the Engagement.

3.4 We will notify the Agency promptly of:

• 3.4.1 any offer of Engagement which we make to the Candidate; and

• 3.4.2 any acceptance of such offer by the Candidate, including details of the Remuneration.

3.5 The Company is responsible for satisfying itself as to the suitability of the Candidate for the relevant Vacancy. The Company is responsible for taking up its own references for the Candidate, obtaining work permits and/or such permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of the Candidate, and satisfying other requirements, qualifications and/or permissions as may be required by law.

3.6 For the avoidance of doubt, we will contract directly with all contractors (or their personal service companies) who are engaged by the Company following an Introduction.

4. Remuneration

4.1 Subject to clause 4.4, we will pay you the Recruitment Fee in respect of each Introduction. There are no recurring or other fees payable by us for successful introductions, including in respect of any contractor whom we subsequently hire as an employee.

4.2 For the purposes of calculating the Remuneration of any Candidate engaged by us as a contractor, the Company will determine the annualised gross basic salary that the Candidate would have received had they been hired as an employee. Following such calculation, we will inform you of the Remuneration and the relevant Recruitment Fee in respect of that Candidate. If you dispute our calculation of the Remuneration, then the parties will attempt in good faith to resolve it and to agree on the relevant Recruitment Fee for the Candidate.

4.3 Following a successful Introduction, you may invoice us for the Recruitment Fee on the date that the Candidate starts their Engagement at the Company. All undisputed and validly rendered invoices will be payable within 14 days of receipt of the Agency's invoice.

4.4 Subject to clause 4.5, we will pay you a cancellation fee of £4,000 if we withdraw an offer of Engagement that has been accepted by the Candidate prior to any start date, unless such withdrawal is due to any breach, act or omission on the part of the Agency.

4.5 The Company shall be under no obligation to pay to the Agency the Recruitment Fee for any Candidate who fails any background check or reference reasonably required by us in relation to that Candidate. For the avoidance of doubt, such background checks may include (but not be limited to) credit, criminal record, and/or employment or work reference checks.

5. Agency obligations

5.1 You will:

• 5.1.1 search for Candidates for the Company who meet the Company's minimum qualifications and criteria for the Vacancy and warrant that any Candidates shall be suitable for the job for which they are required;

• 5.1.2 submit all Applications for any Vacancy via the Company's website;

• 5.1.3 screen all Candidates prior to making an Application and you will only introduce Candidates to the Company who meet the minimum criteria for the position as set out by the Company and who have an interest in the position(s) for which they are introduced; and

• 5.1.4 comply with all applicable laws, regulations, guidelines and codes of practice in carrying out your obligations under these Terms.

5.2 You undertake that you shall not act in a manner which is, in our reasonable opinion, prejudicial to or defamatory of the Company (or its affiliates).

5.3 You must obtain the Candidate's consent for:

• 5.3.1 the Candidate's contact details to be included in an Application, including his or her CV, email address and mobile phone number; and

• 5.3.2 the Company to contact the Candidate directly using such details following submission of the Application.

6. Refund of recruitment fee

6.1 Subject to clause 6.2, if an Engagement is terminated by the Company or the Candidate resigns within the following period after the commencement of their Engagement, then you will make the following refunds of the Recruitment Fee to the Company: 50% of the Recruitment fee if the Engagement has been 0-4 weeks in duration and 25% of the Recruitment fee if the Engagement has been 5-6 weeks on duration.

6.2 We will not be entitled to a refund of the Recruitment Fee if:

• 6.2.1 the Engagement is terminated in connection with any corporate reorganization or restructuring of the Company; or

• 6.2.2 we subsequently re-engage the Candidate for a permanent or temporary role that is substantially similar to the Vacancy within 6 months of the date on which the Engagement is terminated. In such event, any amounts refunded by you to us shall become immediately due and payable to the Agency.

7. Confidentiality

7.1 Neither party shall during and after termination of these Terms, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature, other than to those of its personnel, advisers or representatives who need to know such information for the purposes of carrying out the party's obligations under these Terms.

7.2 Each party shall on demand and on the termination (howsoever caused) of these Terms surrender to the other party all materials relating to such confidential information in its or its personnel's or representatives' possession.

