Freelance Contractors - Terms of Business
1.1 In these Terms of Business (the "Terms") the following definitions apply:
refers to the period during which the Contractor is supplied by the Employment Business to render services to the Client;
the Agency Workers Regulations 2010 (SI No. 2010/93);
means any booking form or similar document provided by the Employment Business to the Client and setting out the details of a particular Assignment;
means the individual, person or company to whom the Contractor is being introduced, together with any associate (within the meaning of section 435 Insolvency Act 1986) of that individual, person or company, by the Employment Business.
means the individual and/or limited company introduced by the Employment Business to render services to the Client (and save where otherwise indicated, includes any officer, employee or representative of that company);
means Granite Search and Selection Limited whose registered office is at New Baltic House 65 Fenchurch street London EC3M 4BE acting as an employment business as defined by section 13(2) of the Employment Agencies Act 1973.
means any engagement, employment or use of the Contractor or any of its officers, employees or representatives, whether under a contract of service or for services, as part of an agency, licence, franchise or partnership arrangement, or otherwise; and "Engages" and "Engaged" shall be construed accordingly;
includes (i) the Client’s interview of a Contractor (or any officer, employee or representative of the Contractor) in person or by telephone, following the Client’s instruction to the Employment Business to supply a Contractor or (ii) the passing to the Client by the Employment Business of a curriculum vitae or other information which identifies the Contractor;
“Introduction Fee” and “Transfer Fee”
means the fee payable in accordance with clause 7 below (as the case may be) and Regulation 10 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003;
means (in respect of a particular Contractor) the period during which the Contractor continues to be supplied by the Employment Business to the Client, or if the Contractor has ceased to be supplied to the Client, the later of the following periods:
(a) 14 weeks from the start of the first Assignment (and each new Assignment where there has been a break of more than 42 days since the end of the previous Assignment shall be treated as the first Assignment for these purposes);
(b) 8 weeks from the day after the last day that the Contractor worked on the Assignment;
1.1 Unless the context otherwise requires, references to the singular include the plural and any reference to any legislation or legislative provision is to be construed as a reference to that legislation or provision as amended, re-enacted or extended at the relevant time.
1.2 The headings contained in these Terms are for convenience only and do not affect their interpretation.
2.0 THE CONTRACT
2.1 These Terms, together with any relevant Booking Form, constitute the contract between the Employment Business and the Client for the supply of the Contractor by the Employment Business to the Client and are deemed to be accepted by the Client by virtue of its request for, interview with or Engagement of a Contractor or the passing of any information about the Contractor to any third party following an Introduction.
2.2 These Terms, together with any relevant Booking Form, constitute the entire agreement and understanding between the parties in relation to the introduction and/or supply by the Employment Business of the Contractor and unless otherwise expressly agreed in writing by a Director of the Employment Business, these Terms prevail over any terms of business or purchase conditions put forward by the Client. The Client acknowledges and agrees that it has not been induced to enter the contract with the Employment Business (as described at Clause 2.1 above) in reliance upon, and connection with that contract does not have any remedy in respect of, any representation or other promise of any nature whatsoever other than as expressly set out in that contract.
2.3 No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Employment Business and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
2.4 For the avoidance of doubt, the particular person, firm or corporate body named as the "Client" on any Booking Form shall be responsible for ensuring compliance with that Booking Form and these Terms on the part of its’ subsidiary or other group or associated companies or entities (as contemplated by the definition of Client in Clause 1 above) to whom the Contractor may be introduced or for whom the Contractor may render services pursuant to the introduction/supply envisaged by the Booking Form, including (but without limitation):
2.4.1 The payment of charges in accordance with Clause 3 below in respect of any services rendered by the Contractor to any such subsidiary or other group or associated company or entity; and
2.4.2 The payment of any applicable Transfer Fee or Introduction Fee in the event of any relevant Engagement of the Contractor, or introduction to a third party, by any such subsidiary or other group or associated company or entity.
