TERMS OF BUSINESS FOR THE PROVISION OF SERVICES
1.DEFINITIONS
1.1.In the Agreement the following definitions apply, unless the context otherwise requires:
“AWR” means, the Agency Workers Regulations 2010;
“Agreement” means, the agreement between the Company and the Client, incorporating the terms and conditions contained herein, its schedules, timesheets and Service Authorisations;
“Assignment” means, the Services to be delivered as specified in an Assignment Schedule;
“Client” means, person, public body, firm or corporate body named as a party and to whom the Contractor is Introduced by the Company and will include any subsidiary, holding, associated or affiliated company of the Client as defined in s1159-s1162 Companies Act 2006 and End Client where applicable;
“Commencement Date” means, the start date of the services as set out in the Assignment Schedule;
“Conduct Regulations” means, the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) in respect of the Company, the Client and its end clients, relating to their business methods, plans, systems, finances or projects, training and development and research or development projects, their trade secrets, the identity and business affairs of their customers and clients, potential customers and clients, the provision of products or services to which they attach confidentiality or in respect of which they hold an obligation to a third party which comes to either parties attention or possession and which is regarded or could reasonably be regarded as confidential, whether or not any such tangible information is marked ‘confidential’;
“Contractor” means, registered freelancer, or corporate body Introduced to the Client by the Company to carry out an Assignment and includes the Consultant, substitute Consultant, and any third party to whom the provision of the Assignment is sub-contracted;
“Consultant” means, the person provided by a corporate Contractor to perform the Services and includes an Umbrella Employed;
“Data Protection Laws means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;
“Documents” includes, but is not limited to, inventions, discoveries, improvements, promotions, formulae, designs, models, prototypes, programs, sketches, drawings, manuals, source codes and plans;
"End Client" means, any client or customer of the Client for whom, or at whose premises, the Services are performed under this Agreement;
“Engagement” means, any engagement, employment, retention or use of the Contractor’s services, directly or indirectly by the Client or by any third party to whom they have been introduced by the Client, on a permanent or temporary basis which will include under an employment contract, contract for services, agency, licence, franchise or partnership arrangement, or via any other supplier and “Engage”, “Engages” and “Engaged” will be construed accordingly;
“Fees” means, the fees for the Services as notified to the Client at the commencement of the Assignment and which, may be varied, by the Company from time to time during the Assignment to fulfil its statutory obligations. Fees include any expenses described in the Assignment Schedule or other disbursements as may have been pre- approved by the Client or, if there is no such agreement, such expenses as are reasonable;
“Force Majeure” means, acts, events, omissions or accidents beyond a party’s reasonable control, including strikes 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 equipment, fire, flood, storm or material default of suppliers or subcontractors;
“Intellectual Property” means, any patent, trade mark or service mark, copyright, design or mark, any application or renewal for any of the foregoing, any right in respect of technical or commercial information including but not limited to rights in computer software, database rights, know-how rights and any other form of protection in each case whether registered or unregistered and equivalent rights which may now or in the future subsist in any part of the world;
“Introduction” means, the provision of any information to the Client by the Company (whether in writing or orally), which identifies a Contractor and in respect of which the Client acknowledges receipt whether orally or in writing and
” Introduces” will be construed accordingly;
“Introduction Fee” means,
•if any Contractor is employed by the Client or a third party the compensation will be calculated as a single fee of 20% of the annual total remuneration to be paid to that person plus applicable sales taxes, or if no such fee can be reasonably calculated by the Company then the fee as set out in (2) or (3) below to be determined at the Company’s discretion;
•if the Contractor is engaged on a non-permanent basis the fee will be calculated as 300 x the hourly rate or 40 x the daily rate, whichever is the larger (plus applicable sales taxes) as paid by the Client on the most recent Assignment of the Contractor;
•if the Engagement follows an Introduction but no supply by the Company then the fee will be £10,000 or equivalent in local currency plus applicable sales tax;
“Off Payroll” means, Part 2, Chapter 10 Income Tax (Earnings and Pensions) Act 2003;
“Restriction Period” means, the 12 months following either:
1.the Introduction of the Contractor; or
2.the termination or expiration of an Assignment of the Contractor;
whichever happens last in time;
“Services” means, all or any part of the work or services performed by the Contractor as set out in an Assignment Schedule hereto and performed from time to time pursuant to this Agreement;
“Umbrella Employed” means, a worker supplied by the Company employed by an intermediary company known as an umbrella company.
