Standard terms and conditions for the supply of recruitment services by Goodman Masson Limited
(Temporary and contract worker assignments)
1. Definitions and interpretation
2. The Company's obligations
3. The Client's obligations
4. Payment of Fees
5. Replacement of Consultant or sole trader Supplier
6. Transfer Provisions
8. Acknowledgements and Liability
9. Confidentiality and Intellectual Property
10. Data Protection
14. Application of the Conduct Regulations to this Agreement
These terms and conditions apply in relation to any recruitment services provided by Goodman Masson (Company No. 2769447), a company incorporated in England and Wales whose registered office is at 4th floor, 120 Aldersgate Street, London, EC1A 4JQ (the "Company"); to any client from time to time to which it provides recruitment services (the "Client").
(A) The Company has used its contacts and experience to source and introduce to the Client those conditions and service providers it considers suitable, based on the information supplied by the Client, regarding the assignment, the type of work, the experience, qualifications, training and any authorisations required for the proper performance of the Services.
(B) The Company shall arrange for the Services to be provided to the Client in accordance with the terms of this Agreement.
(C) This Agreement is a framework agreement, the terms of which shall apply to any and each Assignment Schedule agreed between the parties.
(D) Certain terms in this Agreement will or will not apply depending on whether or not the Conduct Regulations apply, as set out in clause 14. The Client will be notified in the relevant Assignment Schedule as to whether the Supplier and Consultant have opted-out of the Conduct Regulations.
It is agreed as follows:
1. Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following definitions shall apply:
|"Absence Entitlement"||means if applicable, the Absence Entitlement set out in the Assignment Schedule.|
|"Agreement"||means the agreement between the Company and the Client comprising the terms set out in this document including each Assignment Schedule and any notices regarding Client credit terms pursuant to clause 4.|
|"Apprenticeship Levy"||means the levy on UK employers with annual paybills in excess of £3 million to fund new apprenticeships, pursuant to Part 6 of the Finance Act 2016.|
|"Assignment Schedule"||means the schedule confirming the details of the each Assignment; the term "Assignment" shall be construed accordingly.|
|"AWR"||means the Agency Workers Regulations 2010.|
|"Business Day"||means any day (other than Saturday or Sunday) on which clearing banks are open for business in London.|
|"Client's Group"||means the Client, any body corporate of which the Client is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Client.|
|"Client's Systems"||means the systems which the Client makes available to the Supplier and/or the Consultant for use in relation to the Services.|
|"Company's Group"||means the Company, any body corporate of which the Company is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Company.|
|"Conduct Regulations"||means The Conduct of Employment Agencies and Employment Businesses Regulations 2003.|
|"Consultant"||means an individual Introduced by the Company to the Client or named in the relevant Assignment Schedule, assigned to the performance of the Services as at the Start Date of the relevant Assignment and any replacement pursuant to clause 5.|
|"Contracted-Out"||means the supply of a service where the service provider is responsible (as a matter of contract and reality) for delivering one or more defined deliverables and where payment for the service is calculated on a deliverables or output basis rather than on a time-spent or time and materials basis. The provision of staff or labour on a time-spent basis shall not be a Contracted-Out arrangement.|
|“Data Protection Legislation”||means all applicable data protection and privacy legislation, regulations and guidance including the Data Protection Act 1998 and the GDPR (Regulation (EU) 2016/679 (as amended or re-enacted from time to time and including any replacement or subordinate legislation). Definition in these terms shall, so far as the context permits and unless otherwise stated, the meaning given to them in the Data Protection Legislation.|
|"End User"||means any client or customer of the Client for whom, or at whose premises, the Services are performed under this Agreement.|
|"Engagement"||means the Client's direct or indirect, via an employment business (as defined under the Conduct Regulations) other than the Company:|
(a) engagement or employment of:
(i) the Consultant;
(ii) the Supplier; or
(iii) any individual, such as the Consultant, engaged through the Company and/or the Supplier; or
(b) other arrangement for any of the persons in (a)(i), (ii) or (iii) above to provide services to the Client or any member of the Client's Group or an End User;
|"Extended Hire Period"||means an aggregate period of service provision of 52 weeks (excluding, for the avoidance of doubt, any period during which services are not provided).|
|"Force Majeure"||means any cause preventing a party from performing any or all of its obligations arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party so affected.|
|"Good Industry Practice"||means the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a suitably skilled and experienced person engaged in the same type of services as the Services, applying the best standards currently generally applied in the relevant industry.|
|"Hire Period"||means an aggregate period of service provision of 52 weeks (excluding, for the avoidance of doubt, any period during which services are not provided).|
|"Inside IR35"||means where the circumstances under which the Contractor will provide the Services under the Assignment are such that the requirements set out in s61M(1) of the Off Payroll IR35 Legislation are satisfied.|
(a) the interview by the Client of:
(i) the Supplier; or
(ii) the Consultant; or
(iii) an employee, worker, officer or representative of the Supplier (including, for the avoidance of doubt, the Consultant)
in person, by telephone or by video link; or
(b) the passing by the Company to the Client of information which identifies or relates to any of the persons in (a)(i), (a)(ii) or (a) (iii) above,
and the date of Introduction shall be whichever is the earlier of the interview or the passing of such information. "Introduces" and "Introduced" shall have the corresponding meaning.
