EMPLOYER TERMS OF SERVICE

Employer Terms of Service

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LiveRec, LLC. Employer Terms of Service

Introduction of Candidates to Clients for Direct Employment/Engagement

Definitions

1.1 In these Terms –

“Client” means the person, firm or corporate body to whom Employment Agency Introduces a Candidate;

“Candidate” means the person Introduced by Employment Agency to Client including, but not limited to, any officer or employee of the Candidate if the Candidate is a limited company, any member or employee of the Candidate if the Candidate is a limited liability partnership, and members of Employment Agency’s own staff;

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations (as amended);

“Data Controller” means (i) “data controller” in the Data Protection Act in respect of processing undertaken; and (b) “controller” in accordance with the General Data Protection Regulation in respect of processing undertaken;

“Data Protection Legislation” means all applicable laws and regulations, as amended or updated from time to time, in the United States relating to data protection, the processing of personal data and privacy, including without limitation,(a) the Data Protection Act ; (b) the General Data Protection Regulation; (c) the Privacy and Electronic Communications Regulations (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United States law the General Data Protection Regulation, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy resulting from the United States;

“Engagement” means the engagement, employment or use of the Candidate by Client or by any Third Party to whom or to which the Candidate was Introduced by Client (whether with or without Employment Agency’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which the Candidate is an officer or employee or through a limited liability partnership of which the Candidate is a member or employee; or indirectly through another company and “Engages” and “Engaged” will be construed accordingly;

“Introduction” means –

the passing of a curriculum vitæ or information about the Candidate; or

the interview of a Candidate in person or by telephone

and the time of the Introduction will be taken to be the earlier of (a) and (b) above; and “Introduced” and “Introduces” will be construed accordingly;

“Personal Data” means as set out in, and will be interpreted in accordance with Data Protection Legislation;

“Personal Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with these Terms or which relates to any Candidate;

“Process” means as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly;

“Remuneration” includes base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, shift allowances, location weighting and call-out allowances, the benefit of a company car and all other payments or emoluments payable to or receivable by the Candidate for work (or for services where applicable) to be rendered to or on behalf of Client. Where Client provides a company car, a notional amount of $5,000 will be added to the salary in order to calculate Employment Agency’s fee;

“Terms” means these terms of business as further defined within clause 2;

“Third Party” means any company or person who is not Client. For the avoidance of doubt, subsidiary and associated companies of Client (as defined by the Companies Act and the Income and Corporation Taxes Act respectively) are included (without limitation) within this definition; and

“Vacancy” means a specific role/s, work or position that Client requests Employment Agency to submit person for consideration for such role/s work or position.

These Terms

2.1 These Terms constitute the entire agreement between Employment Agency and Client in relation to the subject matter hereof and are deemed to be accepted by Client and to apply by virtue of (a) an Introduction to Client of a Candidate; or (b) the Engagement by Client of a Candidate; or (c) the passing of information about the Candidate by Client to any Third Party; or (d) Client’s interview or request to interview a Candidate; or (e) Client’s signature at the end of these Terms; or (f) any other written expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not the Candidate is Engaged by Client for the same type of work and/or Vacancy as that for which the Introduction was originally effected.

2.2 These Terms supersede all previous agreements between the parties in relation to the subject matter hereof.

2.3 These Terms prevail over any other terms of business or purchase conditions put forward by Client save where expressly agreed otherwise by Employment Agency.

2.4 Client authorizes Employment Agency to act on its behalf in seeking a person to meet Client’s requirements and, if Client so requests, shall advertise for such a person through such methods as are agreed with Client and at Client’s expense.

2.5 For the purposes of these Terms, Employment Agency acts as an employment agency as defined within the Conduct Regulations.

Obligations of Employment Agency

3.1 Employment Agency shall use reasonable endeavours to introduce at least one suitable person to meet the requirements of Client for each Vacancy. Employment Agency cannot guarantee to find a suitable person for each Vacancy. Without prejudice to clause 3.2 below, Employment Agency shall use reasonable endeavours to ascertain that the information provided by Employment Agency to Client in respect of the Candidate is accurate.

3.2 Employment Agency accepts no responsibility in respect of matters outside its knowledge and Client must satisfy itself as to the suitability of the Candidate.

Client Obligations

4.1 Client shall satisfy itself as to the suitability of the Candidate. Client is responsible for obtaining work permits and/or such other permission to work as may be required, for the arrangement of medical examinations and/or investigations into the medical history of any Candidate, for criminal records and/or background checks and for satisfying other requirements, qualifications or permission required by the law and regulations of the country in which the Candidate is engaged to work.

4.2 To enable Employment Agency to comply with its obligations under clause 3 Client undertakes to provide to Employment Agency details of the position which Client seeks to fill, including the type of work that the Candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorization which Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position; and any risks to health or safety known to Client and what steps Client has taken to prevent or control such risks.

4.4 Client agrees that it shall inform Employment Agency of any information it has that suggests it would be detrimental to the interests of either Client or the Candidate for the Candidate to work in the position which Client seeks to fill.

4.5 Client agrees to provide written notice to Employment Agency within 3 working days where it receives details of a Candidate from Employment Agency which it has already received from (a) another company; or (b) a person; or (c) the Candidate; or (d) any other source including (without limitation) from social media, job boards or advertisements placed by Client. Client further agrees that if no such notice is given by Client to Employment Agency then in the event of an Engagement of the Candidate by Client, howsoever arising, Client agrees to pay Employment Agency a fee in accordance with clause 5.2.

4.6 Where Client does so notify Employment Agency in accordance with clause 4.5 above and whereupon Client provides evidence to Employment Agency that such receipt of details by Client is in direct relation to the Vacancy, Client will not be liable to pay Employment Agency a fee for that Candidate in respect of the Vacancy. Client acknowledges and agrees that where Client is unable to evidence such or freely admits their possession of the Candidate’s details was not in relation to the Vacancy, Client agrees to pay Employment Agency’s fee in accordance with clause 5.2.

4.7 Client agrees to –

a) notify Employment Agency as soon as possible (and in any event, no later than 7 days from the date of offer or from the date the Engagement takes effect; whichever is earlier) of any offer of an Engagement which it makes to the Candidate; and
b) notify Employment Agency immediately when its offer of an Engagement to the Candidate has been accepted and to provide details of the Candidate’s Remuneration to Employment Agency; and
c) pay Employment Agency’s fee within the period set out under clause 6.2.

4.8 Client shall not, and shall not seek to cause Employment Agency to, unlawfully discriminate in relation to the services provided by Employment Agency to Client in connection with these Terms and shall disclose any and all information requested by Employment Agency in the event a Candidate makes a complaint to Employment Agency.

4.9 Client warrants that it shall not, and shall procure that its employees and agents shall not, pass any information concerning a Candidate to any Third Party. Client acknowledges that Introductions of Candidates are confidential and that failure to comply with this clause 4.9 may cause Employment Agency to breach the Conduct Regulations and/or the Data Protection Legislation and accordingly, Client agrees to indemnify Employment Agency from any and all liability in connection with Client’s breach of this clause 4.9.

Charges/Fees

5.1 Where Client discloses to a Third Party any details regarding a Candidate and that Third Party subsequently Engages the Candidate within 12 months from the date of the Introduction, Client agrees to pay Employment Agency’s fee as set out in clause 5.3. There is no entitlement to any rebate or refund to Client or to the Third Party in relation to fees paid in accordance with this clause 5.1.

5.2 Client agrees to pay Employment Agency a fee calculated in accordance with clause 5.3 where it Engages, whether directly or indirectly, any Candidate within 12 months from the date of Employment Agency’s Introduction.

5.3 The fee will be calculated as a percentage of the Candidate’s Remuneration applicable during the first 12 months of the Engagement (as set out in the table below). Employment Agency will charge VAT on the fee where applicable.

