TERMS OF BUSINESS FOR THE SUPPLY OF TEMPORARY RESOURCES
1 DEFINITIONS & INTERPRETATION
1.1 In these terms of business (Terms), the following definitions apply:
Agency Worker means an individual who is (i) engaged directly by the Company as a PAYE worker (ii) employed by an Intermediary under a contract of service or (iii) the Representative of a Contractor which has been deemed to be inside of the Off Payroll Rules;
Assignment means the temporary role or project which the Temporary Resource may undertake for the Client;
AWR means the Agency Workers Regulations 2010;
Charges means the charges made by the Company for the supply of the Temporary Resource which include the remuneration or fees payable to the Temporary Resource, the Company’s commission and any statutory costs incurred by the Company in supplying the Temporary Resource to the Client including, where applicable and without limitation, holiday pay, employers National Insurance Contributions, pension costs and apprenticeship levy;
Client means the person, firm, partnership, organisation, public sector body or company to which the Recruitment Services are provided under these Terms;
Company means Konnect Recruit Limited (Registered in England and Wales No. 10000208) whose address for correspondence is Fairways House Offices, Mount Pleasant Road, Southampton, SO14 0QB;
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
Connected Party means any (i) holding, subsidiary, associated or connected company of the Client (ii) organisation or business within the same purchasing group as the Client or (iii) organisation or business which is demonstrably connected to the Client through common ownership, management or control;
Contractor means a limited company or limited liability partnership engaged by the Company or through an Intermediary (where applicable) under a contract for services and supplied to perform the Services;
Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the Data Protection Act 2018 or the GDPR insofar as it is applicable to the United Kingdom;
Engagement means the engagement, employment, hire or use of the Temporary Resource directly or through any party other than the Company, pursuant to any agreement or arrangement whatsoever and whether on a temporary, permanent, fixed term, Contractor or any other basis. “Engage,” “Engaged” and “Engages” have the corresponding meaning;
Exempt Client means a Client to which the Off Payroll Rules do not apply because (i) the Client (and its entire group of companies, where applicable) are based wholly overseas with no UK connection or (ii) the Client qualifies as a small undertaking under sections 60A to 60F of ITEPA;
Extended Hire Period means an extension of the Assignment for 26 weeks, which shall commence upon expiry of the Client’s notice under clause 14.1;
Intermediary means a third party umbrella company or contractor services company which employs or engages Temporary Resources and supplies them to the Company;
Introduction has the meaning in clause 3.2. “Introduce”, “Introduces” and “Introduced” have the corresponding meaning;
IPR means all copyright, trademarks, database rights, design rights, patents and other intellectual property of any type existing anywhere in the world, whether capable of registration or not, together with any registration rights in the same;
ITEPA means the Income Tax (Earnings and Pensions) Act 2003;
Off Payroll Rules means Chapter 10 of Part 2 of ITEPA;
Opted Out means opted out of the Conduct Regulations under Regulation 32(9);
Order Confirmation means the document issued by the Company confirming details of the Assignment;
Payment Terms means 14 days from the date of the Company’s invoice;
Quba means Quba Solutions Limited (Registered in England & Wales No. 07907578) whose registered office is 1 Widcombe Street, Poundbury, Dorchester, Dorset, DT1 3BS;
Recruitment Services means the Introduction and supply of Temporary Resources by the Company to the Client;
Relevant Period means the later of (i) the period of 8 weeks commencing on the day after the Temporary Resource last worked for the Client during an Assignment or (ii) the period of 14 weeks commencing on the first day on which the Temporary Resource worked for the Client during an Assignment but, in determining the first day on which the Temporary Resource worked for the Client, a prior Assignment shall be disregarded where more than 42 days have passed between Assignments;
Remuneration means (i) the gross annualised remuneration package payable to the Temporary Resource for the Engagement including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances, all other emoluments and benefits in kind. A notional sum of £6,000 shall be added to the Remuneration in respect of any company car provided to the Temporary Resource (ii) if the Temporary Resource is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable in respect of the Temporary Resource’s services;
Representative means the director, employee, worker or subcontractor of a Contractor who performs the Services on behalf of the Contractor;
Restricted Period means the later of (i) 6 months from the end of the Assignment or (ii) 12 months from the most recent Introduction of the Temporary Resource to the Client;
SDC means supervision, direction, or control (or the right thereof) as to the manner in which the Temporary Resource performs the Services;
Services means the work to be carried out by the Temporary Resource during an Assignment;
Shared Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation and which is shared between the parties pursuant to these Terms;
SDS means a written assessment, in a format acceptable to the Company, as to whether the Assignment falls inside or outside of IR35 pursuant to the Off Payroll Rules;
Subcontractor means a self-employed person engaged through an Intermediary under a contract for services;
Substitute means an alternative Representative or subcontractor, appointed by a Contractor to perform the Services in the place of the original Representative;
Tax means income tax, National Insurance or social security contributions and all other statutory deductions arising upon payments which are made to Temporary Resources;
Temporary Resource means the person, firm or limited company Introduced by the Company for an Assignment and, save where otherwise indicated, includes a Contractor, Representative, Subcontractor and Agency Worker;
Transfer Fee means the fee payable by the Client upon the Engagement of a Temporary Resource;
Work Product means any document, design, plan, schematic or deliverable which is designed, created, or produced by the Temporary Resource in the course of performing the Assignment; and
WTR means the Working Time Regulations 1998.
1.2 A reference to a party shall mean either the Company or the Client as applicable and a reference to the parties shall mean both the Company and the Client.