|"Loss"||means any demand, contribution, claim, action, proceeding, liability, loss, damage, costs, expenses, tax, national insurance contributions (to the extent permitted by law) and charges and any related penalties, fines or interest whatsoever whether founded in statute, contract, tort or otherwise made or brought against or incurred (including without limitation all losses, liabilities and costs incurred as a result of defending or settling any claims).|
|“Off-Payroll IR35 Legislation”||means Income Tax (Earnings and Pensions) Act 2003 Part 2 Chapter 10 as outlined in the Schedule 1 of the Finance (No.2) Bill 2017).|
|"Opt Out"||means a notice given by the Supplier and the Consultant in accordance with Regulation 32(9) of the Conduct Regulations of their agreement that the Conduct Regulations shall not apply in respect of the supply of the Services; the term "Opted Out" shall be construed accordingly.|
|"Outside IR35"||means where the circumstances under which the Contractor will provide the Services under the Assignment are such that the requirements set out in s61M(1) of the Off Payroll IR35 Legislation are not satisfied.|
|"Payment Rate"||has the definition as set out in the Assignment Schedule.|
|"Pensions Act"||means the Pensions Act 2008.|
|“Personal Data”||means personal data (as defined in the Data Protection Legislation) processed by the Client on behalf of the Company in connection with an agreement subject to these terms, including this Agreement.|
|"PSC Contractor"||means an individual who controls and directs their own limited company through which they contract and offer their services on an independent business to business basis.|
|"Public Authority"||means an organisation which is a public authority as defined by the Freedom of Information Act 2000 and as further defined in s61L of the Off-Payroll IR35 Legislation.|
|"Relevant Period"||means whichever of the following periods ends later:|
(a) the period of 8 weeks commencing on the day after the day on which the Supplier and/or the Consultant last provided services to the Client via the Company (whether under this Agreement or otherwise); or
(b) the period of 14 weeks commencing on the first day on which the Supplier and/or the Consultant provided services to the Client pursuant to the most recent supply of the Supplier's and/or the Consultant's services to the Client by the Company (as adjusted in accordance with Regulation 10 of the Conduct Regulations to take into account any break between supplies or 42 days or more).
|"Remuneration"||means all payments, bonuses, commission, profit sharing, London weighting allowance, benefits in kind and any other payment arising from the Engagement and whether payable to the Candidate or to a third party (including, without limitation, a limited company connected with the Candidate) in respect of or referable to the first year of the Engagement, or which would have been paid if the Engagement had continued for a year.|
|"Services"||has the definition as set out in the Assignment Schedule.|
|"Supplier"||means (if applicable) a supplier, whose details are set out in the relevant Assignment Schedule, engaged by the Company to supply the services of the Consultant. For the avoidance of doubt, references to the Supplier shall include any person engaged by the Company on a sole trader basis who is assigned to perform Services under an Assignment issued pursuant to this Agreement.|
|"Systems"||means telecommunications systems, IT systems and security systems.|
|“Transfer Fee”||means the fee payable by the Client to the Company following a Deemed Introduction calculated as follows:|
(a) 20% of the Remuneration where the Remuneration is up to £20,000
(b) 25% of the Remuneration where the Remuneration is above £20,000 and up to £45,000
(c) 30% of the Remuneration where the Remuneration is above £45,000.
|"Work Results"||means any item of work carried out and delivered pursuant to this Agreement as part of or arising out of the Services.|
1.2 Each term starting with a capital letter and not defined in clause 1.1 or elsewhere in this Agreement is as defined in the Assignment Schedule.
1.3 References to "Supplier" are relevant only if:
(a) the Company engages the services of the Consultant via a contractual intermediary such as, without limitation, a personal service company or an umbrella company; or
(b) the Services are performed by a self-employed consultant supplying his/her services on a sole trader basis under a contract with the Company.
1.4 Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after the date of this Agreement) under it from time to time.1.5 Where the context permits, words denoting:
(a) persons shall include bodies corporate and unincorporated associations of persons;
(b) the singular include the plural and vice versa; and
(c) one gender shall include any gender.
1.6 These terms apply (and shall be deemed to be accepted by the Client) as from the earlier of the date on which the Company first Introduces the services of a Supplier or Consultant to the Client or the Client first issuing an Assignment specification to the Company, and shall apply thereafter in relation to each subsequent Introduction and/or issued Assignment specification and to each Assignment Schedule agreed between the parties hereunder. In the event of any conflict or inconsistency between an Assignment Schedule and the terms in this main Agreement, the terms of the relevant Assignment Schedule shall take precedence.
1.7 Without prejudice or limitation to clause 6, the Company's standard terms of business for the Introduction of permanent and direct candidates shall apply where the Client decides to engage a candidate on a permanent or direct basis or on a contract basis other than via the Company.
2. The Company's obligations
2.1 Subject to the provisions of clauses 5, 6 and 7, the Company will use its reasonable endeavours to procure that the Services will be provided during the relevant Assignment period.
2.2 The Company will use its reasonable endeavours to procure that the Supplier and (where appropriate) the Consultant each:
(a) supplies the Services at the Location(s) in accordance with Good Industry Practice;
(b) complies with the Client's reasonable requirements as may be notified by the Client to the Company from time to time;
(c) complies with all relevant Client regulations, policies and protocols as notified by the Client to the Company from time to time, including on health and safety and security; and
(d) provides a suitable replacement when the Consultant is incapacitated, unavailable or otherwise unwilling to provide the Services.
2.3 The Company will require the Supplier and the Consultant to confirm that the Consultant (and where the Supplier is a sole trader, the Supplier):
(a) has valid and subsisting leave to enter and remain in the United Kingdom for the duration of the relevant Assignment and Agreement; and
(b) is not (in relation to the leave in clause 2.3(a)) subject to any conditions which may preclude or have an adverse effect on the provision of the Services.3. The Client’s obligations
3.1 The Client warrants and confirms that if the Company issues, or caused to be issued, any advertisement in order to source potentially suitable service providers to provide the Services (or similar services), the Client had, prior to any such issue, given the Company authority to source such service providers.
