We are EMR Search & Selection Limited (throughout “we”, “us”, “our” & “ours”) of Elm Yard, 13-16 Elm Street, London, WC1X 0BJ including, for the purposes of this agreement, our branch offices & our subsidiary companies (as defined by s.1159 Companies Act 2006) or associated companies (as defined by s.256 Companies Act 2006).
You are a client or potential client of ours & are the recipient of these Terms of Business (throughout “you”, “your” & “yours”) including, for the purposes of this agreement, includes the person, firm, corporate body or Associate hiring to which the Candidate is introduced.
Once you have received this document, comprising this page & the pages that follow, any act by you of accepting or requesting services from us, or using in any way information from us relating to a Candidate, is deemed to be & shall constitute your acceptance of these Terms of Business. The client warrants that the person in receipt of these Terms of Business is duly authorised to agree these Terms of Business on behalf of the client. Upon such acceptance, & in consideration of the mutual benefits set out herein, it is agreed as follows:
Introduction
We provide a range of services that relate to the introduction or supply of Candidates. We are governed by regulations that require us to specify our terms that apply when we act as an Employment Agency (where we only introduce candidates to you – see Section 1 - Primary Terms) or an Employment Business (where we supply candidates to you – see Section 4 - Supply Terms). The terms in this document set out the arrangements & fees for our service in each case, together with the information that we are obliged to collect from you for the benefit of our candidates, so that we can provide a first class service to you.
Fee Scale for Permanent Candidates
Applicable to all permanent placements a minimum of fee of £5000 or the below percentages of the first year’s gross Remuneration (whichever is higher) will be charged.
25% of Remuneration for Remuneration between £0 - £49,999
30% of Remuneration for Remuneration between £50,000 - £99,999
33% of Remuneration for Remuneration above £100,000
Fee Scale for Temporary/Contract Candidates - see Supply Terms
The Fee Scales set out our standard Fees, which shall apply unless agreed otherwise in writing by a director of ours
Rebate Scale
Week = week in which employment ends
Week Proportion of Fee
1-4 75% will be rebated if employment ends during the first four weeks
5-8 50% will be rebated if employment ends during weeks five & eight
9-12 25% will be rebated if employment ends during weeks nine & twelve
No rebate will be given after twelve weeks of service
SECTION 1 - PRIMARY TERMS DEFINITIONS & MEANINGS
General Definitions
Additional Fee - a fee agreed between you & us for an Additional Service provided by us, & any Expenses, including but not limited to Advertising Arrangements
Additional Service - an additional specific service we provide to you, following a request from you (which may be ancillary to or as part of our service as an Employment Agency, or, where applicable, Employment Business or which may relate to other business)
Advertising Arrangements - fees & other terms of business for advertising Assignments will be agreed with you in writing prior to the commencement of an Assignment, Agency Assignment or Temporary Assignment. You will be responsible for payment of all advertising costs at the agreed rate within 7 days of the date of our invoice. Cancellation of an advertisement will be accepted by us provided you give sufficient notice to us to enable us to cancel the advertisement before going to press. You will indemnify us against all costs & expenses incurred by us.
Assignment - an Engagement negotiated & agreed through us, & of which you have informed us prior to its commencement - NOTE: an Engagement which you do not tell us about in advance is not an Assignment – being either
(a) an Agency Assignment, where the Candidate is Engaged & paid direct by you or an End User or
(b) a Temporary Assignment, where we supply & pay the Candidate who or which is engaged by us on a contract for services & which is subject to the Supply Terms
Associate - a person with whom we conduct business, being
(a) a subsidiary company (as defined by s.1159 Companies Act 2006) or associated company (as defined by s.256A Companies Act 2006) of yours, or
(b) a business (whether corporate or unincorporated)
(i) which is a member of, director of, or partner in, your company or business,
or
(ii) of which you are a member, or director or partner, or
(iii) for which either you, or a representative of yours is authorised by you (whether expressly or impliedly) to, undertake work (other than solely in a professional capacity)
Candidate - any person, whether employed or self employed, and/or a limited company through which a person is offering services, or a supplier company, in respect of whom or which, or in respect of whose skills or services, information is provided to you by us whether or not previously known to the Client.