1.3 The clause headings used in these Terms are not intended to affect the interpretation of any clause.
1.4 Unless otherwise indicated by the context (i) references to the singular include the plural and vice-versa (ii) references to the masculine include the other genders and vice-versa.
1.5 Any reference to legislation includes an amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.
2 FORMATION & BASIS OF AGREEMENT
2.1 If the Client has not signed these Terms or otherwise confirmed acceptance of the Terms in writing, the Client shall be deemed to have accepted the Terms by (i) instructing the Company to Introduce Temporary Resources (ii) interviewing or meeting with a Temporary Resource who has been Introduced (iii) Engaging a Temporary Resource or (iv) instructing the Company to supply a Temporary Resource, whichever occurs first following receipt of these Terms.
2.2 Once accepted in accordance with clause 2.1, these Terms shall apply to all Recruitment Services provided by the Company until terminated in accordance with clause 15.7.
2.3 No variation to these Terms shall be effective unless agreed in writing between a representative of the Client and a director of the Company. Nothing in this clause shall prevent the Company from updating and issuing a revised version of these Terms from time to time.
2.4 Unless otherwise agreed in writing by a director of the Company, these Terms form the entire agreement between the parties for the provision of
Recruitment Services to the exclusion of any terms propose or issued by the Client.
2.5 The Client acknowledges that the Company has engaged Quba to provide factoring services and the legal and beneficial title to all Charges under these Terms has been assigned to Quba. The Client must therefore remit all Charges directly to Quba strictly in accordance with these Terms and without deduction or set off.
2.6 In the event of any conflict or inconsistency, the Order Confirmation shall take priority over the main body of these Terms.
3 INTRODUCTIONS
3.1 The Company shall use reasonable endeavours to Introduce Temporary Resources from time to time who (i) meet the criteria specified by the Client under clause 4.1 or (ii) the Company believes may otherwise be of interest to the Client.
3.2 An Introduction shall take place upon:
3.2.1 the Company providing a CV or other information to the Client which expressly or impliedly identifies a Temporary Resource;
3.2.2 the Company arranging an interview or meeting between the Client and a Temporary Resource whether face to face, by telephone, by web conference or by any other means; or
3.2.3 the Company supplying or agreeing to supply a Temporary Resource to the Client.
4 PROVISION OF INFORMATION
4.1 The Client must inform the Company of all such information as the Company shall reasonably require regarding the position which the Client is seeking to fill including:
4.1.1 the information relating to an Assignment specified in Regulation 18 of the Conduct Regulations;
4.1.2 whether the Temporary Resource requires a DBS disclosure or any other check or security clearance to carry out the Assignment;
4.1.3 any Health and Safety information which is relevant to the Assignment; and
4.1.4 any reason why it may be detrimental to the interests of the Temporary Resource to carry out the Assignment.
4.2 The Company may advertise the position which the Client is seeking to fill in such format and including such information as the Company considers appropriate unless the Client notifies the Company in writing that it may not advertise such position or otherwise specifies the information about the position which may not be advertised.
4.3 The Company shall issue an Order Confirmation to the Client on commencement of the Assignment or otherwise within three business days of its commencement. If the Client considers any of the information within the Order Confirmation to be incorrect, the Client must notify the Company in writing as soon as practicable and in any event within three business days of receipt.
4.4 The Client must notify the Company immediately if the Client intends to Engage a Temporary Resource, extend an Assignment or otherwise vary an Assignment in any way.
5 TEMPORARY RESOURCE CHECKS
5.1 Where required to do so under the Conduct Regulations, the Company shall:
5.1.1 take all reasonably practicable steps to ensure that the Temporary Resource and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Temporary Resource to enable the Temporary Resource to perform the Assignment;
5.1.2 make all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Temporary Resource or the Client for the Temporary Resource to perform the Assignment; and
5.1.3 ensure that the Temporary Resource is willing to carry out the Assignment.
5.2 Where required to do so under Regulation 22 of the Conduct Regulations due to the specific nature of the Assignment, the Company shall also take all reasonably practicable steps to:
5.2.1 obtain copies of any relevant qualifications or authorisations of the Temporary Resource and offer to provide copies of those documents to the Client;
5.2.2 obtain two references from persons who are not relatives of the Temporary Resource and who have agreed that the reference provided may be disclosed to the Client; and
5.2.3 confirm that the Temporary Resource is suitable for the Assignment.
5.3 The Company shall use reasonable endeavours to ensure that the Temporary Resource:
5.3.1 assigns any IPR in the Work Product to the Client or such third party as the Client may specify;
5.3.2 waives any moral rights in any copyright subsisting in the Work Product; and
5.3.3 enters into such supplementary agreements and warranties as the Client may request to protect the Client’s IPR, confidentiality and data.
6 CLIENT OBLIGATIONS
6.1 The Client shall:
6.1.1 provide a safe working environment for the Temporary Resource;
6.1.2 comply with all statutory provisions, by-laws, codes of practice and other legal obligations in respect of the Temporary Resource’s health and safety;
6.1.3 maintain records of any accident or injury affecting any Temporary Resource, provide copies of such records to the Company upon demand and, where applicable, submit the necessary report under RIDDOR;
6.1.4 not require the Temporary Resource to operate any plant, equipment, or vehicle which the Temporary Resource is not qualified to operate; and
6.1.5 ensure that the Temporary Resource is covered under the Client’s own insurance policies or, in the case of a Contractor operating outside of the Off Payroll Rules, under insurance policies which are acceptable to the Client.