3.2 The Client warrants and confirms that it has given to the Company sufficient information in order for the Company properly to consider the suitability of the Supplier and/or the Consultant to supply the Services, including but not limited to:
(a) the identity of the Client and, if applicable, the nature of the Client's business;
(b) the date on which the Client requires provision of the Services to commence and the duration or likely duration of provision of the Services;
(c) details of the Services including, but not limited to, the type of work, the location at which and the hours during which the Services are to be provided, any risks to health and safety known to the Client and the steps taken by the Client to prevent or control such risks;
(d) the experience, training, qualifications and any authorisations which the Client considers are necessary, or which are required by law or by any professional body for the Consultant to possess in order to provide the Services;
(e) any specific risks to health and safety in relation to the Location(s) or specific experience required for a person to work at the Location(s); and
(f) any expenses payable by or to the Supplier and/or the Consultant.
3.3 The Client confirms that the Company has supplied it with confirmation of the following:
(a) the identity of the Consultant and (where the Supplier is a sole trader) the Supplier;
(b) that the Consultant (and where the Supplier is a sole trader, that the Supplier) has the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law or by any professional body, to perform the Services; and
(c) that the Consultant and any Supplier are willing to provide the Services.
3.4 To the extent that the Company may not have supplied the Client with confirmation as set out in clause 3.3, the Client confirms that it is satisfied with the confirmation supplied; and the Client agrees that if the Consultant or (where the Supplier is a sole trader) the Supplier fails to have the experience, training, qualifications and/or any authorisation which the Client considers are necessary, or which are required by law or by any professional body to perform the Services, the Company shall have no liability to the Client in respect of this.
3.5 The Client shall:(a) carry out risk assessments of the Services to be undertaken and notify the Company and the Consultant and any Supplier immediately of any specific or potential hazards relating to the Assignment and any precautions the Consultant and any Supplier should take in relation to such risks;
(b) not allow the Consultant or (where the Supplier is a sole trader) the Supplier to undertake any work that is hazardous without first undertaking a risk assessment and notifying the Company and the Consultant or (where relevant the Supplier) of any risks identified;
(c) if applicable, make clear to the Company, any Supplier and the Consultant what rules (including but not limited to health and safety, site and security policies, procedures and regulations) apply in respect of the Location(s);
(d) ensure that any and all equipment, vehicles, plant, machinery and protective clothing are in good order and are suitable, safe and comply with all relevant health & safety legislation;
(e) check and sign or electronically verify timesheets (in a form approved by the Company) verifying the number of hours worked by the Consultant or (where the Supplier is a sole trader) the Supplier and evidencing satisfactory performance of the Services by the Consultant or (where the Supplier is a sole trader) the Supplier;
(f) allow the Consultant or (where the Supplier is a sole trader) the Supplier to determine generally how the Services should be supplied;
(g) notify the Company immediately if it is dissatisfied with the performance by the Consultant or (where the Supplier is a sole trader) the Supplier of the Services (in which case the provisions of clause 5 shall apply), and, for the avoidance of doubt, the Client has no authority to discipline any Supplier or Consultant or to terminate the provision of the Services via any Supplier or Consultant;
(h) (without limitation to the above) not commit any act or omission constituting unlawful discrimination or harassment of any Supplier or Consultant in connection with the performance of the Services;
(i) provide the Company, on a timely basis, with such information as the Company shall reasonably request from the Client to enable the Company to comply with or otherwise to evidence its and/or the Client's compliance with the AWR; and
(j) notify the Company if an Assignment is not suitable for pregnant workers. If an Assignment is not suitable for such workers and the Company so requires the Client will find the relevant pregnant temporary resource "suitable alternative work" in accordance with the AWR and increase the Payment Rate to reflect any increased costs which result from the alternative work or where such suitable alternative work cannot be found the Client will pay the Company the Payment Rate until the relevant End Date. The Client will indemnify the Company for any Losses arising from breach of this clause 3.5(j).
3.6 The Client agrees to the terms relating to Absence Entitlement set out in the Assignment Schedule.
Clauses 3.7 – 3.14 apply where the Client is confirmed to be a Public Authority:
3.7 The Client shall, prior to the Assignment Start Date, provide written notice to the Company confirming whether, in its reasonable opinion, the circumstances under which the Consultant will provide the Services under the Assignment fall Inside IR35 or Outside IR35 ("Client Assessment").
3.8 The Client hereby acknowledges, confirms and agrees that:
(a) it had in relation to the Assignment, all the information it needed to carry out the Client Assessment;
(b) the Company shall be entitled to rely on the Client Assessment as evidence upon which to make a decision as to whether to pay the Consultant gross or net of PAYE and Class 1 National Insurance Contributions (primary and secondary); and
(c) the Company may, pursuant to section 61T(4) of the of the Off-Payroll IR35 Legislation, request the Client to provide reasons for the conclusion reached in the Client Assessment. If so requested, the Client shall, within 31 days of the date of such request, provide to the Company written confirmation of its reasons for reaching its assessment;
3.9 In the event that the Client fails to provide a Client Assessment within the time scales set out in section 61T(2) of the Off-Payroll IR35 Legislation, the Company reserves the right to assume that the PSC Contractor is to be treated as falling Inside IR35.
3.10 The Company shall be entitled to terminate the Assignment by notice to the Client with immediate effect if:
(a) it does not receive notice from the Client pursuant to clause 3.7 above; or
(b) it has reasonable grounds to believe that the circumstances under which the Services are provided and/or the nature of the Assignment have changed and/or require re-assessment; or
(c) it receives a late Client Assessment which indicates that the Company's assumption (in the absence of a valid Client Assessment) about the IR35 status of the Consultant may no longer be valid.
3.11 The Client shall co-operate with the Company's reasonable requests for information in the event that HMRC and/or the Consultant challenges the Client Assessment and/or the Company's decision to pay the Consultant net or gross of PAYE tax and National Insurance Contributions.
3.12 The Client shall notify the Company without delay if it has reason to believe that the circumstances under which the Consultant provides or will provide the Services under the Assignment has or will change such that the outcome of the Client Assessment would be different to that previously notified to the Company.