3.1 The Client agrees to pay the hourly/daily charges of the Employment Business as set out in the relevant Booking Form or as otherwise notified to and agreed with the Client. The hourly charges are calculated according to the number of hours worked by the Contractor (to the nearest quarter hour). Daily charges should be calculated to the nearest quarter day unless otherwise advised. The Employment Business assumes a minimum of 7.5 hours per day as acceptable. The charges comprise of the Contractor’s hourly/daily rate and include the Employment Business’s commission calculated as a percentage of the Contractor’s hourly/daily rate, and any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses as are reasonable. VAT, if applicable, is payable on the entirety of these charges. The hourly rate will also include any additional statutory payments that the Contractor may be entitled to.
3.2 The charges are invoiced to the Client on a weekly basis and are payable within 14 days. The Employment Business reserves the right to charge interest on any overdue amounts 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.
3.3 There is no rebate payable in respect of the charges of the Employment Business.
3.4 It shall be the responsibility of the Client to inform the Employment Business of any change to the hourly/daily charge or pay rate as set out in the Booking Form at the commencement of the contract. Notice of any change in rate must be notified to the Employment Business in writing.
3.5 The Employment Business will not be liable for any adjustments made to the temporary worker’s rate without receiving the information set out in clause 3.4.
4.0 INFORMATION TO BE PROVIDED
4.1 Prior to the introduction of a Contractor, the Client shall promptly provide the Employment Business with any information reasonably requested by the Employment Business in relation to the position for which the Contractor is required, including (but not limited to): detailed information as to the nature of the Client's business, details of the position in question (such as type, location, dates and hours of work, together with any health and safety risks known to the Client) and details of any necessary experience, training, qualifications or authorisation on the part of the Contractor (including any required by law or any relevant professional body). For the avoidance of doubt, the Client shall be responsible for ensuring the completeness and accuracy of all such information.
4.2 When making an introduction of a Contractor to the Client the Employment Business shall inform the Client: of the identity of the Contractor; that so far as the Employment Business can reasonably ascertain, the Contractor has the necessary experience, training, qualifications and authorisations to work in the Assignment; whether the Contractor will be employed by the Employment Business under a contract of service or apprenticeship or a contract for services; and that the Contractor is willing to work in the Assignment.
4.3 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 Contractor is being introduced for an Assignment in the same position as one in which the Contractor had previously been supplied within the previous five business days and such information has already been given to the Client, unless the Client requests that the information be resubmitted.
4.4 The Client shall safeguard and keep confidential any and all confidential information received from time to time from the Employment Business (including, but not limited to, any and all information supplied by the Employment Business in relation to any Contractor) and shall not use such information except to the extent necessary in order to perform its obligations or exercise its rights under these Terms. The Client shall ensure that its officers and employees and any other persons to whom such confidential information is disclosed comply with the obligations imposed by this Clause 4.4.
4.5 The obligations imposed by Clause 4.4 above shall not apply to any information to the extent that such information:
4.5.1 Is publicly available or becomes publicly available through no act or omission of the Client;
4.5.2 Is required to be disclosed by law.
4.6 As the Assignment is subject to the AWR 2010, the Client shall promptly provide to the Employment Business all information reasonably required by the Employment Business to fulfil its obligations under the AWR 2010 and the Client shall indemnify, and keep the Employment Business indemnified, against all liabilities, losses, costs and expenses (on a full indemnity basis) arising from any breach of this obligation.
5.0 TIME SHEETS
5.1 At the end of each week of the Assignment (or at the end of the Assignment where the Assignment is for a period of less than one week) the Client shall sign the Employment Business’ time sheet verifying the number of hours/days worked by the Contractor during that week.
5.2 Signature of the time sheet by the Client is confirmation of the number of hours/days worked. If the Client is unable to sign a time sheet produced for authentication by the Contractor because the Client disputes the hours/days claimed, the Client 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/days, if any, were worked by the Contractor. Failure to sign the time sheet does not absolve the Client’s obligation to pay the charges in respect of the hours/days worked.
5.3 The Client shall not be entitled to decline to sign a timesheet on the basis that they are dissatisfied with the work performed by the Contractor. In cases of unsuitable work the Client should apply the provisions of clause 10.1 below.
5.4 If the Client wishes to stipulate particular signatories for timesheets, or level of signatory required, the Client must complete the “Signatories” section of the booking form. If no signatories are specified the Employment Business will accept the signatory on the timesheet.
