In these Terms and Conditions of Business the following definitions apply:
"Consultant" - Rubicon Consulting (UK) Ltd, an employment business, its representatives and associates.
"Client" - Person, Company, subsidiary, associated Company or organisation utilising the Consultant's services.
"Contractor" - The person, Company or organisation introduced by the Consultant to the Client.
"Agreement" - The agreement between the Consultant and the Client, incorporating these terms and conditions and associated schedules of Services and charges.
"Introduction" - The provision of any information from the Consultant to the Client which identifies a Contractor, whether or not such Contractor was known previously to the Client.
"Engagement" - The engagement, employment, or utilisation whether on a permanent, temporary or contract basis by the Client of the Contractor either directly, via a third party or in any way other than through the Consultant.
"Services" - All or any part of the work or services to be performed by the Contractor.
"Supply" - The provision of Services to the Client by the Contractor.
"AWR" - The Agency Workers Regulations 2010
- This Agreement constitutes the contract between the Consultant and the Client and is deemed to be accepted by the Client by virtue of an Introduction.
- The Agreement prevails over any other terms or conditions put forward by the Client and form the basis of all business undertaken by the Consultant on behalf of the Client unless specifically varied by written agreement between the Consultant and the Client.
- The Client has identified a need for technical help and assistance in the performance and completion of works and wishes to utilise the Services of a Contractor to be introduced and supplied by the Consultant.
- The Client agrees to provide the Consultant with all relevant information about the Services required, including the experience, training and qualifications necessary, the timeframes involved, any known risks of health and safety and all necessary AWR compliance information.
- The Supply of Services shall be for the period detailed in the relevant schedule. The Contractor is engaged by the Consultant under a contract for services.
- It is the Client’s responsibility to specify its requirements and timeframes and to provide all information to the Contractor and to liaise with the Contractor to ensure it is providing the Services as required and to the Client’s satisfaction, such service reviews should be conducted prior to authorising worksheets or timesheets which will commit the Client to settle invoices. The Client shall, at its own expense, provide the Contractor with all documents or other materials and data, or other information necessary for the completion of the Services. The Contractor shall use its own equipment where appropriate.
- The Contractor shall freely and independently arrange its activities and may perform the Services at its place of business subject to prior agreement with the Client and may schedule the Services at its discretion subject to the terms set out in the schedules and agreement with the Client.
- The Client shall ensure that the Contractor is accorded sufficient access to any of the Client’s premises, information, data or personnel and use of any equipment, which is reasonably necessary for the completion of the Services. Whilst the Contractor is working at the Client’s premises, it should be provided with a suitable place of work and such materials in a good condition and sufficient for the purposes for which they are required and the Client should ensure that the Contractor abides by the rules and regulations of the Client’s site.
- The Client understands that the Contractor is providing specialist independent services and should not be integrated into the Client’s workforce, nor should the Client issue employer type instructions.
- The Consultant shall use its best endeavours to ensure that the Contractor is suitable to carry out the Services with reasonable skill and care and in this regard will make all reasonable enquiries of the Contractor concerning suitability and technical competence. The Consultant does not test the Contractors technical skills and it is for the Client to satisfy itself as to the Contractors overall capability to fulfil the Agreement. The Client should notify any complaints concerning the Contractors performance promptly to the Consultant. The Consultant will accept no responsibility for information relating to the Contractor which is outside its knowledge.
- The Consultant will charge the Client, and the Client agrees to pay the Consultant, for all work performed by the Contractor. All charge rates, including additional hourly rates and special rates for weekend and bank holidays, are set out in the relevant schedule. Fees are calculated by multiplying the relevant charge rate by the number of hours/days/weeks (as appropriate) worked by the Contractor in performing the Services. All charges payable under this Agreement are subject to VAT.
- The Contractor will submit timesheets and/or worksheets to the Client for authorisation either in writing or by way of online authorisation. It is the Clients responsibility to ensure that these are a true reflection of the time worked by the Contractor, and that it is satisfied with the quality of the work performed. Failure to authorise the time/worksheet(s), for any reason, does not absolve the Client of its obligation to pay the Consultants charges in respect of all Services supplied by the Contractor. An authorised representative of the Client must approve all expenses, before they are incurred, and provide confirmation of such approval in writing. The Client may reimburse the Contractors expenses directly. Should the Client prefer the Consultant to reimburse expenses to the Contractor, the Consultant will add 10% to the value of the expenses to cover processing charges. The Client shall retain copies of all expenses receipts submitted.
- An invoice for the work performed by the Contractor shall be presented by the Consultant to the Client for payment, and the Client warrants that it shall be paid within 14 days of the invoice being tendered, unless otherwise specified in the relevant schedule or unless a standing order is arranged. No fee rebates shall apply.
- In the event of late payment of an invoice, the Client shall pay to the Consultant statutory interest on the sum due, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended from time to time) together with the compensatory payment specified by section 5A of the aforesaid Act. The Client shall be liable to the Consultant and indemnify the Consultant fully in respect of any legal costs incurred by the Consultant as a result of failure by the Client to pay the invoice in accordance with clause 13. For the avoidance of doubt, the provisions of this clause are without prejudice to any other rights which the Consultant may possess (whether at common law or under statute) to recover interest or costs.
