BGL Supply of Workers Terms & Conditions of Purchase
Version date: 19 June 2018
1. About us
1.1 Company details.
BGL Group Limited (company number 2593690) (BGL) is a company registered in England and Wales and our registered office is at Pegasus House, Bakewell Road, Orton Southgate, Peterborough, PE2 6YS.
1.2 Contacting us.
To contact us telephone or e-mail the originator of and as set out in the Purchase Order. How to give us formal notice of any matter under the Contract is set out in clause 24.
2.1 Our contract.
2. Our contract with you
These terms and conditions (Terms) apply to the Purchase Order entered into by you on a non-exclusive basis to introduce and supply temporary, fixed-term or permanent workers and perform other related services for BGL and the Group Companies for the period set out in the Purchase Order. These Terms, the Purchase Order and any annexes attached to the Purchase Order constitute the contract (Contract). These Terms apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Entire agreement.
The Contract constitutes the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
These Terms and the Contract are made only in the English language.
2.4 Your copy.
You should print a copy of these Terms for future reference.
3. Definitions and interpretation
In these Terms, the following words and expressions shall have the following meanings where the context so requires:
An assignment(s) described in the Purchase Order which BGL or a Group Company wishes your Worker(s) to undertake subject to the direction, supervision and control of BGL or a BGL Group Company;
The Agency Workers Regulations 2010;
BGL employees who facilitate day to day coordination of recruitment of Worker(s) at BGL or other Group Company as notified to you from time to time;
An individual worker Introduced by you to BGL to work for BGL or the Group Companies on a temporary, fixed-term or permanent basis, as an employee of BGL or any Group Company;
The date of the Purchase Order;
Conduct Regulations 2003:
The Conduct of Employment Agencies and Employment Business Regulations 2003 as amended from time to time;
All methodology, know-how, experience, data, databases, flow charts, reports, tables or other material produced in relation to the Contract (including the negotiations leading to it and/or the Purchase Order) and any other information of whatever kind (whether commercial, technical, financial, operational or otherwise, whether communicated verbally, in writing or in any other form and whether or not expressly stated to be confidential) relating to a party (in the case of BGL, this shall also include information relating to any Group Company) including its business, products, suppliers and customers and, unless the context otherwise requires, the expression Confidential Information shall also include any modification (whether authorised or otherwise) made to any of the above-mentioned information by the Receiving Party or any person to whom it has disclosed that information;
Data Protection Legislation:
Means i) the Data Protection Act 1998; ii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; iii) from 25 May 2018 the General Data Protection Regulation (EU 2016/679) and any legislation implemented in connection with the General Data Protection Regulation; iv) any data protection legislation coming into force as a result of the United Kingdom leaving the European Union and v) any replacement legislation in respect of any of the same coming into effect from time to time and in each case as amended, extended or superseded from time to time;
The items set out in the Purchase Order as being provided by you to BGL and/or any other Group Company including any other information, documents, products, and materials developed, prepared or written by you (or your agents, subcontractors, consultants and employees (excluding Employment Business Workers) for BGL or any Group Company in relation to the Services in any form whatsoever;
For the purposes of clause 13, the party disclosing Confidential Information and/or to whom Confidential Information relates;
Employment Business Commission:
Any fee, commission or expense charged by you to BGL in relation to the supply of any Employment Business Worker which forms part of the Worker Fee but is not passed to your Worker by you;
Employment Business Worker:
An individual worker Introduced by you to BGL to provide services to BGL or the Group Companies, on a temporary or fixed-term basis as set out in the Purchase Order, other than as an employee of BGL or any Group Company;
Means the employment or engagement of a BGL Worker directly by BGL or a Group Company on a permanent, temporary or fixed-term basis as a direct result of any Introduction to BGL or a Group Company, and the terms Engaged or Engagement shall be construed accordingly;
Any expenses as incurred by you and approved by BGL in accordance with clause 10.4;
As defined in clause 10.9;
BGL, any subsidiary or holding company of BGL and any subsidiary of any such holding company (as defined in s1159 Companies Act 2006) whether having their registered office in the UK or overseas;
Intellectual Property Rights:
All patents, trade marks, domain names, trade secrets, goodwill, copyright, database rights, designs, inventions, know how and any other industrial or intellectual property rights of any nature whatsoever, whether registered, registrable or not, whether present or future, in any part of the world and the right to sue for any infringements of those rights;
The provision to BGL by you of a curriculum vitae which identifies a Worker (and such other information in such format approved by BGL) as requested by BGL in writing or by email from the personalised email address of BGL Personnel from time to time. Introduction and Introduce shall be construed accordingly;
the introduction fee set out in the Purchase Order or as otherwise agreed between the parties in writing;
Any applicable statute, legislation, including the AWR 2010, the Conduct Regulations, the Data Protection Legislation and the Working time Regulations;
A director, employee or professional advisor of the Receiving Party who has a legitimate need to receive and consider particular Confidential Information for the purposes of the Receiving Party exercising its rights and/or performing its obligations under the Contract;
Has the meaning given to that term in the Data Protection Legislation in force from time to time;
