GLOBAL TERMS AND CONDITIONS
Supply of Contractor Services to Clients
ERSG Limited
a company incorporated in England and Wales under company number 6605364
and whose registered office is at 8th Floor, North Tower, 26 Elmfield Road, Bromley BR1 1WA (“ERSG”);
(A) These Terms constitute the entire agreement between ERSG and its Affiliates and its clients and their Affiliates in relation to the subject matter hereof and shall be understood as binding the Client’s Affiliates entering into a commercial agreement for the supply of temporary personnel under these Terms.
(B) The Client acknowledges that ERSG has entered into this Framework Agreement for the benefit of itself and any of the ERSG’s Affiliates, including but not limited to Affiliates in the European Union, the United Kingdom, Scandinavia (Norway, Sweden and Finland), region North America, as well as region Asia-Pacific. However, the Client acknowledges that ERSG may not have authority to bind any of it’s Affiliates. Therefore, each request for the supply of temporary personnel – which will include a reference to this Framework Agreement – must be duly executed by the Service Provider (ERSG or its Affiliate) and the respective Service Recipient (Client or its Affiliate).
(C) The Client undertakes and confirms that it has entered into this Framework Agreement on its own behalf and is duly authorised to bind itself and its Affiliates to the terms and conditions of this Framework Agreement and any such Affiliate shall comply with each and every term of this Framework Agreement including the Assignment Schedule as set out in Appendix 1. The Client and/or its Affiliates agree that ERSG and/or ERSG’s Affiliates are entitled to enforce each and every term of this Framework Agreement against the Client and/or its Affiliates.
(D) For the purpose of these Terms, the customer and its Affiliates shall be referred to collectively as the “Client”, irrespectively of which corporate entity is ordering the recruitment services from ERSG and ERSG Limited and its Affiliates shall be referred to collectively as “ERSG”, regardless of which ERSG entity received the request for temporary placement services from the Client’s ordering entity. For the avoidance of doubt, each Party whether ordering the services or providing the services shall be individually and soleley responsible for their rights and obligations under these Terms.
(E) ERSG carries on the business of sourcing and supplying independent Contractors to provide services to its customers. The Client is desirous of entering into a Framework Agreement with ERSG for the supply of Contractors to provide technical services.
(F) ERSG will Introduce Candidates and/or Contractors to the Client to provide Services to the Client, subject to these Terms.
1.1 In these Terms:
“Affiliate” means any legal entity directly or indirectly controlled by a Party’s parent or ultimate holding company. Reference to either Party in this agreement shall be understood to also refer to any Affiliate of said Party.
“Assignment” means the period during which Contractor renders the Services;
“Assignment Schedule” means the schedule as set out in Appendix 1 provided by ERSG to Client confirming the details relating to Assignment;
“Candidate” means the person or company introduced by ERSG to Client for an Engagement including, but not limited to, any officer, member or employee of Candidate, and members of ERSG’s own staff;
“Charges” means the charges as notified to the Client at the commencement of the Assignment and which may be varied by ERSG from time to time during the Assignment. The charges are comprised of ERSG’s commission fees for the Introduction of Contractors/Candidates, the Contractor’s fees for the Services and any business expenses as may have been agreed with the Client;
“Client Group” means Client, any corporate body of which Client is a subsidiary, any other subsidiary of such corporate body and any subsidiary of Client;
“Contractor” means the company who provides the Services;
“Data Controller” means (i) "data controller" in the Data Protection Act 1998 in respect of Processing undertaken on or before 24 May 2018; and (b) "controller" in accordance with the General Data Protection Regulation (EU) 2016/679 in respect of Processing undertaken on or after 25 May 2018;
“Data Protection Legislation” means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the Processing of personal data and privacy, including without limitation,(a) the Data Protection Act 1998; (b) (with effect from 25 May 2018) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the Processing of personal data and privacy resulting from the United Kingdom leaving the European Union;
“End User” means the company with whom Client has an agreement and who is the recipient of the Services;
“Engagement” means the engagement, employment or use of Candidate and/or Contractor by Client, by Client Group or by any third party to whom or to which Candidate and/or Contractor was introduced by Client (whether with or without ERSG’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; or through any other engagement directly or through a limited company of which Candidate is an officer or employee or through a limited liability partnership of which Candidate and/or Contractor is a member or employee; or indirectly through another employment business or company which holds itself out as such. “Engages” and “Engaged” will be construed accordingly;
