MOBILE EMPLOYMENT LIMITED CLIENT AGREEMENT
PLEASE READ THESE TERMS CAREFULLY BEFORE REGISTERING WITH TEMP IN CARE
1.1. Notwithstanding the fact that you may have visited and/or accessed the Platform prior to agreeing to these terms, you may only register with Mobile Employment Limited t/a “Temp in Care” or engage Temporary Workers to undertake Assignments once you have agreed to these terms. Accordingly, with effect from the date on which you agree to them, these terms tell you (the Client) the terms on which you may register with Temp in Care, access our Platform or engage Temporary Workers to undertake Assignments (Platform, Temporary Worker and Assignment being defined below).
1.2. The Platform and associated services (described in more detail below) are provided by Mobile Employment Limited (the Employment Business) t/a “Temp in Care” which is a company incorporated and registered in England and Wales with company number 10377195 whose office is at 28 Barnard Close, Rubery, Birmingham, B45 9SZ. United Kingdom.
2.1. The definitions and rules of interpretation in this clause apply to this agreement.
Assignment: the provision of temporary services by a Temporary Worker to the Client.
AWR 2010: The Agency Workers Regulations 2010 (SI 2010/93).
Business Day: a day other than a Saturday, Sunday or public holiday when banks in London are open for business.
Client rating: shall have the meaning set out in clause 4.8.
Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).
Engage: the employment of a Temporary Worker or engagement directly or indirectly through any employment business other than through the Employment Business (whether for a definite or indefinite period) as a direct result of any Introduction or Assignment to the Client and the terms Engaged or Engagement shall be construed accordingly.
Extended Assignment: shall have the meaning set out in clause 5.2.
Group: in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.
Holding company: has the meaning given in clause 2.5.
Introduce: the provision to the Client of information by the Employment Business (including, for the avoidance of doubt, Public Information and/or Worker Information, in either case made available on the Platform) which identifies and/ or describes the Temporary Worker and Introduction and Introduced shall be construed accordingly.
Introduction Fee: shall have the meaning set out in clause 5.1.
Minimum Rate the minimum rate of pay per hour (before any deductions that the Employment Business is required to make by law and any deductions which the Temporary Worker may agree to from time to time) that the Temporary Worker will accept in respect of Assignments.
Other Qualifying Payments: any remuneration payable to the Temporary Worker (other than their basic hourly rate), which is not excluded by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium, commission or any bonus, incentive or rewards which are directly attributable to the amount or quality of work done by a Temporary Worker and are not linked to a financial participation scheme (as defined by the AWR 2010).
Platform: the internet-based platform and mobile application operated by the Employment Business pursuant to which Clients will provide details of potential Assignments and the Worker Information will be made available to Clients.
Public Information: information about a Temporary Worker which is visible on the Platform to Visitors.
Qualifying Period Rate of Pay: the rate of pay that will be paid to the Temporary Worker on completion of the Qualifying Period, if this rate is higher than the Rate of Pay. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour), subject to any deductions that the Employment Business is required to make by law and to any deductions that the Temporary Worker has specifically agreed can be made.
Qualifying Temporary Worker: any Temporary 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 the Client (whether by the Employment Business or any third party) for the Qualifying Period.
Qualifying Period: 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.
Rate of Pay: the rate of pay that will be paid to the Temporary Worker prior to completion of the Qualifying Period. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour), subject to any deductions that the Employment Business is required to make by law and to any deductions which the Temporary Worker has specifically agreed can be made.
Relevant Period: shall have 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 Temporary Worker as defined in regulation 6 of the AWR 2010.
Subsidiary: has the meaning given in clause 2.5.
Temporary Worker: a worker Introduced and/or supplied (as the context requires) by the Employment Business to the Client, via the Platform, to provide services to the Client.
Temporary Worker Fees: shall have the meaning set out in clause 7.
Unsatisfactory Temporary Worker: has the meaning set out in clause 6.2.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Visitors: any person or entity (including a prospective Client) who uses, accesses or otherwise visits the Platform without having registered with the Employment Business or agreed to terms similar to or equivalent to these terms.
