In these Terms of Business (“Terms”) the following definitions apply:-
“Assignment” means the period during which the Supplier supplies their services to the Client and any other terms all as detailed in the Project Schedule.
“Client” means the organisation as set out in the Project Schedule which shall also include any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Supplier or Consultant is Introduced.
“Consultant” means the individual provided by the Supplier to perform services for the Client.
“Engagement” means the engagement, employment or use of the Supplier’s or Consultant’s services, directly or indirectly by the Client or of any third party to whom they have been introduced by the Client on a permanent or temporary basis whether under a contract of service or for services, or through any other employment business or any other engagement and “Engage”, “Engages” and “Engaged” shall be construed accordingly.
“Fees” means those fees chargeable by Strategic to the Client as agreed in the Project Schedule.
“Introduction” means (i) the Client’s interview of the Supplier or it’s Consultant in person or by telephone, following the Client’s instruction to Strategic to search for a Supplier or Consultant; or (ii) the passing to the Client of a curriculum vitae or other information which identifies the Consultant; and which leads to an Engagement of that Supplier or Consultant by the Client or any third party to whom the Supplier or Consultant is introduced by the Client.
“Project Schedule” means the particulars of the Assignment to be performed by the Supplier.
“Supplier” means the limited company engaged under a contract for services by Strategic and introduced by Strategic to the Client.
“Services” means the sourcing, introduction and supply of the Supplier to the Client. The detail of any Assignment shall be contained in the Project Schedule issued by Strategic.
“Data Protection Legislation” means the European Union’s General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the Processing of Personal Data and privacy as amended, re-enacted, replaced or superseded from time to time, including where applicable the guidance and codes of practice issued by the United Kingdom’s Information Commissioner.
“Data Subject”, “Personal Data“, “controller”, “processor” have the meaning given to that term in the Data Protection Laws and refers to a Candidate that is submitted by Strategic to a Client for the purpose of providing the recruitment services.
- THE AGREEMENT
- In order to assist Strategic to source a suitable Consultant, the Client shall provide to Strategic in writing full details of: (a) the intended duties of the Supplier (to include details of the location of the work and the hours of work); (b) the experience, training, qualifications and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Supplier to possess in order to work in the position; and (c) any risks to health and safety known to the Client and any steps that may have been taken to prevent or control such risks.
- These Terms constitute the entire agreement between Strategic and the Client for the provision of the Supplier by Strategic to the Client and are deemed to be accepted by the Client by virtue of its request for details of a Consultant or interview with, or Engagement of the Consultant or the passing of any information about the Consultant to a third party. In the event of any conflict or inconsistency between these terms and conditions, and any terms and conditions set out in or referred to by the Project Schedule, the terms and conditions set out in or referred to by the Project Schedule shall take precedence (solely in respect of such conflict or inconsistency).
- No variation or alteration to these Terms shall be valid unless approved by a director of Strategic in writing.
- Unless otherwise agreed in writing by Strategic, these Terms prevail over any terms of business or purchase conditions submitted by the Client.
- The headings contained in these Terms are for convenience only and do not affect their interpretation.
- These Terms should be signed and returned to Strategic within 7 days of the commencement of the Services. Failure to do so shall be deemed as acceptance by the Client of all the Terms in respect of such Assignment.
- The Supplier will perform such services for the Client as requested by the Client, and which are briefly described in the Project Schedule. Such services shall be performed at or from the Contract Site as specified in the Project Schedule, or at such other site as reasonably required by, or mutually agreed in writing with, the Client. In the event the Client and the Supplier agree the services are to be provided away from the Contract Site(s), the Client shall ensure it is satisfied that the Supplier has adequate provision of office and communication facilities in order for the Supplier’s services to be completed. The Supplier shall be entitled to perform services from the Supplier’s office or place of business, provided this has been agreed in advance with the Client.
- The Client acknowledges and accepts that the Supplier is entitled to seek, apply for and accept contracts to supply services to other parties during the currency of the Assignment, provided this does not create any conflict of interest, or compromise the Supplier’s ability to deliver services to the Client’s specification, or is otherwise in breach of its agreement with Strategic.
- The Supplier shall be expected to exercise a degree of control as to the method of the performance of its services; however, Strategic recognises that the Client shall reasonably expect certain work standards and methods, and undertakes to use all reasonable endeavours to procure that these are complied with by the Supplier.