6.2 The Client will comply and will assist the Company with complying with the latest Government guidance on Coronavirus (Covid-19) including, without limitation, all relevant guidance from Public Health England or the equivalent body in the applicable jurisdiction. In particular, the Client must:
6.2.1 ensure that its operations protect the workforce and minimise the spread of Covid-19;
6.2.2 notify the Company of the measures taken to minimise the risk of Covid-19 transmission in the workplace; and
6.2.3 provide a copy of any risk assessment which it has carried out in respect of Covid-19.
6.3 The Client must not request the supply of a Temporary Resource to perform the duties normally performed by (i) a worker who is taking part in official industrial action or (ii) a worker who has been transferred by the Client to perform the duties of a person taking part in official industrial action.
6.4 The Client must not and must ensure that its employees, subcontractors, and representatives do not unlawfully discriminate against, harass, or victimise any Agency Worker, Subcontractor or Representative.
6.5 Subject to any right of substitution under clause 8.3.1, the Client shall not engage or hire, directly or indirectly, any third party Temporary Resource or subcontractor through a Temporary Resource which is being supplied by the Company without the prior written consent of the Company, such consent to be granted at the Company’s entire discretion.
7 ADDITIONAL OBLIGATIONS RELATING TO AGENCY WORKERS
7.1 The Company shall be responsible for making all payments to the Agency Worker and shall ensure that (i) such payments comply with the National Minimum Wage or National Living Wage as applicable and (ii) income tax and National Insurance Contributions are deducted as required by law.
7.2 The Client shall be responsible for the supervision, direction, and control of an Agency Worker throughout their Assignment.
7.3 The Client shall not require an Agency Worker to provide Services for more than 48 hours per week on average unless the Company has confirmed that the Agency Worker has opted out of the 48 hour working week under the WTR.
7.4 The Client must comply with the AWR and assist the Company in complying with the AWR by:
7.4.1 notifying the Company without delay if the Agency Worker has been supplied to the Client by any other employment business in the six-month period prior to commencement of the Assignment;
7.4.2 providing the Agency Worker with access to collective facilities and amenities and information about permanent employment opportunities with the Client;
7.4.3 providing written details of the relevant terms and conditions which apply to any actual or hypothetical comparator together with any amendments to such terms and conditions where appropriate;
7.4.4 co-operating with the Company in responding to or assisting the
Company with responding to any question or
complaint made under the AWR in a timely manner;
7.4.5 permitting a pregnant Agency Worker to attend ante-natal appointments, with pay, during working time after the 12-week qualifying period;
7.4.6 carrying out a risk assessment in respect of any pregnant Agency Worker and making such adjustments to the Assignment as are necessary to protect the Agency Worker’s health and wellbeing or, where necessary, identifying a suitable alternative Assignment within the Client’s organisation for the Agency Worker to perform; and
7.4.7 agreeing to a proportional increase in the Charges where necessary to ensure that the Agency Worker receives equal treatment in respect of all relevant terms and conditions after the 12-week qualifying period.
8 ADDITIONAL OBLIGATIONS RELATING TO CONTRACTORS
8.1 Prior to the supply of any Contractor and at the beginning of each tax year, the Client must notify the Company if the Client is an Exempt Client.
8.2 Unless the Client is an Exempt Client or the Off Payroll Rules otherwise do not apply to the Contractor for any reason, the Client must:
8.2.1 provide an SDS to the Company prior to commencement of the Assignment;
8.2.2 ensure that any SDS provided to the Company is accurate;
8.2.3 provide all such information as the Company may reasonably require, without delay, to justify or support the SDS; and
8.2.4 co-operate in a timely manner with any query or appeal which the Company or the Contractor raises in respect of the SDS.
8.3 Subject to clause 8.4.1, where the Company supplies a Contractor for an Assignment, the Client acknowledges and agrees that:
8.3.1 the Contractor may appoint a Substitute to perform the Services from time to time provided that such Substitute is suitably skilled, qualified, security cleared (where applicable) and experienced to perform the Services;
8.3.2 the Client must not attempt to assign a Contractor to a different task or project or otherwise materially vary the Assignment without first agreeing such variation with the Company and the Contractor;
8.3.3 subject to the Client’s reasonable operational requirements and the specific nature of the Assignment, the Contractor shall determine its own schedule when performing the Services and the location in which such Services are performed; and
8.3.4 neither the Client nor any third party shall exercise SDC over the Contractor in respect of the Services.
8.4 Where the Client provides an SDS stating that the Contractor is operating inside of IR35 under the Off Payroll Rules:
8.4.1 clause 8.3 shall not apply;
8.4.2 the Representative shall be an agency worker for the purposes of the AWR;
8.4.3 the Client acknowledges that the Contractor shall be entitled to submit written representations as to why the Contractor considers itself to be operating outside of IR35 and, if the Contractor submits such representations, the Client must provide a final determination within the 45 day period provided for under the Off Payroll Rules;
8.4.4 the Company may elect to terminate the Assignment without notice and, where practicable, shall endeavour to engage and supply the Temporary Resource on a different basis; and
8.4.5 without prejudice to clause 8.4.4, if the Company elects to continue the supply of the Contractor on an inside IR35 basis, the Company shall ensure that all further payments to the Contractor in respect of the Assignment are made on a deemed employment basis and subject to deduction for PAYE tax and National Insurance Contributions in respect of the Representative.