6.0 PAYING THE CONTRACTOR
6.1 The Employment Business is responsible for paying the Contractor.
7.0 TRANSFER AND INTRODUCTION FEES
7.1 Transfer Fees where a Contractor has been supplied.
7.1.1 In the event of the Engagement by the Client (either directly or pursuant to being supplied by another employment business) during the Relevant Period of a Contractor supplied by the Employment Business, the Client shall be required either to pay the Employment Business a Transfer Fee calculated in accordance with Clause 7.1.3 below or to elect for an extended period of hire for the Specified Period. Any such extended period of hire shall be on the same terms (including, but not limited to, those set out in these Terms and any relevant Booking Form) as those which applied to the most recent supply of the Contractor by the Employment Business.
7.1.2 For the purposes of Clause 7.1.1 above, the Client shall give the Employment Business no less than 5 working days written notice in advance of the Engagement of whether it has elected for an extended period of hire or to pay a Transfer Fee. If the Client does not give such notice before the Contractor is Engaged, the Transfer Fee shall be payable.
7.1.3 The Transfer Fee payable under Clause 7.1.1 shall be calculated as follows:
(a) where the relevant Contractor is Engaged on a fixed term contract, the fee shall be equal to the Specified Percentage of the total Remuneration payable to the Contractor under that contract, save that where the contract in question is for a fixed term of less than 3 months the fee shall be equal to the Specified Percentage of the Remuneration that would be payable (based on the rates specified in the contract) if the contract were for a fixed term of 3 months;
(b) In all other cases, the fee shall be equal to the Specified Percentage of the total Remuneration payable to the Contractor in respect of the first 12 months of the Engagement in question:
Provided that if in any particular case the Employment Business is unable to make an assessment to its satisfaction of the relevant Remuneration, the Employment Business may at its discretion elect to charge a fee equal to the applicable hourly rate for the relevant Contractor (as determined by Clause 3.1 above) multiplied by the Specified Multiplier.
7.2 Introduction Fees where a Contractor is introduced but not supplied.
7.2.1 In the event that there is an Introduction of a Contractor to the Client which does not result in the supply of that Contractor by the Employment Business to the Client, but which leads to an Engagement of the Contractor by the Client either directly or pursuant to being supplied by another employment business within 12 months from the date of Introduction the Client shall be required to pay the Employment Business an Introduction Fee or to elect for a period of hire for the Specified Period. Any such period of hire shall be on the same terms (including those set out in these Terms and any relevant Booking Form) as those which would have applied to the supply of the Contractor by the Employment Business.
7.2.2 In the event that there is an Introduction of a Contractor to the Client which does not result in the supply of that Contractor by the Employment Business to the Client, but the Contractor is introduced by the Client to a third party (including, but not limited to, any other employment business) and this results in the Engagement of the Contractor by that third party within 12 months from the date of Introduction, the Client shall be required to pay the Employment Business an Introduction Fee or to elect for a period of hire for the Specified Period. Any such period of hire shall be on the same terms (including those set out in these Terms and any relevant Booking Form) as those which would have applied to the supply of the Contractor by the Employment Business.
7.2.3 For the purposes of Clauses 7.2.1 and 7.2.2 above, the Client shall give the Employment Business not less than 5 working days written notice in advance of the Engagement of whether it has elected for a period of hire or to pay an Introduction Fee. If the Client does not give such notice before the Contractor is Engaged, the Introduction Fee shall be payable.
7.2.4 The Introduction Fee payable under Clause 7.2.1 or Clause 7.2.2 above shall be calculated on the same basis as the Transfer Fee payable under Clause 7.1.3 above.
7.3 Inability to supply during the period of hire
7.3.1 If the Client elects for a period of hire (as provided by Clauses 7.1.1, 7.2.1 or 7.2.2 above) but before the end of such period:
(a) The Client Engages the Contractor, either directly or pursuant to being supplied by another employment business; or
(b) if the Employment Business does not supply the Contractor for the duration of the hire period and is in no way at fault;
the Employment Business may charge the Client the applicable Transfer or Introduction Fee under Clauses 7.2.1 or 7.2.2 above (as the case may be), reduced by an appropriate percentage to reflect the period of hire already worked by Contractor and paid for by the Client, if any: for example (by way of illustration only) if the Contractor has already worked for 30% of the period of hire (and the Client has paid for that work) the applicable fee shall be reduced by 30%.