Candidate’s Remuneration	Percentage payable as the Fee
$0 to $29,999	20.0%
$30,000 to $44,999	22.5%
$45,000 to $59,999	25.0%
$60,000 to $74,999	27.5%
$75,000 and above	30.0%

5.4 Where the amount of the actual Remuneration is not known or disclosed, Employment Agency will charge a fee calculated in accordance with clause 5.3 on the maximum level of remuneration applicable –

a) for the Vacancy; or
b) for the type of position the Candidate had been originally submitted by Employment Agency to Client for; or
c) for a comparable position in the general marketplace.

5.5 Where the Engagement is for a fixed term of less than 12 months, the fee in clause 5.3 will apply pro-rata. Where the Engagement is extended beyond the initial fixed term or where Client re-Engages the Candidate within 6 months from the date of planned or actual termination (as applicable) of the first Engagement, Client shall pay a further fee based on the Remuneration applicable for the period of Engagement following the initial fixed term period up to the termination of the second Engagement calculated in accordance with clause 5.3.

5.6 Where Client withdraws an offer of an Engagement made to the Candidate, Client agrees to pay Employment Agency a minimum fee of 5 % of the Remuneration for the services provided by Employment Agency prior to Client’s withdrawal. Client further agrees to indemnify and hold harmless Employment Agency from any all liability in connection with Client’s withdrawal of such an offer.

5.7 Charges incurred by Employment Agency at Client’s written request in respect of advertising or any other matters will be charged to Client in addition to the fee and such charges will be payable whether or not the Candidate is Engaged.

5.8 Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to Employment Agency under or in connection with these Terms.

Invoices

6.1 Except in the circumstances set out in clause 5.1, 5.6 and 5.7 no fee is incurred by Client until the Candidate commences the Engagement; whereupon Employment Agency will render an invoice to Client for its fees.

6.2 Employment Agency shall raise invoices in respect of the charges payable and Client agrees to pay the amount due within 30 days of the date of the invoice.

6.3 All invoices will be deemed to be accepted in full by Client in accordance with the payment terms stated within clause 6.2 unless Client notifies Employment Agency, in writing within 5 days of receiving the invoice, stating the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify Employment Agency that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with Employment Agency in order to resolve the dispute as quickly as possible.

Rebates

7.1 Where Client qualifies for a rebate in accordance with clause 7.2, and the employment of the Candidate is terminated by Client or by the Candidate within the time periods specified below, Client will be entitled to a rebate of the introduction fee as follows –

Duration of Employment	Percentage payable of fee to be rebated
Less than 1 week	100%
1 week to less than 2 weeks	90%
2 week to less than 3 weeks	80%
3 week to less than 4 weeks	70%
4 week to less than 5 weeks	60%
5 week to less than 6 weeks	50%
6 week to less than 7 weeks	40%
7 week to less than 8 weeks	30%
8 week to less than 9 weeks	20%
9 week to less than 10 weeks	10%
10 weeks or more	nil

7.2 The following conditions must be met in order for Client to qualify for a rebate –

a) Client must notify Employment Agency that the Candidate’s employment has ended within 7 days of the employment ending or within 7 days of notice being given to end the employment (whichever is earlier) together with a reason for the premature end of the employment;
b) Employment Agency’s invoice for the fee must have been paid within the payment terms in accordance with clause 6.2;
c) the Candidate’s employment is not terminated by reason of redundancy or re-organisation or change in strategy of Client;
d) the Candidate’s employment is not terminated by reason of poor performance prior to the completion of any induction or training period;
e) if the Candidate’s employment is terminated by reason of misconduct, rebate is only due where such misconduct was reasonably foreseeable by Employment Agency;
f) the Candidate did not leave the employment because he/she reasonably believed that the nature of the actual work was substantially different from the information Client provided prior to the Candidate’s acceptance of the employment;
g) the Candidate did not leave the employment as a result of discrimination or other acts against the Candidate; and
h) the Candidate was not at any time in the 12 months prior to the start of the employment employed or hired (whether on a permanent or contract basis, directly or indirectly) by Client.

7.3 Where Client re-engages the Candidate on an employment, worker or indirect (via a Third Party) basis, Client agrees that any rebate paid to Client under clause 7.1 in respect of that Candidate, will be immediately repaid to Employment Agency by Client.

Liability and Indemnity

8.1 Employment Agency shall use reasonable endeavours to ensure Candidate has the required standard of skill, experience and necessary qualifications as stated in the Vacancy; nevertheless, Employment Agency is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of Employment Agency or of Candidate to evidence such to Client nor for any negligence whether willful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill, experience or qualifications of Candidate.

8.2 Employment Agency is not liable for any indirect or consequential losses or damage including but not limited to; loss of profits, revenue, goodwill, anticipated savings or for claims by third parties arising out of Employment Agency’s performance or failure to perform any of its obligations in these Terms.

8.3 Notwithstanding clause 8.2 above, nothing in these Terms will be deemed to exclude or restrict any liability of Employment Agency to Client for personal injury, death or fraud directly caused by Employment Agency.

8.4 Employment Agency shall not be liable for failure to perform its obligations under these Terms if such failure results by reason of any cause beyond its reasonable control.

8.5 Client will indemnify and keep indemnified Employment Agency against any costs (including legal costs), claims or liabilities incurred directly or indirectly by Employment Agency arising out of or in connection with these Terms including (without limitation) as a result of –

a) any breach of these Terms by Client or by its employees or agents;
b) any breach by Client or by Third Party, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation, the Conduct Regulations and Data Protection Legislation); or
c) any unauthorised disclosure of a Candidate details by Client or by Third Party, or any of its employees or agents.

8.6 Save as required by law, the sole aggregate liability of Employment Agency arising out of or in connection with these Terms is limited to $10,000.00.

Termination

9.1 These Terms may be terminated by either party by giving to the other immediate notice in the event that either Employment Agency or Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where Employment Agency has reasonable grounds to believe Client will not pay Employment Agency’s invoice within the payment terms agreed within clause 6.2.

9.2 These Terms may be terminated by either party for convenience by serving 3 months notice in writing.

9.3 Without prejudice to any rights accrued prior to termination, the obligations within clauses 1, 4.9, 5, 6, 7.3, 8, 11, 12, 13, 14, 15 and 16 will remain in force beyond the cessation or other termination (howsoever arising) of these Terms.

Equal Opportunities

10.1 Employment Agency is committed to equal opportunities and expects Client to comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.

Confidentiality

11.1 All information contained within these Terms will remain confidential and Client shall not divulge it to any Third Party save for its own employees and professional advisers and as may be required by law.

11.2 Client shall not without the prior written consent of Employment Agency provide any information in respect of a Candidate to any Third Party whether for employment purposes or otherwise.

Data Protection

12.1 For the purposes of this clause 12 “Data Subject” means as set out in, and will be interpreted in accordance with Data Protection Legislation. For the avoidance of doubt, Data Subject includes Candidate.

12.2 The parties hereto acknowledge that Employment Agency is a Data Controller in respect of the Personal Data of Candidate and provides such Personal Data to Client in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.

12.3 The parties hereto acknowledge that Client is a Data Controller but the parties hereto are not Joint Controllers (as defined within Data Protection Legislation) save where a specific agreement is made to that effect between the parties hereto.

12.4 The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, Employment Agency or by Candidate, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.

12.5 The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.

12.6 Client will –

a) comply with the instruction of the Employment Agency as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by Employment Agency, Client will set out their legal basis for the request of such data and accept that Employment Agency may refuse to share/transfer such Personal Data where, in the reasonable opinion of Employment Agency, it does not comply with its obligations in accordance with Data Protection Legislation;
b) not cause Employment Agency to breach any of their obligations under the Data Protection Legislation.

12.7 In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify Employment Agency and will provide Employment Agency with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information the Employment Agency reasonably requests relating to the Personal Data Breach.