3.13 The Client shall indemnify (and keep it indemnified fully on demand) and hold harmless the Company against any and all Losses suffered by the Company attributable to:
(a) the Company relying, in good faith, on a Client Assessment which, was at the date of notification of such Client Assessment to the Company, incorrect, incomplete, out of date or misleading. For the avoidance of doubt, an Outside IR35 Client Assessment based on the outcome of a test run by the Client using HMRC's online tool shall not absolve the Client from liability under this clause if, in fact, the information inputted by the Client was incorrect, incomplete, out of date or misleading in any way;
(b) any act, omission, default, delay, negligence or breach of statutory duty by or on the part of the Client and suffered or incurred by the Company arising out of or in connection with any claim made against the Company by a third party arising out of or in connection with the Client's failure to comply with its obligations under section 61T of the Off-Payroll IR35 Legislation; and
(c) any breach of the warranties/indemnities contained in clause 16 and/or the Assignment Schedule.
3.14 Nothing in clauses 3.7 to 3.13 shall limit the Company's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under an indemnity.
Clauses 3.15 to 3.18 apply where the Client itself may not be a Public Authority but supplies into a Public Authority on a “contracted-out” basis:
3.15 The Client hereby warrants and undertakes that neither it nor any member of the Client's Group is a Public Authority.
3.16 Where the Client itself supplies services to a Public Authority, the Client warrants and undertakes that:
(a) the services it supplies are supplied on a fully Contracted-Out basis; and
(b) it shall not at any time during the Assignment on-supply or otherwise assign the services of the Consultant (including its consultants, officers, employees or subcontractors) engaged under this Agreement to any member of the Client's Group or any third party in connection with any service to a Public Authority which is not a Contracted-Out service.
3.17 The Company shall be entitled to rely on the warranties given in clauses 3.16(a) and 3.16(b) above to decide whether or not it needs to apply the Off-Payroll IR35 Legislation in respect of fee payments to Consultants.
3.18 The Client shall indemnify (and keep it indemnified fully on demand) and hold harmless the Company for and against any and all Losses (including the amount of any assessment, plus interest and penalties, raised by HMRC in respect of PAYE tax, National Insurance Contributions and/or Apprenticeship Levy which should have been paid or deducted by the Company under the Off-Payroll IR35 Legislation) suffered by the Company attributable to any breach of the warranties contained in clauses 13.6(a) and 3.16(b) above and the Assignment Schedule.
4. Payment of Fees
4.1 The Company will be entitled to issue invoices in respect of the Services supplied during the relevant invoicing period (being calculated as a multiple of the number of hours/days (as appropriate) during which the Services have been provided and the relevant Payment Rate). If the Company introduces electronic invoicing, the Company will give the Client no less than 20 Business Days’ written notice of its intention to do so. The Client will provide all reasonable assistance to the Company to implement any such invoicing system.
4.2 Unless otherwise agreed in writing, the Company's invoices are payable upon presentation and in any event not later than 7 days from the date of invoice.
4.3 For the avoidance of doubt, in the calculation of the sums due to the Company in relation to the Services performed by the Consultant or (where the Supplier is a sole trader) the Supplier a timesheet signed by a representative of the Client shall be conclusive evidence that the Services have been performed to the satisfaction of the Client at the times and for the total period of time set out in such timesheet. If the Client disputes the hours claimed, it shall inform the Company within 2 days of receipt of the disputed timesheet and in any event, no later than 5 days from the date of invoice, and shall co-operate with the Company to establish the hours worked by the Supplier/Consultant. Failure by the Client to sign any such timesheet does not absolve the Client from its obligation to pay the Company the fees for the Services in accordance with this clause 4.
4.4 The Company shall not be liable for fraudulent timesheets submitted by or on behalf of a Supplier or Consultant.
4.5 Unless otherwise agreed in writing by a director of the Company, the Company will not be obliged to make any rebates or refunds of fees or other sums payable to the Company by the Client.
4.6 The Client shall pay the Company a Transfer Fee when a Consultant accepts an Engagement other than via the Company, within twelve months of the most recent event constituting an Introduction. The Transfer Fee is still payable if a Consultant is Engaged in a position other than the one originally intended. No charge for work-finding services is made to the Consultant.
4.7 All amounts due under this Agreement shall be paid in full without any deduction or withholding other than as required by law. The Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
4.8 Unless otherwise agreed by the Company, all payments due to it under this Agreement shall be paid by direct bank transfer to the Company's bank account.4.9 The Company shall apply and charge the Client interest on any overdue amount in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.
4.9 The Company shall apply and charge the Client interest on any overdue amount in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.
4.10 All amounts payable under this Agreement (including, for the avoidance of doubt, those under clause 6) are exclusive of value added tax and any other like taxes applicable to a Location(s), which shall be payable by the Client at the rate prevailing at the time and accounted to the relevant taxation authority by the Company.
4.11 The Client acknowledges that the Payment Rates are based on the total cost of supply of supplying the Services plus the Company's recruitment services fee. The Company reserves the right to increase the Payment Rates to take into account any commercial reasons, statutory or other legal change, including, without limitation, the AWR, Pensions Act, National Minimum Wage or National Living Wage, which leads to an increase in a Supplier's or Consultant's statutory and/or legal entitlements resulting in an increase in the cost of supply.
4.12 The Company shall be entitled to charge the Client for any period during which a pregnant Consultant is absent during Client Business Hours for the purposes of attending an ante-natal care appointment (in accordance with s.55 and s.56 of the Employment Rights Act 1996) and any such hours will be shown on the relevant time sheet.
5. Replacement of Consultant or sole trader Supplier
5.1 The Company shall be entitled from time to time, without prejudice to the other terms of this Agreement, to offer the Client a suitably qualified, skilled and experienced replacement Consultant or sole trader Supplier.
