Terms of Business - Companies | Fixed Construction

Fixed Construction Limited - Terms of Business

2024

BETWEEN

(1) Fixed Construction Limited (registered company no. 14349487 whose registered office is at Fixed Construction Limited, Flat 1, 42 Renfrew Road, London, SE11 4BF) (Agency);

and

(2) (Customer) and for the avoidance of doubt, the Customer shall also include any subsidiary or associated person, firm or corporate body (as the case may be) to whom any Intermediary is introduced, (each a party and together the parties).

WHEREAS:

(A) The Customer wishes to be provided with Contractors and is a client or prospective client of the Agency.

(B) The Customer wishes to source and the Agency has agreed to provide the Contractors or Introduce Intermediaries (as the case may be) to provide services (the Intermediary Services) to the Customer subject to and in accordance with the terms of this Agreement. Neither the Customer or the Agency have any right to exercise supervision, direction or control in the completion of the Intermediary Services and agree that they will not exercise supervision, direction or control over the Contractor or Intermediary. Should the right to supervision, direction or control change during the Assignment the Agency should be notified immediately to ensure that the Contractor or Intermediary is properly engaged.

IT IS AGREED:

DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, the following words and expressions shall have the following meanings except where the context requires otherwise:

“Agency Worker Regulations” means the Agency Worker Regulations 2010;
“Assignment” means the assignment services or the Intermediary Services (as the case may be) to be performed by the relevant Contractor for the Customer for a period of time during which the Contractor or the Intermediary (as the case may be) is supplied by the Agency to work temporarily for the Customer or to provide the Intermediary Services to the Customer (as the case may be);
“Business Days” means a day on which the banks are generally open for business in London (excluding Saturdays, Sundays and public holidays)
"Business Hours" means the period from 8.00 am to 4.30 pm on any Business Day;
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment and Calendar Day means a day of the Calendar Week;
“Charges” means the charges of the Agency calculated in accordance with clause 6.1 and as may be varied from time to time in accordance with this Agreement;
“CIS” means Construction Industry Scheme;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Customer or the Agency or their business or affairs (including but not limited to this Agreement, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Contractor or any third party in relation to the Assignment by the Customer or the Agency or by a third party on behalf of the Customer whether before or after the date of this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;
“Consultancy” means any business entity other than an Intermediary introduced to the Agency to carry on the Assignment (and where otherwise indicated, includes the Contractor);
“Contractor” means any individual (and who may be an officer, employee, contractor, worker or representative of an Intermediary or Consultancy) Introduced by the Agency to the Customer to provide services to the Customer;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Customer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Contractor is Introduced;
“Customer's Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Customer, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Customer, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
“Data Protection Laws” means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“Engagement” means the engagement (including the Intermediary’s and/or the Contractor’s acceptance of the Customer’s offer), employment or use of the Contractor or Intermediary by the Customer or any third party to whom the Contractor or Intermediary has been introduced by the Customer, directly or indirectly, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Contractor is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“First Assignment” if the Agency Worker Regulations apply to an Assignment: (a) the relevant Assignment; or (b) if, prior to the relevant Assignment: (i) the Contractor has worked in any assignment in the same role with the relevant Customer as the role in which the Contractor works in the relevant Assignment; and (ii) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Contractor is supplied by one or more Temporary Work Agencies to the relevant Customer to work temporarily for and under the supervision and direction of the relevant Customer);
“FOIA” means the Freedom of Information Act 2000;
“Force Majeure Event” means any circumstance beyond the reasonable control of a party which renders the continued providing or receiving of all or part of the services in accordance with this Agreement illegal or impossible, including, but not limited to fire, flood, Act of God, riot, civil disturbance, industrial dispute (not directly involving either party), war or sabotage;
“Intermediary” means the corporate body Introduced to the Agency to carry on the Assignment (and save where otherwise indicated, includes the Contractor);
“Intermediaries Legislation” means sections 48 – 61 ITEPA;
“Introduction” means (i) the passing to the Customer of a curriculum vitae or information which identifies the Intermediary or the Contractor; or (ii) the Customer’s interview of the Contractor (in person or by telephone or by any other means), following the Customer’s instruction to the Agency to supply a Contractor; or (iii) the supply of the Contractor or the Intermediary; and, in any case, which leads to an Engagement of that Contractor or the Contractor or Intermediary; and “Introduced” “Introduces” and "Introducing" shall be construed accordingly; “Introduction Fee” means the fee payable by the Customer in accordance with clauses 8.7 and 8.8;“IR35 Status Decision” means the Customer’s decision on the application of the Intermediaries Legislation to the Assignment in accordance with Section 61T ITEPA, to be provided in writing to the Agency;
“Inside IR35” means an Assignment which meets the provisions of Section 61M ITEPA;
“ITEPA” means the Income Tax (Earnings and Pensions) Act 2003;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“NICs Legislation” means legislation regarding the deduction and payment of national insurance contributions including in particular the Social Security (Categorisation of Earners) Regulations 1978 the Social Security (Categorisation of Earners) Regulations 1978;
“Outside IR35” means an Assignment which does not meet the provisions of Section 61M ITEPA;
“Period of Extended Hire” means any additional period that the Customer wishes the Contractor to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
“Public Authority” means (a) as defined in the FOIA and (b) as further defined in Section 61L ITEPA;
"Rate Card” refers to the document to be shared by the Agency providing written confirmation of the assignment details and hourly rates for Contractors agreed with the Customer prior to commencement of the Assignment;
“Relevant Period” means (a) the period of 8 weeks commencing on the day after the last day on which the Contractor worked for the Customer having been supplied by the Agency; or (b) the period of 14 weeks commencing on the first day on which the Contractor worked for the Customer having been supplied by the Agency or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment;
“Relevant Terms and Conditions” means, for the purposes of the Agency Worker Regulations, terms and conditions relating to:
(a) pay;
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks;
(f) annual leave,