End User - any third party to whom you provide information concerning a Candidate following an Introduction & for whose benefit the Candidate provides any services, & any associate (as defined by s.435 Insolvency Act 1986) of that third party
Engagement - any engagement or employment of any description (including as defined by s.13(1)(a) of the Employment Agencies Act 1973) under an Assignment or otherwise, whether direct or indirect, under which a Candidate is due to provide any services for the benefit of you or to an End User including, but not limited in meaning to, an engagement or employment which is temporary or permanent in nature or through the intermediary of a limited company or by contract through a third party, & an “Offer”, & “Engage” & “Engaged” shall have corresponding meaning
Expenses - any agreed expenses to be paid by you
General Terms - the terms set out in Section 2 applicable to all Engagements
Increase - any increase in Remuneration, whether or not due to increased hours, within 12 months of commencement of an Agency Assignment
Information - information for each Requirement including:
• role or position to be filled & date for commencement
• nature of the work and/or position required
• working conditions & location
• duration or likely duration of work including estimated hours of work
• proposed Remuneration and/or other payment terms
• length of notice required by Candidate to give & receive to terminate Engagement
• any issues relating to health & safety & steps taken by you to prevent or control risk or information which may affect a decision to accept work
• experience, training & qualifications required for the Candidate
• details of any authorisations necessary or requirements of law or professional bodies & confirmation that you have all necessary licences & consents
Introduction - the provision of information by us or by a Candidate, written or oral, whether or not such information includes the Candidate’s name, that enables you to identify a Candidate or relating to a Candidate, already identified, including all negotiations between you & us relating to a Candidate & “Introduce” shall have corresponding meaning
Offer - an offer to Engage the Candidate communicated either by you, or us at your request, & which is accepted by the Candidate unless, prior to commencement of a contract relating to the Offer you withdraw the Offer for the reason that you have since come into possession of information which you have provided to us that the Candidate is wholly unsuitable for the position offered by you
Opt Out Notice - a notice of agreement between a person & a company through which that person is supplied that Regulation 32(1-8) of the Regulations does not apply
Payment Terms - under an Assignment or for any other Additional Service you shall pay the Fee within 7 days of the date of our invoice & that in all other cases you shall pay the Fee within 7 days of commencement of the Engagement, the sum due in respect of the Fee being a debt due to us, whether or not we have submitted an invoice. If payment is late you shall pay interest on any overdue sum calculated at the rate of 4% above the Bank of England base rate per month
Period of Supply - the period during which we actually supply a Candidate to you under a Temporary Assignment whether or not the relevant Assignment confirmation provides for a longer or shorter term
Regulations - the Conduct of Employment Agencies & Employment Businesses Regulations 2003
Remuneration - the proposed or projected sum (whichever is higher) payable by you or an End User for the benefit of the services of a Candidate under an Engagement calculated in accordance with clause 3.4(d) of Section 3 together with the value attributable by HM Revenue & Customs, or for the avoidance of doubt, would be attributed by HM Revenue & Customs were the benefit subject to tax in the UK, of all taxable benefits provided under the Engagement, such value in respect of any motor vehicle being not less than £6,000 or 10% of salary whichever value is greater will be added to the salary in order to calculate our fee
Requirement - a request from you in any form for an Introduction or other service
Social Media – any electronic means of processing, viewing, obtaining or exchanging information or communications about work seekers through use of the internet or web based technologies/applications or any telephonic (mobile or otherwise) messaging system, but excluding electronic email programs.
Special Terms - specific terms, including but not limited to Assignments on a retained or exclusive basis, whether or not referred to as a specific additional agreement (SAA), relevant to a stated Requirement, agreed with you & set out in a Requirement confirmation or an Assignment confirmation & which vary terms applicable only to that
Requirement
Supply Terms - the terms of business set out in Section 4 - Supply Terms which apply to Temporary Assignments, & which do not form part of the terms in Section 3 – NOTE: the Supply Terms are a separate agreement contained within this document for convenience only
Terms of Business – the terms herein, which comprise our agreement with you, but excluding the Supply Terms unless, & to the extent, they are stated to apply
Fees Definitions
Fee -
(a) the fee you are obliged to pay us in the event of an Engagement – this is dependent on the type of Engagement as follows:
(i) for the permanent hire of a Candidate, namely one that is not a temporary direct hire of a Candidate, our fee will be calculated in accordance with the Fee Scale for Permanent Candidates with a minimum fee of £5,000 (whichever is higher), save & to the extent that any other scale or terms are stated or agreed by us to apply,
(ii) for the temporary direct hire of a Candidate negotiated & agreed with us our fee is an amount based on the Fee Scale for Permanent Candidates applied on a pro rata basis of the weekly or monthly sum that you pay to the Candidate for the period of the hire,
(iii) for a Temporary Assignment, our fee in accordance with Section 4 - Supply Terms,
(iv) for an Engagement in any other circumstances, a fee as if the hire were permanent & the Client shall not be entitled to any pro rata reduction for periods of hire of less than 1 year, and
(b) in any event any Additional Fee
Fee Period - any time
(a) during the later of 9 months after
(i) an Introduction relating to the Candidate concerned or
(ii) the last Assignment of the Candidate concerned, or
(b) after an Introduction where the Introduction was the effective cause of the Engagement
Rebate - the proportion of the Fee (but not the Additional Fee) we will rebate in accordance with the Rebate Scale if all of the Rebate Conditions apply & your employment of a Candidate ends within 12 weeks of commencement of the employment (“Timescale”)
Rebate Conditions -
(a) the arrangement is an Assignment under which the Candidate is employed by you under a contract of service on a basis intended to be permanent, and
(b) the Candidate has not previously been Engaged by you, and
(c) that you or any Associate of yours shall not Engage the Candidate within 9 months from the date of termination of the Engagement, and
(d) the termination of the Engagement is not due to redundancy, and
(e) the employment ends within the Timescale by reason of the fact that the Candidate is wholly unsuitable for the position offered by you & accepted by the Candidate, and
(f) you have provided us with full & correct information as to the position sought to be filled in accordance with clause 3.3(a) of Section 3 in relation to the Candidate, & the position is as described, and
(g) you have first paid the relevant Fee no later than 7 days after the earlier of the date of commencement of the employment or the date of our invoice, and
(h) you have notified us in writing of the fact, & date, of termination no later than 3 working days after the earlier of the date of notice of termination given by either party or the date the employment ends, and
(i) you have in good faith allowed us to Introduce a suitable replacement Candidate for the same position & we have not, within 28 days of your notification to us under (h), been able to make such Introduction which leads to an Engagement.