5.2 If within 24 hours of the relevant Start Date, a Consultant or sole trader Supplier fails in the reasonable opinion of the Client to perform the relevant Services satisfactorily, the Client shall notify the Company in writing to that effect and the Company will use its reasonable endeavours to procure that a suitable replacement sole trader Supplier or Consultant is available to perform the Services as soon as possible. If no such replacement is available within 2 Business Days after receipt by the Company of the Client's written notification of unsatisfactory performance, then the Client may terminate the relevant Assignment Schedule by written notice in accordance with clause 7.
6. Transfer Provisions
6.1 This clause 6.1 applies only if the Conduct Regulations do not apply. For the purposes of this clause 6:
(a) a "Deemed Introduction" will occur where the Client, any member of the Client's Group or any client of the Client with whom the Supplier (where the Supplier is a sole trader) and/or the Consultant had material contact within the 6 months prior to any engagement of that Supplier and/or Consultant by such client (a "Client Contact"), or any third party (including any client of the Client or any employment business) to whom the Client introduces that Supplier and/or Consultant (a "Client Third Party Contact"), directly or indirectly (other than through the Company):
(i) employs or otherwise engages that Supplier or Consultant to carry out the Services or services similar to or related to the Services; or
(ii) otherwise makes arrangements so that Supplier or Consultant provides services which are similar, identical or related to the Services for either the Client, any member of the Client's Group, a Client Contact or a Client Third Party Contact;
(b) “Restricted Period" means during the term of this Agreement and the period during and within 12 months from the expiry or termination of this Agreement; and
(c) if a Deemed Introduction occurs within the Restricted Period, the Client shall pay to the Company a Transfer Fee and the Transfer Fee shall be payable whether or not the provision of Services under this Agreement has commenced when the Deemed Introduction occurs, and no refund of the Transfer Fee shall be payable if such employment, engagement or arrangement terminates.
6.2 This clause 6.2 applies only if the Conduct Regulations do apply. If, following an Introduction, the Client wants an Engagement to commence within a period of twelve months from the date of the Introduction or an Engagement occurs within such period and the Supplier and/or the Consultant have/has not commenced provision of services via the Company, the Client shall notify the Company and pay to the Company the Transfer Fee, unless the Client elects by written notice to the Company to engage the Company to arrange for the Supplier and/or the Consultant to provide the required services, under and in accordance with the terms of this Agreement, for the Hire Period.
6.3 This clause 6.3 applies only if the Conduct Regulations do apply. If the Supplier (where the Supplier is sole trader) and/or the Consultant have/has commenced provision of the Services via the Company and the Client notifies the Company that it wants an Engagement to commence within the Relevant Period and an Engagement does so commence or an Engagement occurs within the Relevant Period, the Client shall notify the Company and pay to the Company the Transfer Fee, unless the Client elects by written notice to the Company to engage the Company to arrange for that Supplier and/or Consultant to provide the Services, on terms similar to those contained in this Agreement and no less favourable to the Client than those which applied immediately before the Company received such notice, for the Extended Hire Period.
6.4 This clause 6.4 applies only if the Conduct Regulations do apply. If the Client gives the Company written notice of election in accordance with the provisions of clause 6.2 or clause 6.3 and the Company does not supply the relevant services for the duration of the Hire Period or the Extended Hire Period (as appropriate) and the Company is in no way at fault (including, without limitation, if an Engagement occurs or the Supplier (where the Supplier is a sole trader) and/or the Consultant (as appropriate) does not agree to provide services via the Company for the Hire Period or the Extended Hire Period (as appropriate)), the Client shall, if an Engagement occurs within the Relevant Period, pay to the Company such proportion of the Transfer Fee as equates to the proportion of the Hire Period or Extended Hire Period (as appropriate) during which the Company does not supply the Services.
6.5 This clause 6.5 applies only if the Conduct Regulations do apply. No refund of the Transfer Fee shall be payable if the Engagement terminates.
6.6 This clause 6.6 applies only if the Conduct Regulations do apply. If the Client introduces the Supplier (where the Supplier is a sole trader) and/or the Consultant to a third party who is not an employment business (including, without limitation, any member of the Client's Group or any client of or supplier to the Client's Group) and such third party employs or otherwise engages, directly or indirectly (other than via the Company), that Supplier and/or Consultant and:
(a) if that Supplier and/or Consultant have/has at any time provided services to the Client via the Company, within the Relevant Period; or
(b) if that Supplier and/or Consultant have/has not so supplied services, within a period of twelve months from the date of such introduction,
the Client shall pay to the Company the Transfer Fee and no refund of the Transfer Fee shall be payable if any such employment or engagement terminates.
7.1 This Agreement shall continue unless terminated:
(a) by written notice with immediate effect by the Company if there is any breach of this Agreement by the Client, which is, in the reasonable opinion of the Company, incapable of being remedied or if the Client is entitled to terminate this Agreement pursuant to clause 5; or
(b) by no less than 5 Business Days' written notice by the Company if there is any other serious or repeated breach of this Agreement by the Client, which is, in the reasonable opinion of the Company, capable of remedy and which is not remedied within 10 Business Days after an earlier notice requiring it to do so; or
(c) by written notice with immediate effect by the Company and without liability for the Company or prejudice to any right for relief the Company may have if in good faith the Company forms the opinion for any reason that: (i) the Client may not meet its obligations to the Company; or (ii) the Supplier/Consultant may no longer be willing, or able or suitable to undertake the Services for the Client; or
(d) by written notice with immediate effect by either party if that party shall become unable to commence, continue or completely perform its obligations under this Agreement by reason of illness, injury, other incapacity or by reason of Force Majeure affecting that party, which is not within that party's reasonable control; or
(e) by written notice with immediate effect by either party if either party shall: become insolvent within the meaning of the Insolvency Act 1986, becomes bankrupt, apply for, or have made against it or him a receiving order, or makes any composition with its creditors or an administration order or if an order is made or resolution passed for the winding up of either party or either party passes a resolution to cease trading or actually ceases trading; or
(f) by written notice with immediate effect by the Company if the Client refuses to give the Company any relevant Information (and/or gives the Company incorrect Information) required for the Company and/or the Client to comply with their AWR duties pursuant to clauses 12.2 and/or 12.3.