that are ordinarily included in the contracts of employees or Contractors (as appropriate) of the Customer whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;

“Remuneration” includes gross base salary or fees (calculated as Transfer Fee Day Rate x 5 days x 48 (working weeks of the year)), guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Contractor for services provided to or on behalf of the Customer or any third party. Where a company car is provided, a notional amount as determined by the Agency will be added to the salary in order to calculate the Introduction Fee;
"Temporary Work Agency" means as defined in Regulation 4 of the Agency Worker Regulations being a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of:
(a) supplying individuals to work temporarily for and under the supervision and direction of hirers; or
(b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of hirers.

Notwithstanding paragraph (b) of this definition a person is not a Temporary Work Agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for hirers.

For the purpose of this definition, a "hirer” means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person.

“Term” means the period during which this Agreement shall remain in force commencing on the date of this Agreement;
“Transfer Fee” means the fee payable in accordance with clauses 8.1, 8.3 and 8.4 of this Agreement and Regulation 10 of the Conduct Regulations;
“Transfer Fee Day Rate” means the hourly charge rate agreed between the Customer and the Agency (either in the Rate Card or agreed in writing or via email, whichever is the most recently agreed) multiplied by the Business Hours, regardless of whether breaks are paid or unpaid. For example, if Business Hours are 08:00 – 18:00, this will be calculated as 10 hours, even if the operative usually has a one hour unpaid break.

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

1.2. The headings contained in this Agreement are for convenience only and do not affect their interpretation. The Schedules form part of this Agreement.

1.3. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before, on or after the date of this Agreement) and all subordinate legislation made (before, on or after this Agreement) under it from time to time.

THE AGREEMENT

2.1. This Agreement and the schedules attached constitutes the contract between the Agency and the Customer for the supply of the Contractors' services or the Intermediary Services (as the case may be) by the Agency to the Customer and are deemed to be accepted by the Customer and the Agency on the date hereof or by virtue of the Customer’s request for, interview with, or Engagement of a Contractor or an Intermediary of the passing of any information about the Contractor or Intermediary to any third party following an Introduction.

2.2. This Agreement contains the entire agreement and understanding between the parties and unless otherwise agreed in writing by an authorised representative of the Agency, this Agreement shall prevail over any terms of business or purchase conditions (or similar) put forward or proposed by the Customer.

2.3. Subject to clause 2.2, no variation or alteration to this Agreement shall be valid unless the details of such variation are agreed in writing between a duly authorised representative of the Agency and the Customer, are set out in writing making express reference to this Agreement and this clause 2.3 and a copy of the varied Agreement is given to the Customer stating the date on or after which such varied terms shall apply.

2.4. The Agency shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973) when Introducing Contractors for Assignments with the Customer.