SECTION 2 - GENERAL TERMS APPLICABLE TO ALL BUSINESS
The general terms set out below apply to all Engagements & matters under the Terms of Business in this document
2 (a) We shall advise you of the terms of each Assignment unless, in the case of an Agency Assignment, you have concluded negotiations with the Candidate direct.
(b) Whilst at all times we shall act in good faith we give no guarantee or warranty that we will be able to locate any suitable Candidate, or that any Candidate we Introduce is suitable for your purposes at any time.
(c) Where you directly hire a temporary Candidate you are responsible for the health & safety of the Candidate & for ensuring that the conditions of work are at all times suitable for the Candidate & for payment to the Candidate.
(d) Unless you have notified us otherwise prior to the commencement of an Assignment, you warrant that there are no circumstances relevant to the work, or any aspect of an Assignment, which may result in the Candidate suffering a detriment of any kind.
(e) For the avoidance of doubt, during period (a) of the Fee Period there is no
implied term that an Introduction be the effective cause of an Engagement.
(f) Where a person we Introduce is provided by or through a company & we have informed you of the existence of the company, we will normally have received an Opt Out Notice; accordingly you acknowledge that we have received an Opt Out Notice unless we inform you otherwise.
(g) All fees are subject to value added tax or its equivalent at the prevailing rate which will be charged in addition, & for the purpose of calculating our Fee, Remuneration in foreign currency will be calculated at the previous calendar month’s average exchange rate taken from Oanda.com applicable on the date of our invoice.
(h) For the avoidance of doubt the creation of an Assignment is not a variation to these Terms of Business & where times are referred to herein such times are of the essence.
(i) You shall keep any information comprising an Introduction confidential & not use it for any purpose other than that disclosed by you to us at the time the information was requested; in particular you shall not directly or indirectly induce nor seek to induce a Candidate that is engaged by contract to us to terminate such contract for any reason & it is agreed that should you be in breach of this provision you shall be liable to us for liquidated damages for each breach in the sum of £20,000 being estimated damages that you agree are reasonable for our loss.
(j) You shall not, for the duration of the agreement or for a period of 12 months following the termination of this agreement, directly or indirectly solicit or entice into your employment or engage in any capacity any person employed by us with whom you have had any dealings & you acknowledge & agree that should you be in breach of this clause you shall be liable to us for liquidated damages for each breach in the sum of £20,000 being estimated damages that you agree are reasonable for our loss
(k) During any Assignment other than a permanent hire of a Candidate you shall comply with all applicable laws & regulations whether in relation to ourselves or the Candidate & shall indemnify us & keep us indemnified in respect of any losses we sustain as a result of your breach of this clause.
(l) Neither we nor our staff shall be liable to you for any loss, damage, delay or compensation of any kind whether in contract or tort, or for breach of the Regulations by any person other than us, arising out of these Terms of Business or an Assignment & you shall indemnify us against any costs claims or demands arising from any claim by you save to the extent prohibited by the Regulations or other operation of law.
(m) Without prejudice to clause 2(j) of this Section & clause 3.3(e) of Section 3, our liability shall, in any event other than where liability cannot be limited by law, be in respect of direct losses only, not exceed £1million in any case, & be limited in the case of
(i) an Agency Assignment to the lower of repayment of our Fee, or £50,000
(ii) a Temporary Assignment to a sum equivalent to the Fee payable for 1 month under the relevant Assignment.
(n) You agree that the liability terms & limits set out in clause 3.3(e) of Section 3, & 2(j) & 2(k) of this Section, are reasonable.
