TOM SIMMONDS – THE EVENT FIXER
TERMS AND CONDITIONS OF TRADING
1.1 “Company” shall mean Chilli Live Ltd t/a Tom Simmonds – The Event Fixer, its successors and assigns or any person acting on behalf of and with the authority of Chilli Live Ltd t/a Tom Simmonds – The Event Fixer.
1.2 “Customer” shall mean the person or entity described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall include any person acting on behalf of and with the authority of such person or entity.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.5 “Goods” shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Customer.
1.6 “Price” shall mean the cost of the Goods as agreed between the Company and the Customer subject to clause 4 of this contract.
2. APPLICATION OF THESE TERMS AND CONDITIONS TO CONSUMERS
2.1 Where the Customer buys Goods as a consumer these terms and conditions (in particular clauses relating to Risk, Disclaimer, Defects, Returns, Warranties, and Limitation of Liability) shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of the Company.
3.4 The Customer undertakes to give the Company at least fourteen (14) days notice of any change in the Customer’s name, address and/or any other change in the Customer’s details.
4. PRICE AND PAYMENT
4.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
(b) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days.
4.2 The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.
4.3 At the Company’s sole discretion a deposit by means of a pro-forma invoice may be required.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. Payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices i.e. 30 days net monthly.
4.5 At the Company’s sole discretion:
(a) payment shall be due before delivery of the Goods where, for example, a credit account has not been established for the Customer; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be made by instalments in accordance with the Company’s payment schedule; or
4.6 Payment will be made by cash, or by cheque, or by direct credit, or by BACS, or by electronic banking or by any other method as agreed to between the Customer and the Company. In the absence of an express payment agreement, payment shall be by BACS.
4.7 VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. DELIVERY OF GOODS
5.1 At the Company’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at the Company’s address; or
(b) by prior arrangement the Customer takes possession of the Goods at the Customer’s address or other address nominated by the Customer (in the event that the Goods are delivered by the Company or the Company’s nominated carrier).
(c) Services have been rendered.
5.2 At the Company’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.6 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
6.1 If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
7.1 It is the intention of the Company and agreed by the Customer that ownership of the Goods shall not pass until:
(a) the Customer has paid all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
7.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and
(f) the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and
(h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.
8.2 No Goods shall be accepted for return except in accordance with 8.1 above.
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) the Company has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) the Company will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 The Company will not accept the return of non-defective Goods for credit.
10.1 To the extent permitted by statute, no warranty is given by the Company as to the quality or suitability of the Goods for any purpose and any implied warranty is expressly excluded. The Company shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. SALE OF GOODS ACT 1979 AND SUPPLY OF GOODS AND SERVICES ACT 1982
11.1 This agreement is subject to the provisions of the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 (or any replacement or re-enactment thereof such as the Sale and Supply of Goods to Consumers Regulations 2002) in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).
11.2 Notwithstanding clause 11.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions the Sale of Goods Act 1979 and the Sale and Supply of Goods to Consumers Regulations 2002 or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts, laws or legislation.
12. INTELLECTUAL PROPERTY
12.1 Where the Company has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
12.2 The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order.
13. DEFAULT & CONSEQUENCES OF DEFAULT
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
13.2 The Company may charge interest and compensation on overdue invoices in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended March 2013.
13.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
13.4 In the case of the Customer being a Limited Company, the Directors of that Limited Company are jointly and severally personally liable for any debt unpaid by the Customer to the Company as well as any legal, administrative or collection charges that the Company may incur in its attempts to obtain payment for Goods and/or Services previously invoiced to, and accepted by, the Customer.
13.5 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
13.6 If any account remains overdue after thirty (30) days then an amount of ₤30.00 shall be levied as an administration fee and shall be levied for each month that the account remains overdue, which sums shall become immediately due and payable.
13.7 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14. SECURITY AND CHARGE
14.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 The Company may cancel these terms and conditions or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice. On receiving such notice the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods and/or Services the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.
16. DATA PROTECTION ACT 1998
16.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Company to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(b) to disclose information about the Customer, whether collected by the Company from the Customer directly or obtained by the Company from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing a default by the Customer on publicly accessible credit reporting databases.
16.2 The Company may also use information about the Customer to monitor and analyse its business. In this connection the Customer authorises the Company to disclose personal information to agents or third parties engaged by the Company.
16.3 The Customer consents to the transfer of information outside of the European Economic Area for the purposes listed above.
16.4 Where the Customer is an individual the authorities under (clause 16.1) are authorities or consents for the purposes of the Data Protection Act 1998.
16.5 The Customer shall have the right to request the Company for a copy of the information about the Customer retained by the Company and the right to request the Company to correct any incorrect information about the Customer held by the Company.
17. LIMITATION OF LIABILITY
17.1 The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit or goodwill) suffered by the Customer or any third party arising out of a breach by the Company of these terms and conditions.
17.2 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages and the Company’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Goods, or for any breach of these terms and conditions, or of any duty owed to the Customer in connection with them shall be limited to the amount of the Price.
