Client - Terms of Business

IT IS HEREBY AGREED

Terms of Engagement
1. The parties agree that during the term of this agreement the Company may provide services to the Client on the terms set out in these Terms and subject to any applicable law. There should be no conflict of the terms between this agreement and any invoice, Company website, assignment sheet or quote although the terms of the relevant invoice, Company website, assignment sheet or quote will prevail if so. The services are:
  1. contractor services whereby the Company will supply limited company contractors or sole traders to the Client for temporary engagements. Where either the agency rules for sole traders under Chapter 7 ITEPA and IR35 (each defined below) is relevant to pass relevant duties and risks to the Company and the Client as applicable, the parties will seek their own independent legal and tax advice and agree to comply with their IR35 obligations accordingly; and
  2. services provided by employees/workers of employers of record who the Company might engage with from time to time. Where the AWR 2010 (defined below) are relevant, the parties will seek their own independent legal advice and agree to comply with their AWR 2010 obligations accordingly, and in both cases, in the manner as more fully set out in schedule 1.
    1. "AWR 2010" means the Agency Workers Regulations 2010 (SI 2010/93), as amended;
    2. “ITEPA” means the Income Tax (Earnings and Pension) Act 2003, as amended;
    3. “IR35” means Chapters 8 and 10 Part 2 of ITEPA (and corresponding social security contributions legislation) as amended from 6 April 2021, in respect of off-payroll working and assessing employment status for tax purposes.
2. The Client will comply with any obligations as set out in this agreement, any assignment sheet or quote, or in any applicable law to aid the proper performance of the Company’s services. The Client enters into this agreement and obligations hereunder for itself and as a trustee for all of its relevant group companies.
3. The Company is committed to equal opportunities and the Client undertakes to comply with all applicable anti-discrimination legislation relating to the treatment and selection of contractors/work seekers. The Client shall not and shall not seek to cause the Company to unlawfully discriminate in relation to the services to be provided by the Company to the Client and shall disclose all such information as may be reasonably requested by the Company in the event of any complaint made to the Company by a contractor or other work seeker.
4. For the purposes of this agreement, “Assignment sheet” means any form of written communication (whether by email, in a template form agreed from time to time, a quote, or otherwise) between the parties which arranges and sets out additional necessary terms, including any particular payment or invoicing terms or assignment notice period, for an assignment for Services from time to time.
Payment
1. Agreed terms relating to payment for the Company’s services are set out in the schedule, assignment sheet, quote, in this clause below or as otherwise agreed with you in writing (such as in respect of any refundable deposit system the Company has in place from time to time for hirers to access its platform and details of which will be set out to the Client separately where applicable). For the avoidance of doubt, the Company’s pricing is reviewed annually against factors such as inflation and business costs.
2. In the event of any late payment by the Client, the Company reserves the right to suspend provision of any services and to charge interest on the outstanding amount from the date payment is due until payment is received by the Company. Interest will be charged at 4% per annum above the base rate from time to time of Barclays Bank Plc and shall accrue on a daily basis. Any dispute in relation to an invoice must be notified to the Company within 5 days of the date of invoice. The Client will indemnify the Company in full in relation to all costs and expenses incurred by the Company in connection with the recovery of any overdue fee from the Client (including the cost of legal proceedings).
3. All sums payable to the Company under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4. Where applicable, the Company shall charge VAT (Value Added Tax) to the Client or similar in other jurisdictions as applicable, at the prevailing rate, after the Company has provided the Client with a VAT (or similar) invoice.
Confidentiality
1. Each party undertakes that it shall not at any time and for any relevant period after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 3.2.
2. Each party may disclose the other party's confidential information:
  1. to its employees, officers, representatives or advisers who need to know such information for the purposes of or in connection with the carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 3;
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
  3. to make relevant protected disclosures to any relevant government authority, to report a crime and to co-operate with any criminal enforcement proceedings and investigations.
  4. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
Intellectual Property Rights
1. The Company shall not have any ownership rights in any concepts, know-how, business ideas, and any materials provided by the Client to the Company (the “Client Information”). The Company shall treat the Client Information confidentially in accordance with clause 3 and shall only be permitted to use the Client Information for the provision of the Services. The Company shall not use the Client Information for any purposes other than providing the Services to the Client.
2. The Company owns all rights in source code, software libraries, components, design user interfaces, and development kits which are developed by the Company as part of providing the Services or which are otherwise made available to the Client in the course of its receipt of the Services (“Company Materials”). The Client is granted unlimited and unrestricted rights to use the Company Materials in the course of its business, subject to full payment of the Fee.
Data protection compliance
1. The following definitions apply in this clause 5:
  1. Agreed Purposes: any lawful purpose to fulfil the parties’ obligations under this agreement (including any schedule) or any legal or regulatory obligation in connection with the various services provided under this agreement.
  2. Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time;
  3. Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
  4. Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement;
  5. Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared Personal Data shall be confined to the categories of information relevant to the Agreed Purposes, including but not limited to employment related data about contractors/work seekers.
2. This clause 5 sets out the framework for the sharing of personal data between the parties as data controllers for Services provided. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
3. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation for all services under this agreement.
4. Each party shall:
  1. ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
  2. give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
  3. process the Shared Personal Data only for the Agreed Purposes;
  4. not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
  5. ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
  6. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
  7. not transfer any Personal Data outside of the UK or European Economic Area unless, in accordance with the Data Protection Legislation, the Data Discloser ensures that (i) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or (ii) there are appropriate safeguards in place for the transfer of Personal Data; or (iii) binding corporate rules are in place; or (iv) one of the derogations for specific situations applies to the transfer.
5. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
  1. consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
  2. promptly inform the other party about the receipt of any data subject access request;
  3. provide the other party with reasonable assistance in complying with any data subject access request;
  4. not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
  5. assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  6. notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
  7. at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
  8. use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
  9. maintain complete and accurate records and information to demonstrate its compliance with this clause 5; and
  10. provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.
Non-solicitation