(o) Neither you nor we shall divulge to any other party, or use for your or our own benefit, any information capable of being confidential relating to the affairs of your or our business or business methods, or confidential information, received from each other, except that which is in the public domain or is trivial or obvious or authorised to be released or required by Court Order to be disclosed.
(p) Other than for third party rights specifically conferred in or under this agreement or in Special Terms, the Contracts (Rights of Third Parties) Act 1999 is excluded.
(q) Each portion of this agreement, defined by punctuation and/or sections or numbering, is separate, distinct & severable & to give meaning to the intention of you & us the Court may modify any portion that may otherwise be void; subject thereto, any void portion may be severed & the remaining provisions shall continue in force.
(r) Any notice under this agreement shall be in writing & sent to the addressee at the last known address, fax number or electronic mail address either, respectively, by first class post, or by fax or by electronic mail, & shall be deemed to have been received, in the case of post on the postal date following the date of posting, in the case of fax on the date of transmission, & in the case of electronic mail on the date electronic confirmation of receipt is received by the sender.
(s) Save for any Special Terms, the terms set out in the Terms of Business are the sole & entire agreement between you & us relating to the business described, supersede any previous terms issued by us, & override any terms proposed by you, & you acknowledge that you have not relied on any representations made by us that are not set out in these terms; these terms may not be varied except either by us in providing you with a general amendment notice, which will be deemed to apply unless you notify us in writing that you do not accept the amendments within 7 days of receipt of the notice, or by agreement (whether orally or otherwise) & confirmed in writing signed by a director of ours; any terms provided by you to us & included within any request for services shall not apply unless we expressly agree the same in writing signed by a director of ours & no other action by us shall imply acceptance by us of any such terms.
(t) You are not entitled to assign this agreement to any other party without our express authority to do so, but we may assign the agreement upon giving notice to you.
(u) We comply with the provisions of the General Data Protection Regulation ((EU) 2016/679), should you receive any document or communication from us you agree to also comply with these provisions in respect of the contents. We will not accept responsibility for your failure to do so in respect of any documents or communication sent to you by us. Click here for a link to our GDPR Policy and here for a link to our Privacy Policy
(v) The laws of England & Wales govern this agreement & the English Courts shall have sole jurisdiction.
SECTION 3 - PRIMARY TERMS PERMANENT & DIRECT CANDIDATES
Our agreement & capacity
3.1 It is agreed that these Terms of Business apply to all dealings between you & us relating to the business described. The terms in this section & Sections 1 & 2 apply to all arrangements for introductions of Candidates. We operate as an Employment Agency (as referred to in the Regulations), unless otherwise specified.
Our general obligations
3.2 We agree in relation to all our services to use our reasonable endeavours to locate Candidates for you in accordance with your Requirements, to make Introductions, to arrange Assignments, & to provide any agreed Additional Services.
Your agreement
3.3 You agree to accept our Candidate introduction services & you acknowledge & agree the following:
(a) the Regulations require us to provide specific information to each Candidate in relation to any Requirement; accordingly to enable us to comply with our obligations
(i) upon issuing a Requirement or as soon as possible thereafter you shall provide to us sufficient & accurate information to enable us to seek Candidates that may be suitable for you including the Information, & provide us with answers to any additional questions we may raise in that regard
(ii) prior to an Assignment you shall notify us of any additional information that may affect the information already provided or be relevant to the decision of a Candidate to accept work proposed in the Requirement
(b) you warrant and/or undertake that all information provided under clause 3.3(a) is/shall be full & accurate
(c) in the case of each Requirement & Assignment, regardless of any statutory obligation we may have to take various steps, it is your responsibility to check that the Candidate is suitable for your purposes & that you are satisfied with the information & confirmations we have provided to you, & you agree in particular
(i) regardless of any references or information that we may provide, to take up such references for the Candidate (including confirmation of any professional or academic qualifications) as you think fit & verify the curriculum vitae supplied
(ii) to ensure that the Candidate has any necessary permit or authority to work
for you & comply with asylum & immigration requirements relevant to an employer
(iii) to explain your requirements to the Candidate promptly on commencement if you have not already done so
(iv) to be responsible for arranging all medical examinations & investigations of the Candidate & shall be responsible for obtaining any work & other permits
(d) you warrant that if you have interviewed the Candidate prior to commencement of the Assignment you have explained to the Candidate your requirements & satisfied yourself that the Candidate is suitable for those requirements