An Employment Business Worker who at the relevant time is entitled to the rights conferred by regulation 5 of the AWR 2010 and in particular has been provided to BGL or to a Group Company (whether by you or any third party) for the Qualifying Period and in respect of whom you have complied with your obligations under clause 6;
Means the 12-week qualifying period as defined in regulation 7 of the AWR 2010, subject to regulations 8 and 9 of the AWR 2010;
The party receiving Confidential Information from or relating to the Disclosing Party;
Has the meaning set out in regulation 10(5) and (6) of the Conduct Regulations 2003;
Relevant Terms and Conditions:
The relevant terms and conditions for any particular Qualifying Worker as defined in regulation 6 of the AWR 2010;
Replacement Services: A
ny services which are identical or substantially similar to any of the Services and which BGL receives in substitution for any of the Services following the termination or expiry of the Contract, whether those services are provided by BGL internally or by any Replacement Supplier;
Any third party supplier of Replacement Services appointed by BGL from time to time;
The minimum qualifications and other criteria which an Employment Business Worker must have to perform the Assignment or which a BGL Worker must have to undertake the role for which BGL or any Group Company wishes to Engage the BGL Worker as set out in the Purchase Order;
The Introduction and supply of Worker(s) by you to BGL and the Group Companies and such other services (including any advertising or marketing services) as set out in the Purchase Order;
In relation to a company wherever incorporated (a holding company) means a subsidiary as defined in section 1159 of the Companies Act 2006 and any other company which is itself a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company. Unless the context otherwise requires, the application of this definition to any company at any time will apply to the company as it was at that time, and a subsidiary undertaking shall be construed in accordance with section 1162 of the Companies Act 2006;
The United Kingdom;
The trade names, trading styles, brands, brand names and trade marks (whether registered or unregistered), service marks, logos and/or domain names used and/or owned by BGL or Group Company as may be notified to you from time to time, and, unless the context otherwise requires, the expression Trade Marks shall also include any modification or adaption (whether authorised or otherwise) made to any of the same by any party or any person who has access to the same;
Valid Opt-Out Notice:
A written notice from the Worker and the company or corporate entity which supplies the Worker confirming that both have exercised their right under s.32(9) of the Conduct Regulations 2003 to opt out of the Conduct Regulations 2003;
Means an Employment Business Worker or a BGL Worker;
The fees payable by BGL to you in accordance with clause 10 in respect of each Employment Business Worker supplied to BGL or a Group Company by you (including your Worker's pay and holiday pay, your Commission and employer's National Insurance contributions) as set out in the Purchase Order.
Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
A reference to a statute or statutory provision 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.
Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
4. Commencement and duration
4.1 The Contract shall start on the Commencement Date and shall continue until and unless terminated by either party under clause 18.
4.2 BGL appoints you on a non-exclusive basis, and nothing in the Contract shall prevent or restrict BGL or any Group Company from entering into any other agreement or arrangement with any third party. BGL does not guarantee any minimum revenue for you under the Contract.
5. BGL Personnel
5.1 You shall only take instructions in relation to the Contract or any Assignment from BGL Personnel. Other than the BGL Personnel, you shall not:
5.1.1 provide any information by any means about an Assignment or any Worker Introduced to BGL or any Group Company, to any other department or employee of BGL or any Group Company; or
5.1.2 actively contact, either directly or indirectly, any employee of BGL or any Group Company
without the express prior written authorisation of BGL Personnel.
6. Your obligations
6.1 In relation to the Introduction and supply of Employment Business Workers pursuant to the Contract, you will be acting as an employment business as defined in the Conduct Regulations 2003 and in relation to the supply of BGL Workers you will be acting as an employment agency.
6.2 You will:
6.2.1 perform the Services for BGL and each of the Group Companies in accordance with the terms of the Contract, in particular in accordance with the Purchase Order;
6.2.2 comply with your obligations under the Contract using all due skill, care and diligence in accordance with good industry practice;
6.2.3 comply with the delivery dates set out in the Contract and all other times, dates or periods mentioned in the Contract (or subsequently varied by agreement between the parties);
6.2.4 use personnel and only introduce and/or supply workers who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient numbers to ensure that your obligations are fulfilled in accordance with the Contract;
6.2.5 carry out the following background checks at your own expense (or as agreed between the parties) on any Consultancy supplied under the terms of the Contract:
(i) Basic Disclosure and Barring Services checks (DBS) (which must be no older than 3 months);
(ii) Credit Enquiry with Electoral Roll & ID Verification;
(iii) Credential Verification;
(iv) 3 years employment referencing with 28 day gap verification and document collection;
(v) Public Safety Verification/Sanctions;
(vi) Right To Work Document Verification;
FCA Approved Person’s roles will require additional checks:
(i) Standard Disclosure and Barring Services checks (DBS) (which must be no older than 3 months);
(ii) Statutory Director Checks;
(iii) 6 years employment referencing with 28 day gap verification and document collection;
(iv) Adverse Media Search;
6.2.6 and you agree to provide copies of the completed checks to BGL prior to the commencement of the Assignment. BGL may at any time request the original documents to evidence completion of the checks; and
6.2.7 co-operate with BGL and the Group Companies in all matters relating to provision of the Services.