2.5. When the Agency Worker Regulations apply to an Assignment the Agency will be a Temporary Work Agency.

2.6. The Agency shall, in its absolute discretion, use its reasonable endeavours to supply such Contractors as may be required by the Customer during the Term at such times as the Customer may reasonably require subject always, to the Agency’s absolute discretion as to whether or not it shall supply such Contractors. For the avoidance of doubt, the Agency is not obliged or required to supply Contractors to the Customer and retains the absolute right and discretion as to whether or not (for whatever reason) it shall supply Contractors in connection with any such Assignments.

2.7. The Agency will only accept bookings for Assignments given by authorised representatives of the Customer whose names will be notified in writing by the Customer to the Agency from time to time.

CUSTOMER OBLIGATIONS

3.1. To enable the Agency to comply with its obligations under the Conduct Regulations, where applicable, the Customer undertakes to provide to the Agency details of the position, which the Customer seeks to fill, including the following:

3.1.1. the type of work that the Contractor would be required to do;

3.1.2. the location and hours of work;

3.1.3. the experience, training, qualifications and any authorisation which the Customer considers necessary or which are required by law or any professional body for the Contractor to possess in order to work in the position;

3.1.4. any risks to health or safety known to the Customer and what steps the Customer has taken to prevent or control such risks;

3.1.5. the date the Customer requires the Contractor to commence the Assignment;

3.1.6. the duration or likely duration of the Assignment; and

3.1.7. that there is no actual or right to supervision, direction or control over the Contractor or Intermediary in the work required in the Assignment.

3.2. The Customer represents and warrants to the Agency that:

3.2.1. all information and documentation supplied to the Agency is complete, accurate and up-to-date;

3.2.2. it shall provide to the Agency details of any purchase order number or other reference relating to each such Assignment including information relating to its registered office, registered number, VAT number (if applicable) and contact details of the relevant person(s) at the Customer on or prior to the commence of such Assignment and such other information as reasonably requested by the Agency from time to time; and

3.2.3. it will, during the term of the relevant Assignment, immediately inform the Agency in writing of any subsequent change in any information or documentation provided and agrees that the need to notify the Agency of any change in the right or existence of supervision, direction or control in the Assignment is of the upmost importance and critical to ensure the correct supply of the Contractor.

3.2.4. without prejudice to clauses 14.7 and 14.8, the Customer shall promptly inform the Agency in writing of any oral or written complaint any Contractor makes to the Customer.

3.3. The Customer undertakes to the Agency that it knows of no reason why it would be detrimental to the interests of any Contractor for the Contractor to fill the Assignment.

3.4. The Customer, warrants and confirms to the Agency that:

3.4.1. it has assessed the Assignment as an Outside IR35 Assignment and this is the Customer’s IR35 Status Decision; and

3.4.2. it has assessed whether there is the right to or actual supervision, direction or control in the manner in which the Contractor is required to complete the Assignment and the status is as provided for in clause 3.1.7 above.

3.5. The Customer will advise the Agency in writing immediately if any of the circumstances of the Assignment change which mean that the Assignment becomes an Inside IR35 Assignment or the Construction Industry Scheme would not apply to the Assignment.

INFORMATION TO BE PROVIDED TO THE CUSTOMER

4.1. When the Agency introduce a Contractor to the Customer, the Customer hereby irrevocably and unconditionally acknowledges and agrees that the Agency shall be responsible for informing and providing to the Customer and the Agency all of the information required for the assignment.

4.2. Where such information is not given by the Agency in paper form or by electronic means it shall be confirmed by such means by the end of the third Business Day (excluding Saturday, Sunday and any Public or Bank Holiday), save where the Contractor is Introduced for an Assignment in the same position as one in which the Contractor had previously been supplied within the previous 5 Business Days and such information has already been given to the Customer, unless the Customer requests in writing that the information be resubmitted.

4.3. The Agency shall be responsible for and undertakes to the Customer that it shall undertake appropriate due diligence (including any necessary disclosure and barring service checks) in relation to all Contractors prior to such Contractors being Introduced to the Customer.