(e) by reason of your acceptance of clauses 3.3(a) to (d) we shall not be liable for any loss or damage arising out of any representation made by us in good faith that may have induced you to accept an Assignment, or for any breach of contract, negligence or tort of the Candidate & you will fully indemnify us & keep us so indemnified against any claim or action, including the costs thereof (on an indemnity basis), brought by a Candidate, or another business (of any kind) with which we have been dealing in relation to a Requirement, arising from incorrect or incomplete information provided by you to us
(f) you will keep us promptly informed of
(i) your intentions in relation to an Engagement of a Candidate throughout an Assignment and/or the Fee Period, but this requirement will not apply if you have engaged the Candidate under an Agency Assignment that is permanent unless we have paid to you any Rebate under that Assignment; and
(ii) any Increase within the first 12 months after the commencement of the Candidate’s Engagement
(g) if you have previous knowledge of a Candidate prior to a first Introduction by us you shall notify us in writing within 1 business days of the Introduction together with supporting documentary evidence. In the absence of such notification an Engagement by you shall be deemed to have resulted from & effectively be caused by our Introduction & you waive the right to rely on such previous knowledge as a reason for non payment of any Fee
(h) if you are using any Social Media for the purposes of recruitment of persons to fill positions that you have asked us to fill as a Requirement you agree to promptly inform us, & for the avoidance of doubt where we have Introduced a Candidate your decision to Engage the Candidate based on or resulting from the use of Social Media shall not disentitle us to our Fee
(i) in relation to any Engagement you shall within 7 days of our written request provide to us information to enable us to identify the Remuneration & term of the Engagement including details of any renewal or extension of an Engagement or of any new Engagement relating to a Candidate effected within the Fee Period
(j) where there is an Agency Assignment, you are solely responsible for the contractual arrangements with, & payment to, the Candidate at all times
Fees, rebates & remuneration
3.4 In relation to fees & rebates the following shall apply:
(a) wherever there is an Engagement within the Fee Period, or there is an Additional Service, you shall pay the Fee in accordance with the Payment Terms without any deduction, set off or counterclaim, subject only to any entitlement to a Rebate, & for the purposes of our Fee an Engagement during period (a) of the Fee Period as defined is deemed to be as a result of the relevant Introduction regardless of any information relating to the Candidate you may have received from any third party unless you have notified us in accordance with clause 3.3(g)
(b) where you are entitled to a Rebate we agree to provide a credit note to you to be set off against the amount of any further Fees becoming due to us from you within 28 days of the date on which all of the Rebate Conditions have been complied with. The credit note will be valid for six years; it is a credit note only, no cash refunds or otherwise will be made by us. For the avoidance of doubt, if we have Introduced a replacement Candidate as referred to within the Rebate Conditions you shall not be entitled to a Rebate & we shall be entitled to charge a further fee should the replacement Candidate Fee be higher than the original Fee, where the replacement Candidate Fee be lower than the original Fee we will issue a credit note for the difference
(c) you shall promptly repay any Rebate either (i) which is not properly due to you or (ii) if you re-Engage the relevant Candidate within 9 months of the termination which entitled you to a Rebate
(d) Remuneration shall be calculated on an annualised basis. If you have not informed us of the full projected sum within 7 days of enquiry from us, or by any later date we raise an invoice, Remuneration shall be deemed to be an amount calculated on the basis of either the rate payable under the last previous Assignment of any kind that was temporary, or where there has been no such previous Assignment, the highest amount or rate indicated by either you or us as payable for the services sought by you at the time of the Introduction of the relevant Candidate or the highest amount achievable in the market place for a person of similar experience to work in the position that has been filled, such amount is to be determined by us & based upon appropriate evidence
(e) except in the case of an Offer, we shall issue an invoice to you for the relevant Fee under each Engagement upon, or as soon as is appropriate after, the commencement of the Engagement, or at any intervals agreed for payment in an Assignment, or at the time agreed in respect of Additional Services, as the case may be, but any delay in issue shall not affect our entitlement to payment in any event
(f) where an Assignment is for a fixed period of less than one year, we may, as a concession & at our sole discretion, accept that Remuneration shall be calculated as the actual amount agreed to be paid for the fixed period, provided that,
(i) you have first notified us in writing prior to the commencement of the Assignment of the term of the fixed period & the full amount payable for that period &
(i) prior to the commencement of the Assignment we have accepted in writing that the Remuneration will be calculated only on the basis of the fixed period, & not on an annualised basis, &
(iii) you pay the concessionary sum within 7 days of the date of our invoice
(g) if clause 3.4(f) applies we shall be entitled to raise a further invoice for a fee calculated on the balance of one year’s Remuneration (taking into account the calculation for the fixed period) if there is any extension of the Assignment beyond the term notified under clause 3.4(f)(i) or if you re-engage the Candidate within 12 months of the beginning of the Assignment, & you undertake to notify us if either of those events occur within 7 days of the occurrence