6.3 You warrant, represent and undertake that:
6.3.1 you have the power and authority to enter into the Contract and to perform your obligations under the Contract;
6.3.2 by virtue of entering into the Contract you are not and will not be in breach of any express or implied obligation to any third party binding upon it;
6.3.3 you will not do, or omit to do, or permit to be done, any act which will or may weaken, damage or be detrimental to BGL's or any Group Company’s reputation or goodwill;
6.3.4 you will comply with the provisions of all applicable legislation, regulations and codes of practice which govern your conduct when performing your obligations under the Contract, in particular the AWR 2010, the Conduct Regulations 2003, the Immigration Asylum and Nationality Act 2006 and any regulations or relevant codes of practice regarding the reporting of labour movements, concealed employment and the employment of foreign workers;
6.3.5 you will not do, and shall not recommend or advise that BGL or any Group Company do, anything which would put BGL or any Group Company in breach of any applicable law, regulation or code of practice;
6.3.6 before the Commencement Date, you have obtained and will at all times maintain, all necessary licences and consents in relation to the performance of your obligations;
6.3.7 you will not do or omit to do anything which may cause BGL or any Group Company to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business or which might result in any conditions, limitations or restrictions being imposed in relation to any such licence, authority, consent or permission, and you acknowledge that BGL and each Group Company may rely or act on the information received from you and any advice received from you in relation to the Services and/or a Worker; and
6.3.8 you will not offer BGL or Group Company any commission, gift or other financial benefit or inducement in relation to the whole or any part of the Services. You will also ensure that your employees, agents and subcontractors do not offer BGL or any Group Company any such commission, gift, benefit or inducement. If you become aware that any such commission, gift, benefit or inducement has been offered, you will forthwith give BGL full details of such commission, gift, benefit or inducement and all other information requested by BGL.
6.4 Unless you have been specifically authorised to do so by BGL in writing in advance, you shall not:
6.4.1 have any authority to incur any expenditure in the name of or for the account of BGL or any Group Company; or
6.4.2 hold yourself out as having authority to bind BGL or any Group Company.
7. Workers - general
7.1 You shall:
7.1.1 undertake a screening and selection of each Worker based on the relevant Requirements, including a preliminary interview of each Worker to be presented to BGL and the relevant Group Company; and
7.1.2 only Introduce to BGL and Group Companies Workers who meet the Requirements and who have the right to work in the Territory.
7.2 BGL and each Group Company reserves the right to arrange for any checks to be conducted (whether in addition to or in substitution of any checks arranged by you) in relation to any Worker. In the event that the result of any such checks in relation to a BGL Worker are considered unsatisfactory by BGL (in its sole discretion), BGL and/or any Group Company may withdraw any offer made to such BGL Worker and no Introduction Fee shall be payable to you by BGL in connection with such BGL Worker.
7.3 Where an Employment Business Worker is required by law or any professional body to have any qualifications or authorisations to work on the Assignment, you will:
7.3.1 obtain and provide copies of any relevant qualifications or authorisations and two references to BGL; and
7.3.2 confirm that the Worker is suitable for the Assignment.
7.4 Prior to the commencement of the Assignment, you will send BGL written confirmation of:
7.4.1 the identity of the Worker;
7.4.2 the Worker's experience, training, qualifications and authorisations necessary for the Assignment;
7.4.3 the Worker's willingness to carry out the Assignment; and
7.4.4 any other information reasonably requested by BGL or any Group Company.
7.5 To the extent applicable, you shall, where relevant, inform BGL whether you hold a Valid Opt Out Notice for any Worker that you Introduce to BGL or any Group Company.
7.6 You shall notify BGL immediately if you believe or become aware of any matter that indicates that any Employment Business Worker Introduced by you is or may be unsuitable for the Assignment or there is any inconsistency with any information previously provided by you including where an Employment Business Worker Introduced by you ceases to meet the Requirements, ceases to be approved or have the right to work in the Territory or where the Contract may be or has been breached.
8 Employment Business Workers
8.1 If BGL decides (in its sole discretion) that an Employment Business Worker is unsuitable to perform the Assignment for any reason, then BGL shall notify you in writing of that fact giving the grounds for its dissatisfaction with such Worker.
8.2 If BGL notifies you of an unsuitable or unsatisfactory Employment Business Worker in accordance with clause 8.1:
8.2.1 within 48 hours of the commencement of the Assignment, then the Assignment will immediately terminate and no Worker Fees shall be payable; and
8.2.2 in all other cases the Assignment shall terminate at the end of the day on which you were notified, and Worker Fees shall be payable up to the date of such termination.
8.3 In addition to and without prejudice to clause 8.2, BGL will be entitled to terminate an Assignment with immediate effect in the event that:
8.3.1 the Worker in question fails to comply with any lawful instruction given to him by BGL or with any other of the requirements set out at clause 8.8 below or is guilty of any other misconduct; and/or
8.3.2 it is or becomes unlawful for the Worker to continue working for BGL.
8.4 Any termination of an Assignment in accordance with clause 8.2 and/or 8.3 may be effected in writing, by way of verbal communication, or by email, by an authorised representative of BGL.
8.5 Following termination of any Assignment under clauses 8.2 and/or 8.3 above, you shall use reasonable endeavours to provide a replacement Employment Business Worker if (and only if) requested to do so by BGL.
8.6 Without prejudice to any rights BGL may have:
8.6.1 in the event that an Assignment is terminated in accordance with clause 8.3 and within 48 hours of the commencement of the Assignment, then no Worker Fees shall be payable; and
8.6.2 in all other cases of termination of an Assignment in accordance with clause 8.3, BGL shall not be liable to pay any Workers Fees in respect of the relevant Assignment as from the time the termination was communicated to you.
8.7 Either party may terminate an Assignment at any time upon the notice period agreed in the Purchase Order. In the absence of a specific period set out in the Purchase Order, the notice period for the purpose of this clause 8.7 shall be 7 days. Worker Fees shall only be payable up to the date of such termination. BGL reserves the right to change its requirements at any time before the commencement of the Assignment by a Worker Introduced by you without any liability of BGL or any Group Company to you whatsoever. Such cancellation or amendment shall be effective immediately upon BGL giving notice to you (which may be given by telephone, e-mail or in writing).