Worker Information means (i) the Temporary Worker’s identity, sex and location; (ii) the Minimum Rate, (iii) details of the Temporary Worker’s experience, training, qualifications, DBS, skills and authorisations; (iv) the Worker Video/ Audio statement (if any) and (v) the Worker Rating (if any).
Worker Video/ Audio means video or audio-based content provided by the Temporary Worker in connection with their application to become a Temporary Worker.
Worker Rating shall have the meaning given to it in clause 4.9 below.
2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2.3. The Schedules 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 Schedules.
2.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.5. 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.
2.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.7. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
2.8. A reference to writing or written includes fax but not e-mail except to the extent expressly indicated otherwise in this agreement.
2.9. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.10. A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
2.11. References to clauses are to the clauses of this agreement.
2.12. Any words following the terms including, include, in particular, for example 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.
3. Acting as an Employment Business
3.1. These terms set out the agreement between the Employment Business and the Client for the supply of Temporary Workers by the Employment Business to the Client. For the purposes of the Conduct Regulations 2003, the Employment Business acts as an employment business in relation to the Introduction and supply of Temporary Workers pursuant to this agreement.
4.1. The Client acknowledges and agrees that whilst it may have provided details of potential Assignments, and searched for Temporary Workers, via the Platform before registering with the Employment Business or otherwise agreeing to these terms, it shall only be entitled to engage a Temporary Worker for an Assignment once it has registered with the Employment Business and agreed to these terms.
4.2. Where a Client has a potential Assignment, it shall provide, via the Platform, details of:
4.2.1. its identity and if applicable the nature of its business
4.2.2. the date on which the Client requires the Temporary Worker to commence work and the duration, or likely duration, of the work;
4.2.3. the position which the Client seeks to fill, including the type of work the Temporary Worker in that position would be required to do, the location at which, and the hours during which, the Temporary Worker would be required to work, and any risk to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
4.2.4. the experience, training, qualifications, skills and any authorisation which the Client considers are necessary, or which are required by law, or by any professional body, for the Temporary Worker to possess in order to work in the position;
4.2.5. the Rate of Pay and any expenses payable by or to the Temporary Worker.
4.3. The Client warrants that the information referred to in clause 4.2 shall be accurate and complete (including, for the avoidance of doubt, in circumstances where the information was provided before the Client registered with the Employment Business or otherwise agreed to these terms).
4.4. Based on the information provided by the Client pursuant to clause 4.2, and the Worker Information, the Platform will allow one or more Temporary Workers to apply for the potential Assignment and/ or the client to shortlist one or more Temporary Workers.
4.5. Acceptance takes place only when both the client and the worker have accepted the assignment.
4.6. The Client shall be entitled to offer the potential Assignment to one Temporary Worker. Acceptance criteria follows clause 4.5.
4.7. The Client acknowledges that:
4.7.1. it shall be a matter solely for it to determine to which, if any, of the Temporary Workers who are notified to it pursuant to clause 4.4, to offer a potential Assignment;
4.7.2. where it has provided details of a potential Assignment prior to registering with the Employment Business and/or agreeing to these terms, the Assignment will not be finalised or confirmed until the Client has registered and agreed to these Terms.
4.8. At the end of the Assignment the Client shall be required to provide a rating of the Temporary Worker’s performance and conduct in connection with such Assignment. Such rating shall be aggregated with other such ratings of the Temporary Worker to provide an average rating (the Worker Rating). The Worker Rating will form part of the Worker Information and will appear on the Platform accordingly (but will not form part of the Public Information).
4.9. The Client agrees that any ratings provided by it shall to the extent possible accurately and fairly reflect the standard of the Temporary Worker’s performance and conduct in relation to the Assignment in question.
4.10. The Client acknowledges that the Employment Business may make contact, via email, from time to time to discuss the justification for such ratings (in particular ratings that are inconsistent with other ratings making up the Worker Rating for a particular Temporary Worker) and agrees to co-operate with the Employment Business in that regard.
