TERMS OF BUSINESS – SUPPLY OF TEMPORARY RESOURCES
1 DEFINITIONS & INTERPRETATION
1.1 In these terms of business (Terms), the following definitions apply:
Agency Worker: an individual who is (i) engaged directly by the Company as a PAYE worker under a contract for services or (ii) employed by an Intermediary under a contract of service.
Assignment: the temporary role or project which the Temporary Resource may undertake for the Client.
Assignment Schedule: the document issued by the Company confirming details of the Assignment.
AWR: the Agency Workers Regulations 2010.
Charges: 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: the person, firm, partnership, organisation, public sector body or company to which the Recruitment Services are provided under these Terms.
Company: STONEHOUSE RECRUITMENT GROUP LIMITED (Registered in England & Wales No. 13585289) whose registered office is at 78 Wembley Park Drive, Wembley, England, HA9 8HB.
Conduct Regulations: the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
Connected Party: 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: a limited company or limited liability partnership engaged by the Company under a contract for services and supplied to perform the Temporary Resource Services.
Data Protection Legislation: the Data Protection Act 2018, the retained UK GDPR and all other relevant legislation in the United Kingdom relating to data protection.
Engagement: 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, consultancy, or any other basis. “Engage,” “Engaged” and “Engages” have the corresponding meaning.
Exempt Client: 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: an extension of the Assignment for 20 weeks, which shall commence upon expiry of the Client’s notice under clause 14.1.
Insolvency Event: occurs if (i) a party makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); (ii) any distress or execution is levied upon a party, its property or assets; (iii) an administrator or administrative receiver or receiver is appointed over all or part of the party’s undertaking, property or assets; (iv) a party ceases, or threatens to cease, to carry on business; (v) a party becomes unable to pay its debts as they fall due; or (vi) any analogous proceedings or events similar to those specified above are instituted or occur in relation to a party outside of England or Wales.
Intermediary: 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.
ITEPA: the Income Tax (Earnings and Pensions) Act 2003.
Off Payroll Rules: Chapter 10 of Part 2 of ITEPA.
Opted Out: opted out of the Conduct Regulations under Regulation 32(9).
Payment Terms: 30 days from the date of the Company’s invoice.
QUBA: QUBA Solutions Limited (Registered in England & Wales No. 07907578) whose registered office is at 1 Widcombe Street, Poundbury, Dorchester, Dorset, DT1 3BS.
Recruitment Services: the Introduction and supply of Temporary Resources by the Company to the Client.
Relevant Period: 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.
Relevant Position: a specific temporary position which the Client wishes to fill.
Representative: the director, employee, worker, or subcontractor of a Contractor who performs the Temporary Resource Services on behalf of the Contractor.
Restricted Period: the later of (i) 6 months from the end of the Assignment or (ii) 6 months from the most recent Introduction of the Temporary Resource to the Client.
SDC: supervision, direction, or control (or the right thereof) as to the manner in which the Temporary Resource performs the Temporary Resource Services.
SDS: 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.
Shared Data: 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.
Special Conditions: any special conditions which are agreed between the parties and which are set out in the Assignment Schedule.
Subcontractor: a self-employed person engaged through an Intermediary under a contract for services.
Substitute: an alternative Representative or subcontractor, appointed by a Contractor to perform the Temporary Resource Services in the place of the original Representative.
Tax: income tax, National Insurance or social security contributions and all other statutory deductions arising upon payments which are made to Temporary Resources.
Temporary Resource: the person or limited company Introduced by the Company for an Assignment and, save where otherwise indicated, includes a Contractor, Representative, Subcontractor and Agency Worker.
Temporary Resource Services: the work to be carried out by the Temporary Resource during an Assignment.
Transfer Fee: the fee payable by the Client upon the Engagement of a Temporary Resource.
WTR: 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 confirmed acceptance of these Terms in writing, the Client shall be deemed to have accepted the Terms by (i) instructing the Company to Introduce a Temporary Resource (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 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 Client Terms of Business (Temporary)Stonehouse Recruitment Group Limited v2.1 8/23 AP exclusion of any terms proposed or issued by the Client.
2.3 In the event of any inconsistent or conflicting provisions, the Special Conditions (if any) shall take priority.
2.4 No variation to these Terms shall be valid unless the details of such variation are agreed between the Client and a director of the Company, are set out in writing and a copy of the varied Terms is given to the Client stating the date on or after which the varied Terms shall apply and, where applicable, QUBA’s consent has been provided under clause 19.3.
2.5 For the purposes of the Conduct Regulations, the Company shall act as an employment business.
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 reasonably believes may 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 Relevant Position 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 Client authorises the Company to advertise Relevant Positions in such format and including such information as the Company considers appropriate. The Client may withdraw this authorisation at any time by notifying the Company in writing that it may not advertise a Relevant Position or otherwise specifying the information about the Relevant Position which may not be advertised.
4.3 The Company shall issue an Assignment Schedule 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 Assignment Schedule 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 When 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 work in the Relevant Position;
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 work in the Relevant Position; and
5.1.3 ensure that the Temporary Resource is willing to work in the Relevant Position.
5.2 When required to do so under Regulation 22 of the Conduct Regulations due to the specific nature of the Relevant Position, 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 Relevant Position.
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 equipment which the Temporary Resource is not qualified to operate;
6.1.5 not require the Temporary Resource to work in a role which (i) is ordinarily performed by an employee of the Client who is involved in a strike or industrial action or (ii) is ordinarily performed by an employee of the Client who has been redeployed to carry out the work of an employee who is involved in a strike or industrial action; and
6.1.6 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 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.
6.3 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 Temporary Resource 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 accurate, 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 including, where applicable, any bonus which the Agency Worker may be entitled to receive under the AWR.