17.3 For the avoidance of doubt, nothing in these terms and conditions shall exclude or restrict the Company’s liability to any person for death or personal injury to that person resulting from the Company’s negligence.
The Company does not supply or include insurance for any events, damage, personal accident or cancellation. The Customer is responsible for assessing and arranging all insurance requirements in respect of any Goods and/or Services supplied by the Company.
19. CUSTOMERS DISCLAIMER
19.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Company and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgment.
20.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of England and Wales and are subject to the jurisdiction of the courts of Winchester.
20.3 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Company.
20.4 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
20.5 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. Except where the Company supplies further Goods to the Customer and the Customer accepts such Goods, the Customer shall be under no obligation to accept such changes.
20.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
TOM SIMMONDS – THE EVENT FIXER
TERMS AND CONDITIONS OF TRADING
(Specific to Event Staffing)
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; Covering Temporary, Temp to Permanent or Permanent. “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” means written confirmation of the assignment details agreed with the Hirer prior to commencement of the Assignment;”Client means the person, firm or corporate body together
“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
“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; as per Assignment agreement; in line with booking forms and email requests. “Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
“Employment Business” shall mean Chilli Live Ltd t/a Tom Simmonds – The Event Fixer, its successors and assigns or any person acting on behalf of and with the authority of Chilli Live Ltd t/a Tom Simmonds – The Event Fixer.
“Engages/Engaged/ means the engagement, employment or use of the Agency Worker by the Hirer or any third party or through any other employment business on a permanent or temporary basis, whether under a contract of service or for services, a contract of employment, an agency, licence, franchise or partnership arrangement, or any other engagement, directly or through a limited company of which the Agency Worker is an officer or employee. “Engage”, “Engages” and “Engaged” shall be construed accordingly; “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;
“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, demands; “Transfer Fee” means the fee payable in accordance with clause 8 below; “Introduction Fee” means the fee payable in accordance with clause 8.2 below and both are covered within Regulation 10 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
“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.
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. Headings contained in these Terms are for convenience, do not affect 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 and any applicable Assignment Details 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 or Engagement of the Agency Worker, or the passing of information by a Hirer about an Agency Worker to any 3rd party following an Introduction.
2.2. These Terms and any applicable Assignment Details contain the entire agreement between the parties and unless otherwise agreed in writing by a director of 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 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 will perform, location and hours of work.
3.1.2. the experience, training, qualifications and any requirements by law or any professional body for the Agency Worker needs to possess in order to work in the position;
3.1.3. any risks to health or safety known to the Hirer and what steps the Hirer has taken to prevent or control such risks;
3.1.4. the dates the Hirer requires the Agency Worker; start, finish and duration
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.
3.3.1 the Hirer acknowledge suitable on site facilities are required to meet all legal requirements and the agency worker has the ability to access where feasible.
3.3.2 the Hirer acknowledge to give fair breaks to comply with working time regulations, full Assignment training and work area knowledge of all facilities and amenities
3.4 The Hirer will comply with its obligations under Regulations 5 & 7 (Rights of agency workers) in relation to having access to the same working and employment conditions as a comparable employee employed directly by the Hirer, after the qualifying period.
3.5 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.
3.6 the Hirer acknowledges that when a representative of the Employment Business is present at an Assignment such attendance is solely for the benefit in administering its obligation under these Terms and the Hirer hereby acknowledges that any attendance by a representative on-site at any Assignment shall not exclude or otherwise modify any on the obligations or duties on the part of the Hirer under these terms.
4. INFORMATION TO BE PROVIDED
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, professional body requirements to work;
4.1.3. that the Agency Worker is willing to work in the Assignment; and
4.1.4. the Charges.
5.1. At the end of each week or Assignment the Hirer shall sign the Employment Business’ timesheet and or agree verbally to verifying the number of hours worked by the Agency Worker during that Assignment or with a set week. Times to be confirmed within two working days after last Assignment day or weekly for long term Assignments.
5.2. Signature on 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.
5.4. Many Temporary Workers provide the Employment Business with original timesheets. However on occasion it may be necessary for the Employment Business to accept a faxed copy or an electronic timesheet/transmission submitted by the Client confirming hours worked by the Temporary Worker. The Client shall agree to the Employment Business administering payments using non-standard timesheet methods such as faxed copies, letterheads and electronic transmissions.
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. employer’s National Insurance contributions; 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. 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 any bonuses offered to the Agency worker by the Hirer is to be invoiced to consider all PAYE obligations
6.1.5. 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: On a per assignment basis.
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;
6.2.2. and/or if there is any variation in the Relevant Terms and Conditions.
6.3. The Charges are invoiced to the Hirer on a weekly basis or on completion of Assignment and are payable within seven days or on an agreed invoice terms.