4.11. The Client acknowledges that at the end of the Assignment the Temporary Worker shall be required to provide a rating of the Client. Such rating shall be aggregated with other such ratings of the Client to provide an average rating in respect of it (the Client Rating). The Client Rating will be displayed on the Platform and will be used by the Employment Business for the purposes of internal monitoring of Clients or such other purposes as the Employment Business determines.
4.12. The Employment Business will be able to delete or remove ratings based on their discretion and in light of evidence of unfair ratings.
5. Temporary to permanent
5.1. If, following the Introduction or supply of a Temporary Worker by the Employment Business to the Client within the Relevant Period, the Client Engages the Temporary Worker, the Client will pay the Employment Business a fixed fee of £1000 plus VAT (the Introduction Fee). A 50% discount to the introduction fee is applied if the Client has used 40 Hours or more supply of the Temporary Worker via the Employment Business.
5.2. The Introduction Fee will not be payable if the Client gives written notice of election to the Employment Business that it intends to continue the hire of the Temporary Worker through the Employment Business for a further period of 12 weeks (Extended Assignment), or through the Qualifying period, before it Engages the Temporary Worker other than through the Employment Business.
5.3. Where the Temporary Worker has previously undertaken an Assignment for the Client:
5.3.1. the Temporary Worker Fees payable by the Client during the Extended Assignment shall be those applicable immediately before the Employment Business received the Client's notice of election under clause 5.2; and
5.3.2. the hours of work per week during the Extended Assignment shall be deemed to be the greater of
(i) the average number of hours of work undertaken during the Temporary Worker’s most recent Assignment for the Client and
(ii) the number of hours per week actually worked by the Temporary Worker during the Extended Assignment
5.4. Where there has been an Introduction of the Temporary Worker but the Temporary Worker has not undertaken any Assignments, the Temporary Worker Fees payable by the Client during the Extended Assignment shall be calculated by reference to:
5.4.1. the Minimum Rate; and
5.4.2. such hours per week as the Temporary Worker actually works during the Extended Assignment subject to a deemed minimum of 10 hours per week.
5.5. At the end of the Extended Assignment, the Client may Engage the Temporary Worker without paying the Introduction Fee.
5.6. If the Client chooses an Extended Assignment, but engages the Temporary Worker before the end of the Extended Assignment, the Introduction Fee may be charged by the Employment Business.
6. Temporary workers
6.1. The Employment Business shall notify, via email as soon as evidence has been validated by the Employment Business, the Client if it believes that any Temporary Worker is unsuitable for the Assignment or becomes aware of any material matter that indicates that a Temporary Worker may be unsuitable for the Assignment or is inconsistent with any information previously provided including where a Temporary Worker ceases to have the appropriate skills, approvals, DBS checks or a right to work in the United Kingdom or where this agreement may be or has been breached.
6.2. If the Client decides that a Temporary Worker is unsuitable to perform the Assignment (an Unsatisfactory Temporary Worker), then the Client shall notify the Employment Business in writing, via email giving a minimum of one working day notice, or telephone call, to the Employment Business giving a minimum of two hours notice, of that fact giving the grounds for its dissatisfaction with the Unsatisfactory Temporary Worker. The Temporary Worker will have a right to access the grounds for its dissatisfaction provided by the Client to the Employment Business.
6.3. If the Client has notified the Employment Business of an Unsatisfactory Temporary Worker in accordance with clause 6.2, the Assignment shall terminate at the end of the day on which the Employment Business was notified, and Temporary Worker Fees shall be payable up to the date of such termination.
6.4. If the Client decides that a Temporary Worker has breached the Client’s safeguarding policies, then the Client shall notify the Employment Business in writing, via email immediately, or telephone call, to the Employment Business immediately, of that fact giving the grounds for its dissatisfaction with the Unsatisfactory Temporary Worker. The Temporary Worker will have a right to access the grounds for its dismissal provided by the Client to the Employment Business. The Client must provide evidence to the Employment Business to prove breach in safeguarding policies by the Temporary Worker.