1. The Client agrees that it shall not, whether directly or indirectly, during, or for a period of 24 months from, the end of the term of this agreement, make direct payment to, employ, engage, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any person who has been introduced to the Client by the Company (where that person did not go on to work for the Client) or who has worked on the services provided under this agreement at any time during the term of this agreement.
2. Where the Client does make direct payment to or engage or seek to engage any such person in breach of clause 6.1, the Client hereby agrees that it will immediately pay upon demand to the Company a fee of the Remuneration for the engaged individual, in accordance with the payment terms set out in this agreement. For the purposes of this clause 6, “Remuneration” shall mean the gross annual starting salary or remuneration of the relevant individual (or in relation to fixed term contracts, the total amount payable for the term of the contract) including all fees, commission, bonuses, overseas premiums, living or travel allowance and other taxable emoluments (including the benefit of any company car) attributable to the first 12 months of the engagement.
Assignment and other dealings
1. Subject to clause 7.2, neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
2. The Company and the Client shall not sub-contract or delegate in any manner any or all of its obligations under this agreement to any third party or agent without the prior written consent of the other (such consent not to be unreasonably withheld or delayed). It shall be a condition of such consent that the sub-contractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, the Company and the Client shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised or unauthorised sub-contractors and the Company and the Client shall be liable for the acts and omissions of any sub-contractor (of any tier and authorised and unauthorised) or any intermediaries whatsoever as if they were the acts and omissions of the Company or the Client itself.
Status
1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party (unless otherwise agreed for any particular engagement or services), or authorise any party to make or enter into any commitments for or on behalf of any other party.
2. Each party confirms it is acting on its own behalf and not for the benefit of any other person (save any relevant group companies).
3. The Company’s employees and other staff are and always remain during the term of this agreement employees, workers, partner, agents, consultants or contractors of the Company and the relationship of the Company to the Client will be that of an independent business service provider only.
Limitation of liability & Indemnity
1. Nothing in this agreement shall limit or exclude the either party’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation; or
  3. for such liability which cannot be limited or excluded by applicable law.
2. Subject to clause 9.a, the Company shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement and/or services performed under it for:
  1. loss of profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; and
  7. any indirect or consequential loss.
3. Subject to clause 9.1, the Company’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the lesser of 100% of the total amounts paid under this agreement to the Company specifically for its commission in the 12 months preceding any relevant cause of action or the level of cover under the Company’s insurance policy which applies to this agreement.
4. The Company shall not be liable for any failure to comply with its obligations under this agreement as a result of any act or omission of the Client (including any failure by the Client to provide any relevant information) or if such failure results by reason of any cause beyond its reasonable control.
5. The Client shall indemnify and keep indemnified the Company against any costs, claims, damages and expenses incurred by the Company as a result of any breach by the Client of its obligations under this agreement, as a result of TUPE being threatened by any person at the Client or its current recruitment providers to apply or being deemed to apply by an employment tribunal or higher court to the commencement of this agreement or any part of this agreement or by any the Company staff on termination of this agreement or any part of this agreement and/or for any other indemnity the Client gives under this agreement. For the purposes of this agreement, "TUPE" means the Transfer of Undertakings (Protection of Employment) Regulation 2006 (SI 2006/246), as amended.
6. Further provisions relating to liability for specific services are set out in the schedule.
Termination
1. Without affecting any other right or remedy available to it, either party may terminate this agreement (and so any ongoing Assignment) with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  3. the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this agreement has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, the Company may terminate this agreement with immediate effect by giving written notice to the Client if the Customer fails to pay any amount due under this agreement on the due date for payment.
3. Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under this agreement if the Client fails to pay any amount due under this agreement on the due date for payment, the Client becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(d), or the Company reasonably believes that the Client is about to become subject to any of them.
Consequences of termination
1. On termination of this agreement:
  1. the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Company immediately on receipt; and
  2. as soon as reasonably practicable thereafter, each party shall return any property of the other which is in their possession or control.
2. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination.
3. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
Survival
1. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
2. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination or expiry.
Announcements and PR
1. Neither party shall make, or permit any person to make, any public announcement concerning the terms of this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
2. The Client hereby permits the Company to make available in its marketing materials case studies about the services performed in connection with this agreement and testimonials received from contractors/work seekers and the Client about those services, subject to the Company complying with the confidentiality provisions at clause 3 above.
Notices
1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  2. sent by fax to its main fax number pr sent by email to the address normally used between the parties for the purposes of this agreement.
2. Any notice shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
  3. if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
4. For the purposes of this agreement, “Business Day" means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
General Legal Provisions
1. This agreement and any terms agreed in writing from time to time (by email and/or assignment sheet are sufficient) in respect of any services performed under it constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
3. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee) by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
4. The parts and schedules (and any appendices to those) form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the parts and schedules.
5. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Nothing in this clause shall limit or exclude any liability for fraud.
7. This agreement may be executed in any number of counterparts, which shall together constitute the one agreement.
8. Except as expressly provided elsewhere in this agreement, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
9. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment, if such delay or failure result from events, circumstances or causes beyond its reasonable control (including but not limited to the consequences and legal restrictions which result from a pandemic or epidemic). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 1 month, the party not affected may terminate this agreement by giving immediate written notice to the affected party.
10. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
11. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12. The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13. This agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales. Each party agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement.
14. Each party warrants that it has full capacity and authority to enter into and perform this agreement

Schedule 1 – Terms and conditions for the temporary supply of contractors/work seekers for design teams

The Company’s obligations
Client's obligations