TIMESHEET AND ELECTRONIC TIME & ATTENDANCE MANAGEMENT SYSTEMS

5.1. Where the fees in respect of the Assignment are calculated on the basis of hourly rates, day rates, or any other basis which is dependent on the amount of time the Contractor spends working for a Client at the end of each week of an Assignment (or at the end of the Assignment where it is for a period of 1 week or less) the Customer shall, save where the parties agree to use electronic time and attendance management systems where the number of hours worked by the Contractor will be calculated automatically, sign the Agency’s timesheets verifying the number of hours or days worked by the Contractor during that week or during the Assignment and provide a copy of such timesheets to the Agency by no later than 1pm on the Tuesday of each Calendar Week (or such other time period as notified in writing by the Agency from time to time).

5.2. Signature of the timesheet by the Customer is confirmation of the number of hours or days worked by the Contractor. If the Customer is unable to sign a timesheet produced for authentication by the Contractor because the Customer disputes the hours or days claimed, the Customer shall inform the Agency as soon as is reasonably practicable and shall co-operate fully and in a timely fashion to provide the actual number of hours or days worked to the Agency so that the parties are able to establish which were worked by the Contractor and the accuracy of the proposed time sheet. The Customer hereby acknowledges and agrees that its failure to sign the timesheet does not absolve the Customer of its obligation to pay the Charges in respect of the hours or days worked.

5.3. The Customer shall not be entitled to decline to sign a timesheet on the basis that it is dissatisfied with the work performed by the Contractor. In the event that the Customer is dissatisfied with the Contractor the provisions of clause 10.1 below shall apply.

CHARGES

6.1. The Customer covenants, agrees and undertakes to the Agency that it shall pay the Charges to the Agency in line with the following terms:

6.1.1. the Charges are comprised of the Contractor's fees based on the daily or hourly rates as set out in the Rate Card which shall be appended to this agreement or agreed in writing (via email), and any travel, hotel or other disbursements as have been agreed with the Customer;

6.1.2. Charges shall be invoiced weekly for the provision of any services or Assignment by the Contractor;

6.1.3. unless expressly provided otherwise by the Agency, each invoice issued shall be due and payable on receipt by the Customer;

6.1.4. if Contractor carries out any work outside Business Hours, the Customer will be charged for the time spent by the Contractor at an overtime rate of 1.5x the hourly rate set out in the Rate Card on Business Days and Saturdays, and 2x the daily or hourly rate set out in the Rate Card on Sundays and Bank Holidays.

6.2. Where the Contractor provides services through a Consultancy, the Charges are comprised of the Consultancy's fees, and the Agency’s commission, and any travel, hotel or other disbursements as may have been agreed with the Customer or, if there is no such agreement, such expenses as are reasonable.

6.3. The Agency reserves the right to vary the Charges agreed with the Customer, by giving written notice to the Customer:

6.3.1. In order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the Agency Worker Regulations, ITEPA, the NICs Legislation or the Working Time Regulation; and/or

6.3.2. if there is any variation in the Relevant Terms and Conditions in relation to a Contractor.

6.4. In addition to the Charges, if the Agency Worker Regulations apply to the Assignment, the Customer will pay the Agency an amount equal to the amount of any bonus that the Customer awards to any comparator employee of the Contractor, as defined in the Agency Worker Regulations immediately following any such award and the Agency will pay any such bonus to the Contractor or the Intermediary (as the case may be). For the avoidance of doubt, the Customer will also pay any employer’s National Insurance Contributions and the Agency's commission on the bonus (calculated using the same percentage rate as that used under clause 6.2.6) in addition to any bonus payable to the Contractor.

6.5. VAT is payable at the applicable rate on the entirety of the Charges and all sums payable under clauses 6.4 and 6.5.

6.6. The Agency reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of actual payment.

6.7. No refunds or rebates are payable in respect of the Charges of the Agency.

6.8. The Customer’s obligations under this clause 6 shall be performed without any right of the Customer to invoke set-off, deductions, withholding, counter-claims or other similar rights.

6.9. All amounts payable to the Agency under this Agreement are to be paid free and clear of (and without deduction or withholding for) any tax (including withholding, sales, use, value added and/or any other tax), duties, currency control restrictions, commissions and/or other withholdings whatsoever and the Customer shall be solely responsible for any such tax, duties, currency control restrictions, commissions and/or other withholdings.