8. Liability

Save in relation to (a) liability for death or personal injury; (b) liability arising pursuant to clause 7 (Confidentiality) or clause 11 (Anti-Bribery and Modern Slavery); (c) the obligation to pay the Recruitment Fee; or (d) any other loss not capable of being excluded or limited by law (all of which shall be unlimited), each party's liability pursuant to these Terms shall be limited to 100% of the total amounts paid or payable by us to you in each calendar year pursuant to these Terms. Other than in connection with the unlimited liabilities identified in this clause 8, neither party shall however have any liability for any indirect or consequential loss.

9. Data protection

9.1 The parties acknowledge that the status of each party is a matter of fact under Data Protection Laws.

9.2 Each party acknowledges that, for the purposes of compliance with the Data Protection Laws, it is an independent controller in relation to any personal data that is shared by the other party and that, independently of the other party, it determines the purposes for which and the means by which that personal data is, or is to be, processed by that party.

9.3 With respect to its processing of relevant personal data, each party shall:

• 9.3.1 comply with its obligations under Data Protection Laws including in respect of providing privacy notices to data subjects to whom the personal data relates in respect of all processing undertaken by that party (including any transfer of the personal data to the other party);

• 9.3.2 ensure that it has obtained the necessary consents or authorisations required to permit the disclosure and processing of such personal data; and

• 9.3.3 to the extent permitted by applicable laws, where applicable, deal promptly and in good faith with all reasonable and relevant enquiries from the other party relating to its processing of the relevant personal data.

10. Termination and its consequences

10.1 Either party may terminate any Application and/or these Terms if the other party commits a material or persistent breach of any provision of these Terms that is not remedied within 14 days after service of written notice requiring it to do so.

10.2 We may terminate these Terms without cause and/or replace them with alternative terms and conditions by giving you not less than 1 month's advance written notice.

10.3 Upon termination of these Terms for any reason, each party will cease all activities under or in connection with them and will promptly return any confidential information or other property belonging to the other party.

11. Anti-bribery and modern slavery

11.1 You undertake to us that you will comply with applicable anti-bribery and corruption laws and that you shall not do, nor omit to do, any act that will lead to the Company being in breach of any applicable anti-bribery and corruption laws.

11.2 You shall have in place and comply with your own anti-bribery and corruption procedures which shall be designed to ensure that the Agency complies with applicable anti-bribery and corruption laws.

11.3 Regardless of any other provision in these Terms, neither party shall be obliged to do, nor obliged to omit to do, any act which would, in its reasonable opinion, put it in breach of any applicable anti-bribery and corruption laws.

11.4 You warrant and represent that you have complied with and will continue to comply with:

• 11.4.1 your obligation under Section 54 of the Modern Slavery Act 2015, if applicable, to produce for each financial year an annual slavery and human trafficking statement setting out the steps you have taken during that year to ensure that slavery or human trafficking is not taking place in any part of your business and in any of your supply chains; and

• 11.4.2 any applicable policy of the Company in place from time to time relating to the prevention of slavery, servitude, forced or compulsory labor, human trafficking or to any human rights matters.

12. Variation, assignment and subcontracting

12.1 No modification or change to these Terms will be valid unless the details of any such changes are in writing, signed on behalf of each party, and the date on or after which such new terms will apply.

12.2 Neither party shall, without the prior written consent of the other party, assign, novate, transfer or otherwise deal in any other manner with these Terms or any of its rights and obligations under them.

12.3 You shall not sub-contract the performance of any of your obligations under these Terms without our prior written consent. You shall be responsible for all acts and omissions of your approved sub-contractors as if such acts and omissions were your own.

13. Waiver

A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14. Relationship of the parties

Nothing in these Terms is intended to create a partnership or joint venture or the relationship of principal and agent between the parties and neither party has the authority to make representations, act in the name or on behalf of, or to otherwise bind, the other in any way.

15. Severance

If any provision (or part of any provision) of these Terms is, or becomes illegal, invalid or unenforceable in any respect it will not affect or impair the legality, validity or enforceability of any other provision of these Terms.

16. Third parties rights

A person who is not a party to these Terms has no right under these Terms, pursuant to the Contracts (Rights of Third Parties) Act 1999, to enforce any term of these Terms but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

17. Entire agreement

These Terms constitute the whole agreement between the parties with respect to the Introduction of Candidates to the Company and supersedes all previous agreements between the parties relating to its subject matter and any and all business entered into by the Agency is subject to these Terms. Each Party acknowledges that, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these Terms.

18. Governing law and jurisdiction

These Terms shall be governed by the laws of England and Wales. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of these Terms (including non-contractual disputes or claims).