8.8 You shall ensure that each Employment Business Worker is contractually obliged:
8.8.1 to comply with all relevant statutes, laws, regulations and codes of practice from time to time in force in the performance of an Assignment and applicable to BGL’s and any Group Company’s business;
8.8.2 to comply with BGL’s and the Group Company’s health and safety policy whilst the Worker is on BGL’s or the Group Company’s premises or any of BGL or the Group Company customers' or suppliers' or agents' (direct or indirect) premises;
8.8.3 not to disclose any Confidential Information of BGL and/or Group Companies or any of BGL’s or any Group Company’s customers or suppliers or agents (whether directly or indirectly), which they may acquire during the course of the Assignment and shall procure that each Employment Business Worker is made aware of and observes the terms of clause 13 (Confidentiality) as if that Employment Business Worker had given the undertakings contained in clause 13 directly to BGL and each Group Company;
8.8.4 to attend all necessary induction training prior to starting work for BGL;
8.8.5 to carry out all work required by BGL in a timely manner and using all reasonable care, skill and diligence;
8.8.6 to act at all times whilst working for BGL in accordance with any BGL rules, policies or procedures made known to him and otherwise in accordance with any lawful instructions given by BGL from time to time;
8.8.7 to act at all times whilst working for BGL in good faith and in the best interests of BGL;
8.8.8 in connection with any work carried out for BGL, to not do or wrongfully omit to do anything that would infringe, or result in BGL infringing, the intellectual property or other rights of any third party;
8.8.9 at the end of the relevant Assignment (or at such other times as may be directed by BGL), to return to BGL any and all personal protective equipment, tools, keys, security passes, manuals, records (in whatever medium) and other items which were lent to the Worker by BGL and/or which belong to BGL and are in the Worker's possession.
8.9 You shall use your reasonable endeavours by giving appropriate instructions and otherwise taking all reasonable steps to enforce the terms of the contract between you and the Worker (or any limited company through which the Worker was supplied, as the case may be) to ensure that each Employment Business Worker complies with each of the requirements set out in clause 8.8 of these Terms.
8.10 Without prejudice to clause 8.8.3 above, where any Employment Business Worker is likely to have access to any Confidential Information of BGL or any of its customers, you shall procure that the Worker enters into a direct confidentiality undertaking in favour of BGL and/or the relevant customer(s) in such form as BGL reasonably requires.
8.11 Where any Employment Business Worker creates any copyright or other Intellectual Property Rights in the course of working for BGL or any Group Company, you shall procure to be executed or done by the Worker or any other necessary person all such deeds, documents, acts and things as BGL may from time to time reasonably require in order to effect an assignment of such rights in favour of BGL or such other person as BGL may direct.
8.12 You shall be responsible for deduction and payment of all tax, National Insurance contributions and other taxes and levies in respect of persons employed by you or Employment Business Workers supplied to BGL or any Group Company by you.
9. BGL's obligations
9.1 During the term of the Contract, BGL shall:
9.1.1 co-operate with you in all matters relating to the Services; and
9.1.2 provide such information and access to BGL's premises and data, and such office accommodation and other facilities to you as reasonably requested by you and BGL considers reasonably necessary, in order to carry out the Services, in a timely manner;
9.1.3 not direct an Employment Business Worker to undertake duties outside the scope of the Assignment without prior notification to you or to undertake any duties for which the Worker is not qualified and promptly advise you in the event of an accident or incident involving an Employment Business Worker;
9.1.4 be responsible for ensuring the suitability of BGL Workers prior to making them an offer of Engagement BGL will be responsible, subject to BGL’s policies and procedures in force from time to time, for paying travel expenses, obtaining security clearances, checking educational background, qualifications and references, arranging medical examinations and obtaining any work permits in relation to a BGL Worker.
9.2 BGL warrants and undertakes to you that:
9.2.1 BGL has the power and authority to enter into the Contract and to perform its obligations under the Contract;
9.2.2 BGL will comply with all legislation and statutory regulations which apply to BGL when performing its obligations under the Contract.
10. Worker Fees and Introduction Fees for Employment Business Workers
10.1 BGL will pay you the Worker Fees and any Expenses as applicable in respect of Employment Business Workers supplied to BGL or other Group Company (as applicable) in accordance with this clause 10.
10.2 The amount of any Employment Business Commission shall be stated in the Purchase Order.
10.3 The Worker Fees are calculated according to the number of hours worked by the Worker (to the nearest half hour) unless otherwise specified in the Purchase Order.
10.4 You shall invoice BGL for the Worker Fees, and if applicable any Expenses, weekly in arrears. All invoices shall be submitted with all applicable signed time sheets verifying the number of hours worked by the Worker during that month and duly authorised by BGL. BGL shall pay your invoice within 30 days of receipt of such invoice.
10.5 No fee shall be payable by BGL until the Worker commences the Assignment. Save for clause 10.6, no increase in the Worker Fees payable under the Contract by BGL to you may be made unless agreed in accordance with clause 30.
10.6 You will be entitled, on giving 30 days’ notice to BGL where possible and in any event as much notice as is reasonably practicable, to vary the Worker Fees to reflect any increases in pay rates, statutory entitlements and/or deductions, all other relevant changes in Law relating to the Services or in the event that BGL requests any variation to the Services, to the extent that any such increase, change or variation directly affects the provision of the Services.