- At the reasonable request of the Client, Strategic shall procure that the Supplier provides such tools and equipment as are necessary for the performance of its services, whether away from the Contract Site or otherwise.
- It is the Client’s responsibility to satisfy itself that each Supplier has the necessary experience, qualification and skills to carry out an Assignment prior to its commencement. The Client undertakes to liaise with and give guidance to the Supplier supplied under any Assignment sufficiently to ensure the Client’s satisfaction in respect of the services, but if in the reasonable opinion of the Client the Supplier’s services can be shown to be unsatisfactory during the term of the Assignment, then the Client may request, in writing, the removal of the unsatisfactory Supplier. The Client will be liable to pay for the full number of working hours or days completed by the unsatisfactory Supplier up to the date of the said request. Any Consultant supplied under an Assignment will not be deemed to be unsatisfactory until Strategic has received written confirmation from the Client detailing the specific areas which constitute the grounds for the Client’s dissatisfaction.
- In the event that the Client makes a request to remove the Supplier, Strategic shall use all reasonable endeavours to provide a replacement acceptable to the Client with suitable experience and competence as soon as reasonably practicable, however if Strategic shall be unable to provide a replacement within 14 days of proof of the unsatisfactory working of the original Supplier, the Client may at its discretion terminate the Assignment forthwith.
- Any Supplier supplied under an Assignment will not be deemed to be unsatisfactory until Strategic has received written confirmation from the Client detailing the specific areas which constitute the grounds for the Client’s dissatisfaction.
- Strategic shall from time to time be entitled to provide a substitute Consultant, provided the Client indicates that it is satisfied that the replacement has the necessary skill and experience and all necessary clearances and consents are obtained for such replacement. The Client further acknowledges and accepts that the Supplier may propose a replacement to perform services, but that any such proposed substitute shall only be accepted if approved in writing by the Client.
- The Client shall not integrate the Consultant into its workforce or treat the Consultant as an employee or do any act or thing towards the Consultant which may be regarded as the act of an employer towards an employee. Strategic enters into a contract for services with the Supplier and the Consultant is an employee or independent worker of the Supplier.
- With effect from 1 October 2011 both parties agree to comply with the requirements of the Agency Workers Regulations 2011 (“Regulations”), if they apply to the supply of the Consultant. Unless Strategic supplies a Consultant who is in business in their own account and not under the supervision and direction of the Client, the Client shall provide to Strategic details of employment and working conditions provided to its own permanent employees performing the same of similar role, so that Strategic may provide equal treatment to the Consultant in accordance with the Regulations.
- It is the Client’s exclusive responsibility to provide the Consultant access to collective facilities and any internal vacancies during the period of the Project Schedule, except where the Consultant is in business in their own account and not under the Client’s supervision and direction. In the event there is a change in the Client’s employment and working conditions during the term of the Project Schedule, the Client undertakes to promptly inform Strategic of any such changes and the parties shall agree to any change to the Fees arising from such changes. If during the Assignment there is any statutory amendment to the Regulations, Strategic reserves the right to amend the terms of this Agreement if necessary after informing the Client, in order to ensure compliance with the Regulations.
- The Client shall inform Strategic of any periods prior to the commencement of the Assignment if the Consultant has provided services of the same or similar nature via any third party.
- The Client must inform Strategic within 48 hours of an Introduction being made if a Consultant or Supplier is already known to be directly on the Client’s system or has been previously Introduced to the Client by someone other than Strategic.
- In the event for whatever reason the Fees stated in the Project Schedule is insufficient to cover the entitlements of the Consultant under the Regulations, the Client agrees to pay any additional fees to cover such entitlements.
- The Client agrees to refrain from discussing with the Supplier or Consultant the terms of the Consultant’s engagement through Strategic.
- The Client agrees to pay the agreed Fees of Strategic without set off or deductions. The Fees are calculated according to the number of days worked by the Supplier.
- The charges are invoiced to the Client on a weekly basis and are payable within 7 days from the date of invoice. Strategic reserves the right to charge interest on any overdue amounts at the rate of 8% per annum over the base rate of the Bank of England, from the due date until the date of payment. In addition, the Client shall reimburse Strategic for any expenses reasonably incurred by Strategic in the collection of such overdue payments.