“Introduced” means
a) Client’s interview of a Candidate in person or by telephone or by any other audio or visual means; or
b) the passing to Client of a CV or information about Candidate;
whichever is earlier. "Introduce(s)” and “Introduction” will be construed accordingly;
“Personal Data” means as set out in, and will be interpreted in accordance with Data Protection Legislation;
“Personal Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with these Terms or which relates to any Candidate and, where applicable, to any Representative;
“Process” means as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly;
“Remuneration” means basic salary, guaranteed and/or anticipated bonus and commission earnings, car allowance and any other benefit or allowance;
“Representative” means employee, officer or representative of Contractor, specified in Assignment Schedule who renders the Services on behalf of Contractor;
“Services” means the services to be performed by Representative on behalf of Contractor pursuant to these Terms, as described in Assignment Schedule;
“Terms” means these terms of business, any Annexes and will include any Assignment Schedule issued pursuant to these terms of business; and
2.1 These Terms are effective from date of issue to the Client and supersede all previous terms of business issued by ERSG.
2.2 These Terms will be deemed to be accepted by Client and to apply by virtue of (a) the passing of information about a Candidate to Client by ERSG or (b) an Introduction to Client of, or the Engagement by Client of, a Candidate or (c) Client’s interview or request to interview a Candidate or (d) the signature by Client on a timesheet relating to services provided by Contractor or (e) Client’s signature at the end of these Terms or (f) any other written, expressed acceptance of these Terms. For the avoidance of doubt, these Terms apply whether or not Candidate is Engaged by Client for the same type of work as that for which the Introduction was originally effected.
2.3 These Terms contain the entire agreement between the parties in relation to the subject matter hereof and, unless otherwise agreed in writing, these Terms prevail over any previous terms of business, agreement or any purchase conditions put forward by Client.
2.4 Client authorises ERSG to act on its behalf in seeking Candidates.
2.5 Where there is a conflict of provisions between the main body of these terms of business and Assignment Schedule, the main body of these terms of business will take precedence save where expressly provided for within the clauses herein or agreed as a variation set out within Assignment Schedule.
2.6 Headings contained in these Terms are for reference purposes only and will not affect the intended meanings of the clauses to which they relate.
2.7 Unless the context otherwise requires, references to the singular include the plural and feminine includes masculine and vice versa.
3. Client Obligations
3.1 Client agrees to, and where applicable will ensure End User will, be responsible for providing the working environment for Representative and any necessary resources, tools and facilities, save where and to the extent Client notifies ERSG in writing that such resources are to be provided by Contractor.
3.2 These Terms are personal to Client and will not be assigned by it without the prior written consent of ERSG.
3.3 Client undertakes to provide ERSG with details of any specific health and safety risks in relation to the Services and Assignment, together with details of any steps taken to prevent or control such risks.
3.4 Client shall ensure that Representative works in a safe environment in accordance with a safe system of work. Client agrees to indemnify and keep indemnified ERSG from and against all loss or liability suffered or incurred by ERSG as a result of any claim by Contractor and/or Representative arising out of any injury or damage to his/her person or property suffered in the course of performing the Services.
3.5 Client undertakes to notify ERSG immediately of its, or of Client Group’s, or of End User’s, intention to:
a) engage a Candidate Introduced by ERSG; or
b) extend Assignment of Representative or otherwise Engage directly or indirectly a Candidate/Representative Introduced and/or supplied via ERSG; or
c) engage a Candidate and/or Representative on a permanent, contract or temporary basis or otherwise (including through another recruitment agency, employment business or limited company).
3.6 Client warrants and undertakes that all information it provides to ERSG under these Terms is true and accurate.
3.7 Where it has been expressly agreed with the Client that ERSG provides PPE and tools to the Contractor for completing the Services, the responsibility for the upkeep, inspection and record-keeping of those PPE and tools under the applicable health and safety at work legislation shall remain with the Client.