10.7 BGL shall not be required to pay Worker Fees for any absences (for whatever reason) of an Employment Business Worker. You shall not withhold any payment due to a Worker because of any failure by BGL to pay you.
In the event that the Worker is, during the course of the Assignment, required to travel for the purposes of the Assignment, BGL shall use all reasonable endeavours to arrange any required travel tickets and accommodation directly. In the event that BGL is unable to arrange such travel tickets and accommodation directly, BGL shall reimburse all such Expenses in accordance with the payment provisions set out in clause 10.4, as are pre-approved by BGL and properly and necessarily incurred by the Worker during the course of the Assignment, subject to production of receipts or other appropriate evidence of payment
10.8 Subject to clauses 10.9 and 10.10 below, if, following the supply of an Employment Business Worker by you to BGL within the Relevant Period, BGL or a Group Company Engages the Worker, BGL will pay you the Introduction Fee.
10.9 The Introduction Fee will not be payable in relation to the Engagement of any Employment Business Worker if BGL gives written notice to you that it intends to continue the hire of any Employment Business Worker beyond the period set out in the Purchase Order for a further period of three months (Extended Assignment) before it Engages the Worker other than through you under the Contract.
10.10 Where BGL decides (in accordance with clause 10.9) to have the Worker supplied by you for the Extended Assignment:
10.10.1 the Worker Fees payable by BGL during the Extended Assignment shall be those applicable immediately before you received BGL's notice of election;
10.10.2 at the end of the Extended Assignment, BGL may Engage the Worker without paying the Introduction Fee; and
10.10.3 if BGL chooses an Extended Assignment, but engages the Worker before the end of the Extended Assignment, the Introduction Fee may be charged by you.
11. Introduction Fees for BGL Workers
11.1 Subject to clause 11.2, if, following the Introduction of a BGL Worker, BGL or a Group Company Engages the BGL Worker, BGL will pay you the Introduction Fee in relation to that BGL Worker.
11.2 If the Engagement of the BGL Worker, is terminated:
11.2.1 within sixteen weeks from the start of the Engagement, unless such termination is due to: (a) involuntary redundancy; (b) the liquidation, bankruptcy, insolvency or dissolution of BGL or the Group Company concerned; or (c) unfair dismissal, you shall immediately rebate the Introduction Fee to BGL in accordance with the below;
- 0 - 1 month from engagement is a 100% rebate
- 1 -2 months from engagement is a 75% rebate
- 2 - 3 months from engagement is a 50% rebate
- 3 - 4 months from engagement is a 25% rebate
11.2.2 after sixteen weeks from the start of the Engagement then, subject to you complying with your obligations under the Contract, you shall be entitled to keep the Introduction Fee in full.
12. Fees - general
12.1 Any fee payable under the Purchase Order, is payable only in respect of the initial introduction by you of a Worker for the role or position specified in the Purchase Order and the subsequent engagement or employment by BGL, of that Worker, for the role or position for which he or she was introduced. Should any Worker be introduced in relation to the same role or position from more than one source of introduction, BGL shall, in its absolute discretion, determine the allocation of any fee payable as between the sources concerned. In no case will more than one source receive payment, nor will any fees be payable to you in respect of any Worker whose identity was known to BGL at any time prior to the introduction by you. This clause 12.1 only applies for a period of 6 months from and including the date a candidate is submitted to BGL for consideration as a Worker.
12.2 All sums due under the Contract are inclusive of Value Added Tax which (where applicable) will be paid by BGL in addition to the sums due following production of a valid VAT invoice.
12.3 In the event that BGL acting in good faith disputes an invoice BGL shall as soon as reasonably practicable notify you. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. BGL shall be entitled to withhold the element of the invoice that is in dispute only pending resolution of the dispute between the parties. Your obligations to perform the Services and your other obligations under the Contract shall not be affected by any such dispute.
12.4 Save where BGL withholds payment under clause 12.3 if any sums due under the Contract are not received by you by the expiry of the period of 30 days from the relevant due dates, you may charge interest on the overdue amount at the rate of 2% above the base rate of Barclays Bank PLC for the time being from the expiry of that period until the overdue sums have been received by you in cleared funds. You acknowledge that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
13.1 The Receiving Party undertakes to the Disclosing Party that:
13.1.1 it shall treat and safeguard as private and confidential all Confidential Information of that Disclosing Party;
13.1.2 it shall only use the Confidential Information of the Disclosing Party to the extent that such use is necessary for the purposes of performing its obligations or exercising its rights under the Contract;
13.1.3 except as permitted under clause 13.2, it shall not at any time disclose or reveal any part of the Confidential Information of the Disclosing Party to any person other than a Permitted Recipient;
13.1.4 it shall ensure that each Permitted Recipient to whom Confidential Information of the Disclosing Party is to be disclosed is made aware of and observes the terms of this clause 13 as if that person had given the undertakings contained in this clause 13 directly;
13.1.5 it shall immediately upon written request by the Disclosing Party deliver to the Disclosing Party a list of all individuals to whom the Confidential Information has been disclosed;
13.1.6 it shall indemnify the Disclosing Party and keep it indemnified from and against all costs, claims, losses, damages, expenses and other liabilities which arise out of or in connection with the unauthorised disclosure or use of the Confidential Information or any part of it by the Receiving Party or any person to whom the Confidential Information has been disclosed by the Receiving Party.
13.2 The provisions of clause 13.1 above shall not apply to any Confidential Information to the extent that such Confidential Information:
13.2.1 is publicly available or becomes publicly available through no act or omission of the Receiving Party;
13.2.2 is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority provided that (to the extent it is permitted to do so) the Receiving Party gives all reasonable notice of that disclosure to the Disclosing Party.