- All Fees are stated exclusive of VAT which will be added at the prevailing rate.
- The Client will not be charged when services are not provided by the Supplier due to illness or holidays. The Client will be liable to pay Fees with respect to the Assignment even if it does not require services to be provided, including but not limited to any periods of furlough within the Client’s business.
- Unless otherwise agreed in writing, any travel, hotel or other expenses incurred by the Supplier which are authorised by the Client, will be invoiced to the Client for reimbursement as per clause 2.2.
- PROJECT REPORTS / TIMESHEETS
- At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of one week or less or is completed before the end of a week) the Client shall authorise Strategic’s claim for time worked by the Contractor on Strategic’s electronic timesheet recording system, (or where required, the Client’s timesheet or other means of recording) verifying the number of days the Supplier worked during that week. Authorisation of time by the Client indicates satisfaction with the services provided by the Supplier and confirmation of the number of days worked. Failure to authorise time does not absolve the Client’s obligation to pay the Fees in respect of the hours worked.
- If the Client has not authorised the timesheet produced for authentication by the Supplier for any reason, the Client shall inform Strategic as soon as is reasonably practicable. If the reason for the lack of approval is because the Client disputes the time worked, the Client shall co-operate fully and in a timely fashion with Strategic to enable Strategic to establish what time or services, if any, were worked by the Supplier. Failure to authorise time without written and justifiable reasons being supplied to Strategic, shall not alter the Client’s liability to pay for the services provided. The Client shall not be entitled to decline to authorise time on the basis that he is dissatisfied with the work performed by the Supplier. In cases of unsuitable work the Client should apply the provisions of Clause 1.11 above.
4.1 Strategic shall be responsible for payment to the Supplier and if applicable responsible for the deduction of all taxes in respect of the supply of the Supplier to the Client.
5 INTRODUCTION FEES
5.1 In the event the Client at any time within 6 months from the expiry or termination of the Project Schedule, engage, employ, utilise the services of or introduce to another business, either temporarily or permanently, directly or indirectly, the Consultant supplied under this Agreement then Client shall pay to Strategic a sum equivalent to 20% of the annualised Fees shown on the relevant Project Schedule. In the event there has been an Introduction but no supply of the Consultant and the Client employs or engages the Consultant directly or indirectly, or refers details of the Consultant to a third party within a period of 6 months after an Introduction, the Client shall pay to Strategic a sum equivalent to 20% of the annualised salary/fees payable to the Consultant. If so such salary or fees are disclosed then a fee of £12,000 shall be payable to Strategic. No refunds are provided in respect of such fees under this clause.
6.1 Whilst reasonable effort is made by Strategic to ensure the qualifications and experience of the Supplier or the Consultant by providing them in accordance with the Client’s requirements, Strategic shall not be liable for any loss, expense, damage or delay arising from any failure to provide any Supplier for all or part of the period of an Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Supplier or its Consultant.
6.2 Strategic’s total liability to the Client, other than for death or personal injury caused by Strategic’s negligence or for fraud (liability for which is not excluded or limited), for any losses costs expenses or damages under this contract and/or in relation to the provision of Services during an Assignment shall be limited to the total Fees paid or payable by the Client to Strategic in relation to the specific Assignment to which the claim relates. Under no circumstances shall Strategic have any liability to the Client for loss of profit, loss of revenue, loss of goodwill, loss of anticipated savings or bargain, loss or corruption of data or software, or for any indirect, special or consequential losses
6.3 Strategic shall hold adequate Employers Liability, Public Liability and Professional Indemnity in respect of the Services. The Client is also required to have adequate insurances in place in respect of the Assignment.
6.4 The Client agrees not to provide the Supplier or the Consultant any statement or document concerning the Consultant’s engagement status whilst providing services to the Client. The Client shall indemnify and keep indemnified Strategic against any losses incurred by Strategic by reason of 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 Income Tax (Earnings and Pensions) Act 2003 and the Social Security (Categorisation of Earners) Regulations 1978 (and/or any supporting or consequential secondary legislation relating thereto) arising out of the Assignment.
7 DATA PROTECTION
7.1 The obligations contained within this Data Protection clause are in addition to, and do not relieve, remove or replace, the Client’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, Strategic People is the Data Controller and the Client is the Data Processor.
