Terms & Conditions
TERMS OF BUSINESS – SUPPLY OF STAFF DEFINITIONS
In these Terms of Business (“Terms”), the following definitions apply:
- “Agency” means Essential ABA Childcare;
- “Applicant” means a either a self-employed worker, Temporary Worker, or permanent employee Introduced or supplied to the Client by the Agency;
- “Appointment” means the engagement, re-engagement, employment or use of the Applicant by the Client (or any third party to whom the Applicant has been introduced by the Client) within 12 months of an Introduction or last engagement, whichever is the closer, on any basis whatsoever and whether directly or indirectly. Appoint, Appoints and Appointed shall be construed accordingly;
- “Charges” means the charges of the Agency for the supply of the Applicant;
- “Client” means a person to which the Applicant is Introduced or supplied by the Agency;
- “Introduction” means (i) the provision by the Agency to the Client of any information which expressly or impliedly identifies an Applicant with a view to arranging an Appointment (ii) the arrangement of an interview or meeting between the Client and an Applicant, whether in person or by telephone or web-conference. Introduce, Introduces and Introduced shall be construed accordingly;
- “Placement” means the position in which an Applicant shall provide Services to the Client;
- “Placement Schedule” means the document confirming details of the Placement which is issued to the Client by the Agency;
- “Remuneration” means (i) the gross annual remuneration payable to the Applicant by the Client including, without limitation, basic salary, guaranteed and estimated bonuses and commission, allowances and all other taxable and non-taxable emoluments and includes any increases;
- “Services” means the work to be carried out by the Applicant;
- Unless the context requires otherwise, references to the singular include the plural.
- A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).
- Any phrase introduced by the words including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those works.
- A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted.
- The headings in these Terms are for convenience only and do not affect their interpretation.
These Terms of Business and, where applicable, the Placement Schedule constitute the contract (“Terms”) between the Agency and the Client for the supply of an Applicant to the Client and are effective from the Introduction of an Applicant by the Agency.
The Agency shall use reasonable endeavors to Introduce to the Client, Applicants which the Agency considers suitable to work with children with disabilities and within a home and family environment.
These Terms contain the entire agreement between the parties and shall prevail over any alternative terms which are proposed by the Client.
The Client shall not rely on any statement, promise or representation made or given by or on behalf of the Agency which is not set out in these Terms.
No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Agency and the Client and are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.
The Client shall provide to the Agency all such information regarding the Placement as is reasonably required to successfully fill the Placement.
Before the Agency can schedule any interviews with prospective Applicants, the Client must provide to the Agency a minimum of two verification documents. One of which must either be copy of their passport or driver’s licence as proof of identification and secondly a utility bill or bank statement as proof of address. Interviews can be done in person, over the phone or via Skype as the Client may decide.
The Client will assist the Agency in complying with the Agency’s duties under any regulation or law by supplying any relevant information about the Placement requested by the Agency and the Client will not do anything to cause the Agency to be in breach of its obligations under any laws.
The Client shall advise the Agency of any special health and safety matters about which the Agency is required to inform the Applicant and about any requirements imposed by law or by any professional body, which must be satisfied if the Applicant is to fill the Placement. The Client will also comply in all respects with all statutory provisions as are in force from time to time including, without limitation, the Health and Safety at Work Act 1974, the Management of Health and Safety at Work Regulations 1999 and all other relevant by-laws, codes of practice and legal requirements.
Where the Agency supplies an Applicant to the Client who will be required to drive a vehicle during the course of their Placement, the Client must check the Applicant’s driving licence and permits to ensure that the Client is satisfied that the Applicant is qualified to drive the relevant vehicle. The Client shall be entirely responsible for the maintenance and safety of any vehicle to be driven by the Applicant and shall ensure that the Applicant is covered by comprehensive vehicle insurance at all times.
The Client shall not instruct any Applicant to carry out any duties which are outside the scope of the agreed Placement without the consent of the Agency.
The Agency shall not be liable for any losses suffered or incurred by the Client as a result of the Client providing any Client property to the Applicant.
The Agency does not employ the Applicants. The Client is either the employer or engager of the Applicant and all PAYE and National Insurance contributions together with any other statutory rights that the Applicant is entitled to are the responsibility of the Client or, if self-employer the Applicants’ own responsibility.
The Client shall be responsible to make all payments to the Applicant and shall indemnify the Agency for any financial claims made by the Applicant to the Agency including but not limited to any travel before or after the engagement.
The Client agrees not to approach the Applicant, to accept/entice or engage any form of private engagement for any form of service or category of work between the Client or any other individual or entity associated with the Client while the Applicant is representing the Agency or thereafter for a period of 5 years. Should the Client breach this obligation, the Client shall remain liable to pay the Charges under this Agreement regardless of whether or not this Agreement was officially terminated.
SUITABILITY OF APPLICANTS
The Agency will make reasonable checks regarding the Applicant’s references, qualifications, visa (including a DBS) however the Agency cannot guarantee the competency or accuracy of these checks and shall not be held liable in any respect.
Whilst the Agency uses reasonable endeavours to check an Applicant’s background, sole responsibility for determining the suitability of an Applicant remains with the Client. The Agency will not be liable for any special, indirect or consequential loss or damage or any other issues arising from engagement of an Applicant by a Client.
The Client shall pay the Charges as agreed between the Client and the Agency and confirmed in the Placement Schedule.
