1.1 In these Terms of Business the following definitions apply:
“Assignment”: Means each period during which the Temporary Worker is supplied to render services to a Client;
“Client Assignment Schedule”: means the Agreement;
“Client”: means the person, firm or corporate body together with any subsidiary or associated company as defined by the Companies Act 1985 to whom the Temporary Worker is supplied or introduced;
“Employment Business”: means Acre Resources Limited of 31-33 High Holborn, London, WC1V 6AX;
“Engages/Engaged/Engagement” : means the engagement, employment or use of the Temporary Worker directly by the Client or any third party or through any other employment business on a permanent or temporary basis, whether under a contract of service or for services; an agency, license, franchise or partnership arrangement; or any other engagement; directly or through a limited company of which the Temporary Worker is an officer or employee;
“Introduction Fee”: means the fee payable in accordance with clause 9.1 below;
“Introduction”: means (i) the Client’s interview of a Temporary Worker in person or by telephone, following the Client’s instruction to the Employment Business to supply a Temporary Worker; or (ii) the passing to the Client of a curriculum vitae or information which identifies the Temporary Worker and “Introduced” shall be construed accordingly;
“Relevant Period”: means the later of either 14 weeks from the first day on which the Temporary Worker was supplied by the Employment Business to work for the Client, or 8 weeks from the day after the Temporary Worker was last supplied by the Employment Business to the Client;
“Remuneration”: includes base salary or fees, 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 Temporary Worker for services rendered to or on behalf of the Client or any third party. Where a company car is provided, a notional amount of benefit will be added to the salary in order to calculate the Employment Business’ fee;
“Temporary Worker”: means the individual who is introduced by the Employment Business to render services to the Client;
“Transfer Fee”: means the fee payable in accordance with clause 9 below and Regulation 11 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
1.2 The terms of the Agreement shall be deemed to be accepted by the Client with effect from the date of an Introduction. Unless terminated in accordance with Clause 12 below, the Agreement shall remain in force indefinitely or for such period as specified in the Client Assignment Schedule.
1.3 The Company shall provide the Temporary Worker to the Client to undertake the Services as specified in the Client Assignment Schedule.
1.4 The Regulations apply to the Agreement unless the Temporary Worker is to be supplied to the Client via a Service Provider and both the Service Provider and the Temporary Worker have exercised their right to opt out of the Regulations. The Company shall notify the Client promptly of such opt out and if practicable such notification shall be given prior to the commencement of an Assignment.
1.5 The Consultancy has agreed to meet Clients’ project requirements set out in Project Agreements agreed between the Company and the Consultancy from time to time on the terms and conditions set out within this Agreement.
1.6 Unless the context otherwise requires, references to the singular include the plural.
1.7 The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.8 The Company shall be entitled to deduct by way of set off any loss that has been caused to the Company as a result of the Client’s breach of the Agreement.
2.1 These Terms constitute the contract between the Employment Business and the Client for the supply of the Temporary Worker’s services by the Employment Business to the Client and are deemed to be accepted by the Client by virtue of its request for, interview with or Engagement of the Temporary Worker or the passing of any information about the Temporary Worker to any third party following an Introduction.
2.2 The Company shall use its reasonable endeavours to ensure that the Temporary Worker is suitable to carry out the Services with reasonable skill and care and in this regard has made all reasonable enquiries of the Temporary Worker regarding suitability and competence. It is for the Client to satisfy itself as to the Temporary Worker’s overall capability to fulfil the Agreement when interviewing the Temporary Worker and/or during the first week of the Assignment.
2.3 These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a director of the Employment Business, these Terms prevail over any terms of business or purchase conditions put forward by the Client.