6.4. VAT is payable at the applicable rate on the entirety of the Charges and all sums Payable. 6.5. All agency workers will be charged out at a 4 hour minimum for local Assignments and 6 hour minimum for non-local, rural and Assignments starting before 7.30am. Night time Assignments where travel has to be considered will also require a minimum agreement. 6.6 If the Hirer reduces its requirements by 25% or above 12 hours or less before Assignments the Employment Business reserves the right to make a charge equivalent to 10 hours being worked by each agency worker booked for the assignment, at the hourly charge rate advised at the time of booking. In the case of an event being cancelled up to one week before the date of the whole or part Assignment the Employment Business has the right to charge the Hirer its set up costs to date. Cancellation one week or less before the date of the Assignment or part of the Assignment will result in payment equivalent to 10 hours being worked by each agency worker booked for the Assignment, at the hourly charge rate advised at the time of booking. 6.7 If the Hirer decides to cancel the complete services of the Employment Business for the agreed Assignment or part of an agreed Assignment in daily units one week or less than the Employment Business reserves the right to charge an addition 10% administration fee based on the agreed contact price.
6.8. The Employment Business reserves the right to charge interest 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.
6.9. No refunds are payable in respect of the Charges of the Employment Business.
6.10. 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.
6.11. The Employment Business will issue with these terms a generic booking form to act as the basis of all agreed Assignments between all parties. Individual Assignment details to be confirmed electronically as they arise; all to act in conjunction with these terms.
7. PAYMENT OF THE AGENCY WORKER
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 six months from the date of the Introduction to the Hirer. The Transfer Fee will be calculated as follows:- The Transfer Fee shall be agreed in writing between the Employment Business and the Hirer. In the event that the parties do not agree the amount of the Transfer Fee then the Employment Business shall be entitled to charge a fee calculated as follows: 25 % of the Remuneration payable to the Agency Worker during the first 12 months of the Engagement or, if the actual amount of the Remuneration is not known, the Charges multiplied by 300.
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 five days’ written notice to the Employment Business, engage the Agency Worker for the Period of Extended Hire. The Period of Extended Hire, before the Hirer Engages an Agency Worker, shall be agreed in writing between the Employment Business and the Hirer. In the event that the parties do not agree the length of the Period of Extended Hire then the period shall be 26 weeks.
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 above, 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. SUITABILITY CHECKS AND INFORMATION: SPECIAL SITUATIONS
9.1. the Agency Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment, the Employment Business will take all reasonably practicable steps to obtain and offer to provide to the Hirer copies of any relevant qualifications or authorisations of the Agency Worker; and
9.1.1. in addition, where the Assignment involves working with, caring for or attending one or more Vulnerable Persons (reason of age, infirmity, illness or disability) The Hire is required to inform the Employment Business of all required documents and will take all reasonably practicable steps to obtain and offer to provide copies to the Hirer of two references where requested and Assignment based. If the Employment Business has taken all reasonably practicable steps to obtain the information above and has been unable to do so fully it shall inform the Hirer of the steps it has taken to obtain this information in any event.
9.2. The Hirer shall advise the Employment Business at the time of instructing the Employment Business to supply an Agency Worker whether during the course of the Assignment, the Agency Worker will be required to work with, care for or attend one or more Vulnerable Persons or engage in activity or otherwise be working in a position covered by the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 as applicable. Where by enabling the Employment Business to comply with statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007.
9.4. In particular in the event that the Hirer removes an Agency Worker from an Assignment in circumstances which would require the Employment Business to provide information the Hirer will provide sufficient information to the Employment Business to allow it to discharge its statutory obligations.
10. UNSUITABILITY OF THE AGENCY WORKER
10.1. 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:
10.1.1. within 4 hours of the Agency Worker commencing the Assignment where the Assignment is for more than 7 hours; or
10.1.2. 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.
10.2. 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.
11. TERMINATION OF THE ASSIGNMENT
Any of the Hirer, the Employment Business or the Agency Worker may terminate an Assignment at any time without prior notice and without liability (except in the case of termination by the Hirer, who shall be liable for any Charges due under clause 6 above).
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. 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.
12.2. The Employment Business undertakes to keep confidential all Relevant Terms and Conditions that the Hirer discloses to the Employment Business and not to use such information except for the purposes of compliance with the Agency Workers Regulations (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Agency Worker or any AWR Claim).
12.3. Information relating to the Employment Business’ business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.
13.1. Whilst reasonable efforts are made by the Employment Business to give satisfaction to the 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 under law.
13.2. The Hirer accepts liability for Assignment specific training and venue specific training while on location and acknowledge that every venue and assignment details need to be conveyed to all agency workers in order for duties to be carried out to the hirers standards.
13.3. Agency Workers supplied by the Employment Business pursuant to these Terms are engaged under a Contract of Employment for Temporary Employees. They 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.
13.4. The Hirer shall advise the Employment Business of any special health and safety matters 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.
13.5. 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 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.
13.6. 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.
13.7. 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.
13.8. The Hirer shall inform the Employment Business in writing of any AWR Claim which comes to the notice of the Hirer as soon possible. The Employment Business will inform the Hire if any AWR claims or personal injury claims are presented by the agency worker or third party along with notifying the Employment business insurance company.
13.9. 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.
If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
15. LAW AND JURISDICTION
These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.