(h) wherever there is an Increase we shall be entitled to raise a further invoice for our Fee in respect of the relevant Engagement less any Fee already paid for that Engagement
(i) in the case of an Offer, Remuneration shall be calculated on the projected sum contained within the Offer – this means that if you withdraw an Offer for any reason other than suitability, we shall nevertheless be entitled to our Fee. We shall be entitled to issue an invoice upon or as soon as is appropriate after your Offer, but any delay in issue shall not affect our entitlement to payment in any event
Additional provisions
3.5 It is also agreed that
(a) where a Requirement is for an Introduction of a Candidate to be supplied by us on a Temporary Assignment, because you acknowledge that you may at any time employ the Candidate such Requirement shall be, & shall be treated by you & us as, a requirement for an Agency Assignment until such time as you agree all the terms of the Temporary Assignment in relation to the Candidate or Candidates proposed to be supplied by us to you
(b) following the end of a Temporary Assignment in each case, the fact of termination of such Assignment shall constitute a Requirement by you for an Agency Assignment of the Candidate concerned (although there is no obligation upon you to take any such Candidate upon an Agency Assignment) & our capacity in relation to you at that time shall become or revert to that of an Employment Agency, & Section 4 - Supply Terms shall cease to apply
(c) during the Period of Supply the Section 4 - Supply Terms apply exclusively in place of the terms set out herein save for any clauses herein that are referred to as comprised within the Section 4
(d) if there is an Engagement during or after a Period of Supply (notwithstanding the above) we are entitled to charge whichever is the greater of
(i) a Fee under these Terms of Business (in our capacity as an Employment Agency) or
(ii) a Transfer Fee under the Section 4 - Supply Terms (in our capacity as an Employment Business), unless you are entitled to & have served a Transfer Notice in accordance with the Section 4
(e) we are authorised by you to advertise in any medium we deem appropriate to source Candidates where you have issued a Requirement to us.
SECTION 4 - SUPPLY TERMS TERMS RELATING TO THE SUPPLY OF TEMPORARY CANDIDATES / CONTRACTORS
4.1 The terms in this Schedule apply to our supply to you of Candidates on a Temporary Assignment. The Terms are subject to the definitions set out below, the General Definitions (excluding the Fees Definitions) & General Terms set out respectively in Sections 1 & 2 of the Principal Agreement, & are effective upon commencement of a Temporary Assignment unless we are only acting as an Employment Business in relation to you & any Candidate. The terms set out herein are separate & distinct from the terms set out in any other part of the Principal Agreement, & comprise a separate agreement.
Fee Scale for Temporary/Contract Candidates
Applicable to all placements unless agreed otherwise in writing by a director of ours
25% up to & including rates of £250 per day or its hourly equivalent payable to the Temporary/Contract Candidate
30% for rates between £251 & £750 per day or its hourly equivalent payable to the Temporary/Contract Candidate
33% for rates above £751 per day or its hourly equivalent payable to the Temporary/Contract Candidate
The following definitions apply to these Supply Terms
Fee -
(i) the amount specified by us in the Fee Scale for Temporary/Contract Candidates in respect of the Temporary Assignment, calculation being based upon the total of the cost to us of supplying the Candidate (including statutory payments we make to the Candidate) plus our charge (“Charge”) from time to time
(ii) any Additional Fee, and
(iii) a Transfer Fee
Optional Extension - a Temporary Assignment that comes into being on the terms set out in clause 8 following the service of a Transfer Notice under clause 4.11 & for the purposes of these terms any reference to the Period of Supply includes the period of an Optional Extension
Principal Agreement - the document of which the Supply Terms form part
Transfer Fee - as calculated in line with the Fee Scale for Permanent Candidates as applicable in the circumstances set out in clauses 4.9 to 4.11 & 4.14
Transfer Period - within the later of
(i) 14 weeks from the first day of supply by us of the Candidate to you (disregarding any supply that ended more than 42 days prior to any new supply) or
(ii) 8 weeks after the last day of supply or
(iii) where we have received a valid & effective Opt Out Notice in relation to that Candidate, 9 months after the last day of supply
Waiver Sum - the sum payable by you to us under a Temporary Assignment for the supply of a Candidate less the sum we have agreed to pay the relevant Candidate & any statutory payments we make to, or in respect of, the Candidate.
Our agreement & capacity
4.2 It is agreed that
(a) in respect of a Temporary Assignment unless we inform you otherwise our capacity in relation to you shall be & be deemed to be that of an Employment Business (as referred to in the Regulations) until the end of the Temporary Assignment
(b) on termination of a Temporary Assignment, however caused, the terms in this Schedule cease to apply except as provided for, but without affecting responsibilities that arise during the Period of Supply.
Our obligations
4.3 We agree to supply a Candidate to you as agreed for a Temporary Assignment (which may be set out in an Assignment confirmation) subject to the provisions set out in clause 4.1 to 4.8, where applicable to either allow the Waiver Sum against an invoice issued to you or issue an invoice net of any Waiver Sum if the Candidate proves wholly unsuitable for your purposes within 1 working day of commencement of the Assignment & you notify us within that period of the unsuitability of the Candidate, & to invoice you (a) for the Fee at the times agreed in the Temporary Assignment or (b) in the case of a Transfer Fee at any time after we become aware of the transfer.
