TERMS OF ENGAGEMENT
(1) (“the Contractor”).
(2) Etica Group, a division of Fusion People Limited (registered company no. 4873626 of Fusion House, 18 East Links, Tollgate Business Park, Eastleigh, Hampshire, SO53 3TG (“the Employment Business”).
(A) The Contractor carries on the business of the provision of contractor services and agrees to provide the services (“the Contractor Services”) specified in the relevant Assignment Details Form.
(B) The Employment Business requests that the Contractor and the Contractor agrees with the Employment Business, to supply the Contractor Services to the Client on the terms and subject to the conditions of this Agreement.
1.1. In this Agreement the following definitions apply:
“Actual Rate of Pay” means the rate of pay which will be paid for each hour worked during an Assignment (to the nearest quarter hour) to be paid Weekly/Monthy in arrears, as set out in the Assignment Details Form;
“Assignment” means the period during which the Contractor is supplied by the Employment Business to provide the Contractor Services to the Client;
“Assignment Details Form” means written confirmation of the Assignment details set out in clause 6.2;
“Client” 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 Contractor is supplied or Introduced requiring the Contractor Services;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended)
“Confidential Information” shall mean any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Client or Employment Business or their business or affairs (including but not limited to this Agreement, data, records, reports, agreements, software, programs, specifications, know-how, 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, the Contractor or any third party in relation to the Assignment by the Client or the Employment Business or by a third party on behalf of the Client whether before or after the date of this Agreement together with any reproductions of such information in any form or medium or any part(s) of such information;
“Contractor Staff” means such of the Contractor’s employees, officers or representatives supplied to provide the Contractor Services;
“Engagement” means the engagement, employment or use of the Contractor or the services of any Contractor Staff, directly by the Client or by any third party to whom the Contractor has been introduced by the Client on a permanent or temporary basis, whether under a contract of service or for services; an agency, license, franchise or partnership arrangement; or through any other employment business or any other engagement, and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“Minimum Rate” means the rate agreed with your consultant in the Employment Business being the minimum rate of pay that the Employment Business reasonably expects to achieve, for all work performed by the Contractor;
“Period of Extended Hire” means any additional period that the Client wishes the Contractor to be supplied for beyond the duration of the original assignment or series of assignments as an alternative to paying a Transfer Fee;
“Relevant Period” means (a) the period of 8 weeks commencing on the day after the last day on which the Contractor worked for the Client having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Contractor worked for the Client having been supplied by Employment Business;
“Transfer Fee” means a fee payable by the Client to the Employment Business if the Client or any third party wishes to Engage the Contractor, as permitted by Regulation 10 of the Conduct Regulations; and
“Type of Work” means IT and Computer related Technical Work
1.2. Unless the context requires otherwise references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in this Agreement are for convenience only and do not affect their interpretation.
2. THE CONTRACT
2.1. This Agreement together with any applicable Assignment Details Form (“Agreement”) constitutes the entire agreement between the Employment Business and the Contractor and governs all Assignments undertaken by the Contractor. However no contract shall exist between the Employment Business and the Contractor between Assignments. This Agreement shall prevail over any terms put forward by the Contractor.
2.2. During an Assignment the Contractor will be engaged on a contract for services by the Employment Business on the terms set out in this Agreement. For the avoidance of doubt this Agreement shall not be construed as a contract of employment between any Contractor Staff or representative of the Contractor supplied to carry out the Assignment and either the Employment Business or the Client, and any of the liabilities of an employer arising out of the Assignment shall be the liabilities of the Contractor.
2.3. No variation or alteration to this Agreement shall be valid unless the details of such variation are agreed between the Employment Business and the Contractor and set out in writing and a copy of the varied terms is given to the Contractor 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 or supplying the Contractor for Assignments with its Clients.
3. RELATIONSHIP BETWEEN THE EMPLOYMENT BUSINESS AND THE CONTRACTOR
3.1. The Employment Business will endeavour to obtain suitable Assignments for the Contractor performing the agreed Type of Work. The Contractor shall not be obliged to accept an Assignment offered by the Employment Business.
3.2. The Contractor acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that:
3.2.1. suitability of the work to be offered shall be determined solely by the Employment Business;
3.2.2. the Employment Business shall incur no liability to the Contractor should it fail to offer opportunities to work to the Contractor.