7.4 Transfer Fees where a Contractor has been supplied and there has been an introduction to and Engagement by a Third Party.
7.4.1 In the event that a Contractor supplied to a Client by the Employment Business is introduced by the Client to a third party (including, but not limited to any other employment business) and this results in the Engagement of the Contractor by that third party during the Relevant Period, the Client shall be required to pay the Employment Business a Transfer Fee in accordance with Clause 7.1.3 above
7.5 Specified Percentage/Multiplier/Period
7.5.1 Subject to clause 7.6.2 below, in respect of any Engagement for the purposes of Clauses 7.1 or 7.2 above where the Engagement is by the Client directly (and not pursuant to a supply by another employment business), together with any Engagement for the purposes of Clause 7.4 where the third party in question is not an employment business:
(a) The Specified Percentage shall be 20%;
(b) The Specified Multiplier shall be 400;
(c) The Specified Period shall be 12 months.
7.5.2 Subject to Clause 7.6.2 below, in respect of any Engagement for the purposes of Clauses 7.1 or 7.2 above where the Engagement is by the Client pursuant to a supply by another employment business, together with any Engagement for the purposes of Clause 7.4 where the third party in question is an employment business:
(a) The Specified Percentage shall be 40%;
(b) The Specified Multiplier shall be 800;
(c) The Specified Period shall be 24 months.
7.6 Payment of Fees
7.6.1 Where any fee (whether a Transfer Fee or an Introduction Fee) is payable under this Clause 7:
(a) The Client shall also be liable to pay VAT on that fee; (b) that fee shall become due immediately on presentation of an invoice by the Employment Business;
(b) the Employment Business shall be entitled to charge interest on any overdue amount 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; (d) the Employment Business shall not be under any obligation to refund that fee in the event that the relevant Engagement subsequently terminates.
7.6.2 If in respect of any particular Engagement the Employment Business considers in its absolute discretion that it would be reasonable to reduce the Specified Percentage, Specified Multiplier and/or Specified Period, the Employment Business shall notify the Client and the relevant figures or period applicable to that Engagement shall be deemed to have been reduced accordingly.
8.1 The Client shall not have the right, nor shall it seek to exercise direction, control or supervision over the Consultant’s Personnel. The Consultant’s Personnel shall co=operate with any reasonable request of the client within the scope of the services, but it is acknowledged that the Consultant’s Personnel will be able to determine ow best the services are provided and will have autonomy over their working methods.
8.2 The Consultant’s Personnel shall have the right to provide the services using Representatives of their own choosing. The Consultant’s Personnel can substitute any Representative provided that the Client is reasonably satisfied that the substitute Representative is sufficiently skilled, experienced and qualified to carry out the services. The Consultant’s Personnel will remain liable for the Services completed by any substitute and will bear any costs.
8.3 Without prejudice to the generality of Clause 4.1 above, the Client shall advise the Employment Business of any special health and safety matters about which the Employment Business is required to inform the Contractor and about any requirements imposed by law or by any professional body, which must be satisfied if the Contractor is to fill the Assignment. The Client 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. The Client will not do anything to cause the Employment Business to be in breach of its obligations under these Regulations. Where the Client requires or may require the services of a Contractor for more than 48 hours in any week, the Client must notify the Employment Business of this requirement before the commencement of that week.
8.4 The Client undertakes that it knows of no reason why it would be detrimental to the interests of the Contractor for the Contractor to fill the Assignment.
8.5 The Client undertakes not to request the supply of a Contractor to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed someone who has been transferred by the Client to perform the duties of the person on strike, or taking official industrial action.