PAYMENT OF THE CONTRACTOR The Agency assumes responsibility for paying the Intermediary, the Contractor or the Consultancy (as appropriate) and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Contractor pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003 (“PAYE”) and/or the Construction Industry Scheme.
TRANSFER FEES AND INTRODUCTION FEES 8.1. Save where clause 8.7 applies, the Customer shall be liable to pay a Transfer Fee if the Customer Engages an Intermediary or a Contractor Introduced by the Agency, in any capacity whatsoever, other than via the Agency or introduces the Intermediary or the Contractor to a third party and such introduction results in an Engagement of an Intermediary or the Contractor by the third party other than via the Agency and:

8.1.1. where an Intermediary and/or the Contractor has been supplied by the Agency, such Engagement takes place during the Assignment or within the Relevant Period; or

8.1.2. where an Intermediary and/or the Contractor has not been supplied, such Engagement takes place within 6 months from the date of the Introduction to the Customer. The Transfer Fee will be calculated in accordance with Schedule 1.

8.2. Save where clause 8.7 applies, if the Customer wishes to Engage the Intermediary or, if the Contractor does not supply services through an Intermediary, Engage the Contractor other than via the Agency without liability to pay a Transfer Fee, the Customer may, on giving one week’s written notice to the Agency, engage the Intermediary or the Contractor for the Period of Extended Hire specified in Schedule 1.

8.3. During such Period of Extended Hire the Agency shall supply the Intermediary or the Contractor on the same terms on which it or they have or would have been supplied during the Assignment and in any case on terms no less favourable than those terms which applied immediately before the Agency received the notice in clause 8.2; and the Customer shall continue to pay the Charges set out in clause 6.

If the Agency is unable to supply an Intermediary or the Contractor for any reason outside of its control for the whole or any part of the Period of Extended Hire; or the Customer does not wish to hire the Intermediary or the Contractor on the same terms as the Assignment; but an Intermediary or the Contractor is Engaged by the Customer, the Customer shall pay the Transfer Fee, reduced pro rata to reflect any Charges paid by the Customer during any part of the Period of Extended Hire worked by the Intermediary or the Contractor before being Engaged by the Customer.

If the Customer fails to give notice of its intention to Engage the Intermediary or the Contractor other than via the Agency before such Engagement commences, the parties agree that the Transfer Fee shall be due and paid in full.

8.4. Where prior to the commencement of the Customer's Engagement other than via the Agency, the Agency and the Customer agree that such Engagement will be on the basis of a fixed term of less than 12 months, the Agency may, in its absolute discretion, reduce the Transfer Fee as calculated in accordance with Schedule 1 pro-rata. Such reduction is subject to the Customer Engaging the Intermediary or the Contractor for the agreed fixed term.

Should the Customer extend an Intermediary's or the Contractor’s Engagement or re-Engage the Intermediary or the Contractor within 12 months from the commencement of the initial Engagement the Agency reserves the right to recover the balance of the Transfer Fee.

8.5. No refund of the Transfer Fee will be paid in the event that the Engagement of the Intermediary or the Contractor other than via the Agency by the Customer or by a third party to which the Customer introduces the Intermediary or the Contractor terminates or terminates before the end of the fixed term referred to in clause 8.4.

8.6. VAT at the applicable rate is payable in addition to any Transfer Fee and/or any Introduction Fee due.

8.7. If the Contractor provides services through a Consultancy and the relevant Contractor and Consultancy have given notice in accordance with Regulation 32(9) of the Conduct Regulations that the Conduct Regulations do not apply (as notified by the Agency), the Customer shall be liable to pay an Introduction Fee where the Agency Introduces the Contractor or the Intermediary to the Customer and:

8.7.1. the Customer Engages the Intermediary or the Contractor other than through the Agency within a period of 6 months from the termination of the Assignment in respect of which the Intermediary, and/or the Contractor was supplied, or if there was no supply, within 6 months of the Introduction of the Contractor or the Intermediary by the Agency; or

8.7.2. where the Customer introduces the Intermediary or the Contractor to a third party and such introduction results in an Engagement of the Intermediary or the Contractor by the third party other than via the Agency within 6 months from the date of the introduction by the Customer to the third party.