1.2.In this Agreement:
1.2.1.unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa;
1.2.2.a reference to a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time.
1.3.In this Agreement:
1.3.1.the headings contained in this Agreement are for convenience only and do not affect their interpretation;
1.3.2.all agreements on the part of any of the parties to this Agreement which comprise more than one person or entity will be joint and several;
1.3.3.if any term herein conflicts with any term in the schedules, then the schedules will take precedence, and the terms in the Assignment Schedule will prevail in the event of conflict between terms in the schedules.
2.THE CONTRACT AND SERVICES
2.1.This Agreement constitutes the entire agreement between the Company and the Client and will prevail over any terms of business or purchase conditions (or similar) proposed by the Client. These terms and conditions supercede all previous terms of business issued by the Company.
2.2. This Agreement can be terminated by either party giving the other 28 days’ written notice. Post termination on notice, this Agreement shall continue to apply to ongoing Assignments until their termination.
2.3.This Agreement will be deemed to be accepted by the Client by an Introduction to the Client, an Engagement, signature of this Agreement, signature of a Service Confirmation, by passing on of information about a Contractor to a third party or by conduct and this Agreement will apply whether or not the Contractor is Engaged by the Client for the same type of work as that for which the Introduction was originally effected. This Agreement is a framework agreement, the terms of which will apply to any and each Assignment Schedule agreed between the parties.
2.4.No variation or alteration to this Agreement will be valid unless the details of such variation are agreed between a Director of the Company and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms will apply.
2.5.The Company will seek to ensure that the Contractor is suitably skilled to deliver the Services with reasonable skill and care and has made reasonable enquiries of the Contractor concerning suitability and technical competence. The Company does not test the Contractor’s technical skills and it is for the Client to satisfy itself as to the Contractor’s overall capability to fulfil the Assignment when interviewing the Contractor and/or during the first week of the Assignment. The Company will accept no responsibility for information relating to the Contractor, which is outside its knowledge.
2.6.The Company will undertake limited compliance measures to verify the Contractor has the right to work and leave to remain in the country in which the Services are physically performed but does not have a statutory obligation to do so and the Client must satisfy itself that the Contractor does have the appropriate right to work. The Company will require the Contractor to warrant under contract that appropriate taxes and social costs will be paid in respect of the Assignment.
2.7.The Client acknowledges that an incorporated Contractor will supply a Consultant to deliver the Services. Where the Consultant is unable or unwilling to provide any part of the Services for whatever reason the Contractor will be entitled to substitute the Consultant or sub-contract the performance of the Services provided that the replacement Consultant or sub-contractor has the required skills and qualifications and any professional registrations or clearances required by the Client.
2.8.The Client acknowledges that the Contractor will be permitted to determine how it will provide the Services and will have the flexibility to determine equipment required, place of work and working hours subject to the Contractor complying with any reasonable Client operational requirements and targets as are agreed.
2.9.Where the Services are undertaken at the Client’s site, the Contractor should comply with any reasonable requirements relating to working hours, health and safety, and any other operational requirements in relation to the Client’s site as are made known to the Contractor.
2.10.The Client must take steps to ensure that the Contractor is treated as an independent contractor and should not be given employee style instructions or privileges or be treated as under the Client’s supervision, direction or control unless expressly stated in an Assignment Schedule.