The Agency’ fees are fixed at 20% of the Applicant’s first year salary plus VAT for each Applicant, or as may be agreed between the Client and Agency from time to time.
The Agency shall issue an invoice to the Client for the Charges (and for temporary Placements on a weekly basis) and such invoice shall be payable within 7 days by electronic funds transfer. VAT shall be charged at the applicable rate on all charges and fees invoiced under these Terms.
There are no refunds or rebates payable in respect of the Charges and the Client shall pay the Charges without deduction or set off.
If an invoice remains unpaid after 7 days from the date of invoice, the Agency may: charge late payment compensation and interest on such invoiced amounts at the rate of 4% per annum above the base rate of the Bank of England from the due date until the date of payment; and refer the collection of such payment to a debt collection agency or legal representatives and, if so referred, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by the Agency in recovering payment from the Client.
REPLACEMENTS OR CANCELLATIONS
Where a permanent Applicant does not remain in the Placement for at least 12 weeks, as long as the Client has paid the Charges within 7 days from receipt of invoice, the Agency undertakes to use its best endeavours to replace the Applicant at no additional charge to the Client, within a 4 week period, from date of notification.
The Agency will not provide a replacement where the Applicant has been treated unreasonably by the Client or where the Client or the Client’s family have not been honest about the duties required for the Placement, and the Applicant is required to do duties that were not agreed at interview or are stated in any contract made between the Client and Applicant.
For the avoidance of doubt any Charges paid under this Agreement are not refundable regardless of the replacement or cancellation.
If the Agency and the Client have agreed a trial for the Placement, and the engagement is cancelled after a trial has been arranged, for whatever reason, the Client will be charged a sum in consideration of administration costs incurred by the Agency. If the Client finds a suitable Applicant through alternative means after the Client has had a trial with the Applicant, the Client shall be liable to pay to the Agency a fee equivalent to one week of the Salary.
If after agreeing to hire an Applicant, following a trial period, where the Agency has already submitted their Invoice and relevant paperwork, the Client changes their mind about employing the Applicant, the Agency will cancel the original invoice and replace it with an administration invoice equivalent to 1 week’s gross salary.
The Client shall pay a Transfer Fee (“Transfer Fee”) if the Client Appoints as a permanent employee a Temporary Worker Introduced by the Agency (whether or not the Temporary Worker is Appointed by the Client to work at the same location as the original Placement) or introduces the Temporary Worker to a third party and such introduction results in an Appointment of the Temporary Worker by the third party.
The Transfer Fee shall be a sum equal to 25% of the annual Remuneration for the Appointment, subject to a minimum fee of £2,000. If the actual Remuneration is not known to the Agency, the Transfer Fee shall be 300 times the hourly charge rate at which the Temporary Worker was last supplied to the Client by the Agency or which the Agency reasonably considers to be the market rate for the role in which the Temporary Worker has been Appointed.
No refund of the Transfer Fee will be due if the Appointment subsequently terminates.
If the Client Appoints a Temporary Worker, the Client shall be entirely responsible for carrying out all necessary checks to ensure that they are satisfied with the suitability of the Temporary Worker including, without limitation, reference checks, verification of the Temporary Worker’s qualifications and ensuring that the Temporary Worker has the right to work in the UK or such other jurisdiction in which the Temporary Worker is Appointed.
CONFIDENTIALITY AND DATA PROTECTION
All information relating to an Applicant is confidential and provided solely for the purpose of fulfilling a Placement. Such information must not be used for any other purpose nor divulged to any third party and the Client shall comply with the Data Protection Act 2018 when receiving and processing such data.
Save to the extent that the Agency is required to disclose such information to the Applicant, the Agency shall keep confidential any information provided by the Client.
The Client shall be responsible for the supervision, direction and control of the Applicant and shall be responsible for any acts, errors or omissions of the Applicant. The Client shall not, nor shall it permit any other person to, supervise, direct or control an Applicant as to the manner in which they provide the Services.
The Agency does not exercise supervision, direction or control over an Applicant at any time and shall therefore not be liable for the acts or omissions of any Applicant.
The Agency shall not be liable to the Client whatsoever, whether in contract, tort (including negligence), breach of statutory duty or otherwise for failing to supply an Applicant, for terminating a Placement, for any defect or deficiency in the Services, for any claim for loss of profit or business, or for any indirect or consequential loss arising out of or in connection with the provision of Services to the Client pursuant to these Terms.
Subject to clause 12.7, the aggregate liability of the Agency to the Client in respect of any claim or series of claims arising out of or in connection with these Terms shall be limited to 10% of the Charges paid by the Client in relation to the relevant Applicant in the three month period immediately prior to such claim arising.
The Agency does not exclude liability for death or personal injury arising from its own negligence or for any other claim which may not be limited or excluded by law.
Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law. Any claim which the Client may bring against the Agency in relation to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.
The Client shall indemnify and keep indemnified the Agency against all losses, damages or claims suffered or incurred by the Agency as a result of any breach of contract, negligence (or any other tortious act) or breach of statutory duty by the Client.
The Client shall indemnify and keep indemnified the Agency against any demand or assessment for PAYE income tax or National Insurance contributions (including any penalties) suffered or incurred by the Agency where the Client has breached these terms or the law.
If any part of these Terms is determined to be unenforceable to any extent, such part shall, to that extent, be severed from these Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
The Agency and the Client do not intend these Terms to be enforceable by any third party.
These Terms shall be interpreted in accordance with English law. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation