TERMS OF BUSINESS WITH A HIRER FOR THE SUPPLY OF AGENCY WORKERS
1. DEFINITIONS AND INTERPRETATION.
1.1. In these Terms the following definitions apply:
“Agency Worker” means the individual who is Introduced by the Employment Business to provide services to the Hirer; “Agency Workers Regulations” means the Agency Workers Regulations 2010
“Assignment” means assignment services to be performed by the Agency Worker for the Hirer for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Hirer;
“Assignment Details Form” means written confirmation of the assignment details agreed with the Hirer prior to commencement of the Assignment.
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Agency Worker against the Hirer and/or the Employment Business for any breach of the Agency Workers Regulations.
“Calendar Week” means any period of seven days starting with the same day as the first day of the First Assignment.
“Charges” means the hourly charges of the Employment Business calculated in accordance with clause 6.1 and as may be varied from time to time in accordance with these Terms.
“Comparable Employee” means as defined in Schedule 1 to these Terms.
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Hirer or Employment Business or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, knowhow, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Agency Worker or any third party in relation to the Assignment by the Hirer or the Employment Business or by a third party on behalf of the Hirer whether before or after the date of these
Terms together with any reproductions of such information in any form or medium or any part(s) of such information;
“Control” means (a) the legal or beneficial ownership, directly or indirectly, of more than 50% of the issued share capital or similar right of ownership; or (b) the power to direct or cause the direction of the affairs and/or general management of the company, partnership, statutory body or other entity in question, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" shall be construed accordingly;
“Data Protection Laws” means the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data;
“Employment Business” “LeviCare Limited Company Registration Number 11591420”
“Engagement” means the engagement, employment or use of the Agency Worker by the Hirer or any third party to whom the Agency Worker has been introduced by the Hirer, directly or indirectly, on a permanent or temporary basis, whether under a contract of service or for services, and/or through a company of which the Agency Worker is an officer, employee or other representative, an agency, license, franchise or partnership arrangement, or any other engagement; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“First Assignment” means: (a) the relevant Assignment; or (b) if, prior to the relevant Assignment: (i) the Agency Worker has worked in any assignment in the same role with the relevant Hirer as the role in which the Agency Worker works in the relevant Assignment; and (ii) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer);
“Hirer” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is Introduced;
“Hirer's Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Hirer, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Hirer, including (but not limited to) as a subsidiary or holding company as defined in section
1159 of the Companies Act 2006;
“Introduction” means (i) the passing to the Hirer of a curriculum vitae or information which identifies the Agency Worker; or (ii) the Hirer’s interview of the Agency Worker (in person or by telephone or by any other means), following the Hirer’s instruction to the Employment Business to supply a temporary worker; or (iii) the supply of the Agency Worker; and, in any case, which leads to an Engagement of the temporary worker or the Agency Worker; and “Introduced” and "Introducing" shall be construed accordingly;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“Period of Extended Hire” means any additional period that the Hirer wishes the Agency Worker to be supplied for beyond the duration of the original Assignment or series of Assignments as an alternative to paying a Transfer Fee;
“Qualifying Period” means 12 continuous Calendar Weeks during the whole or part of which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Hirer to work temporarily for and under the supervision and direction of the relevant Hirer in the same role, and as further defined in Schedule 1 to these Terms;
“Relevant Period” means (a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Hirer having been supplied by the Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment;
“Relevant Terms and Conditions” means terms and conditions relating to:
(a) pay;
(b) the duration of working time;
(c) night work;
(d) rest periods;
(e) rest breaks; and (f) annual leave that are
ordinarily included in the contracts of employees or workers (as appropriate) of the Hirer whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Agency Worker for services provided to or on behalf of the Hirer or any third party. Where a company car is provided, a notional amount of £5,000 will be added to the salary in order to calculate the Employment Business' fee;
“Temporary Work Agency” means as defined in Schedule 1 to these Terms;
“Terms” means these terms of business (including the attached schedules) together with any applicable Assignment Details Form;
“Transfer Fee” means the fee payable in accordance with clause 8 of these Terms and Regulation 10 of the Conduct Regulations;
“Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen; and
“Working Time Regulations” means the Working Time Regulations 1998
1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after these Terms) under it from time to time.