3.3. The Contractor acknowledges to the Employment Business that its services are supplied to the Employment Business as an independent contractor and that accordingly the responsibility of complying with all statutory and legal requirements relating to the Contractor Staff (including the payment of taxation and compliance with the immigration laws applicable to the jurisdiction in which the Contractor Services are provided) shall fall upon and be discharged wholly and exclusively by the Contractor.
3.4. Nothing in this Agreement shall render any member of the Contractor Staff an employee of either the Employment Business or the Client. The Contractor shall ensure that none of the Contractor Staff holds themselves out as an employee of either the Employment Business or the Client. In the event that any person should seek to establish any liability or obligation upon the Employment Business on the grounds that the Contractor Staff are an employee/employees of the Employment Business or the Client, the Contractor shall upon demand indemnify the Employment Business and keep it indemnified in respect of any such liability or obligation and any related costs expenses or other losses which the Employment Business shall incur.
3.5. If before or during an Assignment or within the Relevant Period the Client wishes to Engage the Contractor, the Contractor acknowledges that the Employment Business will be entitled either to charge the Client a Transfer Fee or to agree to a Period of Extended Hire with the Client at the end of which the Contractor may be Engaged directly by the Client or through another employment business without further charge to the Client. In addition the Employment Business will be entitled to charge a Transfer Fee to the Client if the Client introduces the Contractor to a third party who subsequently Engages the Contractor within the Relevant Period.
4. WARRANTIES PROVIDED BY THE CONTRACTOR
4.1. The Contractor warrants to the Employment Business that:
4.1.1. by entering into and performing its obligations under this Agreement it will not thereby be in breach of any obligation which it owes to any third party;
4.1.2. the Contractor Staff have the necessary skills and qualifications to provide the Contractor Services; and
4.1.3. the Contractor is not a ‘managed service company’ as defined in section 61B of the Income Tax (Earnings and Pensions) Act 2003 but that it is a personal service company which is compliant in all respects with IR35.
4.2. The Contractor shall procure that the Contractor Staff, any sub-contractor or assignee providing the Contractor Services warrant that they are not and do not operate as ‘managed service companies’ as defined in section 61B of the Income Tax (Earnings and Pensions) Act 2003 but that they are personal service companies which are compliant in all respects with IR35.
5. CONTRACTOR’S OBLIGATIONS
5.1. The Contractor agrees on its own part and on behalf of the Contractor Staff if it accepts any Assignment offered by the Employment Business:
5.1.1. to co-operate with the Client’s reasonable instructions and accept the direction of any responsible person in the Client’s organisation within the scope of the Assignment;
5.1.2. to observe any relevant rules and regulations of the Client’s establishment or the premises where the Contractor Services are being performed to which attention has been drawn or which the Contractor might reasonably be expected to ascertain; including but not limited to those relating to health and safety to the extent that they are reasonably applicable to the Contractor and the Contractor Staff;
5.1.3. to take all reasonable steps to safeguard its own safety, the safety of the Contractor Staff and the safety of any other person who may be affected by the actions of the Contractor Staff whilst on the Assignment;
5.1.4. to comply with the Data Protection Act 1998 in respect of any personal data which the Contractor is granted access to for the purpose of or by reason of the performance of the Contractor Services;
5.1.5. not at any time divulge to any person, nor use for its own or any other person’s benefit, any Confidential Information relating to the Client’s or the Employment Business’ employees, business affairs, transactions or finances;
5.1.6. not to engage in any conduct detrimental to the interests of the Employment Business and/or the Client which includes any conduct which could bring the Employment Business and/or the Client into disrepute and/or which results in the loss of custom or business by either the Employment Business or the Client;
5.1.7. not to sub-contract or assign to any third party any of the Contractor Services which it is required to perform under any Assignment;
5.1.8. to furnish the Client and/or the Employment Business with any progress reports as may be requested from time to time;
5.1.9. to notify the Employment Business forthwith in writing if it should become insolvent, or if any of the arrangements set out in clauses 9.2.5 to 9.2.7 apply; and
5.1.10. to comply with all the requirements of VAT legislation and the Companies Acts.
5.2. If the Contractor Staff is unable for any reason to provide the Contractor Services during the course of an Assignment, the Contractor should inform the Employment Business as soon as possible, but in any event no later than 1 hour after the commencement of the Assignment or shift. In the event that it is not possible to inform the Employment Business within these timescales, the Contractor should alternatively inform the Client and then the Employment Business as soon as possible.
5.3. If, either before or during the course of an Assignment, the Contractor becomes aware of any reason why it or the Contractor Staff supplied to perform the Contractor Services may not be suitable for an Assignment, the Contractor shall notify the Employment Business without delay.