- The Consultant shall be responsible for making payment to the Contractor and in no circumstances shall the Client make a payment to the Contractor directly, except as specified in clause 12.
- The Client agrees to supply the Consultant with any required Purchase Order within 7 days of the last working day covered by the time/worksheet, where the Client fails to do so the Consultant is authorised to invoice the Client without an accompanying Purchase Order.
- Under no circumstances should the Client discuss with the Contractor the rates charged by the Consultant to the Client.
- Except as permitted by law, the Parties shall not disclose any Confidential Information relating to the other party without the other party’s prior written consent. Either party shall immediately notify the other party if it becomes aware of the possession, use of knowledge of any of the Confidential Information by any unauthorised person, whether during or after the term of Agreement and shall provide such assistance as is reasonable to deal with such an event.
- The Agreement may be terminated at any time by either party upon the provision of 28 days’ notice to the other party in writing, unless otherwise stated in the relevant schedule. Should the Client fail to pay any one invoice in accordance with Clause 13 then the Consultant shall have the right to terminate the Agreement forthwith and terminate all agreements in force between the Client and the Consultant forthwith and to claim all monies under all agreements in force between the Client and the Consultant, as rightfully due, including fees for work in progress unsupported by signed worksheets.
- The Consultant may terminate the Agreement forthwith should the Client: go into liquidation or a receiver, administrative receiver, administrator or someone of similar office be appointed to the Client or any part of its assets or undertakings; or default on its payment obligations under any other agreement in force between the Client and the Consultant; or fail to comply with the provisions and clauses of the Agreement; or if in the sole opinion of the Consultant the Client’s financial condition is such that it may not be able to meet the continuing obligations under the Agreement.
- The Client may terminate the Agreement forthwith if it provides satisfactory evidence to the Consultant, in writing, that either the Client, in its reasonable opinion, finds the Contractor to be negligent, inefficient, or technically unsuitable or the Contractor has committed an act of misconduct which, in the Client’s reasonable opinion makes it unacceptable for it to continue to use the Services.
- The Client shall notify the Consultant in writing if it wishes to terminate the Services of the Contractor in reliance upon Clause 21. The Client shall provide the Consultant with a clear written account of the problems and the Consultant shall endeavour to find a replacement. The provision of a replacement is in no way an acceptance by the Consultant that the work carried out by the Contractor was not carried out with reasonable skill and care.
- Should the Client terminate the Agreement or the Services of the Contractor other than under the clauses contained within the Agreement, the Client shall be liable to pay the agreed charge for the whole of the period as detailed in Schedule 1 below as if the Supply of Services had taken place.
- Should the Client or any third party to whom the Client has introduced the Contractor, Engage the Services of the Contractor other than through the Consultant within a period of 12 months following either the last supply of Services through the Consultant, or the Introduction, whichever is the later, then it shall be liable to pay the Consultant a Transfer Fee calculated as the average weekly charge rate for the Supply of Services during the period of the Supply multiplied by 12. Where no supply has taken place the Transfer fee is calculated as the anticipated weekly charge rate for the Supply of Services multiplied by 12.
- The Consultant may, at any time, assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights and obligations under the Agreement. The Client may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Agreement, without the Consultants prior written consent.
- Nothing in the Agreement shall serve to create any employer/employee relationship or principal/agent relationship between the Consultant and the Client or the Client and the Contractor.
- No rights shall accrue to any third party under the Agreement pursuant to The Contracts (Rights of Third Parties) Act 1999.
- The Consultant shall, subject to Clause 29 below, indemnify the Client against its direct losses, to the extent that such death, injury, loss or damage is attributable to its negligent acts or omissions in its provision of employment business services.
- The Consultant shall not have any liability to the Client under or in connection with the Agreement howsoever arising in respect of loss of profits or contracts or for special indirect or consequential loss or damage, or for any increased costs or expenses and its liability under Clause 28 shall be limited to a maximum if £250,000 per claim. These exclusions shall not apply to personal injury, including death caused by its negligence.
- No liability is accepted by the Consultant for any loss, expense, costs or delay arising from the negligent acts or omissions, dishonesty, misconduct or lack of skill of the Contractor and/or failure by the Contractor to complete the Services.
- The Client will comply with all relevant legal requirements, including the provision of adequate Public Liability insurance in respect of the Contractor. The Client shall indemnify the Consultant against any costs, claims, damages and expenses incurred by the Consultant as a result of any breach of the Agreement by the Client.
- The Client shall indemnify the Consultant against any costs, claims, losses, liabilities, damages or expenses connected with or arising from any claim, valid or invalid, made by any Contractor against the Consultant under part 3 of the AWR arising out of any breach or alleged breach of the AWR by the Client and/or any failure to provide AWR compliance information in accordance with clause 4.
- Neither party shall have any liability in respect of any delay in carrying out or failing to carry out any of its obligation under the Agreement caused by fire, strikes or other industrial action or dispute, Act of Government or any circumstance outside the reasonable control of the Parties.
- If any provision of the Agreement is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remained of the provisions hereof shall continue in full force and effect as if the Agreement had been executed with the valid provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the Parties shall immediately commerce good faith negotiations to remedy such invalidity.
- The Agreement shall be governed, construed and shall take effect in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English court.