2. THE CONTRACT.
2.1. These Terms constitute the contract between the Employment Business and the Hirer for the supply of the Agency Worker’s services by the Employment Business to the Hirer and are deemed to be accepted by the Hirer by virtue of its request for, interview with or Engagement of the Agency Worker, or the passing of any information by the Hirer about an Agency Worker to any third party following an Introduction.
2.2. These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a director the Employment Business, these Terms prevail over any terms of business or purchase conditions (or similar) put forward by the Hirer.
2.3. Subject to clause 6.2, no variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of the Employment Business and a director of the Hirer and are set out in writing and a copy of the varied Terms is given to the Hirer stating the date on or after which such varied Terms shall apply.
2.4. The Employment Business shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973 when Introducing Agency Workers for Assignments with the Hirer.
3. HIRER OBLIGATIONS.
3.1. To enable the Employment Business to comply with its obligations under the Conduct Regulations the Hirer undertakes to provide to the Employment Business details of the position which the Hirer seeks to fill, including the following:
3.1.1. the type of work that the Agency Worker would be required to do;
3.1.2. the location and hours of work;
3.1.3. the experience, training, qualifications and any authorisation which the Hirer considers necessary or which are required by law or any professional body for the Agency Worker to possess in order to work in the position;
3.1.4. any risks to health or safety known to the Hirer and what steps the Hirer has taken to prevent or control such risks;
3.1.5. the date the Hirer requires the Agency Worker to commence the Assignment;
3.1.6. the duration or likely duration of the Assignment.
3.2. The Hirer will assist the Employment Business in complying with the Employment Business' duties under the Working Time Regulations by supplying any relevant information about the Assignment requested by the Employment Business and the Hirer will not do anything to cause the Employment Business to be in breach of its obligations under these Regulations. If the Hirer requires the services of an Agency Worker for more than 48 hours in any week during the course of an Assignment, the Hirer must notify the Employment Business of this requirement before the commencement of the Assignment or at the very latest, where this is not reasonably practicable, before the commencement of the week in which the Hirer requires the Agency Worker to work in excess of 48 hours.
3.3. The Hirer will comply with its obligations under Regulation 12 (Rights of agency workers in relation to access to collective facilities and amenities) and 13 (Rights of agency workers in relation to access to employment) of the Agency Workers Regulations.
3.4. To enable the Employment Business to comply with its obligations under the Agency Workers Regulations, the Hirer undertakes as soon as possible prior to the commencement of each Assignment and during each Assignment (as appropriate) and at any time at the Employment Business' request:
3.4.1. to inform the Employment Business of any Calendar Weeks since 1 October 2011 in which the relevant Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment which count or may count towards the Qualifying Period;
3.4.2. if, since 1 October 2011, the Agency Worker has worked in the same or a similar role with the Hirer via any third party prior to the date of commencement of the relevant Assignment and/or works in the same or a similar role with the Hirer via any third party during the relevant Assignment, to provide the Employment Business with all the details of such work, including (without limitation) details of where, when and the period(s) during which such work was undertaken and any other details requested by the Employment Business;
3.4.3. to inform the Employment Business if, since 1 October 2011, the Agency Worker has prior to the date of commencement of the relevant Assignment and/or during the relevant Assignment:
3.4.3.1 completed two or more assignments with the Hirer;
3.4.3.2 completed at least one assignment with the Hirer and one or more earlier assignments with any member of the Hirer's Group; and/or
3.4.3.3 worked in more than two roles during an assignment with the Hirer and on at least two occasions worked in a role that was not the same role as the previous role;
3.4.4. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to:
3.4.4.1. provide the Employment Business with written details of the basic working and employment conditions the Agency Worker would be entitled to for doing the same job if the Agency Worker had been recruited directly by the Hirer as an employee or worker at the time the Qualifying Period commenced or with those of a Comparable Employee, such basic working and employment conditions being the Relevant Terms and Conditions;
3.4.4.2. inform the Employment Business in writing whether the Relevant Terms and Conditions provided are those of a hypothetical directly recruited employee or worker or those of a Comparable Employee;
3.4.4.3. if the Relevant Terms and Conditions provided are those of a Comparable Employee, provide the Employment Business with a written explanation of the basis on which the Hirer considers that the relevant individual is a Comparable Employee; and
3.4.4.4. inform the Employment Business in writing of any variations in the Relevant Terms and Conditions made at any time during the relevant Assignment after the Qualifying Period commenced; and
3.4.5. save where the Agency Worker will not complete the Qualifying Period during the term of the Assignment, to provide the Employment Business with written details of its pay and benefits structures and appraisal processes and any variations of the same.
3.5. In addition, for the purpose of awarding any bonus to which the Agency Worker may be entitled under the Agency Workers Regulations, the Hirer will:
3.5.1. integrate the Agency Worker into its relevant performance appraisal system;
3.5.1. integrate the Agency Worker into its relevant performance appraisal system;
3.5.2. assess the Agency Worker's performance;
3.5.3. provide the Employment Business with copies of all documentation relating to any appraisal of the Agency Worker, including without limitation written details of the outcome of any appraisal and the amount of any bonus awarded; and
3.5.4. provide the Employment Business with all other assistance the Employment Business may request in connection with the assessment of the Agency Worker's performance for the purpose of awarding any bonus.
3.6. The Hirer will comply with all the Employment Business' requests for information and any other requirements to enable the Employment Business to comply with the Agency Workers Regulations.
3.7. The Hirer warrants that:
3.7.1. all information and documentation supplied to the Employment Business in accordance with clauses 3.4, 3.5 and 3.6 is complete, accurate and up-to date;
3.7.2. it will, during the term of the relevant Assignment, immediately inform the Employment Business in writing of any subsequent change in any information or documentation provided in accordance with clauses 3.4, 3.5 and 3.6;
3.8. Without prejudice to clauses 14.7 and 14.8, the Hirer shall inform the Employment Business in writing of any:
3.8.1. oral or written complaint the Agency Worker makes to the Hirer which is or may be a complaint connected with rights under the Agency Workers Regulations; and
3.8.2. written request for information relating to the Relevant Terms and Conditions that the Hirer receives from the Agency Worker as soon as possible but no later than 7 calendar days from the day on which any such oral complaint is made to or written complaint or request is received by the Hirer and the Hirer will take such action and give such information and assistance as the Employment Business may request, and within any timeframe requested by the Employment Business, in order to resolve any such complaint or to provide any such information in a written statement to the Agency Worker within 28 days of the Hirer's receipt of such a request in accordance with Regulation 16 of the Agency Workers Regulations and the Hirer will provide the Employment Business with a copy of any such written statement.
3.9. The Hirer undertakes that it knows of no reason why it would be detrimental to the interests of the Agency Worker for the Agency Worker to fill the Assignment.
3.10. TheHireragreestoundertake,priortoengagementoftheAgencyWorker,anonlinecheck on employment status for tax (‘CEST’- www.tax.service.gov.uk/check-employment-status- for-tax/setup) provided by HMRC. If it is deemed that the agency worker is outside of IR35 then the payment can be made outside of PAYE
3.11. Clause 3.10 will only apply if CEST is used and answered correctly and all parties agree with the CEST decision.
3.12. If (a) there is a dispute or (b) HMRC decide that the designation of an agency worker as outside IR35 is incorrect and give the Hirer an additional tax bill, the Employment Business shall take all reasonable endeavours to assist the Hirer in recouping the additional monies from the agency worker. However the Hirer undertakes not to hold the Employment Business responsible or liable for any underpaid tax not deducted from the agency worker.
3.13. Any overpayment of tax by the Agency Worker due to excessive deductions by the Hirer through PAYE will be processed as a tax refund from HMRC direct to the agency worker, or through PAYE.
4. INFORMATION TO BE PROVIDED BY THE EMPLOYMENT BUSINESS TO THE HIRER
4.1. When Introducing an Agency Worker to the Hirer the Employment Business shall inform the Hirer:
4.1.1. of the identity of the Agency Worker;
4.1.2. that the Agency Worker has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work in the Assignment;
4.1.3. that the Agency Worker is willing to work in the Assignment; and
4.1.4. the Charges.