Conditions & your obligations
4.4 You agree to accept the services subject to the terms in this Schedule & you acknowledge & agree that the following conditions apply
(a) the provisions in clauses 2.3(a) to 2.3(h) of Section 2 of the Principal Agreement apply as if the same were repeated herein & that you will comply with the provisions
(b) you shall pay the Fee in accordance with the Payment Terms without any deduction, set off, or counterclaim
(c) as an ongoing obligation throughout a Temporary Assignment you agree to
(i) be responsible for the health & safety of the Candidate as if the Candidate were a worker directly engaged by you, and, without limiting that responsibility in any way, you shall
• undertake risk assessments of the activities required to be undertaken by the Candidate & provide a notification to the Candidate & us immediately of any specific or potential hazards relating to the Assignment & the precautions that the Candidate should take relating to that risk (“Notification”);
• not allow the Candidate to undertake any work that is hazardous without first undertaking the assessment & providing the Notification & ensuring that the work complies with all health & safety procedures & requirements relevant to that work;
• ensure that any equipment or vehicles provided by you for the use of the Candidate are in good order, suitable & safe & compliant with all relevant regulations & safety requirements;
• maintain adequate insurances, including but not limited to Employer’s & Public Liability Insurance which provides cover for Candidates supplied by us
(ii) notify us as soon as possible in writing if you are not satisfied with a Candidate, giving details of your reasons for that dissatisfaction
(iii) ensure that the Candidate is aware of any regulations applicable to external contractors
(iv) be solely responsible for providing reasonable instructions to the Candidate as to the work to be undertaken & for supervising & monitoring performance & compliance with such instructions by the Candidate, but without conflicting with clause 4.4(c)(vi), & you shall provide such instructions & suitable facilities to the Candidate as are necessary to ensure your satisfaction with the services provided by the Candidate
(v) allow us to suspend the services of the Candidate if (a) the Candidate or a person supplied by the Candidate wishes to take annual leave & you have agreed a period of leave in advance, or (b) the Candidate or a person supplied by a Candidate is absent due to sickness, provided that we shall require that the Candidate notify you as soon as practicable of any required absence for sickness
(vi) not integrate the Candidate into your workforce or treat the Candidate as an employee or do any act or thing towards the Candidate which may be regarded as the act of an employer towards an employee, for any purpose, but not so that this shall prejudice your obligations in relation to health & safety or other specific obligation under this agreement
(d) you agree not to discuss with the Candidate the terms of the Candidate’s engagement with us, other than strictly as required for the proper objectives of the work required under the Assignment, & you agree that the Candidate is not an employee of yours or ours & that neither the Candidate nor you has any obligation to the other to perform or provide work for any specific period
(e) in our contract with the Candidate, which shall be a contract for services unless we inform you otherwise, we shall procure that the Candidate agrees
(i) to perform the work required under an Assignment in good faith, & with due care & skill, & that the Candidate will not perform any work during the Period of Supply for any third party which is in conflict with your interests
(ii) where appropriate not to make use of your confidential information in terms similar to those set out in clause 2(o) of the General Terms
(iii) where applicable to deliver up to you or an End User where appropriate respectively any of your or the End User’s papers & other materials held by the Candidate upon termination of the Assignment
Timerecords & expenses
4.5 (a) you shall keep records of the time spent and/or work provided, as the case may be, by the Candidate until all matters under the Temporary Assignment are concluded & you agree to cooperate with us in relation to any query
(b) at the end of each week you shall verify a correct record of hours worked by the Candidate & sign time records provided by the Candidate or us or, in the case of project work chargeable upon deliverables, verify the objectives achieved at the relevant time on records provided by the Candidate or us, your signature on such time sheets or records being conclusive evidence of the acceptance of works undertaken by the Candidate & your satisfaction with the work done for the relevant period; for the avoidance of doubt your failure to verify or sign a record in accordance with this provision shall amount to a breach of contract & you shall not be entitled to refuse payment to us on the sole basis of such failure or alleged dissatisfaction with the quality of work – if there is any dispute about time spent you shall produce to us your own record of time spent & pay for that time pending resolution of the dispute. We shall be entitled to charge for all expenses authorised by you incurred by the Candidate in the provision of the services by the Candidate
Replacement
4.6 (a) if clause 4.4(c)(ii) applies you must allow us at least 2 working days to find & supply a suitable replacement
(b) if we do not provide a suitable replacement in accordance with clause 4.6(a) you or we may terminate the Temporary Assignment by giving notice to the other
Termination
4.7 (a) we may terminate a Temporary Assignment immediately without liability & without prejudice to any right for relief if you are in breach of any of the terms herein, or if, in good faith, we form the opinion for any reason, which need not be reasonable, that (i) you may not meet your obligations to us or a Candidate, or (ii) our Candidate may no longer be willing, or able or suitable to undertake work for you
(b) either you or we may terminate a Temporary Assignment by giving notice to the other (i) of the notice period where a notice period is agreed for termination of an Assignment, or (ii) if the other shall commit an Insolvency Event, namely that it becomes insolvent within the meaning of the Insolvency Act 1986 or has a receiver appointed or an order or resolution made to wind it up or enters into any arrangement or composition with its creditors or passes a resolution to cease trading or actually ceases trading or being an unincorporated body is dissolved or declared bankrupt
(c) if a Temporary Assignment is terminated (i) by notice under clause 4.7(b)(i) you shall make payment to us of the Fee for the period of such notice whether or not you utilise the services of the Candidate for the period of the notice, or (ii) on the basis set out in clauses 4.7(a) or 4.7(b)(ii) you agree we are not at fault & you accept that we have taken a prudent commercial step to avoid loss or potential loss.