8.8. The Introduction Fee will be calculated at 15% of the Remuneration payable to the Contractor or Intermediary.

8.9. No refund of the Introduction Fee will be paid in the event that the Engagement subsequently terminates.

SPECIAL SITUATIONS

9.1. Where:

9.1.1. the Contractor or Intermediary (as the case may be) is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment or where the Assignment involves working with, caring for or attending one or more Vulnerable Persons, the Agency will take all reasonably practicable steps to procure that the Agency shall obtain and provide to the Customer copies of any relevant qualifications or authorisations of the Contractor; and

9.1.2. where the Assignment involves working with, caring for or attending one or more Vulnerable Persons, the Agency shall obtain and offer to provide 30 days date of invoice copies to the Customer of two references from persons who are not relatives of the Contractor and who have agreed that the references they provide may be disclosed to the Customer, and such other reasonably practicable steps as are required to confirm that the Contractor is suitable for the Assignment. If the Agency has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Customer of the steps it has taken to obtain this information in any event.

9.2. The Customer shall advise the Agency at the time of instructing the Agency to supply a Contractor whether during the course of the Assignment, the Contractor will be required to work with, care for or attend one or more Vulnerable Persons or engage in activity or otherwise be working in a position covered by the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable.

9.3. The Customer shall assist the Agency by providing any information required to allow them to comply with its statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable and to allow the Agency to select a suitable Contractor for the Assignment.

9.4. In particular, in the event that the Customer removes an Intermediary or a Contractor (as the case may be) from an Assignment in circumstances which would require the Agency to provide information to the Independent Safeguarding Authority (or the equivalent authority) under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007, the Customer shall provide sufficient information to the Agency to allow it to discharge its statutory obligations.

UNSUITABILITY OF THE AGENCY CONTRACTOR OR INTERMEDIARY

10.1. The Customer undertakes to ensure that the Contractor or Intermediary’s (as the case may be) standards of work is to the Customer’s satisfaction. If the Customer reasonably considers that the services of the Contractor or the Intermediary (as the case may be) are unsatisfactory, the Customer may terminate the Assignment either by instructing the Contractor or Intermediary (as the case may be) to leave the Assignment immediately, or by directing the Agency to remove the Contractor or Intermediary (as the case may be). The Agency may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Contractor, provided that the Customer has notified the Agency immediately that they have asked the Contractor or Intermediary (as the case may be) to leave the Assignment or the Assignment terminates:

10.1.1. within 4 hours of the Contractor commencing the Assignment where the Assignment is for more than 7 hours; or

10.1.2. within 2 hours for Assignments of 7 hours or less, and provided that notification of the unsuitability of the Contractor or Intermediary (as the case may be) is confirmed in writing to the Agency within 48 hours of the termination of the Assignment.

10.2. The Agency shall notify the Customer or Intermediary (as the case may be) immediately if it receives or otherwise obtains information which gives them reasonable grounds to believe that any Contractor or Intermediary (as the case may be) supplied to the Customer is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Customer shall remain liable for all Charges incurred prior to the termination of the Assignment.

10.3. The Customer shall notify the Agency immediately and without delay and in any event within 2 hours if the Contractor (i) fails to attend work or (ii) has notified the Customer that they are unable to attend work for any reason.

TERMINATION OF THIS AGREEMENT AND ANY ASSIGNMENT

11.1. Subject to the provisions for earlier termination set out in clause 11.2 and 11.3 below, any of the Customer, the Agency, the relevant Intermediary or the Contractor may terminate an Assignment by any such party giving the other parties notice in writing without liability (except in the case of termination by the Customer, who shall be liable for any Charges due under clauses 6 and 8 above).

11.2. Any party may terminate this Agreement by providing the other parties with 3 months prior written notice to the other.

11.3. The Agency may terminate this Agreement immediately on giving notice in writing to the Customer and the Agency if in the reasonable opinion of the Agency, the Customer is not providing sufficient Assignments for the supply of Contractors. Notwithstanding termination of this Agreement, the Customer shall remain liable for any Charges or payments due under this Agreement.

11.4. Notwithstanding Clause 11.2 and/or 11.3, any party may terminate this Agreement forthwith by notice in writing to the other parties if another/the other parties:

11.4.1. commits a material or fundamental breach of this Agreement and such material or fundamental breach is in the reasonable opinion of the innocent party/parties incapable of remedy;

11.4.2. commits a breach of this Agreement which in the case of a breach capable of remedy shall not have been remedied within 7 days of the receipt by the other of a notice from the innocent party identifying the breach and requiring its remedy; or

11.4.3. is or threatens to become unable to pay its debts or becomes bankrupt or insolvent, has a winding up order made or passes a resolution for a voluntary winding up; makes a composition or arrangement with its creditors in respect of the composition of its debts or any scheme or arrangement or the appointment of an administrative receiver approved in accordance with the Insolvency Act 1986.