2.11.Nothing in the Agreement will serve to create any employer/employee relationship or principal/agent relationship between the Client and the Company or the Contractor and the Client.
2.12.The Client undertakes to comply with all applicable laws, regulations and legal duties (whether statutory or otherwise) arising from, directly or indirectly connected with the Services and will assist the Company in complying likewise.
2.13.The Client acknowledges that an Umbrella Employed is entitled to statutory leave including holiday and sickness leave.
2.14.The AWR do not apply to Assignments under this Agreement other than those for the supply of Umbrella Employed, unless agreed otherwise by the parties. When the AWR apply, the Client will:
2.14.1.comply with its obligations under Regulations 12 and 13 of the AWR;
2.14.2.notify the Company if the Contractor has previously worked for it for a period impacting the AWR qualifying period;
2.14.3.notify the Company in writing of any AWR claim or potential claim which comes to its notice as soon as practicable.
3.INFORMATION TO BE PROVIDED
3.1.Prior to the commencement of the Assignment, or if this is not practical, upon commencement of the Assignment, the Company will send to the Client an Assignment Schedule setting out the following information:
3.1.1.the identity of the Contractor and the Consultant supplied to carry out the Assignment;
3.1.2.the Fees;
3.1.3.any agreed expenses; and
3.1.4.the length of notice that the Client would be entitled to give and receive to terminate the Assignment.
3.2.The Client warrants it has given the Company sufficient information in respect of the Assignment and the Services including but not limited to:
3.2.1.any risks to health and safety known to the Client and the steps taken by the Client to avoid or control such risks;
3.2.2.the experience, training, qualifications, vetting, security clearance and any authorisations which the Client considers are necessary, or which are required by law or by any professional body for the Contractor to possess, to provide the Services.
3.3.The Conduct Regulations shall not apply to an Assignment unless the Contractor is stated as Non-Opt Out in the Assignment Schedule.
3.4.The Client will notify the Company as soon as practicable if it or the End Client is a public authority to which Off Payroll applies. If Off Payroll applies to an Assignment the Client warrants to comply with its obligations under Off Payroll or to ensure the End Client provides such a warranty and will notify the Company as soon as practicable but latest by the Commencement Date if the Assignment is inside IR35.The Client warrants to make its assessment accurately, honestly, with due care and on a timely basis prior to the Commencement Date. The Client shall notify the Company immediately if the Off-Payroll status changes during an Assignment.
4.VERIFICATION OF THE SERVICES
4.1.At the end of each period of the Assignment, as specified in the Assignment Schedule (or at the end of the Assignment where the Assignment is for a period of less than 1 week or is completed or finished before the end of a week) the Client will verify the execution of the Services by signature of a timesheet or Service Confirmation provided to the Client for this purpose.
4.2.Such verification will constitute acceptance by the Client that the Services have been provided satisfactorily and in accordance with this Agreement. Failure to sign a Service Confirmation does not affect the Client’s obligation to pay the Fees in respect of time worked. In the event of a dispute the Client will cooperate fully and in a timely fashion with the Company to enable a Company to establish what hours, if any, were worked by the Contractor.
5.FEES
5.1.The Client agrees to pay the Fees plus applicable sales tax. Should any kind of withholding tax regime apply to the Fees due under an Assignment, then the Client Fees will be grossed up to incorporate any such amount of withholding tax which the Client is legally required to retain.
5.2.The Company reserves the right to vary the Fees agreed with the Client, by giving written notice to the Client, to comply with any additional financial liability imposed by statute or other legal requirement or entitlement.
5.3.The Fees are invoiced to the Client monthly or bi-weekly or as stated in the relevant Assignment Schedule and are payable within 14 days of date of issue.
5.4.Fees are set out in the relevant Assignment Schedule. The Client must approve timesheets or confirm delivery of Services by authorisation of a Service Confirmation and return them to the Company promptly. The Company relies on the fact that the Client has approved a timesheet or Service Confirmation when making payment to the Contractor. The Client will assist the Company if it needs to verify the Fees. The Client will retain one copy of each timesheet or Service Authorisation for its own records.
