FOR THE SUPPLY OF SERVICES BY SMART AU PAIRS LIMITED
THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO SECTION 5 (HOST FAMILY OBLIGATIONS)
Agency: SMART AU PAIRS LIMITED registered in England and Wales with company number 05433237.
Au Pair/Nanny/Childcarer: a Candidate which has been placed by the Agency.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Candidate: a potential au pair/ mother’s help / nanny / live-in childcarer candidate introduced by the Agency for the consideration of the Client.
Charges: the charges payable by the Client for the supply of the Services in accordance with clause 10.
Commencement Date: has the meaning set out in clause 2.6.
Conditions: these terms and conditions as amended from time to time in accordance with clause 3.3.
Contract: the contract between the Agency and the Client for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Client/Host Family: a person who appoints the Agency to introduce them to au pair/ mother’s help Candidates.
Client Default: has the meaning set out in clause 5.2
Guarantee Period: has the meaning set out in clause 7.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client's order for Services as set out in the Client's written invitation form, supplied by the Agency.
Pocket Money / Pay / Wage : has the meaning set out in clause 6.1.
Services: has the meaning set out in clause 2.1.
Specification: the description or specification of the Services provided in writing by the Agency to the Client.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to writing or written includes email.
2. BASIS OF CONTRACT
The Agency acts as an agent for the introduction of Candidates to the Client. At no point does the Agency act as an employer. The purpose of the Agency is to introduce a suitable Candidate to the Client. (Services).
The Agency shall commence the search for Candidate(s) provided that:
- The Client has completed the registration form and an informative family letter following guidelines provided by the Agency;
- The Client has supplied family references. We always account for the previous au pair feedback (if applicable) before initiating a new search.
- A telephone consultation/search requirement review has taken place between the Client and a consultant of the Agency;
- The search requirements established between the Agency’s consultant and the Client are deemed to be appropriate and in line with the program guidelines by the Agency
If no relevant Candidates are available at the time of registration, then details will be provided to the Client as soon as possible. Due to the nature of the search, the Agency is not in the position to provide any guarantee for suitable applicants being available. Whereby time is of the essence, we advise using more than one au pair agency.
A placement fee becomes due when the Client and the Candidate have both signed the Order (Invitation Form / Contract ), which must be completed within 2 business days of receipt. If the Order (Invitation Form) is not completed by the Client within 2 business days of receipt, the Agency shall have the right to continue introductions of the Candidate to other families. The Order & payment of the Placement Fee must both be completed prior to the Candidates arrival, in accordance to section 10 Payment terms.
The Order constitutes an offer by the Client to purchase the Services in accordance with these Conditions.
On the date the Agency confirms that the au pair search is open in writing to the Client, the Order shall be deemed to be accepted and the Contract shall come into existence. (Commencement Date).
Any samples, drawings, descriptive matter or advertising issued by the Agency, and any descriptions or illustrations contained in the Agency's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by the Agency shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
3.SUPPLY OF SERVICES
The Agency shall use all reasonable endeavours to supply the Services to the Client.
The Agency shall use all reasonable endeavours to meet any performance dates specified in by the Client, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
The Agency shall have the right to make any changes to the Services or this agreement which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Agency shall notify the Client in any such event.
The Agency warrants to the Client that the Services will be provided using reasonable care and skill.
4.1 The Agency shall provide appropriate support material to both the Client and the Candidate.
5. HOST FAMILY OBLIGATIONS
The Host Family warrants and agrees that:
- the terms of the Order are complete and accurate;
- they will co-operate with the Agency in all matters relating to the Services;
- the information supplied to the Agency and to the Au Pair and is honest, complete & accurate throughout and supplied to the Agency in a timely manner
- they have familiarised themselves with the au pair program guidelines which can be found on: https://smartaupairs.com/family/whatis.aspx
- they have satisfied themselves as to the suitability of the Candidate before they arrive. The Client is therefore STRONGLY ADVISED to check all details, including but not limited to, references, medical history and general background of the Candidate personally;
- make all reasonable efforts to ascertain that the language ability of a Candidate is in line with their expectation. Language ability shall be assessed by the Client during their interview with the Candidate.