7.3 The Client shall, in relation to any Personal Data processed in connection with the performance by the Client of its obligations under the Agreement:
(a) process that Personal Data only on the written instructions of Strategic or having obtained written consent from the Data Subject directly, unless required to do otherwise by applicable law. In which event, the Client shall inform Strategic of such legal requirement before Processing the Personal Data other than in accordance with Strategic’s documented instructions, unless that same law prohibits the Client from doing so on important grounds of public interest;
(b) shall ensure that any natural person acting under the authority of the Client who has access to the Personal Data does not process it except on the instructions of Strategic or permission from the Data Subject, unless required to do otherwise under applicable law;
(c) ensure that it has in place industry leading security of the Personal Data, including protection against unauthorised or unlawful Processing and against accidental loss, destruction or damage to Personal Data and implement industry leading technical and organisational measures, to ensure a level of security appropriate to the risk of harm that might result from, unauthorised or unlawful Processing, accidental or unlawful loss, destruction or alteration, unauthorised (or disclosure of) access or damage to Personal Data taking into account:
- i) the nature, scope, context and purposes of the Processing of the personal data to be protected,
- ii) the state of the art in technological developments in information security; and
iii) the cost of implementing any measures; and
- iv) shall include, as a minimum, encrypting the Personal Data, ensuring confidentiality, integrity, availability and resilience of systems and services, ensuring that availability of and access to the Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it;
(d) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(e) immediately inform Strategic if it considers that any of Strategic’s instructions infringe the Data Protection Legislation;
(f) not transfer any Personal Data outside of the European Economic Area or any other territory in which the European Commission has decided that the third country ensures an adequate level of protection. In which case, the Client shall comply with any safeguards put in place by Strategic to protect the Personal Data. The Client shall also ensure that enforceable data subject rights and effective legal remedies for data subjects are available;
(g) notify Strategic without undue delay on becoming aware of a Personal Data breach, which shall include without limitation if any Personal Data is lost, stolen, destroyed, damaged or corrupted or where there is an unauthorised or accidental disclosure of such Personal Data;
(h) notify Strategic immediately if it receives any complaint, notice or communication that relates to the Processing of the Personal Data (including without limitation any Data Subject requests) and/or to either party’s compliance with the Data Protection Legislation;
(i) at the written direction of Strategic and automatically on the termination of the Agreement, delete or return Personal Data and copies thereof to Strategic unless required by applicable law to store the Personal Data provided always that if the Client continues to employ the permanent candidate or engage contractors whose assignments have continued following the termination of the Agreement to which the Data relates, then such Personal Data may be retained for each such Data Subject until such assignment has been completed;
(j) maintain complete and accurate records and information to demonstrate its compliance with this clause and make available such records and any other information necessary to demonstrate compliance with its obligations as a Data Processor under the Data Protection Legislation, and allow for and contribute to audits by Strategic or data supervisory authority on reasonable notice; and
(k) assist and co-operate with Strategic as necessary and reasonable, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators. The Client shall be solely responsible for its own costs in complying with this provision.
7.4 Strategic does not consent to the Client appointing any third party processor of Personal Data under the Agreement.
7.5 The Client shall indemnify Strategic against all loss, liability, damages, costs, third party claims, fees and reasonable incurred expenses which Strategic may incur or suffer by reason of any breach of this Clause 7 or the Data Protection Legislation by the Client save where the Client is acting at the direct instruction of Strategic. This indemnity shall only apply to the extent that such losses, liability, damages, costs, claims, fees and expenses are not materially contributed to by Strategic. This indemnity and the provisions in this clause shall not be subject to any limitations of liability set out in the Agreement or otherwise but shall subject to any contractual control of defence provisions in relation to third party claims.
8.1 Either party hereto may terminate an Assignment for convenience on giving written notice of 28 days. The Client may terminate an Assignment immediately without notice in the event it is dissatisfied with the Consultant in accordance with clause 2.11. Strategic may terminate the Assignment immediately without notice in the event the Supplier is unable to complete the Assignment and is unable to provide a suitable substitute to the Client.