4.2. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Agency Worker is Introduced for an Assignment in the same position as one in which the Agency Worker had previously been supplied within the previous 5 business days and such information has already been given to the Hirer, unless the Hirer requests that the information be resubmitted.
4.3 The Employment Business will inform the Hirer of any notification they have received from any Agency Worker that HMRC have demanded more tax or issued a tax refund pursuant to an incorrect IR35 designation or otherwise.
5. TIMESHEETS
5.1. At the end of each week of an Assignment (or at the end of the Assignment where it is for a period of 1 week or less) the Hirer shall sign the Employment Business' timesheet verifying the number of hours worked by the Agency Worker during that week.
5.2. Signature of the timesheet by the Hirer is confirmation of the number of hours worked. If the Hirer is unable to sign a timesheet produced for authentication by the Agency Worker because the Hirer disputes the hours claimed, the Hirer shall inform the Employment Business as soon as is reasonably practicable and shall co-operate fully and in a timely fashion with the Employment Business to enable the Employment Business to establish what hours, if any, were worked by the Agency Worker. Failure to sign the timesheet does not absolve the Hirer of its obligation to pay the Charges in respect of the hours worked.
5.3. The Hirer shall not be entitled to decline to sign a timesheet on the basis that it is dissatisfied with the work performed by the Agency Worker. In the event that the Hirer is dissatisfied with the Agency Worker the provisions of clause 10.1 below shall apply.
6. CHARGES
6.1. The Hirer agrees to pay the Charges as notified to and agreed with the Hirer. The Charges are calculated according to the number of hours worked by the Agency Worker (to the nearest quarter hour) and comprise the following:
6.1.1. the Agency Worker’s hourly rate of pay;
6.1.2. an amount equal to any paid holiday leave to which the Agency Worker is entitled under the Working Time Regulations and, where applicable, the Agency Workers Regulations and which is accrued during the course of an Assignment;
6.1.3. any other amounts to which the Agency Worker is entitled under the Agency Workers Regulations, where applicable;
6.1.4. employer’s National Insurance contributions;
6.1.5. any travel, hotel or other expenses as may have been agreed with the Hirer or, if there is no such agreement, such expenses as are reasonable; and
6.1.6. the Employment Business' commission, which is calculated as a percentage of the Agency Worker’s hourly rate.
6.2. The Employment Business reserves the right to vary the Charges agreed with the Hirer, by giving written notice to the Hirer:
6.2.1. in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the Agency Workers Regulations; and/or
6.2.2. if there is any variation in the Relevant Terms and Conditions.
6.2.3. in order to indemnify the Employment Business for costs that may arise from an incorrect allocation of the Agency Worker under IR35 either on the basis of a claim by the Agency Worker or otherwise.
6.3. The Charges are invoiced to the Hirer on a weekly basis and are payable within NET days, from date of invoice.
6.4. In addition to the Charges, the Hirer will pay the Employment Business an amount equal to any bonus that the Hirer awards to the Agency Worker in accordance with clause 3.5 immediately following any such award and the Employment Business will pay any such bonus to the Agency Worker. For the avoidance of doubt, the Hirer will also pay any employer’s National Insurance Contributions and the Employment Business' commission on the bonus (calculated using the same percentage rate as that used under clause 6.1.6) in addition to any bonus payable to the Agency Worker.
6.5. VAT is payable at the applicable rate on the entirety of the Charges and all sums payable under clause 6.4 excluding exemption specified by HMRC regulations.
6.6. The Employment Business reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment. Plus, any administrative costs that are deemed within reason.
6.7. No refunds are payable in respect of the Charges of the Employment Business.
6.8. The Hirer’s obligations under this clause 6 shall be performed without any right of the Hirer to invoke set-off, deductions, withholdings or other similar rights.
7. PAYMENT OF THE AGENCY WORKER
7.1. The Employment Business assumes responsibility for paying the Agency Worker and where appropriate, for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Agency Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003.