Right of substitution
4.8 Where a Candidate is a limited company through which a person is offering service, the Candidate may provide a suitable substitute to you where the substitute has the equivalent technical expertise as the original officer, employee or representative. Any such substitute to be agreed by both us & you.
Transfer Fees & Optional Extension
4.9 Subject to clause 4.11, if you Engage a Candidate other than through supply by us either directly or through the medium of a third party during the Period of Supply, or thereafter within the Transfer Period, you shall upon the Engagement pay us a Transfer Fee.
4.10 If during the Period of Supply, or thereafter within the Transfer Period, you introduce (by providing information or otherwise) a Candidate to a third party which enters into an Engagement of the Candidate either directly or through the medium of another party, you shall upon the Engagement pay us a Transfer Fee.
4.11 Where we have not received a valid & effective Opt Out Notice for the relevant Candidate, no Transfer Fee referred to in clause 4.9 shall be due if, before the Engagement, you have served us with a written notice (a “Transfer Notice”) that you agree to take a supply of the Candidate through us for a further period of 12 months upon the terms (the “Option Terms”) set out in clause 4.12 & you actually take a supply of the Candidate from us upon the Option Terms for the agreed period without any break other than similar to those allowed for under the previous Temporary Assignment unless we are at fault in failing to supply the Candidate.
Option terms
4.12 The Option Terms are
(a) you first provide us with any relevant information to enable us to comply with the Regulations
(b) save in respect of the period & the amount of the Fee, the terms are the same as the terms relating to the last preceding Temporary Assignment of the Candidate including clause 4.4 to 4.8, or are such other terms as we agree with you in advance
(c) the Fee shall be the same as that under the last preceding Temporary Assignment of the Candidate unless the Candidate requires us to increase our payment to the Candidate in which event the Fee shall be increased by such sum as reflects the increase required by the Candidate as we shall notify to you; for the avoidance of doubt our Charge shall not increase.
4.13 You further agree in relation to a further supply under clause 4.11
(a) if you have agreed other terms as referred to in clause 4.12(b) that are any different from those relating to the last preceding Temporary Assignment, or the Fee is increased in accordance with clause 4.12(c) your agreement to such terms is your unequivocal acceptance that the different terms do not represent terms that are less favourable to you than under the last preceding Temporary Assignment of the Candidate
(b) if we lawfully terminate the further supply on the basis set out in clauses 4.7(a) or 4.7(b)(ii) we are not, & we shall not be deemed to be, at fault in causing termination
(c) notwithstanding your agreement in clause 4.13(a) if you should maintain at a later date than the start of the further supply that the terms represent terms that are less favourable to you than under the last preceding Temporary Assignment of the Candidate, the Temporary Assignment, which would otherwise have been regarded as an Optional Extension, shall be regarded as a period of new supply & shall be a new Temporary Assignment.
4.14 Without prejudice to clause 3.5 of Section 3 of the Principal Agreement, if we are only acting as an Employment Business in relation to you & you intend to Engage a Candidate we have Introduced before any supply, you shall either pay the Transfer Fee or, where we have not received a valid & effective Opt Out Notice, you may elect by giving us notice prior to the Engagement to take a supply of the Candidate through us on the terms herein for 12 months at the rate we pay the Candidate plus our Charge as set out in the Fee Scale for Temporary/Contract Candidates
4.15 For the avoidance of doubt
(a) we shall not be at fault in failing to supply the Candidate under an Optional Extension if the Candidate does not provide services because the Candidate is not ready, willing or able to do so, or if the services are not provided due to a material breach of these terms by you of which we have informed you
(b) you shall not be entitled to any discount against the Transfer Fee if the supply is ended before the period of Optional Extension has expired.