2.4 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Employment Business and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
3.1 The Client agrees to pay such hourly/daily/weekly charges of the Employment Business as shall be notified to and agreed with the Client in the Client Assignment Schedule. The charges are calculated according to the number of hours/days/week worked by the Temporary Worker and comprise mainly the Temporary Worker’s pay but also include the Employment Business’ commission calculated as a percentage of the Temporary Worker’s pay, employer’s National Insurance contributions (if relevant) and any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses as are reasonable. VAT, if applicable, is payable on the entirety of these charges.
3.2 The charges are invoiced to the Client in arrears on a monthly basis and are payable within 21 days of the invoice date. The Employment Business will exercise its right to claim statutory interest at 8 per cent over the current Bank of England base rate, as well as claiming compensation for the recovery of costs, both guaranteed by the Late Payment of Commercial Debts (Interest) Act 1998, if money owed is not received by the agreed date and under the agreed credit terms. Interest will be applied from the due date until the date of payment.
3.3 There are no rebates payable in respect of the charges of the Employment Business.
3.4 The Client agrees to indemnify the Employment Business against all costs and expenses incurred in recovering monies due to the Employment Business by the Client in any event.
3.5 The Client shall endorse the timesheet pertaining to each Assignment on a weekly basis.The Client shall be solely responsible to ensure that all timesheets are accurate and properly endorsed by the Client’ authorised representative and shall be deemed conclusive acceptance of the services provided by the Temporary Worker and the Employment Business may exclusively rely on the timesheets when determining the Remuneration and fee due to the Employment Business.
3.6 Should the Client dispute all or part of an invoice, the undisputed part shall be paid without prejudice to the provisions for the accrual of interest on unpaid invoiced amounts in accordance with condition 3.2 above.
3.7 The endorsement of each timesheet by the Client’s authorised representative shall constitute an acceptance of the Services provided and shall be payable without reference to any other services provided or due to be provided by the Employment Business.
3.8 The Client hereby waives all and any future claims and rights of set off against any payment for Services provided or any payment due under this agreement and agrees to pay the fees due to the Employment Business and all other amounts regardless of any equity, set off or cross-claim on the part of the Client against the Employment Business.
3.9 The Employment Business reserves its right to vary its charges for services. The amended charge rate shall be effective upon the Client being given 30 days written notice stating the cause and manner of calculation of the new charge.
4.1 Except to the extent permitted by law, neither party shall divulge nor use for their own or any other person’s benefit any Confidential Information.
INTELLECTUAL PROPERTY RIGHTS
5.1 All intellectual Property Rights and any other proprietary rights whatsoever in any documentation and other material created by the Temporary Worker in connection with the performance of the Services shall vest in the Client.
INFORMATION TO BE PROVIDED
6.1 When making an Introduction of a Temporary Worker to the Client the Employment Business shall inform the Client of the identity of the Temporary Worker; that the Temporary Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment; whether the Temporary Worker will be employed by the Employment Business under a PAYE contract or a contract for services; and that the Temporary Worker is willing to work in the Assignment.
6.2 Where such information is not given 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) following, save where the Temporary Worker is being Introduced for an Assignment in the same position as one in which the Temporary Worker had previously been supplied within the previous five business days and such information has already been given to the Client, unless the Client requests that the information be resubmitted.
7.1 At the end of each week or month of an Assignment (or at the end of the Assignment where it is for a period of one week or less) the Client shall sign the Employment Business’ time sheet verifying the number of hours/days/weeks worked by the Temporary Worker during that period.
7.2 Signature of the time sheet by the Client is confirmation of the period worked. If the Client is unable to sign a time sheet produced for authentication by the Temporary Worker because the Client disputes the time claimed, the Client shall inform the Employment Business as soon as is reasonably practicable and shall co- operate fully and in a timely fashion with the Employment Business to enable the Employment Business to establish what time, if any, has been worked by the Temporary Worker. Failure to sign the time sheet does not absolve the Client’s obligation to pay the charges in respect of the time worked.
7.3 The Client shall not be entitled to decline to sign a timesheet on the basis that he is dissatisfied with the work performed by the Temporary Worker. In cases of unsuitable work the Client should apply the provisions of clause 13.2 below.