12.8 In the event of a Personal Data Breach, Client will promptly (at its own expense) provide such information, assistance and cooperation and do such things as Employment Agency may request to –

a) investigate and defend any claim or regulatory investigation;
b) mitigate, remedy and/or rectify such breach; and
c) prevent future breaches.

and will provide Employment Agency with details in writing of all such steps taken.

12.9 Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of Employment Agency.

12.10 Client agrees it will only Process Personal Data of Candidate for the agreed purpose that is introduction for a Vacancy pursuant to these Terms.

12.11 Client will provide evidence of compliance with clause 12 upon request from Employment Agency.

12.12 Client will indemnify and keep indemnified Employment Agency against any costs, claims or liabilities incurred directly or indirectly by Employment Agency arising out of or in connection with any failure to comply with clause 12.

General

13.1 Any failure by the Employment Agency to enforce at any particular time any one or more of these Terms will not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.

13.2 Headings contained in these Terms are for reference purposes only and will not affect the intended meanings of the clauses to which they relate.

13.3 No provision of these Terms will be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act .

13.4 If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms will remain in full force and effect to the extent permitted by law.

13.5 Any reference to legislation, statute, act or regulation will include any revisions, re-enactments or amendments that may be made from time to time.

Notices

14.1 Any notice required to be given under these Terms (including the delivery of any information or invoice) will be delivered by hand, sent by facsimile, e-mail or prepaid first class post to the recipient at its fax number or address specified in these Terms (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms).

14.2 Notices will be deemed to have been given and served –

a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 10.00am on the next business day after the day of delivery; or
b) if sent by facsimile or e-mail, at the time of dispatch if dispatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of dispatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
c) if sent by prepaid first class post, 48 hours from the time of posting.
Variation

15.1 No variation or alteration of these Terms will be valid unless approved in writing by Client and Employment Agency.

Applicable Law

16.1 These Terms will be construed in accordance with US Law and the parties submit to the exclusive jurisdiction of the Courts of the US.

Supply of Contractor Services to Clients

Definitions

1.1 In these Terms –

“Agency Worker” means Representative who works temporarily for and under the supervision and direction of Client and/or End User, as is further defined within the AWR;

“Alternative Hire Period” means the period agreed within Contractor Schedule;

“Assignment” means the period during which Contractor renders the Services;

“AWR” means the Agency Workers Regulations (as amended);

“Candidate” means the person or company introduced by Employment Business to Client for an Engagement including, but not limited to, any officer or employee of Candidate if Candidate is a limited company, any member or employee of Candidate if Candidate is a limited liability partnership, and members of Employment Business’s own staff;

“Client” means the person, firm or corporate body together with any subsidiary or associated company (as defined by the Companies Act ) to whom Employment Business supplies or introduces Candidate and/or Contractor;

“Client Group” means Client, any corporate body of which Client is a subsidiary (as defined by the Companies Act ), any other subsidiary of such corporate body and any subsidiary of Client;

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations;

“Contractor” means the company who provide the Services;

“Contractor Schedule” means the schedule provided by Employment Business to Client confirming the details relating to Assignment;

“End User” means the company with whom Client has an agreement and who is the recipient of the Services;

“Engagement” means the engagement, employment or use of Candidate and/or Contractor by Client, by Client Group or by any third party to whom or to which Candidate and/or Contractor was introduced by Client (whether with or without Employment Business’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which Candidate is an officer or employee or through a limited liability partnership of which Candidate and/or Contractor is a member or employee; or indirectly through another employment business or company which holds itself out as such and “Engages” and “Engaged” will be construed accordingly;

“Introduced” means –

a) Client’s interview of a Candidate in person or by telephone or by any other audio or visual means; or
b) the passing to Client of a curriculum vitæ or information about Candidate;

whichever is earlier and “Introduces” and “Introduction” will be construed accordingly;

“Off-Payroll” means Income Tax (Earnings and Pensions) Act ;

“Opted-Out” means the notice given by Contractor and Representative in accordance with regulation of the Conduct Regulations; “Personal Data” means as set out in, and will be interpreted in accordance with Data Protection Legislation;

“Personal Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with these Terms or which relates to any Candidate and, where applicable, to any Representative;

“Process” means as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly;

“Qualifying Period” means as defined within regulation 7 of the AWR;

“Quarantine Period” means the “relevant period” as set out within regulation 10(5) of the Conduct Regulations, or the period stated within Contractor Schedule where Contractor has Opted-Out of the Conduct Regulations;

“Remuneration” means basic salary, shift or weighting allowances, guaranteed and/or anticipated bonus and commission earnings, car allowance and any other benefit or allowance;

“Representative” means employee, officer or representative of Contractor, specified in Contractor Schedule who renders the Services on behalf of Contractor;

“Services” means the services to be performed by Representative on behalf of Contractor pursuant to these Terms, as described in Contractor Schedule;

“Terms” means these terms of business and will include any Contractor Schedule issued pursuant to these terms of business; and

“Transfer Fee” means the fee set out within Contractor Schedule.

These Terms

2.1 These Terms are effective from date of issue to Client and supersede all previous terms of business issued by Employment Business.

2.2 These Terms will be deemed to be accepted by Client and to apply by virtue of (a) the passing of information about a Candidate to Client by Employment Business or (b) an Introduction to Client of, or the Engagement by Client of, a Candidate or (c) Client’s interview or request to interview a Candidate (including interview by video conferencing or by telephone) or (d) the signature by Client on a timesheet relating to services provided by Contractor or (e) Client’s signature at the end of these Terms or (f) any other written, expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not Candidate is Engaged by Client for the same type of work as that for which the Introduction was originally effected.

2.4 For the purposes of these Terms, Employment Business acts as an employment business as defined within the Conduct Regulations.

2.5 Client authorises Employment Business to act on its behalf in seeking Candidates and, if Client so requests, will advertise for Candidates through such methods as are agreed with Client.

2.7 Headings contained in these Terms are for reference purposes only and will not affect the intended meanings of the clauses to which they relate.

2.8 Unless the context otherwise requires, references to the singular include the plural and feminine includes masculine and vice versa.

Client Obligations

3.1 Client agrees to, and where applicable will ensure End User will, be responsible for providing the working environment for Representative and any necessary resources, tools and facilities, save where and to the extent Client agrees that such resources are to be provided by Contractor.

3.2 These Terms are personal to Client and will not be assigned by it without the prior written consent of Employment Business. For the avoidance of doubt, this restriction includes any assignment to any subsidiary, associated company or member of Client’s group.

3.3 Client undertakes to provide Employment Business with details of any specific health and safety risks in relation to the Services and Assignment, together with details of any steps taken to prevent or control such risks.

3.4 Client shall ensure that Representative works in a safe environment in accordance with a safe system of work. Client agrees to indemnify and keep indemnified Employment Business from and against all loss or liability suffered or incurred by Employment Business as a result of any claim by Contractor and/or Representative arising out of any injury or damage to his/her person or property suffered in the course of performing the Services.

3.5 Client undertakes to confirm in writing to Employment Business –

a) the date upon which Candidate is required to commence the provision of the Services; and
b) the expected duration of the Engagement; and
c) the nature of and/or specifics of the services required to be provided by Candidate; and
d) the location/s Candidate is expected to deliver the Services;
e) details of any applicable End User; and
f) the number of hours/days and any specific time-keeping and recording requirements Client expects of Contractor; and
g) any experience, training, qualifications, professional body authorizations that Client, the law or professional body requires Candidate to possess to provide the Services;
h) any expenses payable by or to Candidate;
i) any site regulations, IT access/security/usage policies, health and safety procedures and any other procedures or policies Client (or End User) requires Candidate to adhere to and will provide copies of any such policies/procedure to Employment Business, and
j) any health and safety risks and any steps taken to address those risks.

3.6 Client undertakes to notify Employment Business immediately of its, or of Client Group’s, or of End User’s, intention to –

a) engage a Candidate Introduced by Employment Business; or
b) extend Assignment of Representative or otherwise Engage directly or indirectly a Candidate/Representative Introduced and/or supplied via Employment Business; or
c) engage a Candidate and/or Representative on a permanent, contract or temporary basis or otherwise (including through another recruitment agency, employment business or limited company).