8. Acknowledgements and Liability
8.1 Nothing contained in this Agreement shall in any way constitute:
(a) (where there is a Supplier,) the Supplier or the Consultant as the employee(s) or worker(s) of the Company or the Client; or
(b) (where there is no Supplier,) the Consultant as the employee of the Company or the employee of the Client, and the Company confirms that the Supplier, or (where there is no Supplier) the Consultant, is engaged under a contract for services (in respect of which, without limitation, the Client does not supervise and/or have the right to control the actions of the Supplier or the Consultant in the way that it would if an employment relationship existed). Where the temporary resource is a PSC Contractor or sole trader, the Company and the Client acknowledge that the PSC Contractor or sole trader offers their services on an independent business to business basis and accordingly neither the Client nor the Company supervises and/or has the right to control the actions of the PSC Contractor or sole trader in the way that it would if an employment or worker relationship existed. If the Client does supervise and direct any PSC Contractor and/or sole trader, the Client shall immediately notify the Company of that fact.
8.2 Subject to clause 8.8, each party’s liability to each other under this Agreement in respect of any indemnity, breach of this Agreement, breach of statutory duty, claims in tort (including negligence) or otherwise shall be limited to one million pounds (£1,000,000).
8.3 The parties acknowledge that the Company is not obliged to put the Supplier and/or the Consultant forward for consideration by the Client for the provision of services and the Supplier and/or the Consultant is not obliged to provide services to the Client beyond the termination of this Agreement.
8.4 The Client acknowledges that the Company is in the business of providing resourcing services which comprise the sourcing and introduction of suitable service suppliers to the Client and the contractual arrangements for the provision of their services to the Client. Whilst every effort is made by the Company to ensure a reasonable standard of skill, integrity and reliability from the Supplier/Consultant and to provide the Supplier/Consultant in accordance with the Client's requirements, the Company cannot accept responsibility for the quality of the Services provided by the Supplier and the Consultant or their activities while at the Location(s). Accordingly the Company's liability is limited as set out in this clause 8.
8.5 The Client acknowledges that the Company shall not be responsible for supervising, monitoring or directing the Supplier(s) and/or Consultant(s) whilst working on Assignment and that accordingly, only the Client is in a position to assess and insure against risks in respect of or during or arising out of the period for which the Supplier and/or the Consultant is performing the Services. However, where a temporary resource is a PSC Contractor or sole trader, the Client and the Company acknowledge that the PSC Contractor or sole trader supplies its services in connection with this Agreement as an independent contractor and does not work under the supervision, control or direction of the Client or Company and accordingly neither the Client nor the Company is responsible for supervising, monitoring or directing the PSC Contractor or sole trader whilst working on Assignment.
8.6 The charges made by the Company reflect only those Supplier/Consultant sourcing, selection and introduction services agreed to be supplied by the Company and do not indicate acceptance of any liability for the Supplier's or the Consultant's acts or omissions.
8.7 Subject to clause 8.9, the Company shall not be liable for any Losses or delay arising from:
(a) any failure to provide the services of the Supplier and/or Consultant for all or part of the term of this Agreement;
(b) the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of the Supplier or the Consultant, including, without limitation, any lack of skill of the Supplier/Consultant; or
(c) theft of any data or materials or the negligent driving of the Supplier and/or Consultant.
8.8 The Company shall not be liable for any Losses arising out of:
(a) any act or omission or misrepresentation (whether before or after the date of this Agreement) of the Supplier or the Consultant;
(b) any special, indirect or consequential damages or loss; or
(c) any loss of profit, business, revenue, goodwill, anticipated savings and/or any claims made under third party contracts, arising out of any failure by the Company to perform any obligations under this Agreement.
8.9 Nothing in this Agreement shall operate to exclude or limit the Company's liability for:
(a) death or personal injury caused by the Company's negligence;
(b) its own fraudulent acts or omissions; or
(c) any other liability which cannot by law be excluded.
8.10 The Client shall indemnify and keep indemnified the Company against any direct, indirect or special losses, liabilities, damages, costs, awards, expenses (but excluding loss of profits, business or goodwill) incurred by the Company arising out of this Agreement and/or as a result of any breach of this Agreement by the Client.
9. Confidentiality and Intellectual Property
9.1 The Company undertakes to the Client that it shall, and shall require that the Supplier and the Consultant shall:
(a) keep confidential, all information relating to Work Results, Intellectual Property Rights in the Work Results and the Client's business and affairs (including, for the avoidance of doubt, Payment Rates ) ("Confidential Information") which may become known to it/them in connection with the supply of the Services; and
(b) require that the Supplier and the Consultant shall enter into any and all assignments of Intellectual Property Rights (relating to Work Results) or confidentiality undertakings that the Client may reasonably require it or them to enter into.
10. Data Protection
10.2 All Personal Data is provided by the Company (the controller) to the Client (a processor) solely for the purpose of an Introduction or an Engagement. Where the Client intends to process any Personal Data for any other purpose or by any means other than under the written instructions of the Company, it will assume responsibility of such data as the controller and must ensure that it complies with its obligations as a controller under the Data Protection Legislation (including having a legal basis for processing and providing any notices and obtaining an consents necessary).
10.3 Personal Data must not be used by the Client for any other purpose nor divulged to any third party or outside the EEA. The Client will (and will procure that any of its directors, officers, employees and any permitted agents, licensee and contractors will) process Personal Data only on the written instructions of the Company and comply with: (i) all applicable obligations and requirements under the Data Protection Legislation; and (ii) any reasonable request from the Company in relation to Personal Data and the Data Protection Legislation, including in relation to any complaint, request, breach, audit (and shall maintain a record of any processing and retain and make available all information required to demonstrate compliance with the Data Protection Legislation). This term is an addition to, and does not relieve, remove or replace a party’s obligations under the Data Protection Legislation.