PAYMENT OF THE TEMPORARY WORKER
8.1 The Employment Business assumes responsibility for paying the Temporary Worker, and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Temporary Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003.
TRANSFER AND INTRODUCTION FEES
Where there has been a supply
9.1 In the event of the Engagement by the Client of a Temporary Worker supplied by the Employment Business either (1) directly or (2) pursuant to being supplied by another employment business, within either
- The duration of the Assignment; or
- Within six months of the Introduction of a Worker if the Worker is not Engaged or six months from the end of an Engagement the Client shall be liable, to pay a Transfer Fee calculated as follows: [25%] of the monthly Remuneration x 12, or if the actual amount of the Remuneration is not known, the hourly/daily/or weekly charge will used for the basis of the calculation. No refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates.
- If the Engagement is for a Fixed Term Contract then Employment Businesses Terms and Conditions for Fixed Term Contracts will apply.
- VAT is payable in addition to any fee due.
10. Where there has been Introduction to and Engagement by a Third Party;
10.1 In the event that there is an Introduction of a Temporary Worker to the Client which does not result in the supply of that Temporary Worker by the Employment Business to the Client, but the Temporary Worker is Introduced by the Client to a third party which results in the Engagement of the Temporary Worker by the third party;
- Within 6 months from the date of Introduction the Client shall be liable, to an Introduction Fee calculated as follows: % of the monthly Remuneration x 12 or, if the actual amount of the Remuneration is not known, the hourly/daily/or weekly charge will used for the basis of the calculation. No refund of the Introduction Fee will be paid in the event that the Engagement subsequently terminates.
- If the Engagement is for a Fixed Term Contract then Employment Businesses Terms and Conditions for Fixed Term Contracts will apply.
- VAT is payable in addition to any fee due
11.1 Whilst every effort is made by the Employment Business to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from Temporary Workers and further to provide them in accordance with the Client’s booking details, the Employment Business is not liable for any loss, expense, damage or delay arising from any failure to provide any Temporary Worker for all or part of the period of booking or from the negligence, dishonesty, misconduct or lack of skill of the Temporary Worker. For the avoidance of doubt, the Employment Business does not exclude liability for death or personal injury arising from its own negligence.
11.2 Temporary Workers supplied by the Employment Business are engaged under contracts for services. They are not the employees of the Employment Business but are deemed to be under the supervision, direction and control of the Client from the time they report to take up duties and for the duration of the Assignment. The Client agrees to be responsible for all acts, errors or omissions of the Temporary Worker, whether wilful, negligent or otherwise as though the Temporary Worker was on the payroll of the Client. The Client will also comply in all respects with all statutes including, for the avoidance of doubt, the Working Time Regulations, Health and Safety At Work Act etc, by-laws, codes of practice and legal requirements to which the Client is ordinarily subject in respect of the Client’s own staff (excluding the matters specifically mentioned in Clause 8 above), including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Temporary Worker during all Assignments.
11.3 The Client shall advise the Employment Business of any special health and safety matters about which the Employment Business is required to inform the Temporary Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Temporary Worker is to fill the Assignment. The Client will assist the Employment Business in complying with the Employment Business’ duties under the Working Time Regulations by supplying any relevant information about the Assignment requested by the Employment Business and the Client will not do anything to cause the Employment Business to be in breach of its obligations under these Regulations. Where the Client requires or may require the services of a Temporary Worker for more than 48 hours in any week, the Client must notify the Employment Business of this requirement before the commencement of that week.
11.4 The Client undertakes that it knows of no reason why it would be detrimental to the interests of the Temporary Worker for the Temporary Worker to undertake the Assignment.
11.5 The Client shall indemnify and keep indemnified the Employment Business against any costs, claims or liabilities incurred by the Employment Business arising out of any Assignment or arising out of any non-compliance with clauses 11.1 and 11 and/or as a result of any breach of these Terms by the Client.