8. TRANSFER FEES
8.1. The Hirer shall be liable to pay a Transfer Fee if the Hirer Engages an Agency Worker Introduced by the Employment Business other than via the Employment Business or introduces the Agency Worker to a third party and such introduction results in an Engagement of the Agency Worker by the third party other than via the Employment Business and:
8.1.1. where the Agency Worker has been supplied by the Employment Business, such Engagement takes place during the Assignment or within the Relevant Period; or
8.1.2. where the Agency Worker has not been supplied, such Engagement takes place within 6 months from the date of the Introduction to the Hirer.
The Transfer Fee will be calculated in accordance with Schedule 2.
8.2. If the Hirer wishes to Engage the Agency Worker other than via the Employment Business without liability to pay a Transfer Fee, the Hirer may, on giving one week’s written notice to the Employment Business, engage the Agency Worker for the Period of Extended Hire specified in Schedule 2.
8.3. During such Period of Extended Hire, the Employment Business shall supply the Agency Worker on the same terms on which s/he has or would have been supplied during the Assignment and in any case on terms no less favourable than those terms which applied immediately before the Employment Business received the notice in clause 8.2; and the Hirer shall continue to pay the Charges set out in clause 6. If the Employment Business is unable to supply the Agency Worker for any reason outside its control for the whole or any part of the Period of Extended Hire; or the Hirer does not wish to hire the Agency Worker on the same terms as the Assignment; but the Agency Worker is Engaged by the Hirer, the Hirer shall pay the Transfer Fee, reduced pro-rata to reflect any Charges paid by the Hirer during any part of the Period of Extended Hire worked by the Agency Worker before being Engaged by the Hirer. If the Hirer fails to give notice of its intention to Engage the Agency Worker other than via the Employment Business before such Engagement commences, the parties agree that the Transfer Fee shall be due in full.
8.4 Where prior to the commencement of the Hirer's Engagement other than via the Employment Business the Employment Business and the Hirer agree that such Engagement will be on the basis of a fixed term of less than 12 months, the Employment Business may, in its absolute discretion, reduce the Transfer Fee as calculated in accordance with Schedule 2 pro-rata. Such reduction is subject to the Hirer Engaging the Agency Worker for the agreed fixed term. Should the Hirer extend the Agency Worker’s Engagement or re-Engage the Agency Worker within 12 months from the commencement of the initial Engagement the Employment Business reserves the right to recover the balance of the Transfer Fee.
8.5. No refund of the Transfer Fee will be paid in the event that the Engagement of the Agency Worker other than via the Employment Business by the Hirer or by a third party to which the Hirer introduces the Agency Worker terminates or terminates before the end of the fixed term referred to in clause 8.4.
8.6. VAT is payable in addition to any Transfer Fee due.
9. UNSUITABILITY OF THE AGENCY WORKER
9.1. The Hirer undertakes to supervise the Agency Worker sufficiently to ensure the Hirer’s satisfaction with the Agency Worker’s standards of work. If the Hirer reasonably considers that the services of the Agency Worker are unsatisfactory, the Hirer may terminate the Assignment either by instructing the Agency Worker to leave the Assignment immediately, or by directing the Employment Business to remove the Agency Worker. The Employment Business may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Agency Worker, provided that the Hirer has notified the Employment Business immediately that they have asked the Agency Worker to leave the Assignment or the Assignment terminates:
9.1.1. within 4 hours of the Agency Worker commencing the Assignment where the Assignment is for more than 7 hours; or
9.1.2. within 2 hours for Assignments of 7 hours or less;
and provided that notification of the unsuitability of the Agency Worker is confirmed in writing to the Employment Business within 48 hours of the termination of the Assignment.
9.2. The Employment Business shall notify the Hirer immediately if it receives or otherwise obtains information which gives the Employment Business reasonable grounds to believe that any Agency Worker supplied to the Hirer is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Hirer shall remain liable for all Charges incurred prior to the termination of the Assignment.
9.3. The Hirer shall notify the Employment Business immediately and without delay and in any event within 4 hours if the Agency Worker fails to attend work or has notified the Hirer that they are unable to attend work for any reason.