4. ERSG’s Obligations
4.1 ERSG shall use reasonable endeavours to introduce Candidates to Client who meet Client’s stated requirements.
4.2 Where ERSG and Client have agreed that ERSG will supply Client with the services of a particular Candidate, ERSG will give Client an Assignment Schedule confirming the name of Contractor and Representative, the agreed pay rates/fees, duration of Assignment, description of the Services, notice periods and any other relevant details communicated and agreed between the parties.
4.3 ERSG shall use reasonable endeavours to ensure that Contractor and Representative co-operate with Client and complies with all Client’s reasonable and lawful instructions.
4.4 ERSG shall use reasonable endeavours to ensure that Contractor enters into an agreement which contains an obligation on Contractor and Representative to assign to ERSG (for onward assignment to Client) or directly to Client (as directed by Client to ERSG), Contractor’s and Representative’s intellectual property rights of whatever nature and, if capable of registration, whether registered or not, in all documents or other material and data or other information and processes provided or created by Contractor and Representative in the provision of the Services.
4.5 ERSG shall use reasonable endeavours to ensure that Contractor enters into an agreement which contains an obligation on Contractor and Representative to keep confidential all confidential information of Client obtained during Assignment. For the purposes of this clause 4.5, confidential information is confidential if it is clearly marked confidential or if Client states it is confidential clearly in writing to Representative.
5.1 Client agrees to pay the Charges as set out in Assignment Schedule.
5.2 Signature by Client (or by End User where applicable) of timesheets or other verification of hours or days worked is confirmation of the amount of time worked by Representative and of satisfaction with the Services provided. Failure to sign/authorise the timesheet does not absolve Client of its obligation to pay the Charges for the Services provided by Representative on behalf of Contractor.
5.3 If Client is unable to sign/authorise a timesheet (or other agreed method of verification of hours/days) produced for authentication by Representative because Client disputes the amount of time claimed, then Client will notify ERSG within 2 working days from the presentation to the Client of the claimed hours/days for verification and will co-operate fully and in a timely fashion with ERSG, including providing documentary evidence of the hours/days worked by Representative, to enable ERSG to establish what periods of time, if any, Representative worked.
5.4 Client agrees to pay ERSG all reasonable business expenses incurred by Contractor/Representative in the provision of the Services as agreed within Assignment Schedule.
5.5 VAT will be payable in addition to charges/fees, if applicable.
5.6 Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to ERSG under these Terms. Client also acknowledges and accepts that ERSG reserves the right to reverse any credit note(s) issued to the Client if such credit note(s) isn’t/aren’t processed within six months of issue date.
6.1 ERSG will raise invoices to the Client in the month following the month in which the Charges are incurred. Client agrees to pay such invoices within 14 days of the date of the invoice. If Client fails to meet this obligation, ERSG reserves the right to charge late payment interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts at a rate of 10% per annum above the base rate in force from time to time of the Bank of England from the due date until the date payment is received in cleared funds and to charge additional compensation and any applicable statutory recovery costs until such time that the debt is settled. This right is in addition to any other rights and remedies available under these Terms or applicable law. Nothing in this clause shall limit ERSG’s right to pursue legal remedies or seek specific performance, injunctive relief or any other appropriate remedy available to ERSG.
6.2 The Client agrees that the Charges as set out in the Assignment Schedule are net of any applicable tax. Should local law require any tax to be imposed against ERSG, the Client agrees that such tax will form part of the Charges payable to ERSG under these Terms.
6.3 All invoices will be deemed to be accepted in full by Client unless Client notifies ERSG in writing within 5 days of the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify ERSG that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment terms.
6.4 Client agrees to pay ERSG invoices in the currency in which they are billed. In the event that the Client is unable to make payments in the designated currency, the Client agrees to pay to ERSG any charges and fees, including any bank transfer fees, conversion fees, any associated fines and any other costs, that ERSG incurs as a result, as a debt owed to ERSG.
7.1 Client may instruct ERSG, in writing, to end the Services of Contractor immediately in the event of substantial non-performance or serious misconduct by Contractor, provided that Client provides detailed, written confirmation of the non-performance and/or misconduct. In such case, ERSG shall use reasonable endeavours to provide an alternative Contractor and/or Representative within a reasonable timeframe that in the reasonable opinion of ERSG is suitable to provide the Services.