10.4 The Client will not knowingly or negligently do or omit to do anything which places the Company in breach of its obligations under the Data Protection Legislation, and indemnifies and holds harmless the Company against any loss, actions, costs, expenses, claims, proceedings and demands arising as a result of such breach or otherwise under the Data Protection Legislation so far as it is caused by any action or omission of the Client. The Client will notify the Company immediately if it becomes aware of or reasonably suspects a breach of this term [ ] 10 or if it considers that an instruction of the Company would result in a breach of the Data Protection Legislation.
10.5 The Client will ensure it has an appropriate legal basis to allow the processing and disclosure of Personal Data and the Company will ensure that it has provided any notices, and obtained any consents, necessary for the lawful transfer of Personal Data to the Client. On termination or expiry of an agreement subject to these terms, the Client shall, at the choice of the Company delete or return to the Company, all Personal Data and copies thereof that it has within its power, ownership or control, and ensure that any such return or deletion is carried out securely and in accordance with current best practice.
11.1 The Client acknowledges and agrees that the Company will not tolerate bribery in any form in connection with the conduct of its business.
11.2 The Client shall:
(a) comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption ("Anti-Bribery Laws"), including without limitation the Bribery Act 2010;
(b) not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the United Kingdom;
(c) comply with the Company's anti-bribery policy as provided by the Company from time to time and as updated by the Company or the relevant industry body from time to time ("Anti-Bribery Policies");
(d) not do, or omit to do, any act that will cause the Company to be in breach of the Anti-Bribery Laws or the Anti-Bribery Policies;
(e) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of this Agreement; and
(f) maintain throughout the term of this Agreement its own anti-bribery policies and procedures including without limitation adequate procedures under the Bribery Act 2010 to ensure compliance with the Anti-Bribery Laws, the Anti-Bribery Policies, shall provide a copy of such policies and procedures to the Company on request, and shall enforce such policies and procedures where appropriate. For the purpose of this clause 11.2(f), the meaning of adequate procedures shall be determined in accordance with section 7(2) of the Bribery Act 2010 and any guidance issued under section 9 of the Bribery Act 2010.
11.3 The Client shall promptly notify the Company if, at any time during the term of this Agreement, its circumstances, knowledge or awareness changes such that it would not be able to repeat the warranties set out in clause 11.2.
11.4 Breach of this clause 11 shall be deemed a material breach of this Agreement.
11.5 The Client shall indemnify the Company against any losses, liabilities, damages, costs and expenses incurred by the Company as a result of any breach of this clause 11 by the Client (including any consequential loss or damage).
12.1 For the purposes of this clause, the following definitions shall apply:
"Agency Worker" has the meaning given under Regulation 3(1) of the AWR;
"Comparable Terms" means the basic and working employment conditions of an individual as of Day One Of The Relevant Qualifying Period to which an individual would be entitled (including Pay, duration of working time, night work rest periods, rest breaks and annual leave) if they were employed or engaged directly by the Client (including any variations in those relevant terms and conditions made at any time after Day One Of The Relevant Qualifying Period);
"Comparator Pay" means the Pay to which a Deemed Comparator would be entitled;
"Day One Of The Relevant Qualifying Period" means the first day on which the relevant Agency Worker starts work on an Assignment which continues for 12 calendar weeks or more such that the Agency Worker completes the qualifying period in accordance with Regulation 7 of the AWR;
"Deemed Comparator" means any "comparable employee" within the meaning of Regulation 5(4) of the AWR and including any individual working for and under the supervision and direction of the Client and engaged in the same or broadly similar work as the relevant Temporary Resource having regard, where necessary, to whether they have the same level of qualification and skills;
"Information" means any information, including but not limited to Comparable Terms (including an explanation of the basis on which it is considered that the individual identified as a Deemed Comparator is considered to be a comparable employee) which may help either party to this Agreement comply with their obligations under the AWR;
"Pay" means "pay" as defined under Regulation 6(2) of the AWR;
"Temporary Resource" means a Consultant or (where the Supplier is a sole trader) Supplier.
12.2 The Company and the Client shall each comply with their obligations under the AWR and each party shall cooperate fully with the other in connection with the AWR. In particular, the Client shall provide the Company on a timely basis, with such Information as the Company shall reasonably request from the Client to enable the Company to comply with or otherwise evidence the Company's and/or the Client's compliance with the AWR and:
(a) the Client warrants that any Information it provides or has already provided to the Company is correct and up to date and that it will notify the Company as soon as possible in writing if the Client becomes aware that the Information is incorrect or out of date; and
(b) the Client will indemnify the Company for any Losses arising directly or indirectly from the Client: (a) refusing to provide the Company with Information; or (b) providing incorrect and/or out of date Information; or (c) failing to update the information on a timely basis.
12.3 The Company and the Client acknowledge and agree that whether or not a Temporary Resource has rights as an Agency Worker will depend on the facts of that particular supply but as a general rule any Temporary Worker will not be an Agency Worker if they:
(a) are not working under the supervision and direction of the Client (or the Company); or
(b) do not have a contract of employment, or any other contract with the Company to perform work and services personally; or
(c) carry on a profession and/or their own business undertaking which has the effect that the Client and/or the Company are customers or clients of the individual's business,
in which case the Temporary Resource is not an Agency Worker ("Consultant Outside the Scope of the AWR").
12.4 For the avoidance of doubt and in accordance with Regulations 12 and 13 of the AWR, the Client will solely be liable for any breaches of any rights under the AWR applicable from the first day of an Assignment but the Company shall use all reasonable endeavours to assist the Client in relation to such compliance.
12.5 Once the Company is provided with accurate and full Information including without being limited to Comparator Pay and the Company agrees to continue to supply that Agency Worker, the Company shall use its reasonable endeavours to agree a fair market rate for the supply of the Services and the recruitment services, although this may from time to time mean that the Payment Rate has to be increased.