10.TERMINATION OF THE ASSIGNMENT
10.1 Any of the Hirer, the Employment Business or the Agency Worker may terminate an Assignment at any time with prior notice of 24 hours and without liability (except in the case of termination by the Hirer, who shall be liable for any Charges due under clause 6 above).
11.CONFIDENTIALITY AND DATA PROTECTION
11.1. All information relating to an Agency Worker is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing work-finding services to the Hirer. Such information must not be used for any other purpose nor divulged to any third party and the Hirer undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times.
11.2 Both parties undertake that each shall not, at any time during this Agreement, and for a period of 5 years after termination of this Agreement, disclose to any person any In-put Material (in the case of Employment Business Pre-existing Material (in the case of the Customer), technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature, or any other confidential information concerning the disclosing party’s business or its products which the receiving party may obtain in connection with entering into this Agreement, except as permitted by clause 11.3.
11.3 Both parties may disclose Confidential Information:
11.3.1. To its employees, agents, consultants, or subcontractors (and in the case of Employment Business’s Team) as is needed for the purpose of discharging its obligations under this Agreement. The party in receipt of such information shall ensure that its employees, agents, consultants, or subcontractors to whom it discloses the Confidential Information, comply with this clause 11.
11.3.2. As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
11.4. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
11.5. All materials, equipment and tools, drawings, specifications, and data supplied by one party to the other, shall at all times be (and remain) the exclusive property of the party supplying such materials, equipment and tools, drawings, specifications, and data, but shall be held by the receiving party in safe custody at its own risk, and maintained and kept in good condition by that party until returned to the supplying party, and shall not be disposed of or used, other than in accordance with any written instruction or authorisation.
12.INTELLECTUAL PROPERTY RIGHTS
12.1 All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Hirer. Accordingly, the Employment Business shall use its reasonable endeavours to ensure that the Agency Worker shall execute all suchdocuments and do all such acts in order to give effect to the Hirer’s rights pursuant to this clause.
13.LIABILITY
13.1. WhilstreasonableeffortsaremadebytheEmploymentBusinesstogivesatisfactiontothe Hirer by ensuring reasonable standards of skill, integrity and reliability from the Agency Worker and to provide the same in accordance with the Assignment details as provided by the Hirer, no liability is accepted by the Employment Business for any loss, expense, damage or delay arising from any failure to provide any Agency Worker for all or part of the Assignment or from the negligence, dishonesty, misconduct or lack of skill of the Agency Worker or if the Agency Worker terminates the Assignment for any reason. For the avoidance of doubt, the Employment Business does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude by law.
13.2 Agency Workers supplied by the Employment Business pursuant to these Terms are engaged under contracts for services. They are not the employees of the Employment Business but are deemed to be under the supervision and direction of the Hirer from the time they report to take up duties and for the duration of the Assignment. The Hirer agrees to be responsible for all acts, errors or omissions of the Agency Worker, whether wilful, negligent or otherwise as though the Agency Worker was on the payroll of the Hirer.
13.3. TheHirershalladvisetheEmploymentBusinessofanyspecialhealthandsafetymatters about which the Employment Business is required to inform the Agency Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Agency Worker is to fill the Assignment.
13.4. The Hirer will also comply in all respects with all statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the Working Time Regulations, Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999, by-laws, codes of practice and legal requirements to which the Hirer is ordinarily subject in respect of the Hirer’s own staff (excluding the matters specifically mentioned in clause 7 above), including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Agency Worker during all Assignments.
13.5. The Hirer undertakes not to request the supply of an Agency Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Hirer to perform the duties of a person on strike or taking official industrial action.
13.6. The Hirer shall indemnify and keep indemnified the Employment Business against any Losses incurred by the Employment Business arising out of any Assignment or arising out of any non-compliance with, and/or as a result of any breach of, these Terms by the Hirer.
13.7. TheHirershallinformtheEmploymentBusinessinwritingofanyAWRClaimwhichcomes to the notice of the Hirer as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Hirer.
13.8. If the Agency Worker brings, or threatens to bring, any AWR Claim, the Hirer undertakes to take such action and give such information and assistance as the Employment Business may request, and within any timeframe requested by the Employment Business and at the Hirer’s own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.