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, if 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 Temporary Resource Services from time to time provided that such Substitute is suitably skilled, qualified, security cleared (where applicable) and experienced to perform the Temporary Resource 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 Temporary Resource Services and the location in which such Temporary Resource Services are performed; and
8.3.4 neither the Client nor any third party shall exercise SDC over the Contractor in respect of the Temporary Resource Services.
8.4 If 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 following commencement of the Assignment, the Company shall be entitled to terminate the Assignment immediately and without liability; and
8.4.5 without prejudice to clause 8.4.4, if the Company continues 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 subject to deductions for PAYE tax and National Insurance Contributions in respect of the Representative.
8.5 The parties acknowledge and agree that the Contractor shall be supplied for the specific Assignment and there is no expectation or requirement for the Client to offer any further work to the Contractor or for the Contractor to accept any such offer which may be made.
8.6 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 as a result of the Client (i) providing an inaccurate SDS (ii) failing to provide an SDS if required to do so under these Terms 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 Temporary Resource 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 as a result of the Client exercising or permitting any third party to exercise SDC over a Subcontractor.
10 UNSATISFACTORY TEMPORARY RESOURCES
10.1 If the Client, acting reasonably, is dissatisfied with the Temporary Resource 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 where applicable, request that the Contractor or Subcontractor remedies any defects in the Temporary Resource Services; and/or
10.1.2 terminate the Assignment in accordance with clause 15.4.
10.2 If the Client requires a Contractor or Subcontractor to remedy any defects in the Temporary Resource 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 to do so.
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 authorised employees of the Client 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 if 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 provide the details of the time, if any, which was worked by the Temporary Resource during the period to which the timesheet relates.
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 which the Company reasonably estimates to be due in respect of the time worked by the Temporary Resource. The Client shall be liable to pay such estimated Charges in accordance with clause 12.3.
12 CHARGES & INVOICING
12.1 The Client shall be liable to pay the Charges in respect of each Assignment as confirmed in the Assignment Schedule.
12.2 The Company shall invoice the Client for the Charges each week. VAT shall be charged at the standard rate on all invoices..
12.3 The Client shall pay the Company’s invoices within the Payment Terms and without set off or deduction.
12.4 If an invoice is not paid within the Payment Terms, the Company or QUBA (as applicable) may:
12.4.1 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
12.4.2 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 or QUBA in recovering payment from the Client.
12.5 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 or any change in legislation.
12.6 No refund or rebate of the Charges or any Transfer Fee is available under these Terms.
13 TRANSFER FEE
13.1 Subject to clause 14.1, 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 during the term of the Assignment or within the Restricted Period; or
13.1.3 where the Temporary Resource has commenced an Assignment and has not Opted Out, such Engagement commences during the term of the Assignment or within the Relevant Period.
13.2 The Transfer Fee shall be a sum equivalent to 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 multiplied by 60, as applicable. In determining the rate at which the Temporary Resource would reasonably have been supplied to the Client, the Company may rely on such evidence as the Company deems relevant including, without limitation, any quotation which the Company provided to the Client or rate which the Client indicated that they would be willing to pay, placements which the Company has made with third parties and the market conditions generally.
13.3 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 shall 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 prior termination of the Recruitment Services) 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 Assignment Schedule 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) is subject to an Insolvency Event.
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 (iii) in the case of a Contractor, the Client provides an SDS determining the Assignment to be inside of IR35 or (iv) the Client refuses or fails to pay the Charges within the Payment Terms.
15.4 The Client may terminate the Assignment without notice if the Client, acting reasonably, is dissatisfied with the Temporary Resource Services, if the Temporary Resource has done anything materially detrimental to the Client’s interests, or if the Temporary Resource has refused or failed to perform the Temporary Resource Services.
15.5 The Company shall use reasonable endeavours to ensure that the Temporary Resource gives the agreed notice, if any, for terminating the Assignment. However, the Company shall not be liable if the Temporary Resource fails to observe any notice period which had been agreed.
15.6 Either party may terminate the provision of Recruitment Services at any time by notifying the other party in writing. Any Assignment in progress at that time shall continue until terminated in accordance with these Terms.
15.7 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 Temporary Resource 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 a sum equivalent to 15% of 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 £25,000.
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 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 shall 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 (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 if any Temporary Resource seeks to exercise their statutory rights respect of the Shared Data.
18 BRIBERY & HUMAN TRAFFICKING
18.1 The Client and the Company warrant that they shall each:
18.1.1 comply with all applicable laws, statutes, regulations, and codes relating to antibribery and anti-corruption including but not limited to the Bribery Act 2010;
18.1.2 promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms; and
18.1.3 take reasonable steps and carry out appropriate checks to ensure that their respective businesses and business supply chains are free of slavery and human trafficking.
19 ASSIGNMENT OF RECEIVABLES
19.1 The Company has assigned any monies owing from the Client under these Terms to QUBA, who shall be entitled to enforce any provision of these Terms relating to the recovery of monies from the Client, including any liability of the Client to pay interest, late payment compensation and legal costs.
19.2 All payments from the Client under these Terms must be remitted to the bank account specified in writing by QUBA. The Client’s liability for the Charges shall not be discharged if it makes payment directly to the Company or any third-party.
19.3 Where any variation to the Terms under clause 2.4 may adversely affect QUBA’s rights, such variation shall also be subject to QUBA’s prior written consent.
20 GENERAL PROVISIONS
20.1 The Client shall not assign or transfer any of its rights or obligations under these Terms without the prior written consent of the Company.
20.2 Subject to clause 19.1, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
20.3 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.
20.4 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.
20.5 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.
20.6 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.