8.6 The Client shall indemnify and keep indemnified the Employment Business together with each of its officers, employees and sub-contractors, from and against any claims, costs, expenses (including, but not limited to, legal and other professional fees and disbursements), losses, damages and other liabilities (of whatever nature, whether contractual, tortious or otherwise) made against or incurred by the Employment Business and arising directly or indirectly out of or in connection with any Assignment and/or any breach by the Client of any of these Terms (including, but not limited to, Clauses 4.1, 4.4, 8.1, 8.3 and 8.4 above).
8.7 Whilst every reasonable effort is made by the Employment Business to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from the Contractor and to provide the same in accordance with the Client's booking details, the Employment Business shall not be liable to the Client (whether by reason of any negligence or other tortious act or omission by the Employment Business or any of its employees or agents, any breach of contract or statutory duty or otherwise) for any:
8.7.1 Loss of profits;
8.7.2 Loss of anticipated revenue or savings;
8.7.3 Loss of contracts or other business opportunities;
8.7.4 Claim, action or demand made against the Client by any third party (whether a customer, contractor or employee of the Client or otherwise);
8.7.5 Damage to reputation;
8.7.6 Indirect loss, damage, cost, expense, claim or liability whatsoever;
which arises out of or in connection with the introduction and/or supply of, or any failure to introduce and/or supply, any Contractor.
8.8 In any event, the aggregate liability (inclusive of interest and legal and other costs) of the Employment Business to the Client arising out of or in connection with the introduction and/or supply, or any failure to introduce and/or supply, any Contractor (whether by reason of any negligence or other tortious act or omission by the Employment Business or any of its employees or agents, any breach of contract or statutory duty, or otherwise) shall not exceed £1,000,000 (one million pounds).
8.9 Nothing in these Terms shall operate to limit or exclude any liability for death or personal injury caused by the negligence of the Employment Business or any of its employees or agents, nor for any fraudulent misrepresentation or any other matter in respect of which liability cannot lawfully be limited or excluded.
9.0 SPECIAL SITUATIONS
Where the Contractor or the person supplied to do the work 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 Client:
9.1 Copies of any relevant qualifications or authorisations of the Contractor or the person supplied to do the work; and
9.2 Two references from persons not related to the Contractor or the person supplied to do the work who have agreed that the references they provide may be disclosed to the Client If the Employment Business is unable to do any of the above it shall inform the Client of the steps it has taken to obtain this information in any event.
10.0 TERMINATION OF THE ASSIGNMENT
10.1 The Client may terminate the Assignment by giving to the Employment Business in writing 1 days’ notice.
10.2 Notwithstanding the provisions of sub-clause 10.1 the Client may terminate the Assignment forthwith by notice in writing to the Employment Business where:
10.2.1 The Contractor has committed any wilful, persistent and/or material breach of its obligations;
10.2.2 The Client reasonably believes that the Contractor has not observed any condition of confidentiality applicable to the Contractor from time to time; or
10.2.3 For any reason the Contractor proves unsatisfactory to the Client.
10.3 The Employment Business may terminate an Assignment forthwith by notice in writing
10.3.1 If the Client has committed any wilful, persistent and/or material breach of its obligations under these Terms; or
10.3.2 If the Client makes any voluntary arrangement with its creditors, or becomes bankrupt, or (being a partnership) suffers one or more of its partners to become bankrupt, or enters administration, or goes into liquidation, or a security holder takes possession, or a receiver or administrative receiver is appointed, over all or any part of the property or assets of the Client, or the Client ceases, or threatens to cease, carrying on business;
10.4 The Employment Business shall notify the Client if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Contractor supplied to the Client is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith by notice in writing without prior notice and without liability.
11.0 POACHING OF STAFF
11.1 In the event that any of the Employment Business’s own staff with whom the Client has had dealings accepts an Engagement with the Client whilst employed by the Employment Business, or within six months of the termination of their employment with the Employment Business, the Client shall be liable to pay an introduction fee to the Employment Business in the sum of £12,000 plus VAT where those dealings have taken place at any time within the period of 12 months ending with the date of that Engagement.
12.0 LAW & ENFORCEABILITY
12.1 These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England & Wales.
If any clause or part of a clause in these Terms is found to be invalid or unenforceable by any court or other body of competent jurisdiction, but would be valid or enforceable if any particular wording were to be deleted, then such clause is to apply with such deletion(s).