5.5.An authorised signatory of the Client should approve all expenses before they are incurred and provide confirmation of such approval in writing. The Client may reimburse the Company's expenses directly. The Client will retain copies of all expense receipts submitted.
5.6.Under no circumstances should the Client discuss with the Contractor the rates charged by the Company to the Client.
5.7.The Company reserves the right to charge interest on invoiced amounts unpaid by the due date at the rate of 8% above the Bank of England base rate calculated on a daily basis until date of receipt of payment. If there is a statutory entitlement to charge interest at a higher rate than the contractual rate, then the Company reserves the right to levy interest at the higher statutory rate from the due date.
5.8.Without prejudice to the Company’s other termination rights, in the event of late payment of any invoice it will have the right to immediately suspend performance of this Agreement, including any other assignment, until the Client pays all invoices due to the Company together with providing such security, whether financial or otherwise, as the Company reasonably considers necessary to secure its position in respect of future Fees.
5.9.The Company may assign to a third party the right to render invoices and receive payment.
5.10.All invoices will be deemed to be accepted in full by the Client in accordance with the payment terms stated unless the Client notifies the Company in writing within five days of receipt of any dispute and the reason for dispute. In the event the Client does so notify the Company that it wishes to dispute part of an invoice, the Client will pay the undisputed part of the invoice within the agreed payment terms and will co-operate fully with the Company to resolve the dispute as quickly as possible.
5.11.The Client will indemnify the Company from and against all loss, damage, cost or expenses (including legal expenses) which the Company may incur as a failure of the client to pay the Company’s account on time or in taking steps to effect recovery of sums due from the Client.
6.RESTRICTIONS
6.1.Should the Client, within the Restriction Period, wish to Engage the services of the Contractor other than through the Company then it will;
6.1.1.in the event of no Assignment, pay the Introduction Fee; or
6.1.2.following termination or expiration of the Assignment or any Assignment extension, pay the appropriate Introduction Fee.
6.1.3.The Introduction Fee is non-refundable.
6.2.Should any associated company of the Client, an End Client or any other third party to whom the Client has introduced the Contractor and/or the Consultant(s), within the Restriction Period Engage the services of the Contractor and/or the Consultant(s) other than through the Company then the Client will either:
6.2.1.in the event of no Assignment, pay the Introduction Fee; or
6.2.2.following termination or expiration of the Assignment or any Assignment extension, pay the Introduction Fee.
6.2.3.The Introduction Fee is non-refundable.
6.3.Sub Clauses 6.1 and 6.2 will survive the termination of the Agreement for the Restriction Period.
6.4.In the case of an Assignment for the supply of a Contractor who has not opted out of the Conduct Regulations, the “Restriction Period” will be the Relevant Period as defined in Regulation 10, clause 5 of the Conduct Regulations, namely 8 weeks from the end of the supply or 14 weeks from its commencement whichever occurs later in time. The Client may elect, by giving 28 written days’ notice, to an extended period of hire (Extended Period of Hire) of 52 weeks, rather than payment of an Introduction Fee. Should the Extended Period of Hire terminate prior to its expiry or the Consultant refuse or be unable to continue to perform the Services, then the Company reserves the right to charge an appropriate Introduction Fee as an alternative.
7.TERMINATION OF ASSIGNMENT AND TERMINATION FOR CAUSE
7.1.Either party may terminate an Assignment by giving to the other party in writing the period of notice specified in the relevant Assignment Schedule.