8.5 The Client shall indemnify and keep indemnified the Company against any liability for Tax (including any interest and penalties) suffered or incurred by the Company in relation to any Contractor as a result of the Client (i) providing an inaccurate SDS (ii) failing to provide an SDS where required to do so under these Terms and/or by law or (iii) otherwise failing to comply with this clause 8.
9 ADDITIONAL OBLIGATIONS RELATING TO SUBCONTRACTORS
9.1 The Client must not exercise or permit any third party to exercise SDC over any Subcontractor who is supplied for an Assignment. Nothing in this clause shall affect the Client’s obligations under clause 6.1 or prevent the Client from periodically checking that the Services have been performed to the required standard.
9.2 Notwithstanding clause 9.1, if the Subcontractor has been
subject to SDC at any time during the Assignment, the Client must notify the Company without delay. In such event, the Company may terminate the Assignment immediately and without liability.
9.3 The Client shall indemnify and keep indemnified the Company against any liability for PAYE income tax or National Insurance contributions (including any interest and penalties) suffered or incurred by the Company in relation to any Subcontractor where the Client fails to comply with this clause 9.
10 UNSATISFACTORY TEMPORARY RESOURCES
10.1 If the Client, acting reasonably, is dissatisfied with the Services or if the Temporary Resource does anything materially detrimental to the Client’s interests, the Client shall notify the Company without delay and may:
10.1.1 request that the Contractor or Subcontractor, where applicable, remedies any defects in the Services; and/or
10.1.2 terminate the Assignment in accordance with clause 15.4.
10.2 Where the Client requires a Contractor or Subcontractor to remedy any defects in the Services, the Company shall use reasonable endeavours to procure that the Contractor or Subcontractor complies with the Client’s request but shall not be liable for any refusal or failure of the Contractor or Subcontractor in this regard.
11 TIMESHEETS
11.1 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), the Client shall approve a timesheet in a format specified by the Company verifying the times worked by the Temporary Resource during that week.
11.2 The Client is responsible for ensuring that the times shown on the Temporary Resource’s timesheet are correct and that only duly authorised employees approve the timesheet.
11.3 The Client acknowledges that the Company shall rely upon the Client’s approval of the timesheet as confirmation of the time worked by the Temporary Resource and the Client must not retrospectively adjust the time which has been confirmed as having been worked by the Temporary Resource or subsequently refuse to pay any Charges in relation to an approved timesheet.
11.4 The Client may only refuse to approve the Temporary Resource’s timesheet where:
11.4.1 the Client disputes the time which the Temporary Resource claims to have worked. In this event, the Client shall inform the Company as soon as is reasonably practicable and shall co-operate with the Company fully and in a timely manner to enable the Company to establish the time, if any, which was worked by the Temporary Resource.
11.4.2 the Client, acting reasonably, is dissatisfied with the Services and the Company has confirmed in writing that the Temporary Resource has Opted Out. In this event, the Client shall provide all such information as the Company may require in a timely manner to justify the Client’s dissatisfaction with the Services.
11.5 If the Client refuses or fails to approve the Temporary Resource’s timesheet in breach of these Terms, the Company may issue an invoice for the Charges based upon the Temporary Resource having provided Services for 60 hours in the relevant week.
12 CHARGES
12.1 The Client shall be liable to pay the Charges for each Assignment as set out in the relevant Order Confirmation.
12.2 The Company shall issue an invoice to the Client for the Charges each week and:
12.2.1 such invoice shall be payable by the Client within the Payment Terms;
12.2.2 VAT shall be charged at the standard rate on such invoice and, for the avoidance of doubt, the Company is acting as an employment business and the domestic VAT reverse charge is not applicable to the Company; and
12.2.3 unless otherwise agreed by the Company in writing, all Charges shall be invoiced to the Client in Pounds Sterling and the Client shall bear any bank charges and currency exchange costs when paying the Company’s invoice.
12.3 If an invoice is not paid within the Payment Terms, the Company may:
12.3.1 suspend or terminate the supply of Temporary Resources to the Client without notice;
12.3.2 charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment together with statutory compensation under the Late Payment of Commercial
Debts (Interest) Act 1998; and
12.3.3 refer the collection of such payment to a collection agent or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by the Company in recovering payment from the Client.
12.4 The Company may vary the Charges, by giving written notice to the Client, to reflect any additional cost in supplying the Temporary Resource as a result of the AWR (where applicable) or any change in legislation.
12.5 The Company shall not give any refund or rebate in respect of the Charges and the Client shall pay the Charges without deduction or set off including, without limitation, any deduction in respect of the CITB levy.
12.6 If the Client employs or engages (directly or indirectly) any employee of the Company with whom the Client has had material dealings, within 6 months of such individual leaving the Company’s employment, the Client shall pay a fee to the Company, which shall be a sum equivalent to 50% of the employee’s gross remuneration in the last year of the employee’s service with the Company. The fee shall be payable by the Client within the Payment Terms.
13 TRANSFER FEE
13.1 Subject to clause 14, where applicable, the Client shall be liable to pay a Transfer Fee to the Company if the Client or any Connected Party (i) Engages the Temporary Resource or (ii) introduces or supplies the Temporary Resource to a third party who Engages the Temporary Resource and in either case:
13.1.1 where the Temporary Resource has not commenced an Assignment, such Engagement commences in the Restricted Period;
13.1.2 where the Temporary Resource has commenced an Assignment and has Opted Out, such Engagement commences in the Restricted Period; or
13.1.3 where the Temporary Resource has commenced an Assignment and has not Opted Out, such Engagement commences in the Relevant Period.