- they understand that an Au Pair is not a qualified childcare provider and as such they need to allow the Candidate time to settle in with guidance, training and support
As a basic expectation, the Host Family must supply the au pair with
- a timetable, which confirms the au pair free/on duty times and specification of tasks (which are to be in line with those agreed with the Agency).
- A handbook (the Agency supplies a sample) which confirms the Host Family home/house rules & general expectations of the role.
- they will at all times behave in a reasonable and responsible way towards the Au Pair and they shall provide the Au Pair with a warm welcome, including airport collection at the beginning of the placement and airport drop off at the end of their placement (this can be a taxi transfer paid for by the host family).
The Host Family agrees to provide the au pair with the following:
- A Written Invitation Form / Contract (a sample of which is provided by the Agency) signed by the Client within 2 business days of receipt, and always prior to au pair arrival. The Agency receives a copy.
- Full board the Au Pair will be provided with the ingredients to enable them to prepare 3 daily meals;
- A clean, furnished and private bedroom with a window and desk;
- Time-off and support to attend appropriate language classes if applicable.
- The au pair should be provided with at least 2 full free days each week. At least one completely full weekend (Friday night – Sunday night) should be provided each month.
- Driving lessons and assessment will be provided if the Au Pair is required to drive, along with access to an insured, safe vehicle;
- Pocket money / Pay in accordance with clause 5. The Au Pair will be paid extra pay if the weekly hours exceed those stipulated on the Invitation Form / Contract.
- A minimum of 14 days paid, live in notice in case of placement termination.
If the Agency's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
- the Agency shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Agency's performance of any of its obligations;
- the Agency shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Agency's failure or delay to perform any of its obligations as set out in this clause 5.2; and
- the Client shall reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.
If the Client breaches any warranty or obligation of this agreement, the Agency has the right to terminate the Au Pair placement.
Further distribution of au pair applications or contact details which have been provided to the host family is strictly forbidden. Similarly, any attempt to invite the au pair candidate to join the host family directly without an agency involvement - is against our terms. Whereby the Agency is notified of such situation a) the au pair will firstly be advised to not to proceed b) if the placement goes ahead regardless, full placement fee will become due (both to the Host Family and the Au Pair in her/his respective sending agency).
6. AU PAIR POCKET MONEY / PAY
6.1 The Client shall provide the Au Pair with weekly Pay in accordance to the agency guidelines.
The guarantee period refers to the period which starts from the Au Pair arrival and which provides the option for the Host Family to terminate the placement due to mismatch or unsuitability with a view of finding a replacement Au Pair.
A 14 day guarantee is included for all Summer Au Pair placements as defined in clause 7. For all other Au Pair placements, a 4 week guarantee is included (Guarantee Period)
The Agency offers one free replacement per Au Pair placement.
In the event that the Au Pair needs to leave during the Guarantee Period, the Client must notify the Agency in writing immediately, stating the reasons for the Au Pair leaving.
If an Au Pair leaves outside the Guarantee Period, further fees will apply for further placements.
On expiry of the Guarantee Period, the engagement of the Au Pair by the Client will be deemed to be satisfactory and the Agency’s obligations will be fulfilled.
8.REPLACEMENT SEARCH AND CANCELLATIONS
If a replacement search is offered and is applicable, the Agent will make all reasonable endeavours to introduce replacement applicants within 30 days of receipt of written notice from the Client.
The Agency will make all reasonable endeavours to offer suitable Candidates who can stay for at least 6 months.
The Agency cannot guarantee that a suitable Candidate is available.
Replacements are subject to punctual payment of the entirety of the Agency’s fees
Should no replacement Candidate be offered by the Agency within 30 days of receipt of the notification, a refund minus an admin fee may be applied for the Client if the placement is terminated within the first 4 week period.
Unreasonable rejection by the Client of replacement Candidates will not automatically entitle the Client to a refund and may result in delays in finding a replacement Candidate.
If there are unreasonable grounds for termination, the Client's treatment of the Au Pair is unsatisfactory or the Au Pair's role is materially different from the role agreed with the Agency, the Client has no right to a refund or replacement. The Agency's decision on this matter will be final.
Unless otherwise specified, any credits/ discounts offered are valid for 3 months. Such credits/ discounts are offered at the sole discretion of the Agency.