6.5. If the Client has notified the Employment Business of a Temporary Worker in accordance with clause 6.4, the Assignment shall terminate immediately on which the Employment Business was notified, and Temporary Worker Fees shall be payable up to the date and time of such termination.
6.6. The Client may, and the Client agrees that the Employment Business or the Temporary Worker may, terminate an Assignment at any time without liability giving a minimum of 7 days notice via email to the Employment Business with a reason for cessation of Assignment (but without prejudice to, in the case of the Client, the obligation to pay Temporary Worker Fees accrued up to the date of such termination).
7. Temporary Worker Fees
7.1. The Client will pay Temporary Worker Fees to the Employment Business in respect of Temporary Workers. The Temporary Worker Fees shall consist of:
7.1.1. the appropriate basic pay in respect of the Temporary Worker, being:
(a) either the applicable Rate of Pay,
(b) or, if the Temporary Worker is a Qualifying Temporary Worker, the Qualifying Period Rate of Pay together with any Other Qualifying Payments;
7.1.2. the Employment Business's commission, being an amount equal to 80% of the basic pay payable to the Temporary Worker pursuant to clause 7.1.1. This will cover:
i) holiday pay, being –
(a) either an amount equal to 12.07% of the Rate of Pay,
(b) or, if the Temporary Worker is a Qualifying Temporary Worker, an amount equal to 12.07%, or such greater percentage as may be required pursuant to the Relevant Terms and Conditions, of the Qualifying Period Rate of Pay together with any Other Qualifying Payments;
ii) the appropriate amount of employer's National Insurance contributions;
iii) the appropriate amount of employer's Pension contributions;
iv) an accrual for Sick and Maternity allowance;
7.1.3. the discount, being Client weekly hours used based discount percentage on commission per table below. Discount is applied by Client on future fees payable.
0-20 Weekly Hours Used 0 Discount Percentage on commission
21-50 Weekly Hours Used 5 Discount Percentage on commission
51-80 Weekly Hours Used 10 Discount Percentage on commission
81+ Weekly Hours Used 15 Discount Percentage on commission
7.2. The following conditions apply to the Temporary Worker Fees:
7.2.1. they are calculated according to the number of hours worked by the Temporary Worker (to the nearest quarter hour);
7.2.2. the number of hours worked shall, subject to clauses 7.3- 7.6, and clause 7.8. below, be determined by reference to the time sheet submitted by the Temporary Worker save that the minimum period of any Assignment shall be four hours and the relevant Temporary Worker fees will be calculated accordingly;
7.2.3. for the avoidance of doubt, the Client shall not be required to pay Temporary Worker Fees for any absences (for whatever reason) of a Temporary Worker;
7.3. At the end of each day, or at earliest opportunity, when a Temporary Workers has undertaken an Assignment on behalf of the Client, the Temporary Worker shall submit to the Employment Business a completed time sheet indicating the number of hours worked. A copy of the time sheet shall be supplied to the Client via the Platform to enable it to review and verify the details provided by the Temporary Worker.
7.4. If the Client disputes the details provided in a time sheet by the Temporary Worker the Client shall inform and provide evidence, via email, to the Employment Business by the end of the first Tuesday following the week, week deemed to start at 12am Monday and end 12am following Monday, in which the Temporary Worker submitted the time sheet.
7.5. Provided the Client has complied with the deadline referred to in clause 7.4, then:
7.5.1. the details referred to in clause 7.4 shall be provided to the Temporary Worker and the Temporary Worker shall have the opportunity to respond accordingly by the end of the first Tuesday following the week, week deemed to start at 12am Monday and end 12am following Monday, in which the Client submitted the dispute evidence to the Employment Business.; and
7.5.2. pending resolution of any such dispute, the Employment Business shall pay the Temporary Worker on the basis of the hours which the Client agrees that the Temporary Worker has worked.
7.5.3. In the case where there is no resolution of dispute, the Assignment will be terminated and the Client agrees to pay the Employment Business on the basis of the Temporary Worker timesheet submitted to termination date.