7.2 ERSG may end any Assignment immediately by giving Client notice in writing if Client is in material breach of these Terms.
7.3 Either party may terminate an Assignment prior to the end of Assignment by giving not less than 4 weeks’ notice in writing, or such other period of notice as agreed and set out in the relevant Assignment Schedule.
7.4 When notice of termination of Assignment is served by Client, payment for each week of notice will be based on the specified hours/days agreed in Assignment Schedule or actual hours worked by Representative, whichever the greater. Client agrees to make payment in accordance with clauses 5 and 6 above irrespective of whether or not Contractor continues to provide the Services during this notice period.
7.5 These Terms may be terminated by either party by giving to the other immediate notice in the event that either ERSG or Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where ERSG has reasonable grounds to believe Client will not pay ERSG’s invoice within the payment terms agreed within clause 6.1.
7.6 ERSG may substitute Contractor and/or any Representative with another suitably qualified and similarly skilled Contractor and/or Representative with reasonable notice at its absolute discretion.
7.7 ERSG may, at its absolute discretion and at any time, terminate an Assignment upon immediate notice where in the opinion of ERSG, Contractor and/or Representative is no longer suitable to provide the Services.
7.8 Following termination (howsoever arising) of these Terms, the provisions contained within clauses 1, 2, 3.5, 5.4, 5.6, 6, 8, 9, 10, 10, 11, 12, and 13 will continue in full force and effect.
8. Engagement of Representatives by Client or Third Parties
8.1 Client agrees that when Client or Client Group or End User:
a) employs a Representative or
b) Engages a Representative, other than through ERSG,
either during Assignment or within the 12-month period following the end (howsoever arising) of the Assignment, Client agrees to notify ERSG of that Engagement and agrees to pay ERSG the Transfer Fee in accordance with clause 8.3 below, irrespective of the planned duration of the Engagement.
8.2 All Introductions are confidential. Where there has been an Introduction of a Candidate to Client which does not immediately result in the supply of the services of that Candidate by ERSG to Client, but which later leads to an Engagement of Candidate by Client or by Client Group or by End User (howsoever arising) within 6 months from the date of Introduction, Client agrees to notify ERSG of that Engagement and agrees to pay the Transfer Fee in accordance with clause 8.3 below.
8.3 The Transfer Fee will be calculated as 30% of the Representative’s agreed Remuneration (or annualised charge rate).
8.4 Client acknowledges and agrees that where it fails to notify ERSG of the actual Remuneration/charge rate it (or where applicable, Client Group or End User) intends to (directly or indirectly) pay Candidate/Representative, the Transfer Fee will amount to £30,000 or local currency equivalent.
8.5 For the avoidance of doubt, no refund of the Transfer Fee will be paid in the event that the Engagement subsequently terminates.
9.1 For the purposes of this clause 9 "Data Subject" means as set out in, and will be interpreted in accordance with Data Protection Legislation. For the avoidance of doubt, Data Subject includes Candidate and Representative.
9.2 The parties hereto acknowledge that ERSG is a Data Controller in respect of the Personal Data of Candidate/Representative and provides such Personal Data to Client in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.
9.3 The parties hereto acknowledge that Client is a Data Controller, but the parties hereto are not Joint Controllers (as defined within Data Protection Legislation) save where a specific agreement is made to that effect between the parties hereto.
9.4 The parties hereto agree that the Representative is not the Client's Data Processor (as defined within Data Protection Legislation) save where agreed otherwise within an Assignment Schedule and subject to additional terms and conditions.
9.5 The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, ERSG or by Candidate or Representative, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.
9.6 The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.
9.7 Client will:
a) comply with the instructions of the ERSG as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by ERSG, Client will set out their legal basis for the request of such data and accept that ERSG may refuse to share/transfer such Personal Data where, in the reasonable opinion of ERSG, it does not comply with its obligations in accordance with Data Protection Legislation;
b) not cause ERSG to breach any of their obligations under the Data Protection Legislation.
9.8 In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify ERSG and will provide ERSG with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information the ERSG reasonably requests relating to the Personal Data Breach.