3.7 Where the AWR applies to Assignment, Client warrants that it will, from the start of Assignment, provide Agency Worker with –

a) information about relevant vacant posts with Client, or with End User where applicable; and
b) save where objectively justifiable, access to any and all collective facilities and amenities,

in the same manner as if Agency Worker were a direct worker or employee of Client, or of End User where applicable.

3.8 Upon request from Employment Business, Client undertakes to provide (without delay) to Employment Business accurate information about the working and employment conditions that are applicable to Client (or applicable to End User where relevant) whether by contract or by collective agreement or otherwise and shall include subsequent variations thereto, that relate to the Client’s (or to End User’s) employees and direct workers including (without limitation) –

a) the standard terms and conditions that apply to their employees and those that apply to their workers;
b) details relating to the application and calculation of, pay scales, bonuses, commission, overtime, shift allowance, unsocial hours allowance, hazardous duties, holiday pay, other related emoluments;
c) entitlements relating to annual leave, night work, rest periods, rest breaks;
d) benefits of monetary value including, without limitation, vouchers and stamps; and
e) any other information as may be required by Employment Business to comply with the AWR.

3.9 Where the AWR applies to Assignment, Client agrees that it will, upon request from Employment Business and without delay, provide accurate details relating to the working and employment conditions (as defined within regulation 5(2) and regulation 6 of the AWR) of Client’s (or of End User’s as is applicable) workers and/or employees who undertake the same or broadly similar work as that of Agency Worker during Assignment.

3.10 Where the AWR applies to Assignment and where applicable pursuant to information obtained under clause 3.9 above, Client will, and where applicable will ensure that End User will, apply the same or similar process as applied to assess Pay that is directly attributable to the amount or quality of the work done by Agency Worker. For the purposes of this clause “Pay” means as defined in regulation 6(2) of the AWR.

3.11 Where the AWR applies to Assignment and Agency Worker is pregnant, Client acknowledges and agrees that, following the Qualifying Period, Client will, and where applicable will procure that End User will, permit Agency Worker time off to attend ante-natal medical appointments and ante-natal classes.

3.12 Where the AWR applies to Assignment, Client acknowledges and agrees that, following the Qualifying Period and whereupon Agency Worker is unable to continue to provide some or all of the Services on maternity grounds due to reasons of health and safety, Client will, and where applicable will procure that End User will, undertake to make such reasonable adjustments as are necessary to allow Agency Worker to continue providing services for the duration of Assignment. For the avoidance of doubt, such reasonable adjustments will include provision of alternative work on terms no less favourable than those applicable during Assignment.

3.13 Client undertakes and agrees to immediately notify Employment Business where an Agency Worker has worked for Client/End User in the same or similar role as Assignment where, prior to the planned commencement of Assignment, such role is within the Qualifying Period.

3.14 Client warrants and undertakes that it will not, and where applicable will procure that End User will not, seek to deny Agency Worker’s entitlement to rights under the AWR by virtue of the structure of assignments and shall at all times comply with regulation 9 of the AWR.

3.15 Where Off-Payroll applies to Client, Client undertakes and agrees to assess the working practices of Services to be provided during Assignment and to notify Employment Business of the results of such assessment prior to the commencement of Assignment.

3.16 Where Off-Payroll applies to Client or applies to End User, Client undertakes and agrees to provide any information reasonably requested at any time by Employment Business promptly in order to assist Employment Business to comply with Off-Payroll.

3.18 Client warrants and undertakes that all information it provides to Employment Business under these Terms is true and accurate.

Employment Business’s Obligations

4.1 Employment Business shall use reasonable endeavours to introduce Candidates to Client who meet Client’s stated requirements.

4.2 Where Employment Business and Client have agreed that Employment Business will supply Client with the services of a particular Candidate, Employment Business will give Client a Contractor Schedule confirming the name of Contractor and Representative, the agreed pay rates/fees, duration of Assignment, description of the Services, notice periods and any other relevant details communicated and agreed between the parties.

4.3 Employment Business shall use reasonable endeavours to ensure that Contractor and Representative co-operates with Client and complies with all Client’s reasonable and lawful instructions.

4.4 Employment Business shall use reasonable endeavours to ensure that Contractor enters into an agreement which contains an obligation on Contractor and Representative to assign to Employment Business (for onward assignment to Client) or directly to Client (as directed by Client to Employment Business), Contractor’s and Representative’s intellectual property rights of whatever nature and, if capable of registration, whether registered or not, in all documents or other material and data or other information and processes provided or created by Contractor and Representative in the provision of the Services.

4.5 Employment Business shall use reasonable endeavours to ensure that Contractor enters into an agreement which contains an obligation on Contractor and Representative to keep confidential all confidential information of Client obtained during Assignment. For the purposes of this clause 4.5, confidential information is confidential if it is clearly marked confidential or if Client states it is confidential clearly in writing to Representative.

Charges/Fees

5.1 Client agrees to pay Employment Business’s charges for the Introduction of and for the services of Contractors/Candidates that are calculated as Contractors’/Candidates’ charge rate plus a service fee of 25% mark-up on Contractors/Candidates charge rate cost, unless otherwise set out in the relevant Contractor Schedule.

5.2 Signature by Client (or by End User where applicable) of timesheets or other verification of hours or days worked is confirmation of the amount of time worked by Representative and of satisfaction with the Services provided. Failure to sign/authorise the timesheet does not absolve Client of its obligation to pay the charges for the Services provided by Representative on behalf of Contractor.

5.3 If Client is unable to sign a timesheet (or other agreed method of verification of hours/days) produced for authentication by Representative because Client disputes the amount of time claimed, then Client will notify Employment Business within two working days from the presentation to the client of the claimed hours/days for verification and will co-operate fully and in a timely fashion with Employment Business, including providing documentary evidence of the hours/days worked by Representative, to enable Employment Business to establish what periods of time, if any, Representative worked.

5.4 With reference to clause 3.11, where such time off to attend ante-natal medical appointments and ante-natal classes falls within the normal working periods of Agency Worker during Assignment, Client agrees to pay Employment Business’s charges, in accordance with clause 5.1, for such periods whether by inclusion of such time on a timesheet or otherwise.

5.5 There are no refunds or rebates payable by Employment Business to Client (or to Client Group or, for the avoidance of doubt, End User) in respect of Employment Business’s charges.

5.6 Client agrees to pay Employment Business all reasonable business expenses incurred by Contractor/Representative in the provision of the Services as agreed within Contractor Schedule.

5.7 In the event notification in accordance with 3.15 is provided to Employment Business after the commencement of Assignment or in the event of information provided in accordance with clauses 3.16 and 3.17, Client agrees and accepts that Employment Business is entitled to vary its charge to Client in order to comply with Off-Payroll.

5.8 VAT will be payable in addition to charges/fees.

5.9 Client acknowledges and agrees that Employment Business may, upon notice, increase the charge rate set out in under clause 5.1 (or as set out in the relevant Contractor Schedule if applicable) in order to comply with the AWR or with Off-Payroll.

5.10 Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to Employment Business under these Terms.

Invoices

6.1 Employment Business will raise invoices weekly (unless otherwise specified in Contractor Schedule) in respect of the charges payable and Client agrees to pay such invoices within thirty days (30) of the date of the invoice, unless otherwise specified in Contractor Schedule.

6.2 All invoices will be deemed to be accepted in full by Client unless Client notifies Employment Business in writing within five days of the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify Employment Business that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms and will co-operate fully with Employment Business in order to resolve the dispute as quickly as possible.

6.3 Employment Business reserves the right to charge interest on invoiced amounts overdue at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of Commercial Debts (Interest) Act from the due date until the date payment is received in cleared funds and to charge compensation and further recovery costs in accordance with the Late Payment of Commercial Debts Regulations.