13.2 The Transfer Fee shall be a sum equivalent to 20% of the Remuneration for the Engagement
13.3 If the Remuneration is not disclosed to the Company or if it is impracticable to calculate the Remuneration, the Transfer Fee shall be the hourly Charge at which the Temporary Resource was (or would reasonably have been) supplied to the Client multiplied by 400 or the daily Charge at which the Temporary Resource was (or would reasonably have been) supplied to the Client multiplied by 60.
13.4 The Company shall issue an invoice for the Transfer Fee on commencement of the Engagement or as soon as practicable thereafter and such invoice shall be payable within the Payment Terms. No refund of the Transfer Fee will be given by the Company for any reason.
14 EXTENDED HIRE PERIOD
14.1 If the Temporary Resource has not Opted Out then, instead of paying the Transfer Fee, the Client may give one week’s written notice to the Company to commence an Extended Hire Period, commencing on the date on which such written notice expires.
14.2 During an Extended Hire Period, the Company shall supply the Temporary Resource (i) on terms no less favourable than the terms which applied immediately before the Company received the notice pursuant to clause 14.1 or (ii) where the Company has not previously supplied the Temporary Resource to the Client, on such commercial terms as the Company may reasonably specify.
14.3 If the Company is unable to supply the Temporary Resource for any part of an Extended Hire Period for a reason outside of the Company’s control (including, without limitation, any adverse credit information relating to the Client or the previous termination of the Recruitment Services by either party) or if the Client does not wish to hire the Temporary Resource on the terms set out in clause 14.2, the Client shall pay the Transfer Fee, reduced in proportion to any part of the Extended Hire Period for which the Temporary Resource was supplied by the Company following expiry of the Client’s written notice under clause 14.1.
15 TERMINATION
15.1 Subject to clauses 15.2 to 15.4, a party may terminate an Assignment by giving the period of notice specified in the Order Confirmation or, if no period of notice is specified, at any time and without notice.
15.2 Either party may terminate an Assignment without notice if the other party (i) has committed a serious or persistent breach of its obligations under these Terms (ii) undergoes a change of control or (iii) becomes insolvent.
15.3 The Company may terminate an Assignment without notice (i) if it becomes aware of any reason why the Temporary Resource is unsuitable to carry out
the Assignment (ii) it would be detrimental to the interests of the Client or the Temporary Resource for the Assignment
to continue or (iii) in the case of a Contractor, the Client provides an SDS after commencement of the Assignment determining the Assignment to be inside of IR35.
15.4 The Client may terminate the Assignment without notice if the Client, acting reasonably, is dissatisfied with the Services or if the Temporary Resource has done anything materially detrimental to the Client’s interests.
15.5 If the Client, acting reasonably, is dissatisfied with the Services, the Client may on the first day terminate an Assignment within the first 4 hours if the booking was for more than 7 hours (or within the first 2 hours if the booking was for 7 hours or less) and, provided that such termination is confirmed by the Client in writing within 48 hours, the Company shall cancel the Charges for such period.
15.6 The Company shall use reasonable endeavours to ensure that the Temporary Resource observes the agreed notice period, if any, for terminating the Assignment but shall not be liable if the Temporary Resource fails to comply with an agreed notice period.
15.7 Either party may terminate the provision of Recruitment Services at any time by notifying the other party in writing. Any Assignment then in progress shall continue until terminated in accordance with these Terms.
15.8 Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by the Company prior to such termination and the Company’s right to charge a Transfer Fee where applicable.
16 LIABILITY & INDEMNITY
16.1 The Company shall use reasonable endeavours to Introduce Temporary Resources to the Client but shall not be liable if it does not Introduce a Temporary Resource for any reason.
16.2 The Company shall not be liable for (i) the acts or omissions of any Temporary Resource (ii) any loss, theft or damage to any materials, equipment or other property issued to or used by the Temporary Resource during the Assignment (iii) the performance or non-performance of the Services or (iv) the absence or unavailability of a Temporary Resource during an Assignment.
16.3 The Company shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, business, reputation, or goodwill howsoever arising.
16.4 Subject to clause 16.5, the aggregate liability of the Company to the Client in respect of any claim or series of claims arising out of or in connection with these Terms, and whether arising in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to the Charges paid by the Client in relation to the relevant Temporary Resource in the three-month period immediately prior to such claim arising or, if there was no supply of a Temporary Resource or if the claim does not relate directly to the supply of a Temporary Resource, the sum of £10,000.
16.5 The Company does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
16.6 All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
16.7 Any claim which the Client may bring against the Company pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
16.8 The Client shall indemnify and keep indemnified the Company against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by the Company as a result of the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.
17 CONFIDENTIALITY & DATA PROTECTION
17.1 The Client shall treat all information relating to a Temporary Resource which is provided by the Company with the utmost confidentiality and, in particular, must (i) not use such information for any other purpose without the prior consent of the Company and the Temporary Resource and (ii) ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information.
17.2 Save to the extent that the Company is required to disclose such information to the Temporary Resource, the Company shall keep confidential any information provided by the Client in relation to the AWR and not use it for any other purpose.
17.3 The Company and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall (i) control and process the Shared Data in accordance with the Data Protection Legislation (ii) place the Temporary Resource on notice of their data
processing activities through notices which comply with the Data Protection Legislation and the Company shall assist the
Client in this regard if requested to do so (iii) take appropriate technical and organisational measures to safeguard the security of Shared Data under their control (iv) co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data and (v) co-operate with the other party where any Temporary Resource seeks to exercise their statutory rights respect of the Shared Data.