All refunds/replacements are subject to:
Punctual payment of the agency fee (before au pair arrival unless otherwise agreed with Smartaupairs)
Any pocket money / pay due for the au pair has been settled
Appropriate notice has been given to the au pair. Placement may be terminated before the expiry of the two week notice only upon mutual agreement together with the au pair unless in case of gross misconduct.
The au pair is not leaving due to conditions which are grossly different to those agreed with the au pair and Smartaupairs
Whereby there is no reason to assume gross misconduct, and you require your au pair to leave ahead of the expiry of the notice period of two weeks without the agreement of the au pair – we ask you as the host family to pay for the pocket money due for the notice period in addition to a flight cost home.
If Smartaupairs is required to provide the au pair emergency accommodation in case of unjust termination without notice, the charges will be deducted from the refundable placement fee.
9.CANCELLATIONS PRIOR TO AU PAIR ARRIVAL
In the event that the Au Pair cancels after initial acceptance, the Agency will endeavour to find a replacement as per the provisions in clause 8. Should no replacement be offered, a refund (minus an administration fee) will be issued.
If the Client cancels after the Au Pair has accepted, the placement fee is still payable. No refund shall be made in the event that the Client retains the services of an Au Pair which they consider unsuitable.
10.CHARGES AND PAYMENT
The Charges for the Services shall be on a time and materials basis:
The Agency reserves the right to increase its fee rates.
The Agency shall invoice the Client by email once a written invitation form has been signed by the Candidate and Client.
Payment will be requested to be made by bank transfer in GBP (details supplied upon invoicing). Time for payment shall be of the essence of the Contract.
The Agency does not accept payments made by cheque or online payments, other than bank transfers.
Invoices issued by the Agency must be settled within 3 Business Days of issue and in all cases, prior to the Au Pair’s arrival.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Agency to the Client, the Client shall, on receipt of a valid VAT invoice from the Agency, pay to the Agency such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
If the Client fails to make any payment due to the Agency under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclay's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Agency may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Agency to the Client.
If the Client has a record for late payment(s) - the agency may:
a) Decline further service provision/new search
b) Enforce a 50 - 100% deposit of applicable placement fee before a new search is undertaken. Any deposit would be refundable should the Agency be unsuccessful in securing a candidate.
11.INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Agency. This includes any material shared by host families and au pairs. Further distribution on or offiline of material is strictly forbidden.
The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client's use of any such Intellectual Property Rights is conditional on the Agency obtaining a written licence from the relevant licensor on such terms as will entitle the Agency to license such rights to the Client.
12.LIMITATION OF LIABILITY: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in the Contract shall limit or exclude the Agency's liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation; or
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
Subject to clause 12.1, the Agency shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of damage to goodwill; and
- any indirect or consequential loss.
Subject to clause 13.1 , the Agency's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 50% of the total Charges paid under the Contract.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
This clause 12 shall survive termination of the Contract.
Without limiting its other rights or remedies, either party may terminate the Contract by giving the other party 14 days written notice.
Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Au Pairs are entitled to 14 days’ notice of termination except in cases of gross misconduct.
Any dismissal without the required notice will result in forfeiture of any credit or refund due. Costs incurred by the Au Pair or by the Agency on the Au Pair’s behalf will be charged to the client (including, but not limited to, pocket money in lieu of notice, accommodation and transportation).
Without limiting its other rights or remedies, the Agency may suspend provision of the Services under the Contract or any other contract between the Client and the Agency if the Client becomes subject to any of the events listed in clause 10.2(b) or the Agency reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
The Agency does not tolerate any intimidation, verbal or written threatening behaviour towards any of it's Agency employees. The agency will reserve the right to cease further services with immediate effect whereby any such behaviour has occurred.
14.CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
- the Client shall immediately pay to the Agency all of the Agency's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Agency shall submit an invoice, which shall be payable by the Client immediately on receipt;
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
- clauses which expressly or by implication survive termination shall continue in full force and effect.
Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Assignment and other dealings.
- The Agency may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- The Client shall not, without the prior written consent of the Agency, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
- Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, or clients of the other party, except as permitted by clause 15.3(b).
- Each party may disclose the other party's confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 15.3; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
- This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
- waive that or any other right or remedy; or
- prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.