Termination of Assignments

7.1 Client may instruct Employment Business, in writing, to end the Services of Contractor immediately in the event of substantial non-performance or serious misconduct by Contractor, provided that Client provides detailed, written confirmation of the non-performance and/or misconduct.

7.2 Employment Business may end any Assignment immediately by giving Client notice in writing if Client is in material breach of these Terms.

7.3 Either party may terminate Assignment prior to the end of Assignment by giving not less than 4 weeks’ notice in writing, or such other period of notice as agreed and set out in the relevant Contractor Schedule.

7.4 When notice of termination of Assignment is served by Client, payment for each week of notice will be based on the specified hours/days agreed in Contractor Schedule or actual hours worked by Representative, whichever the greater. Client agrees to make payment in accordance with clauses 5 and 6 above irrespective of whether or not Contractor continues to provide the Services during this notice period.

7.5 In any event of termination of Assignment pursuant to clause 7.1 above, Employment Business shall use reasonable endeavours to provide an alternative Contractor and/or Representative within fourteen days that in the reasonable opinion of Employment Business is suitable to provide the Services.

7.6 These Terms may be terminated by either party by giving to the other immediate notice in the event that either Employment Business or Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where Employment Business has reasonable grounds to believe Client will not pay Employment Business’s invoice within the payment terms agreed within clause 6.1.

7.8 Employment Business may, at its absolute discretion and at any time, terminate Assignment upon immediate notice where in the opinion of Employment Business Contractor and/or Representative is no longer suitable to provide the Services.

7.9 Following termination (howsoever arising) of these Terms, the provisions contained within clauses 1, 2, 3.6, 3.8, 3.9, 3.10, 5.5, 5.6, 5.10, 6, 8, 9, 10, 11, 12, 13, 14 and 15 will continue in full force and effect.

Engagement of Representatives by Client or Third Parties

8.1 Subject to clause 9.1, Client agrees that when Client or Client Group or End User –

a) employs a Representative or
b) Engages a Representative, other than through Employment Business,

either during Assignment or within the Quarantine Period, Client agrees to notify Employment Business of that Engagement and agrees to pay Employment Business the Transfer Fee stated in Contractor Schedule irrespective of the planned duration of the Engagement. No refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates. VAT is payable in addition to any fee due.

8.2 Subject to clause 9.2, where there has been an Introduction of a Candidate to Client which does not immediately result in the supply of the services of that Candidate by Employment Business to Client, but which later leads to an Engagement of Candidate by Client or by Client Group or by End User (howsoever arising) within 12 months from the date of Introduction, Client agrees to notify Employment Business of that Engagement and agrees to pay the Transfer Fee in accordance with clause 8.1 above. VAT, where applicable, is payable in addition to any fee due.

8.3 All Introductions are confidential. If Client passes details of a Candidate and/or Contractor and/or Representative to any third party (including, for the avoidance of doubt, Client Group or End User) resulting in the Engagement of that Candidate and/or Contractor and/or Representative, then Client agrees to pay the Transfer Fee. VAT, where applicable, is payable in addition to any fee due.

8.4 Client acknowledges and agrees that where it fails to notify Employment Business of the actual Remuneration/fees it (or where applicable, Client Group or End User) intends to (directly or indirectly) pay Candidate/Representative, Employment Business will be entitled to calculate the Transfer Fee based on comparable market rates for similar roles.

8.5 For the avoidance of doubt, no refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates.

Alternative Hire Period

9.1 Where the Conduct Regulations apply, as an alternative to the Transfer Fee agreed in clause 8.1 Client may provide Employment Business with written notice in accordance with clause 7.3 above and to require Employment Business to supply the services of Representative to Client for a further period set out as the Alternative Hire Period within Contractor Schedule, during which period Client will pay the charges agreed pursuant to clause 5.1 above.

9.2 Where the Conduct Regulations apply, as an alternative to the Transfer Fee agreed in clause 8.2, Client may provide Employment Business with five (5) days written notice to require Employment Business to supply the services of Candidate to Client for the Alternative Hire Period agreed in Contractor Schedule, during which period Client agrees to pay the charges agreed pursuant to clause 5.1 above or where none agreed, pursuant to market rate in the sole opinion of Employment Business.

9.3 Upon completion of the entire duration of Alternative Hire Period and the payment in full of invoices relating thereto, Client may engage with Candidate/Representative directly or indirectly without any additional payment to Employment Business.

9.4 Where Client does not give such notice as required within clauses 9.1 and 9.2 above before Candidate/Representative is Engaged, Client acknowledges and agrees that Transfer Fee will become due in full to Employment Business.

9.5 Pursuant to clauses 9.1 and 9.2 above, a Contractor Schedule will be issued by Employment Business and these Terms will continue in full force and effect during the Alternative Hire Period.

9.6 In the event Candidate/Representative ceases to provide services for whatever reason during the Alternative Hire Period, Client acknowledges and agrees that the Transfer Fee will become due, minus the portion directly relating to the gross profit of Employment Business paid by Client to Employment Business during the period of the Alternative Hire Period that Candidate/Representative completed.

9.7 For the avoidance of doubt, there will be no refund of any fees or charges paid by Client to Employment Business in relation to the Alternative Hire Period and/or Transfer Fee.

Data Protection

10.1 For the purposes of this clause 10 “Data Subject” means as set out in, and will be interpreted in accordance with Data Protection Legislation. For the avoidance of doubt, Data Subject includes Candidate and Representative.

10.2 The parties hereto acknowledge that Employment Business is a Data Controller in respect of the Personal Data of Candidate/Representative and provides such Personal Data to Client in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.

10.3 The parties hereto acknowledge that Client is a Data Controller but the parties hereto are not Joint Controllers (as defined within Data Protection Legislation) save where a specific agreement is made to that effect between the parties hereto.

10.4 The parties hereto agree that the Representative is not Client’s Data Processor (as defined within Data Protection Legislation) save where agreed otherwise within a Contractor Schedule and subject to additional terms and conditions.

10.5 The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, Employment Business or by Candidate or Representative, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.

10.6 The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.

10.7 Client will –

a) comply with the instruction of the Employment Business as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by Employment Business, Client will set out their legal basis for the request of such data and accept that Employment Business may refuse to share/transfer such Personal Data where, in the reasonable opinion of Employment Business, it does not comply with its obligations in accordance with Data Protection Legislation;
b) not cause Employment Business to breach any of their obligations under the Data Protection Legislation.

10.8 In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify Employment Business and will provide Employment Business with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information the Employment Business reasonably requests relating to the Personal Data Breach.

10.9 In the event of a Personal Data Breach, Client will promptly (at its own expense) provide such information, assistance and cooperation and do such things as Employment Business may request to –

a) investigate and defend any claim or regulatory investigation;
c) prevent future breaches.

and will provide Employment Business with details in writing of all such steps taken.

10.10 Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of Employment Business.

10.11 Client agrees it will only Process Personal Data of Candidate or of Representative for the agreed purpose of provision of Services pursuant to these Terms.

10.12 Client will provide evidence of compliance with clause 10 upon request from Employment Business.

Liability

11.1 Employment Business shall use reasonable endeavours to ensure Representative has the required standard of skill, integrity and reliability; nevertheless, Employment Business is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of Contractor or their Representative to perform the Services nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill of Contractor or of their Representative howsoever arising.

11.2 All Contractors are engaged under contracts for services. They are not the employees of Employment Business.

11.3 Client will comply, and will procure that End User will comply, in all respects with all relevant statutes, by-laws and legal requirements including provision of adequate public liability insurance in respect of Representative where appropriate. Client agrees to allow and reasonably assist Employment Business in complying with its legal obligations regarding the introduction of Candidate/s and supply of Services by Contractor/s.