11.5. Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and in particular but without limitation the right to recover damages against the others and all other provisions which are expressed to survive this Agreement shall remain in full force and effect.

11.6. In the event of termination of this Agreement the Customer is obliged to pay the Agency for the supply of Contractors prior to the date of termination and should any of the Contractors continue to be retained on any Assignment after the date of termination of this Agreement the Customer shall continue to pay the relevant Charges until any such Assignment shall have end.

CONFIDENTIALITY AND DATA PROTECTION

12.1. All information relating to an Intermediary or a Contractor (as the case may be) is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing work-finding services to the Customer. Such information must not be used by the Customer for any other purpose nor divulged to any third party and the Customer undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times.

12.2. The Agency undertakes to the Customer to keep confidential all Relevant Terms and Conditions that the Customer discloses to the Agency and not to use such information except for the purposes of compliance with the Agency Worker Regulations (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Contractor or any Agency Worker Claim).

12.3. Information relating to the Agency’s business which is capable of being confidential must be kept confidential by the Customer and not divulged by the Customer, to any third party, except information which is in the public domain or otherwise required to be disclosed by a court of competent jurisdiction.

INTELLECTUAL PROPERTY RIGHTS

All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Customer. Accordingly, the Agency shall use their reasonable endeavours to ensure that the Contractor or the Intermediary (as the case may be) shall execute all such documents and do all such acts in order to give effect to the Customer’s rights pursuant to this clause.

LIABILITY

14.1. Whilst reasonable efforts are made by the Agency to give satisfaction to the Customer by ensuring reasonable standards of skill, integrity and reliability from the Intermediary or each Contractor (as the case may be) and to provide the same in accordance with the Assignment details as provided by the Customer, no liability is accepted by the Agency for any Losses, expense, damage or delay arising out of or in connection with any failure to provide an Intermediary or any Contractor (as the case may be) for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Contractor or the Intermediary (as the case may be) or if the Contractor or the Intermediary (as the case may be) terminates the Assignment for any reason. Save as set out otherwise in this Agreement, the liability of the Agency (including for negligence) shall not exceed 100% of the Charges actually received by the Agency under this Agreement, save in respect of any liability which the Agency has insurance cover for in which case, the liability of the Agency shall not exceed the limit specified in such insurance cover. For the avoidance of doubt, the Agency does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.

14.2. Contractors supplied by the Agency pursuant to this Agreement are engaged under contracts for services and they are not the employees of the Agency. The Customer hereby covenants and undertakes to the Agency that it agrees that they are not responsible for any acts, errors or omissions of the Contractor, whether wilful, negligent or otherwise.

14.3. Any Intermediary supplied by the Agency to the Customer is engaged on a contract for services and takes responsibility for all acts, errors or omissions of the Contractor whether wilful, negligent or otherwise.

14.4. The Customer shall advise the Agency of any special health and safety matters about which the Agency is required to inform the Intermediary or the Contractor (as the case may be) and about any requirements imposed by law or by any professional body, which must be satisfied if the Intermediary or the Contractor (as the case may be) is to fill the Assignment.

14.5. Where applicable, the Customer will also comply in all respects with all relevant statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the Working Time Regulations, Health and Safety At Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999, by-laws, codes of practice and legal requirements to which the Customer is ordinarily subject in respect of the Customer’s own staff (excluding the matters specifically mentioned in clause 7 above), including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Contractors or the Intermediary (as the case may be) during all Assignments.

14.6. Where applicable, the Customer undertakes not to request the supply of a Contractor to perform the duties normally performed by a Contractor who is taking part in official industrial action or duties normally performed by a Contractor who has been transferred by the Customer to perform the duties of a person on strike or taking official industrial action.

14.7. The Agency shall indemnify and hold harmless the Customer against any and all Losses arising out of or connected with or resulting from the Agency’s breach of any obligation to be performed by the Agency under law or under this Agreement.

