These terms and conditions apply in relation to any recruitment services provided by Red Sector Limited and such divisions within Company No 09792376 a company incorporated in England and Wales whose recognised office is at: Hexagon House, Station Lane, Witney, OX28 4BN (the “Employment Business”) to any Client (as defined below and detailed within the Assignment Schedule ( the “Client”)
- 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 an aggregate period of service provision of 26 week (excluding, for the avoidance of doubt, any period during which the services are not provided)
“Assignment” means the period during which Contractor renders the Services. For the avoidance of doubt, “Booking” or “Placement”, or any such related terminology within this context shall be construed accordingly;
“Assignment Schedule” means the schedule provided by Employment Business to Client confirming the details relating to Assignment;
“AWR” means the Agency Workers Regulations 2010 (as amended);
“Business Day” means any day (other than Saturday or Sunday) on which clearing banks are open for business in London
“Cancelation Fee” means 4 times the hourly rate
“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 s. 1159 of the Companies Act 2006) including, but not limited to a hospital, trust, primary care trust, other health organisation or local authority 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 s. 1159 of the Companies Act 2006), any other subsidiary of such corporate body and any subsidiary of Client;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);
“Contractor” means the company who provide the Services;
“Data Controller” means "controller" in accordance with the General Data Protection Regulation (EU) 2016/;
“Data Protection Legislation” means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the processing of personal data and privacy, including without limitation, (a) the Data Protection Act 2018; (b) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, 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 Kingdom leaving the European Union;
“Employment Businesses Group” means the Employment Business, any body corporate of which the Employment Business is a subsidiary (as defined within section 1159 of the Companies Act 2006), any other subsidiary of such body corporate of the Employment Business
“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;
“Good Industry Practice” means the exercise of the skill, diligence, prudence, foresight and judgement which would be expected from a suitably skilled and experienced person engaged in the same type of service as the Candidate’s Services, applying the best standards currently/generally applied in the relevant industry
“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 amendments to Chapter 8; and Chapter 10, Part 2 of Income Tax (Earnings and Pensions) Act 2003;
“Opted-Out” means the notice given by Contractor and Representative in accordance with regulation 32(9) 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, unauthorised 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;
“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 Contractor and/or Candidate last provided Services to the Client via the Employment Business (whether under this Agreement or otherwise) or;
(b) the period of 14 weeks commencing on the first day on which the Contractor and/or the Candidate provided Services to the Client pursuant to the most recent supply of the Contractor’s and/or the Candidate’s Services to the Client by the Employment Business (as adjusted in accordance with regulation 10 of the Conduct Regulations to take into account any break in supplies)
“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 Assignment 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 Assignment Schedule;
“Shift” means a period of work or requested on a day-by-day basis
“Terms” means these terms of business and will include any Assignment Schedule issued pursuant to these terms of business; and
“Transfer Fee” means 300 times the hourly Payment Rate (or pro-rated equivalent hourly rate if Payment Rates are based on a period of more or less than an hour) to a minimum fee of £4,500.
“VAT” means Value Added Tax
2. 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.
2.3 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.
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.
2.6 Where there is a conflict of provisions between the main body of these terms of business and Assignment 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 Assignment 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.
3. 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;
b) the expected duration of the Engagement;
c) the nature of and/or specifics of the services required to be provided by Candidate;
d) the location/s Candidate is expected to deliver the Services;
e) details of any applicable End User;
f) the number of hours/days and any specific timekeeping and recording requirements Client expects of Contractor;
g) any experience, training, qualifications, professional body authorisations 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;
j) any health and safety risks and any steps taken to address those risks; and
k) whether Off-Payroll applies to it.
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 and Services are in scope, Client undertakes and agrees to assess the working practices of Services to be provided during Assignment and to provide Employment Business with its status determination and the reasons for the decision in writing prior to the commencement of Assignment and to comply with the statutory requirements to notify Representative.
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.
3.17 Client undertakes and agrees to notify Employment Business in the event of changes to information provided under clauses 3.15 or 3.16 that occur during the term of Assignment.
3.18 Client warrants and undertakes that all information it provides to Employment Business under these Terms is true and accurate.
3.19 Client warrants to comply with its statutory obligations to provide a status disagreement process and to use best endeavours to resolve status determination disagreements equitably.
3.20 Client warrants to comply with its statutory obligation to, upon request by Employment Business, confirm its size under Off-Payroll.