13.9 Levi Care Limited’s total liability under or in connection with this Agreement shall be limited to the greater of:
13.9.1. 150% the total value of this Agreement; or
13.9.2. £50,000.
13.10 This limit shall apply howsoever that liability arises, including, and without limitation, a liability arising by breach of contract, arising by tort (including, and without limitation, the tort of negligence), or arising by breach of statutory duty.
13.11 Nothing within this clause shall exclude or limit liability for:
13.11.1. Death or personal injury caused by negligence.
13.11.2. Fraud or fraudulent misrepresentation.
13.12 Levi Care Limited will not be liable to the Hirer, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:
13.12.1 Loss of profit.
13.12.2 Loss of goodwill.
13.12.3 Loss of business.
13.12.4 Loss of business opportunity.
13.12.5 Loss of anticipated saving.
13.12.6 Loss of corruption of data or information.
13.12.7 Loss of contracts.
13.12.8 Loss of use of money.
13.12.9 Loss of actual savings.
13.12.10 Loss of revenue.
13.12.11 Loss of reputation.
13.12.12 Ex gratia payments.
13.12.13 Loss of operation time.
13.12.14 Loss of opportunity.
13.12.15 Special, indirect, or consequential damage or loss suffered by the Customer, arising under or in connection with this Agreement.
13.13. Nothing in this Agreement shall or shall not be deemed to relieve the Customer of any common law duty to mitigate any loss or damage incurred by it.
13.14 In the event of a refund being issued to the Agency Worker on the basis of an incorrect IR35 designation or related decision, the Employment Business will use all reasonable endeavours to seek repayment of the refund by the Agency Worker to the Hirer but the Hirer agrees not to hold them liable for such payment if it cannot be obtained.
14. NOTICES
All notices which are required to be given in accordance with these Terms shall be in writing.
14.1. Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
14.1.1. Delivered either by hand, by pre-paid first-class post, or by other next working day delivery service, at the receiving party’s postal address provided in this Agreement unless otherwise stated; or
14.1.2. Sent by email to the email address specified in writing either party as being a suitable address for service.
14.2 Any notice or communication shall be deemed to have been received:
14.2.1 If delivered by hand, at the time the notice is left at the proper address.
14.2.2 If sent by pre-paid first-class post, or by other next working day delivery service, at 9am on the second Business Day after posting.
14.2.3 If sent by email, at the time of the transmission, or if this time falls outside business hours in the place of receipt, when business hours resume.
This clause 14 does not apply to the service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
15.FORCE MAJEURE
15.1. A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
15.1.1 Acts of God such as flood, drought, earthquake, tsunami, or other natural disaster, epidemic, or pandemic.
15.1.2 War, or threat of or preparation for war (including terrorist attack, armed conflict, civil war, civil commotion, or riots).
15.1.3 Imposition of sanctions.
15.1.4 Nuclear, chemical, or biological contamination.
15.1.5 Sonic boom.
15.1.6 Fire, explosion, or accident (including collapse of building).
15.1.7 Interruption or failure of utility services.
15.2 Provided it has complied with this clause 11, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the affected party.
15.4 The affected party shall:
15.4.1 As soon as practicable after the start of the Force Majeure Event, but no later than 7 Business Days from its start, notify the other party in writing of the event, the date on which it started, it’s likely or potential duration, and the effect of the event on itsability to perform any obligations under this Agreement.
15.4.2 Use reasonable endeavors to mitigate the effect of the event on the performance of its obligations.
16. SEVERABILITY
16.1 If any provision or part provision of this Agreement becomes invalid, illegal, or unenforceable, this shall not affect the validity and enforceability of the rest of this Agreement.
16.2 It comes to the attention of either party that any provision or part provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable.
17.GOVERNING LAW AND JURISDICTION
17.1 These Terms are governed by the laws of England and are subject to the exclusive jurisdiction of the Courts of England.
Signed for and on behalf of the Hirer
[print name here]
I confirm I am authorised to sign these Terms for and on behalf of the Hirer.