7.2.Notwithstanding the provisions of sub-clause 7.1. the Client may terminate an Assignment forthwith by notice in writing if it provides satisfactory evidence of cause in writing to the Company where:
7.2.1.The Company commits a breach of this Agreement and, in the case of a breach which is non- material and capable of remedy, fails to remedy it within 10 working days’ of receiving written notice giving full particulars of the breach and requiring the same to be remedied;
7.2.2.The Contractor and/or Consultant has committed an act(s) of misconduct, negligence, fraud or dishonesty whereby the Client reasonably concludes it is unable to continue to use its services;
7.2.3.The Client reasonably believes that the Company and/or Contractor has seriously breached any conditions of confidentiality made known to it from time to time in respect of the Confidential Information.
7.3.The Company may terminate this Agreement, including its Assignments forthwith by notice in writing and claim all monies due under all Assignments including work in progress unsupported by signed timesheets or Service Confirmations if:
7.3.1.the Client is in breach of its obligations under this Agreement and where the breach is capable of being remedied, fails to remedy the breach within 10 working days of receiving written notice from the Company to do so;
7.3.2.the Client fails to pay any amount which is due to the Company in full and on the date that the payment falls due;
7.3.3.the Client is dissolved, ceases to conduct all or substantially all of its business, is or becomes unable to pay its debts as they fall due, goes into liquidation or a receiver, administrative receiver, or someone of similar office be appointed to the Client or any part of its assets or undertakings;
7.3.4.an order is made for the winding up of the Client, or where the Client passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation or amalgamation where the resulting entity will assume all the obligations of the other party under this Agreement); or
7.3.5.the Client, if an individual, dies, or due to illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
7.4.The Client agrees that should its financial position become untenable and its organisation be taken over, amalgamated or cease trading, then any financial obligations that are outstanding for work performed for the Client by the Company under this Agreement up to and including the date of the Company being notified in writing of such changes, will be honoured by the Client's parent company or the new owners should a parent company not exist.
7.5.If the Client does not require the Contractor to deliver Services during any period of notice of Assignment then it remains liable to pay the Fees for each working day during the notice period at the rate set out in the Assignment Schedule.
7.6.If the Company, acting reasonably, refuses to accept the grounds provided by the Client for an immediate termination of an Assignment, then the termination shall be treated as on notice and Clause 7.5 shall apply.
7.7.If Brexit, namely the UK ceasing to be a member of the European Union, causes a substantial adverse impact on a party’s or the parties’ abilities to fulfil this Agreement, whether during a transitional or post-transitional Brexit period, then either party may request the other party to negotiate a variation to this Agreement to alleviate the adverse impact. Should an agreement not be reached on such variation within 14 days then either party will be entitled to terminate this Agreement in accordance with the notice period specified in the Assignment Schedule.
8.INTELLECTUAL PROPERTY RIGHTS
The parties agree that all Intellectual Property in all the Documents produced by or on behalf of the Contractor in connection with or relating to this Agreement will vest in and belong to the Client. The Company will seek to procure, by contracting with the Contractor on the same terms as stated herein, that the Contractor irrevocably assigns to the Client all present and future rights with full title guarantee throughout the world, free from all encumbrance, save such rights as may be expressly owned or retained by the Contractor and set out in an Assignment Schedule.
9.CONFIDENTIALITY AND DATA PROTECTION
9.1.Both parties will use reasonable endeavours to ensure that they will keep confidential (and take reasonable steps to procure that their Contractors, employees and agents will keep confidential) and will not at any time for any reason disclose, publish or permit to be disclosed to any person, or published, or otherwise make use of, or permit to be made use of, any Confidential Information.
9.2.Both parties will comply with the provisions of the Data Protection Laws. For the purposes of this Clause, Data Controller, Data Processor, Joint Controller and Personal Data shall have the meanings as defined in the Data Protection Laws.
9.3.Under this Agreement the Company is a Data Controller and the Client is a Data Controller. The parties are not Joint Controllers or Data Processors for the other or a third party unless specific terms are agreed to that effect. Under a standard form of consultancy assignment neither the Contractor nor the Consultant will be processing the Client’s personal data as a Data Processor unless specific terms are agreed to that effect.