12.1 Where the Temporary Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment or the Assignment involves caring for or attending one or more persons under the age of eighteen or any person who by reason of age, infirmity or who is otherwise in need of care or attention, the Employment Business will take all reasonably practicable steps to obtain and offer to provide to the Client:
- Copies of any relevant qualifications or authorisations of the Temporary Worker, and:
- Two references from persons not related to the Temporary Worker who have agreed that the references they provide may be disclosed to the Client and has taken all reasonably practicable steps to confirm that the Temporary Worker is suitable for the Assignment. If the Employment Business is unable to do any of the above it shall inform the Client of the steps it has taken to obtain this information in any event.
13.1 This Agreement shall have effect on and from the Effective Date and shall continue in force thereafter.
13.2 The Client undertakes to supervise the Temporary Worker sufficiently to ensure the Client’s satisfaction with the Temporary Worker’s standards of workmanship. If the Client reasonably considers that the services of the Temporary Worker are unsatisfactory, the Client may terminate the Assignment either by instructing the Temporary Worker to leave the Assignment immediately, or by directing the Employment Business to remove the Temporary Worker. The Employment Business may, in such circumstances, reduce or cancel the charges for the time worked by that Temporary Worker, provided that the Assignment terminates:
13.2.1 Within four hours of the Temporary Worker commencing the Assignment where the booking is for more than seven hours; or
13.2.2 Within two hours for bookings of seven hours or less;
13.2.3 And also provided that notification of the unsuitability of the Temporary Worker is confirmed in writing to the Employment Business within 48 hours of the termination of the Assignment.
13.3 Without limitation the Client may by notice in writing immediately terminate an Assignment if the Employment Business shall:
13.3.1 be in breach of any of the terms of this Agreement which, in the case of a breach capable of remedy, shall not have been remedied by the Employment Business within 30 days of receipt by the Employment Business of written notice from the Client specifying the breach and requiring its remedy;
13.3.2 be grossly incompetent, guilty of gross misconduct and/or any serious or persistent negligence in the provision of Services;
13.3.3 fail or refuse after written warning to provide the Services reasonably required.
13.4 The Client may not terminate the Assignment solely for the reason of the Temporary Workers absence due to illness or injury unless such illness or injury prevents the Temporary Worker from providing services pursuant to this Agreement to the Client for a consecutive period of one whole week (i.e. 5 working days) or for an aggregate period of two weeks (i.e. 10 working days) in any period of 12 calendar months.
13.5 Either party is entitled to terminate the agreement immediately in the event that the other party ceases to trade or has a receiver appointed, or is insolvent or appoints or has an administrator appointed.
13.6 If the Temporary Worker is not required to perform services for the Client during the termination notice period the Client shall pay the Employment Business as though the Temporary Worker was providing services for 40 hours per week during the notice period.
13.7 The Client or the Employment Business may terminate an Assignment at any time with prior written notice as agreed in the Client Schedule Agreement and without liability.
13.8 The Client shall notify the Employment Business immediately and without delay and in any event within 24 hours if the Temporary Worker fails to attend work or notifies the Client that the Temporary Worker is unable to attend work for any reason.
13.9 The Employment Business shall notify the Client immediately if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Temporary Worker supplied to the Client is unsuitable for the Assignment and in those circumstances either the Client or the Employment Business may terminate the Assignment without prior notice and without liability.
14.1 Any notice required to be given under these Terms, or in connection with the matters contemplated by these Terms, shall (except where specifically provided otherwise) be in writing and personally delivered, sent by pre-paid first-class post or by fax. Such notice shall be deemed to have been given on delivery at the relevant address or, if sent by first-class pre-paid post, two business days (that is, any day which is not a Saturday, Sunday or public holiday in the place at or to which the notice is left or sent) after the date of posting, or if sent by fax, when despatched, subject to confirmation of uninterrupted transmission by a transmission report.
15.1 These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.