12.6 The Company reserves the right to refuse to make a supply of an Agency worker where the Company has reason to believe that the Payment Rate will (after deduction of the Company's normal recruitment services fee or Normal Margin) be less than the relevant Comparator Pay;
12.7 The Company reserves its right to terminate or, where the Assignment has not yet commenced, withdraw from the relevant Assignment without liability and with immediate effect, if the Payment Rate the Client requires would (after deduction of the Company's normal recruitment services fee or Normal Margin) result in a breach of the AWR.
12.8 Where the Company supplies Consultants Outside the Scope of the AWR the Client shall use all reasonable endeavours to ensure it does not seek to control, give direction to or supervise such individuals. Accordingly, the Client and the Company acknowledge and agree that the services of PSC Contractors and sole traders are engaged on the basis that relevant individuals are independent contractors and as such without rights under the AWR. If and when:
(a) the Client, who has day to day contact with PSC Contractors and sole traders (and is therefore best placed to assess this), considers that it is exercising supervision and direction over such PSC Contractors and/or sole traders; or
(b) the Company notifies the Client that it considers that the status of a PSC Contractor or sole trader may not be as represented or that the type of work involved does not lend itself to an independent supply,then the Client shall provide the Company with Information in relation to the Deemed Comparator and the provisions set out in 12.2 above shall apply. The Company reserves the right to request an increase in the Payment Rates to allow for Comparable Pay to be paid if Information reveals that the Payment Rate (after deduction of the Company's normal recruitment services fee) is less than the Comparable Rate. If the Client does not agree to such an increase the Assignment may be terminated (pursuant to clause 7.1(g)) by the Company without liability and with immediate effect.
12.9 The Client shall immediately notify the Company if it receives any complaint, request for information or claim from a Temporary Resource relating to Payment Rate (after deduction of the Company's normal recruitment services fee) or any other rights claimed under the AWR. The parties shall work and co-operate together to respond to and resolve any such complaints or claims. The Client undertakes to provide the Company with any further Information it may request in order to respond to any such complaint, request for information or claim.
13.1 This clause 13.1 applies only if the Conduct Regulations do apply. For the purposes of the Conduct Regulations, the Company shall operate as an employment business in relation to the Client (except where any permanent placement results from the Company's introduction(s) to the Client, in which case the Company shall act as an employment agency).
13.2 This Agreement together with each Assignment Schedule agreed by the parties and any agreement between the parties relating to credit terms pursuant to clause 4.2 constitute the entire agreement between the parties and supersede all previous agreements and arrangements (if any) whether written, oral or implied between the Company and the Client relating to the Services and all such agreements still effective at the date of this Agreement (if any) shall be deemed to have been terminated by mutual consent with effect from the Start Date but without prejudice to any rights which have arisen prior to such termination and so that nothing in this clause 13.2 shall operate to exclude or limit the liability of any party in respect of fraud.
13.3 The Client acknowledges that, in entering into this Agreement, it has not relied on any representations by the Company, the Supplier or the Consultant made before the execution of this Agreement other than those expressly set out in this Agreement.
13.4 This Agreement is personal to the Client and the Client shall not be entitled to assign or sub-contract its obligations or rights under this Agreement to any third party without the prior written consent of the Company. The Company shall however be entitled to assign this Agreement to any member of the Company's Group and, upon such assignment, without prejudice to the assignor's rights in respect of matters arising prior to such assignment; all references to the Company shall be deemed to refer to the assignee.
13.5 This clause 13.5 applies only if the Conduct Regulations do apply. Any assignment of this Agreement by the Company in accordance with clause 13.4 shall be subject to the Client's prior consent (such consent not to be unreasonably withheld or delayed).
13.6 Time is of the essence for all times, dates and periods specified in this Agreement.
13.7 No amendment to this Agreement is effective unless it is in writing and signed on behalf of each party by a person duly authorised by that party.
13.8 Any notice required to be given under this Agreement (including the delivery of any timesheet or invoice) shall be in writing signed by a person duly authorised by the sending party and delivered by hand, sent by facsimile, e-mail or prepaid first class post to the recipient at its fax number or address specified in this Agreement (or as otherwise notified from time to time to the sender by the recipient for the purposes of this Agreement).
13.9 This Agreement shall be governed by and construed in all respects in accordance with English law and the Courts of England and Wales shall have exclusive jurisdiction.
13.10 If any provision or any part of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
(a) such provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected; and
(b) to the extent permitted by law, the Company and the Client shall negotiate in good faith a replacement to any provision severed under clause 13.10(a) by a provision which is of similar effect but which is not illegal or unenforceable.
13.11 None of the provisions of this Agreement is intended to be for the benefit of, or enforceable by third parties (other than permitted assignees of the Company who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
14. Application of the Conduct Regulations to this Agreement
14.1 If (as indicated in the relevant Assignment Schedule) the Supplier and the Consultant have Opted Out of the Conduct Regulations; or the Supplier is a self-employed consultant supplying his/her services on a sole trader basis under contract with the Company, then all clauses in this Agreement commencing "applies only if the Conduct Regulations do apply", namely clauses 6.2, 6.3, 6.4, 6.5, 6.6, 13.1, and 13.5, shall not apply.
14.2 If (as indicated in the Assignment Schedule) the Supplier and the Consultant have not Opted Out; or such Opt Out is withdrawn, then clause 6.1 shall not apply.
14.3 If there is no company supplier through which the Consultant is providing the Services, there is no entitlement under the Conduct Regulations for the Consultant to Opt Out and accordingly clause 6.1 shall not apply.
14.4 It is not accepted that PSC Contractors work or shall work for and under the control of the Client but as a matter of established industry practice some PSC Contractors together with their limited companies choose to Opt Out of the Conduct Regulations.
Pursuant to clause 1.6 above, no signatures are required to enforce the validity of this Agreement.