18 ANTI-CORRUPTION
The parties warrant that they shall (i) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and (ii) promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with these Terms.
19 GENERAL PROVISIONS
19.1 The Client shall not assign any of its rights or obligations under these Terms without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.
19.2 The Company has assigned the legal and beneficial interest in the Charges to Quba, who may enforce any part of these Terms directly against the Client.
19.3 Subject to clause 19.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
19.4 If any provision of these Terms is determined by a court to be unenforceable, the unenforceable provision shall be severed from these Terms solely to that extent and the remainder of the Terms shall continue to be valid and enforceable to the extent permitted by law.
19.5 No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19.6 Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
19.7 For the purposes of the Conduct Regulations, the Company shall act as an employment business when providing Recruitment Services under these Terms.
19.8 These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation, or performance of these Terms.
I confirm that I am authorised to agree these Terms on behalf of the Client: Signed:
Print Name:
Date:
Client Legal Name:
Position:
If unsigned, these Terms shall be deemed to have been accepted in accordance with clause 2.1 of the Terms.
TERMS OF BUSINESS FOR THE INTRODUCTION OF CANDIDATES
1 DEFINITIONS & INTERPRETATION
1.1 In these terms of business (Terms), the following definitions apply:
Candidate means a person (including a legal person) who is Introduced by the Company to the Client;
Client means the person, firm, partnership, organisation, public sector body or company to which the Recruitment Services are provided under these Terms;
Company means Konnect Recruit Limited (Registered in England and Wales No. 10000208) whose address for correspondence is Fairways House Offices, Mount Pleasant Road, Southampton, SO14 0QB;
Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
Connected Party means any (i) holding, subsidiary, associated or connected company of the Client (ii) organisation or business within the same purchasing group as the Client or (iii) organisation or business which is demonstrably connected to the Client through common ownership, management or control;
Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the Data Protection Act 2018 or the GDPR insofar as it is applicable to the United Kingdom;
Engagement means the engagement, employment, hire or use of the Candidate by the Client or Connected Party under any agreement or arrangement whatsoever, whether directly or through any third party and whether on a permanent, fixed term, temporary, Contractor or any other basis. “Engage,” “Engaged” and “Engages” have the corresponding meaning;
Introduction has the meaning set out in clause 3.2. “Introduce”, “Introduces” and “Introduced” have the corresponding meaning;
Introduction Fee means the fee payable by the Client upon the Engagement of a Candidate;
Introduction Period means 12 months from the most recent Introduction of the Candidate;
Payment Terms means 14 days from the date of the Company’s invoice;
Recruitment Services means the Introduction of Candidates to the Client by the Company;
Refund means a full or partial refund or credit of the Introduction Fee;
Remuneration means (i) the gross annualised remuneration package payable to the Candidate including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances and all other emoluments and benefits in kind. A notional sum of £6,000 shall be added to the Remuneration in respect of any company car provided to the Candidate or (ii) if the Candidate is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable in respect of the Candidate’s services;
Replacement means a replacement Candidate who is Introduced to the Client pursuant to clause 7.2;
Shared Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation and which is shared between the parties pursuant to these Terms;
Third Party Engagement means the engagement of a Candidate by a party other than the Client following a Third Party Introduction; and
Third Party Introduction means the disclosure of a Candidate’s details to a third party by the Client following an Introduction.
1.2 A reference to a party shall mean either the Company or the Client as applicable and a reference to the parties shall mean both the Company and the Client.
1.3 The clause headings used in these Terms are not intended to affect the interpretation of any clause.
1.4 Unless otherwise indicated by the context (i) references to the singular include the plural and vice-versa (ii) references to the masculine include the other genders and vice-versa.
1.5 Any reference to legislation includes an amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.
2 FORMATION & BASIS OF AGREEMENT
2.1 If the Client has not signed these Terms or otherwise confirmed acceptance of the Terms in writing, these Terms shall be deemed to have been accepted upon the Client (i) instructing the Company to Introduce Candidates (ii)
interviewing or meeting with a Candidate who has been
Introduced (iii) using the Company to facilitate an Engagement or (iv) making a Third Party Introduction, whichever occurs first following receipt of these Terms.
2.2 Once accepted in accordance with clause 2.1, these Terms shall apply to any Recruitment Services provided by the Company until terminated in accordance with clause 8.
2.3 No variation to these Terms shall be effective unless agreed in writing between a representative of the Client and a director of the Company. Nothing in this clause shall prevent the Company from updating and issuing a revised version of these Terms from time to time.
2.4 Unless otherwise agreed in writing by a director of the Company, these Terms form the entire agreement between the parties for the provision of Recruitment Services to the exclusion of any terms proposed or issued by the Client.
3 INTRODUCTIONS
3.1 The Company shall use reasonable endeavours to Introduce Candidates from time to time who (i) meet the criteria specified by the Client under clause 4.1 or (ii) the Company believes may otherwise be of interest to the Client.
3.2 An Introduction shall take place upon (i) the Company providing a CV or other information to the Client which expressly or impliedly identifies a Candidate (ii) the Company arranging an interview or meeting between the Client and a Candidate whether face to face, by telephone, by web conference or by any other means or (iii) the parties conducting any negotiations or discussions, whether verbal or written, in respect of the potential Engagement of a specific Candidate.