11.4 Employment Business is providing resourcing services comprising of sourcing, introduction of Candidates and payment of fees to Contractor in relation to Services performed by Representative and accordingly, Employment Business does not accept any liability, howsoever arising, for the quality of services provided by Representative and Contractor, save for death or personal injury caused by Employment Business’s direct negligence.

11.5 Save where required by law, the parties hereto are not liable for-

a) any loss of profits, loss of business, loss of revenue, depletion of goodwill, pure economic loss, loss of anticipated savings, damages, charges, expenses and/or similar losses; or
b) any special, indirect or consequential losses;

11.6 Save as required by law, the sole aggregate liability of Employment Business to Client arising in connection with these Terms will be limited to ten thousand pound sterling $10,000.

Indemnity

12.1 Client agrees to indemnify and keep indemnified Employment Business against any costs, claims or liabilities incurred directly or indirectly by Employment Business arising out of or in connection with these Terms including (without limitation) as a result of:

a) any breach of these Terms by Client (including its employees, subcontractors and agents); and
b) any breach by Client, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity).
General

13.1 Employment Business is not liable for any delay or failure in performance of its obligations to Client where this arises from matters outside its reasonable control.

13.2 Any failure by Employment Business to enforce at any particular time any one or more of these Terms will not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.

13.3 If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms will remain in full force and effect to the extent permitted by law.

13.4 No provision of these Terms will be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act (“the Act”). This does not, however, affect any right or remedy of a third party that exists or is available independently of the Act.

13.5 Without prejudice to clause 2.2, whereupon these Terms and/or Contractor Schedule/s are executed by the signature of duly authorised representatives of the parties this forms a binding agreement and will supersede all previous agreements or representations whether written or oral including without limitation Client’s terms and conditions, purchase order or other Client documents with respect to the provision of services set out herein provided by Employment Business. These Terms may not be modified or amended except in writing and signed by a duly authorised representative of Employment Business.

13.6 The parties acknowledge that AWR, Conduct Regulations and Off-Payroll are not inter dependent and their applicability to Assignment does not determine supervision, direction or control by Client.

Notices

14.1 Any notice required to be given under these Terms will be delivered by hand, sent by facsimile, e-mail or prepaid first class post to the recipient at its fax number or address specified in these Terms (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms)

14.2 Notices in connection with these Terms will be deemed to have been given and served,

a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 10.00am on the next business day after the day of delivery;
b) if sent by facsimile or by e-mail, at the time of dispatch if dispatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of dispatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the authorized recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
c) if sent by prepaid first class post, 48 hours from the time of posting.

For the avoidance of doubt and for the purpose of this clause 14.2, a “business day” will mean any day excluding Saturday, Sunday and public holidays.

Governing Law

15.1 These Terms shall be construed in accordance with the laws of USA and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms shall be subject to the exclusive jurisdiction of the courts of the US.

Supply of PAYE Temporary Workers to Clients

Definitions

1.1 In these Terms –

“Alternative Hire Period” means the period set out within Temp Schedule;

“Assignment” means the period during which Temp supplied by Employment Business renders the Services;

“AWR” means the Agency Workers Regulations (as amended);

“Candidate” means the person introduced by Employment Business to Client for an Engagement including, but not limited to, members of Employment Business’s own staff;

“Client Group” means Client, any corporate body of which Client is a subsidiary (as defined by the Companies Act ), any other subsidiary of such corporate body and any subsidiary of Client;

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations (as amended);

“End User” means the company under whose supervision and direction Temp temporarily works for during Assignment;

“Engagement” means the engagement, employment or use of Candidate and/or Temp by Client, by Client Group, by End User or by any third party to whom or to which Candidate and/or Temp was introduced by Client (whether with or without Employment Business’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which Candidate is an officer or employee or through a limited liability partnership of which Candidate and/or Temp is a member or employee; or indirectly through another employment business or company which holds itself out as such and “Engage”, “Engages” and “Engaged” will be construed accordingly;

“Introduced” means –

a) Client’s interview of a Candidate in person or by telephone or by any other audio or visual means; or
b) the passing to Client of a curriculum vitæ or information about Candidate;

whichever is earlier and “Introduces” and “Introduction” will be construed accordingly;

“Personal Data” means as set out in, and will be interpreted in accordance with Data Protection Legislation;

“Process” means as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly;

“Qualifying Period” means as defined within regulation 7 of the AWR;

“Quarantine Period” means the “relevant period” as set out within regulation of the Conduct Regulations;

“Remuneration” means basic salary, shift or weighting allowances, guaranteed and/or anticipated bonus and commission earnings, car allowance and any other benefit or allowance;

“Services” means the work to be performed by Temp pursuant to these Terms and as described within Temp Schedule;

“Temp” means the individual named within Temp Schedule;

“Temp Schedule” means the schedule provided by Employment Business to Client confirming the details of each Assignment;

“Terms” means these terms of business and will include any Temp Schedules issued pursuant to these terms of business; and

“Transfer Fee” means the fee set out within Temp Schedule.

These Terms

2.1 These Terms are effective from date of issue to Client and supersede all previous terms of business issued by Employment Business.

2.2 These Terms will be deemed to be accepted by Client and to apply by virtue of (a) the passing of information about a Candidate to Client by Employment Business or (b) an Introduction to Client of, or the Engagement by Client of, a Candidate or (c) Client’s interview or request to interview a Candidate (including interview by video conferencing or by telephone) or (d) the signature by Client on a timesheet relating to services provided by Temp or (e) Client’s signature at the end of these Terms or (f) any other written, expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not Candidate is Engaged by Client for the same type of work as that for which the Introduction was originally effected.

2.3 These Terms contain the entire agreement between the parties in relation to the subject matter hereof and, unless otherwise agreed in writing, these Terms prevail over any previous terms of business, agreement or any purchase conditions put forward by Client. This clause is without prejudice to any rights which have arisen prior to termination of such and nothing will operate to exclude or limit the liability of any party in respect of fraud.

2.4 For the purposes of these Terms, Employment Business acts as an employment business as defined within the Conduct Regulations; save where a permanent placement results, in which case Employment Business will be acting as an employment agency as defined within the Conduct Regulations.

2.5 Client authorises Employment Business to act on its behalf in seeking Candidates and, if Client so requests, will advertise for Candidates through such additional methods as are agreed with Client at Client’s exclusive cost.

2.6 Where there is a conflict of provisions between the main body of these terms of business and Temp Schedule, the main body of these terms of business will take precedence save where expressly provided for within the clauses herein or agreed as a variation set out within Temp Schedule.

2.7 Headings contained in these Terms are for reference purposes only and will not affect the intended meanings of the clauses to which they relate.

2.8 Unless the context otherwise requires, references to the singular include the plural and feminine includes masculine and vice versa.

Client Obligations

3.1 Client agrees to, and where applicable will ensure End User will, be responsible for providing the working environment for Temp and any necessary resources, tools and facilities for Temp.

3.4 Client will ensure –

a) Temp works in a safe environment in accordance with a safe system of work and that Client complies with all relevant health and safety legislation and adheres to industry best practice; and
b) Temp does not undertake any work during Assignment which is hazardous without first conducting a risk assessment, informing Employment Business and Temp of the outcome of that risk assessment and steps taken (or to be taken) to reduce the risk.

3.5 Client will indemnify and keep indemnified Employment Business from and against all loss or liability suffered or incurred by Employment Business as a result of any claim by Temp arising out of any injury or damage to his/her person and/or property suffered in the course of performing the Services.

3.6 Client warrants and confirms that it has given Employment Business sufficient information to properly consider the suitability of Candidate and Client undertakes to confirm in writing to Employment Business –

a) the date upon which Candidate/Temp is required to commence the provision of the Services; and
b) the expected duration of the Engagement; and
c) the nature of and/or specifics of the services required to be provided by Candidate/Temp; and
d) the location/s Candidate/Temp is expected to deliver the Services;
e) details of any applicable End User; and
f) the number of hours/days and any specific time-keeping and time recording requirements that Client expects of Candidate/Temp; and
g) any experience, training, qualifications, professional body authorisations that Client, the law or any relevant professional body requires Candidate/Temp to possess to provide the Services;
h) any expenses payable by or to Candidate/Temp;
i) any site regulations, IT access/security/usage policies, health and safety procedures and any other procedures or policies Client (or End User) requires Candidate/Temp to adhere to and will provide copies of any such policies/procedure to Employment Business; and
j) any health and safety risks and any steps taken to address those risks.