8.2 Save for the bona fide purpose of solvent reconstruction or amalgamation, if any action, application or proceeding is taken in respect of either party for (i) a voluntary arrangement or composition or reconstruction of its debts; (ii) the presentation of an administration petition; (iii) its winding-up or dissolution; (iv) the appointment of a liquidator, trustee, receiver, administrative receiver or similar officer or (v) any similar action, application or proceeding in any jurisdiction to which it is subject or if it is unable to pay its debts, the other party may without prejudice to any of its other rights, terminate an Assignment forthwith by notice in writing.
8.3 Either party may terminate this contract forthwith without notice, should the other party be materially in breach of its terms or commit any other breach, not being material and fail to put right such breach, if such breach can be remedied within 7 days of the date of a written notice to put it right.
8.4 At the end of the initial Assignment, the Client shall be under no obligation whatsoever to offer further work to the Supplier and the Supplier shall be under no obligation whatsoever to accept any further work, if offered.
- FORCE MAJEURE
9.1 An Assignment may be suspended by Strategic at its option, if Strategic is unable to commence, continue or completely perform its obligations hereunder by reason (whether in the United Kingdom or elsewhere) of force majeure including, without limitation, fire, flood, aircraft damage, explosion, electrical failure, strikes, lock-outs, riots, civil commotion or state of national emergency, British Government action or any cause whatsoever (whether or not of a similar nature to the foregoing) which is not reasonably within Strategic’s control, provided that notice is promptly given to the Client of suspension and stating the event relied upon. In the event that a period of force majeure continues for a period in excess of 30 days then the Assignment to which the force majeure event applies may be terminated forthwith upon mutual agreement of the parties
10.1 The Client shall inform Strategic and the Supplier prior to the commencement of a week if they require or may require the services of the Supplier for more than 48 hours in that week.
10.2 Each party agrees that it shall maintain as confidential all information of a confidential or commercially sensitive nature that it obtains from the other party and shall use such information solely to fulfil its obligations under this contract or as may be required by law. Strategic shall at the request of the Client endeavour to procure that the Supplier signs such confidentiality undertakings in favour of the Client as it may reasonably require.
10.3 On payment of monies owed to Strategic in relation to the Assignment, the ownership of all copyright and other intellectual property rights created during the Assignment shall vest in the Client by way of future assignment. Strategic undertake to use reasonable endeavours to obtain any IPR undertakings from the Consultant and the Supplier, when requested by the Client.
10.4 Strategic shall not be liable for any failure to fulfil its obligations where such failure is due to circumstances beyond its reasonable control.
10.5 Both parties agree that this contract shall not be enforceable by a third party by virtue of the Contracts (Rights of Third Parties) Act 1999 and this contract can be rescinded or varied by agreement between the parties without the consent of any such third party.
10.6 Strategic confirms to the Client that in entering into this contract it does so in its capacity as an employment business. Strategic also confirms the Supplier and the Consultant have both elected to opt out from the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
10.7 Any notice required to be given hereunder shall be sent by either (i) pre-paid first class post (ii) registered post (iii) recorded delivery post (iv) facsimile transmission (v) e-mail transmission. Notice served by post under methods (i), (ii) or (iii) shall be sent to the party to whom it is addressed at their last known address or place of business and shall be deemed to be served on the day following or if that day be a Sunday the second day following that upon which it shall be shown to have been posted. Notice served by facsimile or e-mail transmission under methods (iv) and (v) shall be sent to the party to whom it is addressed at their last known facsimile number or e-mail address respectively, and shall be deemed to be served on the same day unless it can be shown that the facsimile or email transmission did not successfully reach its intended destination.
10.8 Neither party shall, without the prior written consent of the other (such consent not to be unreasonably withheld), assign or transfer its rights and obligations under these Terms.
10.9 If any provision of these Terms is held not to be valid but would be valid if part of the wording were deleted or amended, then such provision shall apply with such deletions/amendments as may be necessary to make it valid. If any of the provisions in these Terms are held not to be valid the remaining provisions of these Terms shall remain in full force and effect.
10.10 Should either party fail or delay to exercise any right or remedy, or part of a right or remedy under these Terms, it will not waive that right or remedy or the further exercise of that right or remedy, or the exercise of any other right or remedy, against the other party.
10.11 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between Strategic and the Client and are set out in writing.
10.12 Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
These Terms are governed by the law of England and Wales and are subject to the exclusive jurisdiction of the Courts in England and Wales.