3.3 An Introduction by the Company shall be deemed to be the effective cause of any Engagement of the Candidate within the Introduction Period unless all three of the following conditions apply: (i) within the 6 month period prior to the initial Introduction, the Candidate had applied directly for a position with the Client or instructed a third party to introduce the Candidate to the Client for a specific position (ii) the Client provides reasonable evidence of such prior application or introduction within two working days of the Company initially Introducing the Candidate and (iii) the Client has not arranged to interview the Candidate through the Company or otherwise used the Company’s Introduction to facilitate the Engagement of the Candidate.
4 PROVISION OF INFORMATION
4.1 The Client shall provide to the Company all such information as the Company shall reasonably require regarding the position which the Client is seeking to fill (Relevant Position) including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.
4.2 The Company may advertise the Relevant Position in such format and including such information as the Company considers appropriate unless the Client notifies the Company in writing that it may not advertise such position or otherwise specifies the information about the position which may not be advertised.
4.3 The Client must (i) notify the Company without delay of any offer of an Engagement which it wishes to make to a Candidate and provide the terms of such offer (ii) notify the Company without delay upon the acceptance of an offer of Engagement by a Candidate and in any event prior to commencement of the Engagement and (iii) provide the details of the Remuneration agreed with the Candidate and, if requested by the Company, a copy of the Candidate’s contract of employment.
5 CANDIDATE CHECKS
5.1 The Company shall comply with its obligations under the Conduct Regulations by (i) taking all reasonably practicable steps to ensure that the Candidate and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Candidate to enable the Candidate to work for the Client in the Relevant Position (ii) making all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Candidate or the Client for the Candidate to work in the Relevant Position and (iii) ensuring that the Candidate is willing to work in the Relevant Position.
5.2 Where required to do so under the Conduct Regulations due to the nature of the Relevant Position, the Company shall take all reasonably practicable steps to (i) obtain copies of any relevant qualifications or authorisations of the Candidate and offer to provide copies of those documents to the Client (ii) obtain two references from persons who are not relatives of the Candidate and who have agreed that the references may be disclosed to the Client and (iii) confirm that the Candidate is suitable for the Relevant Position.
5.3 Notwithstanding the Company’s obligations under clause 5.1 and, where applicable, clause 5.2, the Client acknowledges that the Client is exclusively responsible for deciding whether to Engage the Candidate. The Client must
therefore make such enquiries and carry out such checks as
are necessary for the Client to satisfy itself that the Candidate’s ability, experience and character meet the Client’s requirements.
5.4 The Client must not and must ensure that its employees, subcontractors, and representatives do not unlawfully discriminate against, harass, or victimise any Candidate.
6 FEES & INVOICING
6.1 Where the Company is the effective cause of an Engagement under clause 3.3, the Client will be liable to pay an Introduction Fee to the Company in respect of each Candidate who is Engaged within the Introduction Period, whether or not they are Engaged in the position for which they were Introduced.
6.2 The Introduction Fee shall be a sum equivalent to 20% of the Remuneration.
6.3 If the precise Remuneration is not known, if the Client fails to provide details of the Remuneration to the Company or if it is impracticable to calculate the Remuneration, the Company will calculate the Introduction Fee using the Remuneration which, in the Company’s reasonable opinion, is the market rate for the Engagement.
6.4 The Company shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged at the standard rate on the Company’s invoices.
6.5 The Client shall settle the Company’s invoices within the Payment Terms. Time for payment shall be of the essence.
6.6 The Client must not deduct or set off against any sum due to the Company under these Terms, any sum which is owed or which the Client alleges or claims is owed by the Company to the Client, whether under these Terms or under any other agreement between the Company and the Client.
6.7 If the Client does not pay the Company’s invoice within the Payment Terms, the Company may (i) charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment together with statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998 and (ii) refer the collection of such payment to a collection agency or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by the Company in recovering payment from the Client.
6.8 Any discount or reduction in the Introduction Fee which is agreed between the parties is conditional upon the Client complying with clause 4.3 in all respects.
6.9 If the Candidate’s Remuneration is not paid in Pounds Sterling, the Company shall convert the Remuneration to Pounds Sterling using the exchange rate published by the Bank of England on the invoice date and shall submit the invoice in Pounds Sterling. The Client shall bear any bank charges and currency exchange costs when paying the Company’s invoice.
6.10 Where, prior to commencement of the Engagement, the Client notifies the Company that the Candidate shall be engaged on a fixed term contract of less than 12 months (Fixed Term Contract), the Introduction Fee shall be charged on a pro-rata basis of 1/12 of the full Introduction Fee for each full or partial month of the Fixed Term Contract, subject to a minimum fee of one quarter of the full Introduction Fee. If the Fixed Term Contract is extended or if the Candidate is Engaged again on any basis within 12 months of the Fixed Term Contract ending, the Client shall pay the balance of the full Introduction Fee to the Company. For the avoidance of doubt, the aggregate Introduction Fee payable by the Client under this clause shall not exceed the Introduction Fee that the Client would have been liable to pay for a permanent Engagement.
6.11 If the Client makes a Third-Party Introduction which results in a Third Party Engagement within the Introduction Period, the Client shall be liable to pay an Introduction Fee which shall be calculated in accordance with clauses 6.2 and 6.3. The Client shall not be entitled to a Refund if the Third Party Engagement terminates for any reason.
6.12 If the Client employs or engages (directly or indirectly) any employee of the Company with whom the Client has had material dealings, within 6 months of such individual leaving the Company’s employment, the Client shall pay a fee to the Company, which shall be a sum equivalent to 50% of the employee’s gross remuneration in the last year of the employee’s service with the Company. The fee shall be payable by the Client within the Payment Terms.