3.7 Client undertakes to notify Employment Business immediately of its, or any member of Client Group’s, or of End User’s, intention to –

a) Engage a Candidate Introduced by Employment Business; or
b) extend Assignment or otherwise Engage directly or indirectly a Candidate and/or Temp Introduced and/or supplied by Employment Business.

3.8 Client will inform Employment Business in good time of any significant issues in relation to Temp or where Client is dissatisfied with Temp in any respect.

3.9 Client warrants that it will, and where applicable will ensure that the End User will, from the start of Assignment, provide Temp with –

a) information about relevant vacant posts with Client, or with End User where applicable; and
b) save where objectively justifiable, access to any and all collective facilities and amenities of Client, or of End User (where applicable),

in the same manner as if Temp were a direct worker or employee of Client, or of End User where applicable.

3.10 Upon request from Employment Business, Client undertakes to provide (without delay) to Employment Business accurate information about the working and employment conditions that are applicable to Client (or applicable to End User where relevant) whether by contract or by collective agreement or otherwise and will include subsequent variations thereto, that relate to Client’s (or to End User’s) employees and direct workers including (without limitation) –

a) the standard terms and conditions that apply to their employees and those that apply to their workers;
b) details relating to the application and calculation of, pay scales, bonuses, commission, overtime, shift allowance, unsocial hours allowance, hazardous duties, holiday pay, other related emoluments;
c) entitlements relating to annual leave, night work, rest periods, rest breaks;
d) benefits of monetary value including, without limitation, vouchers and stamps; and
e) any other information as may be required by Employment Business to comply with the AWR.

3.11 Where the AWR applies to Assignment, Client agrees that it will, upon request from Employment Business and without delay, provide accurate details relating to the working and employment conditions (as defined within regulation 5(2) and regulation 6 of the AWR) of Client’s (or of End User’s as is applicable) workers and/or employees who undertake the same or broadly similar work as that of Temp during Assignment.

3.12 Where the AWR applies to Assignment and where applicable pursuant to information obtained under clause 3.11 above, Client will, and where applicable will ensure that End User will, apply the same or similar process as applied to assess Pay that is directly attributable to the amount or quality of the work done by Temp. For the purposes of this clause “Pay” means as defined in regulation of the AWR.

3.13 Where the AWR applies to Assignment and Temp is pregnant, Client acknowledges and agrees that, following the Qualifying Period, Client will, and where applicable will procure that End User will, permit Temp time off to attend ante-natal medical appointments and ante-natal classes.

3.14 Where the AWR applies to Assignment, Client acknowledges and agrees that, following the Qualifying Period and whereupon Temp is unable to continue to provide some or all of the Services on maternity grounds due to reasons of health and safety, Client will, and where applicable will procure that End User will, undertake to make such reasonable adjustments as are necessary to allow Temp to continue providing services for the duration of Assignment. For the avoidance of doubt, such reasonable adjustments will include provision of alternative work on terms no less favourable than those applicable during Assignment.

3.15 Client undertakes and agrees to immediately notify Employment Business where a Temp has worked for Client/End User in the same or similar role as Assignment where, prior to the planned commencement of Assignment, such role is within the Qualifying Period.

3.16 Client warrants and undertakes that it will not, and where applicable will procure that End User will not, seek to deny Temp’s entitlement to rights under the AWR by virtue of the structure of assignments and will at all times comply with regulation 9 of the AWR.

3.17 Client warrants and undertakes that all information it provides to Employment Business under these Terms is true and accurate.

Employment Business’s Obligations

4.1 Employment Business shall use reasonable endeavours to introduce Candidates to Client who meet Client’s stated requirements.

4.3 Employment Business will use reasonable endeavours to ensure that Temp co-operates with Client and complies with all Client’s reasonable and lawful instructions.

4.4 Employment Business will use reasonable endeavours to ensure that Temp enters into an agreement which contains an obligation on Temp to assign to Employment Business (for onward assignment to Client) or directly to Client (as directed by Client to Employment Business), intellectual property rights of whatever nature and, if capable of registration, whether registered or not, in all documents or other material and data or other information and devices or processes provided or created by Temp in the provision of the Services.

4.5 Employment Business will use reasonable endeavours to ensure that Temp enters into an agreement which contains an obligation on Temp to keep confidential all confidential information of Client obtained during Assignment. For the purposes of this clause 4.5, confidential information is confidential if it is clearly marked confidential or if Client states it is confidential clearly in writing to Temp.

4.6 Employment Business may substitute Temp with another suitably qualified and similarly skilled Temp with reasonable notice at its absolute discretion.

4.7 Employment Business is responsible for payment to Temp for work done during the Assignment and for any PAYE, National Insurance and any other statutory deductions required to comply with legislation.

Charges/Fees

5.1 Client agrees to pay Employment Business’s charges for the Introduction of and for the services of Temp/Candidate that are calculated as Temp’s/Candidate’s hourly charge rate plus a service fee of 25% mark-up on top of Temp’s/Candidate’s charge cost rate, unless otherwise agreed and set out within Temp Schedule.

5.2 Client agrees to pay the charges set out in clause 5.1 above for the number of hours worked (to the nearest quarter hour) including a sum as detailed within Temp Schedule for Employer’s National Insurance contribution and holiday pay in accordance with the Working Time Regulations, in respect of Temp.

5.3 Signature by Client (or by End User where applicable) of timesheets or other verification of hours worked is confirmation of the amount of time worked by Temp and of satisfaction with the Services provided. Failure to sign/authorise the timesheet does not absolve Client of its obligation to pay the charges for the Services provided by Temp during Assignment.

5.4 If Client is unable to sign a timesheet (or other agreed method of verification of hours/days) produced for authentication by Temp because Client disputes the amount of time claimed, then Client will notify Employment Business within two working days from the presentation to the client of the claimed hours/days for verification and will co-operate fully and in a timely fashion with Employment Business, including providing documentary evidence of the hours/days worked by Temp, to enable Employment Business to establish what periods of time, if any, Temp worked.

5.5 With reference to clause 3.13, where such time off to attend ante-natal medical appointments and ante-natal classes falls within the normal working periods of Temp during Assignment, Client agrees to pay Employment Business’s charges, in accordance with clause 5.1, for such periods whether by inclusion of such time on a timesheet or otherwise.

5.6 There are no refunds or rebates payable by Employment Business to Client (or to Client Group or, for the avoidance of doubt, End User) in respect of Employment Business’s charges.

5.7 Client agrees to pay Employment Business all reasonable business expenses incurred by Temp in the provision of the Services.

5.8 VAT will be payable in addition to charges/fees.

5.9 Client acknowledges and agrees that Employment Business may, upon notice, increase the charge rate set out in under clause 5.1 (or as set out in the relevant Temp Schedule if applicable) in order to comply with the AWR.

5.10 Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to Employment Business under these Terms.

5.11 Employment Business will not be liable for fraudulent timesheets.

5.12 Client acknowledges Employment Business may increase its charges where the cost of the supply of Temp increases due to a change in legislation.

Invoices

6.1 Employment Business will raise invoices weekly in respect of the charges payable and Client agrees to pay such invoices within thirty days (30) of the date of the invoice, unless otherwise agreed and set out within Temp Schedule.

Termination of Assignments

7.1 Client may instruct Employment Business, in writing, to end the Services of Temp immediately in the event of substantial non-performance or serious misconduct of Temp, provided that Client provides detailed, written confirmation of the non-performance and/or misconduct.