13.3 The Purchase Order will contain Confidential Information. In order to perform the Services, you may need to disclose such Confidential Information to certain potential Workers. You are permitted to the extent necessary to perform the Services to disclose to the relevant Worker the Confidential Information as set out in the Purchase Order. You are not permitted to disclose any other Confidential Information to the Worker or other third parties.
13.4 Whenever requested by the Disclosing Party:
13.4.1 the Receiving Party shall immediately return, and ensure that all Permitted Recipients immediately return, to the Disclosing Party all matter provided by the Disclosing Party in tangible form which constitutes the Confidential Information, or any part of it, together with all copies; and
13.4.2 the Receiving Party shall immediately destroy (or if kept electronically, expunge), and ensure that all Permitted Recipients immediately destroy or expunge, any notes, memoranda or other records or working materials (in whatever medium) which contain any Confidential Information. In relation to any Confidential Information of any Group Company references in this clause 13 to the Disclosing Party shall be deemed to include such Group Company provided that BGL shall be entitled to enforce any provision of this clause 13 in relation to any Confidential Information of any Group Company.
14. Data Protection
14.1 To the extent that you process Personal Data on behalf of BGL in connection with the Contract, you shall:
14.1.1 comply with BGL's instructions in connection with the processing of Personal Data;
14.1.2 solely process the Personal Data for the purposes of fulfilling your obligations under the Contract;
14.1.3 keep a record of any processing of Personal Data you carry out on behalf of BGL;
14.1.4 take appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data taking into account the harm that might result from such unauthorised or unlawful processing, loss, destruction or damage and the nature of the Personal Data to be protected;
14.1.5 not transfer any Personal Data outside the countries of the European Economic Area without the prior written consent of BGL; and
14.1.6 notify BGL immediately if you receive any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation, and provide full co-operation and assistance in relation to any such complaint, notice or communication.
15. Intellectual property rights
15.1 You assign to BGL absolutely (including by way of present assignment of future copyright), with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the Deliverables created solely and exclusively by you for BGL. You undertake to ensure that each Employment Business Worker is bound by and subject to an obligation to assign to BGL absolutely (including by way of present assignment of future copyright) with full title guarantee and free from all third party rights all Intellectual Property Rights and all other rights in any documents, information, software or other works, materials or items (whether tangible or intangible) devised or created by that Employment Business Worker in the course of any work undertaken for BGL or any Group Company.
15.2 You shall, promptly at BGL's request, do (or procure to be done) all such further acts and procure the execution of all such other documents as BGL may from time to time require for the purpose of securing for BGL the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to BGL in accordance with clause 15.1.
15.3 You warrant, represent and undertake that BGL's and each Group Company’s use of the Deliverables provided by you in accordance with the Contract will not infringe the Intellectual Property Rights of any third party and that you have the right to grant BGL the rights in the Deliverables as contemplated by the Contract.
15.4 You shall obtain waivers of any moral rights in the Deliverables to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
15.5 You shall not use the Trade Marks or any other intellectual property rights owned by BGL or any Group Company without BGL's prior written consent (which may be withheld or delayed for any reason).
15.6 All information, documentation and materials provided by BGL or other Group Company to you shall be owned by BGL and/or other Group Company. You may use the Deliverables, and any other information, documentation and materials provided by BGL or other Group Company to you for all purposes necessary to perform your obligations and exercise your rights under the Contract. On termination of the Contract for any reason this right will immediately cease.
16. Indemnity and insurance
16.1 Save to the extent a claim is caused by an act or omission of BGL, you shall indemnify and keep indemnified BGL and each Group Company from and against all direct costs, expenses (including reasonable legal and other professional fees and expenses) losses, damages and other liabilities (whether contractual, tortious or otherwise) suffered or incurred by BGL and/or any Group Company and arising out of or in connection with:
16.1.1 any material breach or negligent performance of the Contract by you, its employees, agents or subcontractors;
16.1.2 any claim, action or demand alleging that the use by BGL or any Group Company of the Deliverables infringes the Intellectual Property Rights of any third party;
16.1.3 any National Insurance contributions, income tax or other taxation obligations where such liability, assessment, or claim arises or is made in connection with payments made by BGL or any Group Company in respect of any Employment Business Worker while provided as such by you to BGL or a Group Company;
16.1.4 any Employment Business Worker having at any time claimed or being held or deemed to have been an employee of BGL or any Group Company or been otherwise engaged directly by BGL or a Group Company including any claim for wrongful or unfair dismissal or redundancy payment to the extent that such liability, assessment or claim is caused by your negligence or failure to comply with your legal and contractual obligations to such Employment Business Temporary Worker;
16.1.5 any claim made against BGL or any other Group Company by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the material breach or negligent performance of the Contract by you, your employees, agents or subcontractors; or
16.1.6 any breach or alleged breach by you, your sub-contractors or any other intermediaries, of the AWR 2010.
16.2 During the term of the Contract and for a period of 12 months thereafter, you shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £1 million pounds and shall, on BGL's request, produce letter’s from your insurance brokers’ confirming details of cover as evidence of payment for the current year's premium.