5.4. The Contractor acknowledges that any breach of its obligations set out in this clause may cause the Employment Business to suffer loss and that the Employment Business reserves the right to recover such losses from the Contractor.
6. OBLIGATIONS OF THE EMPLOYMENT BUSINESS
6.1. Throughout the term of this Agreement the Employment Business will pay the Contractor the Contractor Fees in accordance with clause 8 below in respect of the provision of the Contractor Services.
6.2. At the same time as an Assignment is offered to the Contractor the Employment Business shall provide the Contractor with an Assignment Details Form setting out the following:
6.2.1. the identity of the Client, and if applicable the nature of their business;
6.2.2. the date the Assignment is to commence and the duration or likely duration of the Assignment;
6.2.3. the Type of Work, location and hours during which the Contractor would be required to provide the Contractor Services;
6.2.4. the Actual Rate of Pay and any expenses payable by or to the Contractor;
6.2.5. any risks to health and safety known to the Client in relation to the Assignment and the steps the Client has taken to prevent or control such risks;
6.2.6. what experience, training, qualifications and any authorisation required by law or a professional body the Client considers necessary or which are required by law to work in the Assignment;
6.2.7. the intervals of payment; and
6.2.8. any length of notice that the Contractor would be entitled to give and receive to terminate the Assignment.
6.3. 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:
6.3.1. the Contractor is being offered an Assignment in the same position as one in which the Contractor had previously been supplied within the previous 5 business days and such information has already been given to the Contractor; or
6.3.2. subject to clause 6.4, the Assignment is intended to last for 5 consecutive working days or less and such information has previously been given to the Contractor and remains unchanged, the Employment Business needs only to provide written confirmation of the identity of the Client and the likely duration of the Assignment.
6.4. Where the provisions of clause 6.3.2 are met but the Assignment extends beyond the intended 5 consecutive working day period, the Employment Business shall provide such information set out in clause 6.2 to the Contractor in paper or electronic form within 8 days of the start of the Assignment.
7. TIMESHEETS AND INVOICING
7.1. At the end of each week of an Assignment (or at the end of the Assignment where an Assignment is for a period of less than 1 week or is completed before the end of a week) the Contractor shall deliver to the Employment Business the Employment Business’ timesheet duly completed to indicate the number of hours worked by the Contractor during the preceding week signed by an authorised representative of the Client. This timesheet must be accompanied by an invoice from the Contractor for the amount due from the Employment Business to the Contractor for the hours worked in that week. Such invoice should bear the Contractor’s name, the name of the Contractor Staff who provided the Contractor Services, the Contractor’s company registration number and VAT number, and should state any VAT due on the invoiced sum.
7.2. Subject to the Contractor complying with the provisions of this clause 7 the Employment Business shall pay the Contractor for all hours worked regardless of whether the Employment Business has received payment from the Client for those hours.
7.3. Where the Contractor fails to submit a properly authenticated timesheet the Employment Business shall, in a timely fashion, conduct further investigations into the hours claimed by the Contractor Staff and the reasons, if any, that the Client has refused to sign a timesheet in respect of those hours. This may delay any payment due to the Contractor. The Employment Business shall make no payment to the Contractor for hours not worked by the Contractor Staff.
8. CONTRACTOR FEES
8.1. Subject to the receipt of the Contractor’s invoice in accordance with clause 7 above, the Employment Business will pay the Contractor Fees within 7 days of receipt of the Contractor’s invoice. The Employment Business shall pay to the Contractor the Actual Rate of Pay which shall be notified on a per Assignment basis.
8.2. The Contractor shall be responsible for the deduction of any PAYE Income Tax and National Insurance Contributions and any other taxes and deductions payable in respect of the Contractor Staff for any Assignment.
8.3. All payments due from the Employment Business will be made to the Contractor and not to any third party or member of the Contractor Staff, any sub-contractor or assignee.
8.4. The Employment Business shall not be obliged to pay the Contractor for any periods during which the Contractor Services are not provided, whether this is due to the Contractor being unable to provide the Contractor Services or where the Client does not require the Contractor Services or otherwise in respect of holidays, illness or absence of the Contractor Staff.
8.5 The Contractor shall not be entitled to any form of leave or absence, whether paid or unpaid, during the course of an Assignment.
8.6 The Contractor shall bear the cost of any training which the Contractor Staff may require in order to perform the Contractor Services.