7.6. If the Client does not comply with the deadline referred to in clause 7.4, the Client shall be deemed to agree with the hours which the Temporary Worker has specified in the relevant time sheet.
7.7. The Client shall in any event co-operate fully and in a timely fashion with the Employment Business to enable the Employment Business to establish what hours, if any, were worked by the Temporary Worker when requested to do so by the Employment Business.
7.8. The Client agrees that it shall not dispute the number of hours in a Temporary Worker’s time sheet on the basis that it is dissatisfied with the work performed by the Temporary Worker. In cases of unsuitable or unsatisfactory work the provisions of clause 6.2 shall apply.
7.9. Where applicable, the Employment Business shall charge VAT to the Client, at the prevailing rate, after the Employment Business has provided the Client with a VAT invoice.
7.10. Payments due from the Client (pursuant to this clause or otherwise) shall be paid by BACS transfer and/ or faster payment and/or direct debit. The Client agrees to provide the Employment Business with all information which it reasonably requires in order to set up the direct debit facility prior to the first Assignment undertaken pursuant to this agreement.
7.11. If (notwithstanding clause 7.10) the Client fails to make any payment due to the Employment Business under this agreement by the due date for payment, then, the Client shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.12. For the avoidance of doubt, the Client shall not be entitled to any refund of or rebate in respect of the Temporary Worker Fees unless the Employment Business determines otherwise in its absolute discretion.
8.1. This agreement shall commence on the date on which the Client confirms their agreement to it via the Platform and shall continue, unless terminated earlier in accordance with clause 9, until either party gives to the other party one week’s written notice to terminate, expiring on or after the first anniversary of the such date of commencement.
9. Default and early termination
9.1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
9.1.1. 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 14 days of receipt of notice in writing to do so;
9.1.2. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
9.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
9.1.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that party with one or more other companies or the solvent reconstruction of that party;
9.1.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that party with one or more other companies or the solvent reconstruction of that party;
9.1.6. the other party (being an individual) is the subject of a bankruptcy petition order;
9.1.7. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.1.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
9.1.9. a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
9.1.10. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the that party;
9.1.11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1.3 to clause 9.1.10 (inclusive);
9.1.12. the other party suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
9.1.13. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2. Without affecting any other right or remedy available to it, the Employment Business may also terminate this agreement with immediate effect by giving written notice to the Client if it considers, in its absolute discretion, that the Client’s Client Rating is such as to warrant such termination.
10. Effect of termination
10.1. 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.
10.2. 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 the agreement which existed at or before the date of termination.
10.3. On termination of this agreement, any Assignment that has not already been terminated shall also terminate with immediate effect.
11.1. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12. Compliance with AWR
12.1. The Client shall at all times comply with its obligations under the AWR 2010, including but not limited to providing any Temporary 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.
12.2. Subject to clause 12.3 below, the Employment Business shall use reasonable endeavours to comply with its obligations under the AWR 2010, including but not limited to in relation to providing any Qualifying Temporary Worker with the Relevant Terms and Conditions in accordance with regulation 5.
12.3. The Client shall provide the Employment Business in a timely manner with such information and other assistance as it requires to enable it to comply with its obligations pursuant to clause 12.2 above (including, but not limited to, providing full details of the Relevant Terms and Conditions where applicable).
12.4. In the event that either party receives an allegation by any Temporary Worker that there has been a breach of the AWR 2010 in relation to the supply of that person to the Client by the Employment Business (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.
12.5. The Client shall protect, indemnify, defend and hold harmless the Employment Business and any successor to the Employment Business (and, to the extent required by the Employment Business or any successor from time to time, its officers, agents, and employees) from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities, and costs whatsoever (including legal fees on a full indemnity basis) arising out of or in connection with:
12.6. any failure by the Client to comply with its obligations under the AWR 2010 and/or under clause 12.3;
12.7. any act, omission or default on the part of the Client, or any employee, officer or agent of the Client, in respect of a Temporary Worker, including where such acts, omissions or defaults occur during the course of an Assignment or in respect of an Assignment or a potential Assignment; and
12.8. any act, omission or default of a Temporary Worker, whether wilful, reckless, fraudulent, negligent, dishonest or otherwise, during the course of an Assignment or otherwise in connection with or arising out of an Assignment.