6.13 If the Client withdraws an accepted offer of Engagement for any reason other than the Candidate’s suitability for the position, the Client shall pay a Cancellation Fee equivalent to 20% of the Introduction Fee. Such Cancellation Fee shall be payable by the Client within the Payment Terms.
7 REFUND GUARANTEE
7.1 If the Engagement terminates within the period specified in clause 7.3, the Client may be entitled to a Refund in accordance with the refund scale, provided that (i) the Client paid the Introduction Fee within the Payment Terms (ii) the Client strictly complied with clause 4.3 (iii) the Client notified the
Company in writing within 5 days of the termination of the
Engagement, giving the reasons for such termination and, if requested by the Company, reasonable evidence that the Engagement has terminated (iv) the Candidate’s position was not redundant or otherwise no longer required due to any internal reorganisation, restructure or change in strategy (v) the Candidate was not dismissed for reasons which were automatically unfair (vi) the Engagement was not a fixed term contract and (vii) the Company had not previously supplied the Candidate to the Client as a temporary worker for a period of more than one month.
7.2 Before giving any Refund to the Client, the Company shall be entitled to an exclusive period of not less than 30 working days to Introduce a Replacement for the same position and (i) if the Company Introduces a Replacement who is Engaged by the Client (ii) if the Client decides not to replace the original Candidate or (iii) if the Client replaces the original Candidate as a result of any third party’s introduction during the 30 working day period, the Company shall have no liability to give a Refund to the Client.
7.3 Subject to clauses 7.1 and 7.2, the Company shall give a Refund to the Client in accordance with the following refund scale: Week of Termination % Refund
1 – 4
80%
5 – 8
40%
7.4 For the purposes of calculating the Refund, the date of termination of the Engagement shall be the last day of the Candidate’s contractual notice period, irrespective of whether the Candidate is paid in lieu of notice or agrees to shorten their notice.
7.5 If the Client receives a Refund and subsequently Engages the same Candidate again within 12 months of the original Engagement terminating, the Client must repay the Refund to the Company without delay. The Client shall have no further right to a Refund if this Engagement then terminates for any reason.
7.6 If the Client receives a Replacement and then Engages the original Candidate again within 12 months, the Client shall be liable to pay an Introduction Fee in respect of the Replacement.
7.7 The Client shall have no entitlement to a Refund or further Replacement if the Replacement’s Engagement terminates for any reason.
8 TERMINATION
8.1 Either party may terminate the Recruitment Services by the Company at any time by notifying the other party in writing.
8.2 Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by the Company prior to such termination and the Company’s right to charge an Introduction Fee in respect of any Engagement of a Candidate within the Introduction Period.
9 LIABILITY & INDEMNITY
9.1 Whilst the Company will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the requirements specified by the Client under clause 4.1, the Company offers no warranty as to the ability, integrity, or character of the Candidate.
9.2 The Company shall not be liable to the Client for (i) not Introducing a Candidate (ii) the acts or omission of any Candidate (iii) any indirect or consequential losses or (iv) any claim for loss of profit, business, anticipated savings, or reputation howsoever arising.
9.3 Subject to clause 9.4, the aggregate liability of the Company to the Client in respect of any claim or series of claims arising out of or in connection with these Terms and whether arising in contract, tort (including negligence) or otherwise, is limited to the Introduction Fee paid by the Client in respect of the Engagement to which the claim relates or, if no Introduction Fee was paid or the claim does not relate to an Engagement, the sum of £10,000.
9.4 The Company does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.
9.5 All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.
9.6 Any claim which the Client may bring against the Company in connection with these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
9.7 The Client shall indemnify and keep indemnified the Company against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by the Company as a result of the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.
10 CONFIDENTIALITY & DATA PROTECTION
10.1 The Client shall treat all information relating to a Candidate which is provided by the Company with the utmost confidentiality and, in particular, must (i) not use such information for any other purpose without the prior consent of the Company and the Candidate (ii) ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information and (iii) not disclose to any third party that the Candidate is seeking new employment or apply for a reference from the Candidate’s current employer without the Candidate’s express consent.
10.2 The Company and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall (i) control and process the Shared Data in accordance with the Data Protection Legislation (ii) place the Candidate on notice of their data processing activities through notices which comply with the Data Protection Legislation and the Company shall assist the Client in this regard if requested to do so (iii) take appropriate technical and organisational measures to safeguard the security of Shared Data under their control (iv) co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data and (v) co-operate with the other party where any Candidate seeks to exercise their statutory rights respect of the Shared Data.
11 ANTI-CORRUPTION
The parties warrant that they shall (i) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and (ii) promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with these Terms.
12 GENERAL PROVISIONS
12.1 Neither party shall assign any of its rights or obligations under these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
12.2 The parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
12.3 If any provision of these Terms is determined by a court to be unenforceable, the unenforceable provision shall be severed from these Terms solely to that extent and the remainder of the Terms shall continue to be valid and enforceable to the extent permitted by law.
12.4 No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.5 Neither party shall be in breach of these Terms nor liable for any delay in performing or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
12.6 For the purposes of the Conduct Regulations, the Company shall act as an employment agency when providing Recruitment Services under these Terms.
12.7 These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation, or performance of these Terms.
I confirm that I am authorised to agree these Terms on behalf of the Client: Signed:
Print Name:
Date:
Client Legal Name:
Position:
If unsigned, these Terms shall be deemed to have been accepted in accordance with
clause 2.1 of the Terms.