9. TERM AND TERMINATION
9.1. An Assignment may be terminated by either the Employment Business or the Contractor by giving the other party in writing the period of notice specified in the relevant Assignment Details Form.
9.2. Notwithstanding clauses 9.1 and 9.3 of this Agreement, where required by the Client, the Employment Business may without notice and without liability instruct the Contractor to cease work on an Assignment at any time, where:
9.2.1. the Contractor has acted in breach of the rules and regulations applicable to third parties providing services to the Client or to the Client’s own staff; or
9.2.2. the Contractor has committed any serious or persistent breach of any of its obligations under this Agreement; or
9.2.3. the Client reasonably believes that the Contractor has not observed any condition of confidentiality from time to time; or
9.2.4. the Client is dissatisfied with the Contractor’s provision of the Contractor Services and has terminated the Assignment; or
9.2.5. either the Client or the Contractor is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
9.2.6. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Client or the Contractor; or
9.2.7. an order is made for the winding up of the Client or the Contractor, or where the Client or the Contractor passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation or amalgamation where the resulting entity will assume all the obligations of the other party under this Agreement); or
9.2.8. the Contractor or any member of the Contractor Staff is suspected of any fraud, dishonesty or serious misconduct; or
9.2.9. the Contractor is unable to perform the Contractor Services for 2 days or more.
9.3. The Contractor acknowledges that the continuation of an Assignment is subject to and conditioned by the continuation of the contract entered into between the Employment Business and the Client. In the event that the contract between the Employment Business and the Client is terminated for any reason the Assignment shall cease with immediate effect without liability to the Contractor.
9.4. Failure by the Contractor to give notice of termination as required in the Assignment Details Form shall constitute a breach of contract and shall entitle the Employment Business to claim damages from the Contractor for any resulting loss suffered by the Employment Business.
10. INTELLECTUAL PROPERTY RIGHTS
The Contractor acknowledges that all copyright, trademarks, patents and other intellectual property rights deriving from the Contractor Services carried out by the Contractor and the Contractor Staff for the Client during the Assignment shall belong to the Client. Accordingly the Contractor shall (and shall procure that any relevant member of the Contractor Staff shall) execute all such documents and do all such acts as the Employment Business shall from time to time require in order to give effect to its rights pursuant to this clause.
11.1. In order to protect the confidentiality and trade secrets of any Client and the Employment Business and without prejudice to every other duty to keep secret all information given to it or gained in confidence the Contractor agrees on its own part and on behalf of the Contractor Staff as follows:
11.1.1. not at any time whether during or after an Assignment (unless expressly so authorised by the Client or the Employment Business as a necessary part of the performance of its duties) to disclose to any person or to make use of any of the trade secrets or the Confidential Information of the Client or the Employment Business with the exception of information already in the public domain;
11.1.2. to deliver up to the Client or the Employment Business (as directed) at the end of each Assignment all documents and other materials belonging to the Client (and all copies) which are in its possession including documents and other materials created by it or the Contractor Staff during the course of the Assignment; and
11.1.3. not at any time to make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Client except when required to do so in the course of its duties under an Assignment in which event any such item shall belong to the Client or the Employment Business as appropriate.
12. COMPUTER EQUIPMENT WARRANTY
The Contractor shall ensure that any computer equipment and associated software that it provides to the Contractor Staff for the purpose of providing the Contractor Services contains anti-virus protection with the latest released upgrade from time to time.
13.1. The Contractor shall:
13.1.1. be liable for any loss, damage or injury to any party resulting from the deliberate and/or negligent acts or omissions of the Contractor or Contractor Staff during an Assignment; and
13.1.2. ensure the provision of adequate Employer’s Liability Insurance, Public Liability Insurance, Professional Indemnity Insurance and any other suitable policies of insurance in respect of the Contractor and the Contractor Staff during an Assignment and shall make a copy of the policy available to the Employment Business upon request.
The Contractor shall indemnify and keep indemnified the Employment Business against any and all losses, costs, damages or expenses suffered or incurred by the Employment Business by reason of any proceedings, claims or demands by any third party (including specifically, but without limitation, Her Majesty’s Revenue and Customs and any successor, equivalent or related body pursuant to any of the provisions of Chapter 9 and/or section 688A of the Income Tax (Earnings and Pensions) Act 2003 and/or any supporting or consequential secondary legislation relating thereto).
If any of the provisions of this Agreement 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.
All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, by email or facsimile transmission. Any such notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent.
17. GOVERNING 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 .