13.1. Each party undertakes that it shall not at any time 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 13.2.
13.2. Each party may disclose the other party's confidential information:
13.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of 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 13; and
13.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
14.1. Each party warrants that it has full capacity and authority to enter into and perform this agreement.
15.1. The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from the end of, the term of this agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under this agreement at any time during the term of this agreement.
16. Assignment and other dealings
16.1. 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).
17. No partnership or agency
17.1. 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Limitation of Liability
18.1. The Employment Business does not guarantee that the Platform, or any content on it, will always be available or be uninterrupted. Access to the Platform is permitted on a temporary basis. The Employment Business may suspend, withdraw, discontinue or change all or any part of the Platform without notice. To the extent permitted by law the Employment Business will not be liable to the Client if for any reason the Platform is unavailable at any time or for any period.
18.2. To the extent permitted by law the Employment Business will not be liable to the Client if for any reason the Temporary Worker is unavailable for an assignment at any time or for any period.
18.3. The Client acknowledges that the Client Rating is derived from ratings provided by Temporary Workers and that the Employment Business has no control whatsoever over them. To the extent permitted by law the Employment Business shall therefore have no liability to the Client for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising out of or in connection with the Client’s Client Rating.
18.4. The Client acknowledges that the Worker Information is (other than the Worker Rating) provided by Temporary Workers. Other than in respect of such information which the Employment Business is required to provide pursuant to Regulation 18 of Conduct Regulations 2003, the Employment Business makes no representations, warranties or guarantees, whether express or implied, that the content on the Platform is accurate, complete or up-to-date.
18.5. Subject to clause 18.7 the Employment Business shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of data or any indirect or consequential loss arising under or in connection with the performance of its obligations under this agreement (including in relation to any Assignments).
18.6. Temporary Workers are deemed to be under the supervision and direction of the Client for the duration of the Assignment and the Client agrees to be responsible for all acts, errors or omissions of the Temporary Worker, whether wilful, negligent or otherwise as though the Temporary Worker was employed directly by the Client. Accordingly, to the extent permitted by law the Employment Business shall under no circumstances whatever be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with the Introduction or supply of a Temporary Worker to the Client and, in particular, but without limitation, any such loss, injury, damage, expense or delay arising from or in any way connected with:
18.6.1. any failure of the Temporary Worker to meet the requirements of the Client for all or any of the purposes for which he is required by the Client (subject to clauses 6.2 and 6.3);
18.6.2. any act or omission of a Temporary Worker during the course of an Assignment or otherwise in connection with or arising out of an Assignment, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; and
18.6.3. any loss, injury, damage, expense or delay incurred or suffered by a Temporary Worker during the course of an Assignment or otherwise in connection with or arising out of an Assignment.
18.7. To the extent permitted by law the Employment Business's total liability to the Client in respect of all other losses arising under or in connection with this agreement (including in relation to any Assignments), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed two times the total fees paid by the Client in relation to the Assignment to which the liability relates.
18.8. Nothing in this Agreement excludes or limits the liability of the Employment Business for death or personal injury arising from its negligence, or its fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
19. Entire agreement
19.1. This agreement 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.
19.2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.4. Nothing in this clause shall limit or exclude any liability for fraud.
20. Third party rights
20.1. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
21.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
21.1.1. 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
21.1.2. sent via email to the Employment Business with a minimum of 1 week notice, week starts 12am Monday and ends at 12am following Monday.
21.2. Any notice or communication shall be deemed to have been received:
21.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
21.2.2. 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 at the time recorded by the delivery service.
21.2.3. if send by email, at 12.00 am after 7 days of email sent.
21.3. 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. For the purposes of this clause, "writing" shall not include e- mail.
22. Governing law
22.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
23.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
24. Force majeure
24.1. 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. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
25.1. 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.
25.2. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.