7.2 Employment Business may end any Assignment immediately by giving Client notice in writing if Client is in material breach of these Terms.

7.3 Either party may terminate Assignment prior to the end of Assignment by giving not less than 2 weeks’ notice in writing, or such other period of notice as agreed and set out in the relevant Temp Schedule.

7.4 When notice of termination of Assignment is served by Client, payment for each week of notice will be based on the specified hours agreed in Temp Schedule or actual hours worked by Temp, whichever the greater. Client agrees to make payment in accordance with clauses 5 and 5.11 above irrespective of whether or not Temp continues to provide the Services during this notice period.

7.5 In any event of termination of Assignment pursuant to clause 7.1 above, Employment Business will use reasonable endeavours to provide an alternative Temp within fourteen days that in the reasonable opinion of Employment Business is suitable to provide the Services.

7.7 Notwithstanding clause 4.6, Employment Business may, at its absolute discretion and at any time, terminate Assignment upon immediate notice where in the opinion of Employment Business Temp is no longer suitable to provide the Services.

Engagement of Temp by Client or Third Parties

8.1 Subject to clause 9.1, Client agrees that when Client or Client Group or End User Engages a Temp, other than through Employment Business, either during Assignment or within the Quarantine Period, Client agrees to notify Employment Business of that Engagement and agrees to pay Employment Business the Transfer Fee irrespective of the planned duration of the Engagement. No refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates. VAT is payable in addition to any fee due.

8.3 All Introductions are confidential. If Client passes details of a Candidate and/or Temp to any third party (including, for the avoidance of doubt, Client Group or End User) resulting in the Engagement of that Candidate and/or Temp, then Client agrees to pay the Transfer Fee. VAT, where applicable, is payable in addition to any fee due.

8.4 Client acknowledges and agrees that where it fails to notify Employment Business of the actual Remuneration/fees it (or where applicable, Client Group or End User) intends to (directly or indirectly) pay Candidate/Temp, Employment Business will be entitled to calculate the Transfer Fee based on comparable market rates for similar roles.

8.5 For the avoidance of doubt, no refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates.

Alternative Hire Period

9.1 As an alternative to the Transfer Fee agreed in clause 8.1 Client may provide Employment Business with written notice in accordance with clause 7.3 above and to require Employment Business to supply the services of Temp for a further period set out as the Alternative Hire Period, during which period Client will pay the charges agreed pursuant to clause 5.1.

9.2 As an alternative to the Transfer Fee agreed in clause 8.2, Client may provide Employment Business with five (5) days written notice to require Employment Business to supply the services of Temp for the Alternative Hire Period, during which period Client agrees to pay the charges agreed pursuant to clause 5.1 above or where none agreed, pursuant to market rate in the sole opinion of Employment Business.

9.3 Upon completion of the entire duration of Alternative Hire Period and the payment in full of invoices relating thereto, Client may engage with Temp directly or indirectly without any additional payment to Employment Business.

9.4 Where Client does not give such notice as required within clauses 9.1 and 9.2 before Candidate/Temp is Engaged, Client acknowledges and agrees that Transfer Fee will become due in full to Employment Business.

9.5 Pursuant to clauses 9.1 and 9.2 above, a further Temp Schedule will be issued by Employment Business and these Terms will continue in full force and effect during the Alternative Hire Period.

9.6 In the event Temp or Candidate ceases to provide services for whatever reason during the Alternative Hire Period, Client acknowledges and agrees that the Transfer Fee will become due, minus the portion directly relating to the gross profit of Employment Business paid by Client to Employment Business during the period of the Alternative Hire Period that Candidate or Temp completed.

9.7 For the avoidance of doubt, there will be no refund of any fees or charges paid by Client to Employment Business in relation to the Alternative Hire Period and/or Transfer Fee.

Data Protection

10.2 The parties hereto acknowledge that Employment Business is a Data Controller in respect of the Personal Data of Candidate/Temp and provides such Personal Data to Client in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.

10.4 The parties hereto agree that Temp is not Client’s Data Processor (as defined within Data Protection Legislation) save where agreed otherwise within a Temp Schedule and subject to additional terms and conditions.

10.5 The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, Employment Business or by Candidate or Temp, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.

10.6 The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.

10.7 Client will –

a) comply with the instruction of Employment Business as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by Employment Business, Client will set out their legal basis for the request of such data and accept that Employment Business may refuse to share/transfer such Personal Data where, in the reasonable opinion of Employment Business, it does not comply with its obligations in accordance with Data Protection Legislation; and
b) not cause Employment Business to breach any of their obligations under the Data Protection Legislation.

10.8 In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify Employment Business and will provide Employment Business with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information Employment Business reasonably requests relating to the Personal Data Breach.

a) investigate and defend any claim or regulatory investigation;
b) mitigate, remedy and/or rectify such breach; and
c) prevent future breaches.

and will provide Employment Business with details in writing of all such steps taken.

10.10 Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of Employment Business.

10.11 Client agrees it will only Process Personal Data of Candidate or of Temp for the agreed purpose of provision of Services pursuant to these Terms law.

10.12 Client will provide evidence of compliance with clause 10 upon request from Employment Business.

Liability

11.1 Employment Business will use reasonable endeavours to ensure Temp has the required standard of skill, integrity and reliability; nevertheless, Employment Business is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of Temp to perform the Services nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill of Temp howsoever arising.

11.2 A Temp is engaged under contracts for services. They are not the employee of Employment Business.

11.3 Client will comply, and will procure that End User will comply, in all respects with all relevant statutes, by-laws and legal requirements including provision of adequate public liability insurance in respect of Temp. Client agrees to allow and reasonably assist Employment Business in complying with its legal obligations regarding the introduction of Candidate/s and supply of Services by Temp.

11.4 Where it is foreseeable that Temp will work hours in contravention to the provisions of the Working Time Regulations, Client will provide written notice to Employment Business in good time prior to the commencement of Assignment. Employment Business will ask if Temp is willing to sign the relevant opt-out under the Working Time Regulations.

11.5 Employment Business is providing resourcing services comprising of sourcing, introduction and payroll administration in relation to Services performed by Temp and accordingly, Employment Business does not accept any liability, howsoever arising, for the quality of services provided by Temp, save for death or personal injury caused by Employment Business’s direct negligence.

11.6 Save where required by law, the parties hereto are not liable for-

a) any loss of profits, loss of business, loss of revenue, depletion of goodwill, pure economic loss, loss of anticipated savings, damages, charges, expenses and/or similar losses; or
b) any special, indirect or consequential losses.

11.7 Save as required by law, the sole aggregate liability of Employment Business to Client arising in connection with these Terms will be limited to ten thousand pound sterling $10,000.

Indemnity

a) any breach of these Terms by Client (including its employees, subcontractors and agents); and
b) any breach by Client, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity).
General

13.1 Employment Business is not liable for any delay or failure in performance of its obligations to Client where this arises from matters outside its reasonable control.

13.5 Without prejudice to clause 2.2, whereupon these Terms and/or Temp Schedule/s are executed by the signature of duly authorised representatives of the parties this forms a binding agreement and will supersede all previous agreements or representations whether written or oral including without limitation Client’s terms and conditions, purchase order or other Client documents with respect to the provision of services set out herein provided by Employment Business. These Terms may not be modified or amended except in writing and signed by a duly authorized representative of Employment Business.

Notices

14.2 Notices in connection with these Terms will be deemed to have been given and served,

a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 10.00am on the next business day after the day of delivery;
b) if sent by facsimile or by e-mail, at the time of dispatch if dispatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of dispatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the authorized recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
c) if sent by prepaid first class post, 48 hours from the time of posting.

For the avoidance of doubt and for the purpose of this clause 14.2, a “business day” will mean any day excluding Saturday, Sunday and public holidays.

Governing Law

15.1 These Terms will be construed in accordance with the laws of USA and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms will be subject to the exclusive jurisdiction of the courts of the US.

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