9.4.The Client shall only process Consultants’ Personal Data for the agreed purposes for which the Personal Data is transferred unless it notifies the Company before undertaking any further processing.
9.5.The parties shall ensure that;
9.5.1.they have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
9.5.2.they provide reasonable assistance to the other in responding to any request from a Data Subject and in ensuring compliance with their respective obligations under the Data Protection Laws with respect to data subject access requests and other data subject rights, data security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
9.5.3. they notify the other without undue delay on becoming aware of a Personal Data breach relevant to Personal Data transferred pursuant to this Agreement.
10.LIABILITY AND INSURANCES
10.1.Whilst reasonable efforts are made by the Company to ensure the Services will be delivered to a reasonable standard of skill and in accordance with the Assignment Schedule, no liability is accepted by the Company for any loss, expense, damage, costs or delay (Losses) arising from the failure to provide a Contractor for completion of the Assignment whether by Contractor early termination or otherwise, or from the negligence, dishonesty, misconduct or lack of skill of the Contractor or the non-compliance of the Consultancy or Consultancy Staff with Data Protection Laws. The Contractor does not work under the supervision, direction or control of the Company.
10.2.The Company’s total liability under this Agreement will in all circumstances be limited to three (3) times the Fees levied under the Assignment in respect of which the liability allegedly accrues.
10.3.The Company will not be liable for special, indirect, consequential damages or any loss of profit, business, revenue, goodwill or anticipated saving of the Client or any third party.
10.4.For the avoidance of doubt, the Company does not exclude liability for its own gross negligence or wilful default, death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude by applicable law.
10.5.The Client will indemnify and keep indemnified the Company against any costs, claims damages, expenses or liabilities incurred by the Company arising out of any non-compliance with or as a result of any breach of this Agreement by the Client.
10.6.The Company confirms that it has the following insurances in place: Public Liability, Employers Liability and Professional Indemnity Insurance. The Company will upon request provide the Client with evidence of cover.
11.NOTICES
All notices which are required to be given in accordance with this Agreement will be in writing and may be delivered personally, by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice will be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent.
12.GENERAL
12.1.If any of the provisions of this Agreement are determined by any competent authority to be unenforceable to any extent, such provision will, to that extent, be severed from the remaining provisions, which will continue to be valid to the fullest extent permitted by applicable laws.
12.2.Except as expressly provided in this Agreement a person who is not a party to this Agreement will have no rights to enforce any term of this Agreement.
12.3.The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with any of its right or obligations under this Agreement. The Client may do likewise with the Company’s consent, not to be unreasonably withheld.
12.4.Neither party will be liable to the other or be deemed to be in breach of this Agreement due to any delay in relation to the Services if the delay or failure is due to Force Majeure.
12.5.No failure or delay by either party in exercising any of its rights under this Agreement will be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of the same or any other provision.
12.6.The Client will comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force including the Modern Slavery Act 2015.
13.BRIBERY AND CORRUPTION
13.1.The Client will:
13.1.1.comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti- corruption (Anti Bribery Laws) which will include compliance with the Anti Bribery Laws of the United Kingdom;
13.1.2.not do, or omit to do, any act that will cause the Company to be in breach of the Anti-Bribery Laws;
13.1.3.not offer, give or agree to give to any Contractor, Consultant, employee or representative of the Company any gift or other consideration which could act or reasonably be perceived to act as an inducement or a reward for any act or failure to act connected to the performance of this Agreement; and
13.1.4.promptly report to the Company any request or demand for a facilitation payment, financial or other advantage of any kind received by it, the Contractor and/or the Consultant in connection with the performance of this Agreement or any other circumstances which mean they can no longer comply with the terms of this Clause.
14.LAW OF THIS AGREEMENT AND JURISDICTION
This Agreement is governed by the law of England & Wales and is subject to the exclusive jurisdiction of the Courts of England & Wales.