3.21 Client undertakes and agrees to notify Employment Business where the client is based wholly overseas as defined under Off-Payroll.
4. 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 an assignment 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 use best endeavours to satisfy all Client’s reasonable and lawful requirements, including –
a) supply the Contractor’s Services at the locations(s) identified within the
Assignment Schedule
b) comply with all relevant Client regulations, polices and protocols as notified
by the Client to the Employment Business from time to time, including Health & Safety and Security and to the extent appropriate and relevant will comply with standard policies relevant to quality
c) comply with all relevant compliance requirements in accordance with Good Industry Practice, including but not limited to, DBS status and valid leave to enter, remain, and undertake employment within the UK, and those specified in the Assignment Schedule as notified from time to time by the Client
d) provide a suitable replacement when the Candidate is incapacitated or unavailable for a prolonged period, or unwilling to provide the Service
4.4 Employment Business shall use reasonable endeavours to ensure that Contractor enters into an agreement which contains an obligation on Contractor and Representative in consideration of fees paid 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.
5. 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% on Contractors/Candidates charge rate, unless otherwise set out in the relevant Assignment 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 the Assignment 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 and nature of Services in order to comply with Off-Payroll and has the right to terminate with immediate effect pursuant to Clause 7.8
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 Assignment 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.
6. Invoices
6.1 Employment Business will raise invoices weekly (unless otherwise specified in Assignment 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 Assignment 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 1998 (and as may be calculated using the calculator on the website: www.payontime.co.uk) 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 2013.
7. 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 Not pursuant to clauses 7.1 or 7.2, 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 Assignment 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 Assignment 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 If a candidate or Contractor fails in the reasonable opinion of the Client to perform the relevant Candidate’s Services satisfactorily, the Client shall notify the Agency in writing to that effect within 24 hours of the relevant unsatisfactory performance. 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.
7.7 Contractor may substitute the named Representative in the Assignment Schedule with another suitably qualified and skilled substitute with reasonable notice at its absolute discretion, provided that the Services remained as detailed in the Assignment Schedule and no delay or reduction in quality shall occur.
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, including suitability given Off Payroll status of Services.
7.9 Where the Client has engaged a Booking on a Shift basis and the worker is no longer required, then the Client shall provide 2 hrs notice prior to the agreed start time, otherwise a Cancellation Fee will be charged. Where a Shift is cancelled within 1 hr of start for reasons other than those set out in clause 5, then a Cancellation Fee will be payable.
7.10 The Client shall notify the Agency immediately and without delay, and in any event within 24 hours, if a Supplier or Candidate fails to attend for the purpose of providing the Candidate’s Services under a Booking or notifies the Client that the Supplier or Candidate is unable to attend for any reason
7.11 If, for any reason, the Client does not require the Candidate or the Contractor to perform the Services during any termination notice period, the Client shall, nevertheless, pay the Employment Business as though the Candidate or Contractor was providing the Candidate’s Services for 40 hours per week for the duration of the notice period. Termination of this Agreement shall be without prejudice to the rights of either party arising prior to termination
7.12 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.
8. 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 Relevant 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.
8.2 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 6 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.
9. 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, 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) Business Days written notice to require Employment Business to supply the services of Candidate to Client 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 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, an Assignment 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.
10. 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 an Assignment 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;
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 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.
11. 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.
12. 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).
13. 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 1999 ("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 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 Employment Business. The Employment Business shall however be entitled to assign this Agreement to any member of the Employment Business’ 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 Employment Business shall be deemed to refer to the assignment.
13.6 Any assignment of this Agreement by the Employment Business in accordance with clause 13.5 shall be subject to the Client‘s prior consent (such consent not to be unreasonably withheld or delayed) provided that the Employment Business may assign its rights under this Agreement to any member of the Employment Business’ Group or (for the purposes of normal invoice discounting arrangements) to a reputable commercial finance company.
13.7 Without prejudice to clause 2.2, whereupon these Terms and/or Assignment 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.
13.8 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.
14. 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 despatch if despatched 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 despatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant Business Day, the authorised 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.
15. Governing Law
15.1 These Terms shall be construed in accordance with the laws of England and Wales 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 England and Wales.
Red Sector Ltd - Hexagon House – Avenue Four – Witney - OX28 4BN Company registration Number: 09792376 www.redsector.co.uk