16.3 The Contract envisages that subsequent to the termination of the Contract, your identity may change resulting in a transfer of the Services provided by you under the Contract, whether in whole or in part (Service Transfer). If a Service Transfer is a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) then, in such event, BGL or a Replacement Supplier would inherit liabilities in respect of your employees or any other Employment Business Workers who are subject to TUPE (the Transferring Employees). Accordingly if TUPE applies on a Service Transfer, the parties agree that:
16.3.1 you shall perform and discharge all your obligations in respect of all the Transferring Employees and their representatives for your own account up to and including the date of the transfer to BGL or a Replacement Supplier (the Service Transfer Date). You shall indemnify BGL and any Replacement Supplier in full for and against all claims costs, expenses or liabilities whatsoever and howsoever arising, incurred or suffered by BGL or any Replacement Supplier including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:
(a) your failure to perform and discharge any such obligation;
(b) any act or omission by you on or before the Service Transfer Date or any other matter, event or circumstance occurring before the Service Transfer Date in relation to the Transferring Employees;
(c) all and any claims in respect of all emoluments and outgoings in relation to the Transferring Employees (including without limitation all wages, bonuses, PAYE, National Insurance contributions, pension contributions and otherwise) payable in respect of any period on or before the Service Transfer Date;
(d) any claim arising out of the provision of, or proposal by you to offer any change to any benefit, term or condition or working condition of any Transferring Employee arising on or before the Service Transfer Date;
(e) any claim made by or in respect of any person employed or formerly employed by you other than a Transferring Employee for which it is alleged BGL or any Replacement Supplier may be liable by virtue of the Contract and/or TUPE; and
(f) any act or omission of you in relation to your obligations under Regulation 11 of TUPE, or in respect of an award of compensation under Regulation 12 of TUPE except to the extent that the liability arises from BGL or any Replacement Supplier's failure to comply with Regulation 11 of TUPE.
16.4 The parties shall co-operate to ensure that any requirement to inform and consult with the employee representatives as a consequence of a Service Transfer will be fulfilled.
17. Qualifying Worker - 12 weeks qualifying period
17.1 Prior to the commencement of any work by a Qualifying Worker in relation to an Assignment, or by an Employment Business Worker who during the course of work on that Assignment will become a Qualifying Worker, you shall notify BGL of this fact, and agree with BGL the applicable Worker Fees.
17.2 You shall, and shall procure that any other sub-contractor or intermediary shall, at all times comply with their obligations under the AWR 2010, including but not limited to providing any Qualifying Worker with the Relevant Terms and Conditions in accordance with regulation 5.
17.3 BGL shall at all times comply with its obligations under the AWR 2010, including but not limited to providing any Employment Business Workers with access to collective facilities and amenities and employment opportunities subject to and in accordance with regulation 12 and 13 of the AWR 2010. BGL will at the appropriate time, provide all AWR 2010 information in a format specified by you. BGL warrants the accuracy of the AWR 2010 information and will inform you within five (05) working days of it becoming aware of any changes to the AWR information provided to you.
17.4 In the event that either party receives an allegation by any Employment Business Worker that there has been a breach of the AWR 2010 in relation to the supply of that person to BGL or any Group Company by BGL, any Group Company and/or you (whether that allegation has been made as a request for information under regulation 16 of the AWR 2010 or otherwise), it shall provide a copy of that allegation to the other party within seven days of receipt. The parties shall co-operate with each other in relation to responding to that allegation, which shall include supplying any information which may be reasonably requested by the other party, and complying with any reasonable requests in relation to the contents of any response.
17.5 You will within seven days of receiving a written request from BGL provide to BGL:
17.5.1 the number of Employment Business Workers currently being supplied to BGL or any Group Company;
17.5.2 the parts of BGL’s or Group Company’s business in which those Employment Business Workers are working; and
17.5.3 the type of work those Employment Business Workers are carrying out;
together with any other information which BGL or any Group Company may reasonably request in relation to any payments made by you, your sub-contractors or any other intermediaries to any Workers, in order to ensure compliance with the AWR 2010.
Nothing in the Contract shall operate to limit or exclude the liability of either party for any death or personal injury caused by that party's negligence, fraudulent misrepresentation by that party or for any liability that cannot be limited or excluded as a matter of law.
Neither party will be liable to the other party (the Claimant) for any indirect, special or consequential loss or damage except insofar as indirect, special or consequential loss or damage is claimed by a third party against the Claimant and the Claimant seeks to recover such loss or damage under an indemnity given under the Contract.
The aggregate liability (inclusive of interest and legal and other costs) of BGL in respect of all claims arising under or in connection with the Contract (whether by reason of any negligence by BGL or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, breach of statutory duty, or otherwise) shall not in any event exceed £999,999 pounds.
The aggregate liability (inclusive of interest and legal and other costs) of you in respect of all claims arising under or in connection with the Contract (whether by reason of any negligence by BGL or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, breach of statutory duty, or otherwise) shall not in any event exceed £999,999 pounds, provided that the limitation of liability provisions set out in this clause 18.4 shall not apply to any breach by you of your obligations set out at clause 14 (Data Protection) or clause 15 (Intellectual Property Rights).
You will not be liable for any losses, claims or damages arising from an act or omission of a Worker, except where such act or omission of the Worker arises due to a breach of the Services by you. You warrant that any Employment Business Worker supplied to BGL will complete thorough equal opportunities training before his/her assignment commences, which will be appropriately renewed thereafter. You also warrant that you will cooperate fully with BGL with regards to any circumstances which arise and which might give rise to a potential loss, claim, or damages as a result of any acts or omissions of a Worker.