14.8. The Customer shall indemnify and keep indemnified the Agency against any Losses suffered or incurred by the Agency arising out of or in connection with: 14.8.1. any Assignment or arising out of any non-compliance with, and/or as a result of any breach of this Agreement by the Customer; 14.8.2. any proceedings, claims or demands by any third party (including specifically, but without limitation, HMRC and any successor, equivalent or related body pursuant to any of the provisions of ITEPA or the NICs Legislation (and/or any supporting or consequential secondary legislation relating thereto)) arising out of any Assignment or arising out of any non-compliance with, and/or as a result of, any breach of this Agreement by the Customer.

14.9. The Customer shall inform the Agency in writing of any AWR Claim which comes to the notice of the Customer as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Customer.

14.10. If any Contractor brings, or threatens to bring, any AWR Claim, the Customer undertakes to take such action and give such information and assistance as the Agency may request, and within any timeframe requested by the Agency and at the Customer’s own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.

14.11. The Customer shall advise the Agency of any special health and safety matters about which the Agency is required to inform the Contractor or the Intermediary about any requirements imposed by law or by any professional body, which must be satisfied if the Intermediary or the Contractor that is to fill the Assignment.

GENERAL

15.1. All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent.

15.2. If any of the provisions of this Agreement shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.

15.3. The Agency shall be entitled to assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement.

15.4. Neither the Customer nor the Agency shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the Agency.

15.5. If any party is prevented, hindered or delayed from performing its obligations under this Agreement by a Force Majeure Event then: 15.5.1. that party’s obligations under this Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that the party is so prevented hindered or delayed; 15.5.2. as soon as reasonably possible after commencement of the Force Majeure Event that party shall notify the other parties in writing of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement; 15.5.3. if that party fails to give the notice referred to in clause 15.5.2 it shall forfeit its rights under clause 15.5.1; 15.5.4. that party shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and 15.5.5. as soon as reasonably possible after the cessation of the Force Majeure Event that party shall notify the other parties in writing of the cessation of the Force Majeure Event and shall resume performance of its obligations under this Agreement.

15.6. If the Force Majeure Event continues for more than twenty-one (21) days after the commencement of the Force Majeure Event any party may forthwith terminate this Agreement on written notice to the other parties.

15.7. This Agreement may be entered into in the form of two or more counterparts, each executed by one or more of the parties but, taken together, executed by all and, provided that all the parties so enter into this Agreement, each of the executed counterparts, when duly exchanged and delivered, will be deemed to be an original, but, taken together, they will constitute one instrument.

15.8. This Agreement (along with any document from time to time entered into pursuant to or in connection with this Agreement) sets out the entire agreement and understanding between the parties to them in connection with the subject matter of this Agreement and other matters described in them.

15.9. Without prejudice to the generality of clause 15.8, this Agreement (along with any document from time to time entered into pursuant to or in connection with this Agreement) supersedes as from the date of this Agreement prior negotiations, representations, undertakings and agreements (whether oral or written) on any matter which is the subject of this Agreement or any other document from time to time entered into pursuant to or in connection with this Agreement.

15.10. Each of the parties acknowledges that it is not relying on any statement, warranty, representation, collateral contract or other assurance given or made by any of the parties in relation to the subject matter of this Agreement, save for those expressly set out in this Agreement and any other document from time to time entered into pursuant to or in connection with this Agreement. Each party waives all rights and remedies which, but for this clause 15.10, might otherwise be available to it in respect of any such statement, warranty, representation, collateral contract or other assurance not set out in this Agreement or any other document from time to time entered into pursuant to or in connection with this Agreement.

15.11. This Agreement will be governed by and construed in accordance with English law and all claims and disputes (including non-contractual claims and disputes) arising out of or in connection with this Agreement, its subject matter, negotiation or formation will be determined in accordance with English law and each party irrevocably submits to the exclusive jurisdiction of the English courts in relation to all matters (including non-contractual matters) arising out of or in connection with this Agreement.

SCHEDULE 1: TRANSFER FEES

The Transfer Fee referred to in clause 8 shall be agreed in writing between the Agency and the Customer. In the event that the parties do not agree the amount of the Transfer Fee then the Agency shall be entitled to charge a fee calculated as follows:
10% of the Remuneration payable to the Contractor or Intermediary during the first 48 weeks of the Engagement.
The Period of Extended Hire referred to in clause 8 shall be 20 weeks.

Terms of Business - Companies

By working with us, you are agreeing to these terms of business.