9.9 In the event of a Personal Data Breach, Client will promptly (at its own expense) provide such information, assistance and cooperation and do such things as ERSG may request to:
a) investigate and defend any claim or regulatory investigation;
b) mitigate, remedy and/or rectify such breach; and
c) prevent future breaches.
and will provide ERSG with details in writing of all such steps taken.
9.10 Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of ERSG.
9.11 Client agrees it will only Process Personal Data of Candidate or of Representative for the agreed purpose of provision of Services pursuant to these Terms.
9.12 Client will provide evidence of compliance with this clause 9 upon request from ERSG.
10.1 ERSG shall use reasonable endeavours to ensure Representative has the required standard of skill, integrity and reliability; nevertheless, ERSG is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of Contractor or their Representative to perform the Services nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill of Contractor or of their Representative howsoever arising.
10.2 All Contractors are engaged under contracts for services. They are not the employees of ERSG.
10.3 Client will comply, and will procure that End User will comply, in all respects with all relevant statutes, by-laws and legal requirements including provision of adequate public liability insurance in respect of Representative where appropriate. Client agrees to allow and reasonably assist ERSG in complying with its legal obligations regarding the introduction of Candidate/s and supply of Services by Contractor/s.
10.4 ERSG is providing resourcing services comprising of sourcing, introduction of Candidates and payment of fees to Contractor in relation to Services performed by Representative and accordingly, ERSG does not accept any liability, howsoever arising, for the quality of services provided by Representative and Contractor, save for death or personal injury caused by ERSG’s direct negligence.
10.5 Save where required by law, the parties hereto are not liable for:
a) any loss of profits, loss of business, loss of revenue, depletion of goodwill, pure economic loss, loss of anticipated savings, damages, charges, expenses and/or similar losses; or
b) any special, indirect or consequential losses;
10.6 Save as required by law, the sole aggregate liability of ERSG to Client arising in connection with these Terms will be limited to £1,000,000.
11.1 Client agrees to indemnify and keep indemnified ERSG against any costs, claims or liabilities incurred directly or indirectly by ERSG arising out of or in connection with these Terms including (without limitation) as a result of:
a) any breach of these Terms by Client (including its employees, subcontractors and agents); and
b) any breach by Client, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity).
12.1 ERSG may assign or transfer any of its rights and/or obligations to any of its affiliates without the prior consent of the Client.
12.2 ERSG is not liable for any delay or failure in performance of its obligations to Client where this arises from matters outside its reasonable control.
12.3 Any failure by ERSG to enforce at any particular time any one or more of these Terms will not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.
12.4 If any provision, clause or part-clause of these Terms is held to be invalid, void, illegal or otherwise unenforceable by any judicial body, the remaining provisions of these Terms will remain in full force and effect to the extent permitted by law.
12.5 No provision of these Terms will be enforceable by any person who is not a party to it.
12.6 Without prejudice to clause 2.2, whereupon these Terms and/or Assignment Schedule(s) are executed by the signature of duly authorised representatives of the parties this forms a binding agreement and will supersede all previous agreements or representations whether written or oral including without limitation Client’s terms and conditions, purchase order or other Client documents with respect to the provision of services set out herein provided by ERSG. These Terms may not be modified or amended except in writing and signed by a duly authorised representative of ERSG.
13.1 Any notice required to be given under these Terms will be delivered by e-mail or recorded delivery letter to the party’s registered address specified in these Terms.
13.2 Notices in connection with these Terms will be deemed to have been given and served,
a) if sent by e-mail, at the time of despatch if despatched on a business day before 5.00 p.m. or in any other case at 10.00 a.m. on the next business day after the day of despatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant business day, the authorised recipient informs the sender that the e-mail message was received in an incomplete or illegible form; or
b) if sent by recorded delivery letter, 48 hours from the time of posting.
For the avoidance of doubt and for the purpose of this clause 13.2, a “business day” will mean any day excluding Saturday, Sunday and public holidays.
14.1 These Terms shall be construed in accordance with the laws of England and Wales and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of these Terms shall be subject to the exclusive jurisdiction of the courts of England and Wales.