19.1 Either party may terminate the Contract at any time upon not less than 28 days written notice to the other party.
19.2 Either party may terminate the Contract immediately by serving written notice to that effect on the other party if at any time any one or more of the following events occurs:
19.2.1 the other party makes any voluntary arrangement with its creditors or becomes bankrupt or enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
19.2.2 a security holder takes possession, or a receiver or administrative receiver is appointed over all or any material part of the property or assets of the other party; or
19.2.3 anything analogous to any of the foregoing occurs to the other party under the law of any jurisdiction; or
19.2.4 the other party commits a material breach of any of the provisions of the Contract and, in the case of a breach capable of remedy, fails to remedy that breach within 14 days after being served with a written notice specifying the breach and requiring it to be remedied.
20. Consequences of termination
20.1 Any termination of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination including clauses: 13 to 16 and 21 and 22.
20.2 Upon termination of the Contract (for any reason whatsoever):
20.2.1 all Assignments will terminate with immediate effect;
20.2.2 your right to use the Deliverables, all proprietary material of BGL or any Group Company, and any other information documentation or materials provided by BGL or a Group Company to you shall immediately cease unless BGL or a Group Company as appropriate has provided prior written consent to retain any such material, information or documentation, such consent not to be unreasonably withheld or delayed; and
20.2.3 you shall immediately return to BGL the Deliverables, all proprietary material of BGL or any Group Company and any other information, documentation or materials provided by BGL to you.
You shall keep and maintain for the duration of the Contract and for six (6) years following its termination, full and accurate records of all acts taken and things done in performing your obligations under the Contract. You shall procure that such records and your systems, processes and controls shall, at any time while the Contract remains in force, be available for inspection and audit by BGL or its representatives on reasonable notice (and no less than one week’s notice except where BGL reasonably suspects that you has breached the provisions of the Contract) and BGL and its representatives shall be entitled in the course of any such inspection or audit to take copies of any such records and information relating to your systems, processes and controls. BGL agrees to audit you no more than once per annum except where BGL reasonably suspects that you have breached the provisions of the Contract.
You shall make available one or more of your compliance managers with the appropriate level of expertise and authority to answer relevant enquiries raised by BGL and its representatives in the course of any inspection or audit undertaken by BGL or its representatives pursuant to this clause 21.
If any inspection or audit undertaken by BGL or its representatives pursuant to this clause 21 reveals that:
you have overcharged BGL at any time, BGL shall notify you accordingly and you shall reimburse BGL the full amount of the overpayment within five (5) working days of receiving such notice; and/or
21.3.2 you are not complying or have not at any time complied with the Contract, BGL shall notify you accordingly and you shall make such changes as shall be necessary and acceptable to BGL to comply with the Contract in accordance with BGL's reasonable instructions.
You shall not, either on your own account or in partnership or association with any person, at any time while the Contract remains in force and for a period of 12 months thereafter directly:
solicit or seek to solicit (or seek to attempt to solicit) any employee, manager, consultant or director of BGL or any Group Company;
re-solicit or seek to re-solicit (or attempt to re-solicit) any Worker being considered or interviewed by BGL or any Group Company for an Assignment at BGL or any Group Company until BGL or any Group Company as appropriate has notified you that such Worker has been unsuccessful and is not required, provided that BGL or any Group Company must notify you whether that Worker has been successful or not within one (1) week of that Worker’s interview taking place.
BGL shall not, either on its own account or in partnership or association with any person, at any time while the Contract remains in force and for a period of 12 months thereafter directly solicit or seek to solicit (or seek to attempt to solicit) any of your employees, managers, consultants or directors.
In the event that either party breaches the provisions of this clause 21 the non-breaching party shall be entitled to charge the breaching party a fee of 15% of the employees’ basic annual salary, subject to a cap of £5,000 pounds.
Neither party may assign, sub-contract, or otherwise dispose of any of its rights or obligations under the Contract without the other party’s prior written consent save that BGL may at any time assign, sub-contract or otherwise dispose of any of its rights or obligations under the Contract to any other Group Company without your consent.
In the event that BGL consents to you sub-contracting any of your rights or obligations under the Contract, 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 the Contract. Where you do engage a subcontractor, you shall remain fully responsible to BGL for the performance of the Contract as though no such subcontracting arrangement had been put in place
You shall not, without the prior written consent of BGL or any Group Company as appropriate (such consent not to be unreasonably withheld or delayed) make any announcement or release any publicity concerning the Contract or Assignment, the Services or any matter ancillary thereto at any time, including during the course of any discussions and/or negotiations you may have with any third party or otherwise, except as required to perform your obligations under the Contracts or as permitted in writing by BGL.
24. Communications between us
When we refer to "in writing" in these Terms, this includes email.
Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
A notice or other communication is deemed to have been received:
if delivered personally, on signature of a delivery receipt;
if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second working day after posting;
if sent by email, at 9.00 am the next working day after transmission.
In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
The parties hereby agree and acknowledge that clauses 13 to 16 and 21 and 22 shall survive the termination or expiry of the Term.
27. Third party rights
The Contract is between you and BGL. No other person has any rights to enforce any of its terms.
If BGL does not insist that you perform any of your obligations under the Contract, or if BGL does not enforce its rights against you, or if BGL delays in doing so, that will not mean that BGL has waived its rights against you or that you do not have to comply with those obligations. If BGL does waive any rights, BGL will only do so in writing, and that will not mean that BGL will automatically waive any right related to any later default by you.
29. Governing law
The Contract is governed by English law and the parties each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Any variation of the Contract only has effect if it is in writing and signed by you and BGL (or our respective authorised representatives).