TERMS OF BUSINESS FOR PROVIDERS WITH GIG APP LIMITED
1. DEFINITIONS AND INTERPRETATION
In these Terms the following definitions apply:
“Agency Worker” means the individual who is Introduced by the Employment Business to provide services to the Provider. They may otherwise be referred to as “Seekers” or “Gig Seekers”
“Assignment” means assignment services to be performed by the Agency Worker for the Provider for a period of time during which the Agency Worker is supplied by the Employment Business to work temporarily for and under the supervision and direction of the Provider. Assignments may be referred to on the software through other terms such as; job, shift or gig.
“Assignment Posting” means written confirmation of the assignment details agreed with the Provider prior to commencement of each Assignment and provided to the Provider via. the “Job Posting” section on the software;
“AWR” means the Agency Workers Regulations 2010 and/ or the Agency Workers (Northern Ireland) Regulations 2011;
“AWR Claim” means any complaint or claim to a tribunal or court made by or on behalf of the Agency Worker against the Provider and/or the Employment Business for any breach of the AWR;
“Calendar Week” means any week commencing on Monday and ending on the immediately following Sunday;
“Charges” means the charges of the Employment Business calculated in accordance with
clause 6 and as may be varied from time to time in accordance with these Terms;
“Commercial Terms” refers to the agreed terms of commercial business between the Employment Business and the Provider to be agreed before the commencement of the first assignment. Such terms will set out the agreed Charges and Transfer Fees.
“Comparable Employee” means as defined in Schedule 1 to these Terms;
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations.
“Confidential Information” means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Provider or Employment Business or their business or affairs (including but not limited to these Terms, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium whether disclosed or granted access to whether in writing, orally or by any other means, provided to the Agency Worker or any third party in relation to the Assignment by the Provider or the Employment Business or by a third party on behalf of the Provider whether before or after the date of these Terms together with any reproductions of such information in any form or medium or any part(s) of such information;
“Data Protection Laws” means: (a) up to and including 24 May 2018, the Data Protection Act 1998 ("DPA") and EC Directive 95/46/EC (the "DP Directive"); or (b) on and from 25 May 2018, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) (“GDPR”) and, in each case, all legislation and regulations enacted in the UK in respect of the protection and transfer of personal data;
“Employment Business” means GIG APP LTD 09703490, 11 Beavor Lane, London, W6 9AR
“Engagement” means the engagement(including the Agency Worker’s acceptance of the Provider’s offer), employment or use of the Agency Worker by the Provider or by any third party to whom the Agency Worker has been introduced by the Provider, on a permanent or temporary basis, whether under a contract of service or for services; under an agency, licence, franchise or partnership agreement; or any other engagement; or through a limited company of which the Agency Worker is an officer, employee or other representative; and “Engage”, “Engages” and “Engaged” shall be construed accordingly;
“EQA” means the Equality Act 2010; “First Assignment” means: (a) the relevant Assignment; or (b) if, prior to the relevant Assignment: (i) the Agency Worker has worked in any assignment in the same role with the relevant Provider as the role in which the Agency Worker works in the relevant Assignment; and (ii) the relevant Qualifying Period commenced in any such assignment, that assignment (an assignment being (for the purpose of this defined term) a period of time during which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Provider to work temporarily for and under the supervision and direction of the relevant Provider);
“Provider” means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the Agency Worker is Introduced. The software will refer to a Provider using the term “Employer”. Notwithstanding the foregoing, please note that as a matter of law neither the Provider nor the Employment Business will employ Agency Workers. Rather, during Assignments the Agency Worker will be engaged by the Employment Business as a worker on a contract for services (not a contract of employment), and his or her services will be supplied by the Employment Business to the Provider (or “Employer”). No contract of employment, or contract for services, will exist between the Agency Worker and the Provider (or “Employer”). For completeness, between Assignments no contract for services shall exist between the Agency Worker and the Employment Business;
“Provider’s Group” means (a) any individual, company, partnership, statutory body or other entity which from time to time Controls the Provider, including (but not limited to) as a holding company as defined in section 1159 of the Companies Act 2006; and (b) any company, partnership, statutory body or other entity which from time to time is Controlled by or is under common Control with the Provider, including (but not limited to) as a subsidiary or holding company as defined in section 1159 of the Companies Act 2006;
“Introduction” means (i) the passing to the Provider of a curriculum vitae or information which identifies the Agency Worker; or (ii) the Provider’s interview of the Agency Worker (in person or by telephone or by any other means), following the Provider’s instruction to the Employment Business to supply a temporary worker; or (iii) the supply of the Agency Worker; and, in any case, which leads to an Engagement of the temporary worker or the Agency Worker; and “Introduced” and "Introducing" shall be construed accordingly;
“Losses” means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands;
“Multiplier” means as defined in clause 6.2;
“Qualifying Period” means 12 continuous Calendar Weeks during the whole or part of which the Agency Worker is supplied by one or more Temporary Work Agencies to the relevant Provider to work temporarily for and under the supervision and direction of the relevant Provider in the same role, and as further defined in Schedule 1 to these Terms;
“Relevant Period” means the later of (a) the period of 8 weeks commencing on the day after the last day on which the Agency Worker worked for the Provider having been supplied by the Employment Business; or (b) the period of 14 weeks commencing on the first day on which the Agency Worker worked for the Provider having been supplied by the Employment Business or 14 weeks from the first day of the most recent Assignment where there has been a break of more than 6 weeks (42 days) since any previous assignment;
“Relevant Terms and Conditions” means terms and conditions relating to: (a) pay; (b) the duration of working time; (c) nightwork; (d) restperiods; (e) restbreaks; and (f) annual leave that are ordinarily included in the contracts of employees or workers (as appropriate) of the Provider whether by collective agreement or otherwise and including (for the avoidance of doubt and without limitation) such terms and conditions that have become contractual by virtue of custom and practice, including copies of all relevant documentation;
“Remuneration” includes gross base salary or fees, guaranteed and/or anticipated bonus and commission earnings, allowances, inducement payments, the benefit of a company car and all other payments and taxable (and, where applicable, non-taxable) emoluments payable to or receivable by the Agency Worker for services provided to or on behalf of the Provider or any third party;
“Software” means any software or application developed, owned and operated by the Employment Business, either via. the website (www.gigtogig.co.uk) or the respective iOS and Android applications;
“Temporary Work Agency” means as defined in Schedule 1 to these Terms;
“Terms” means these terms of business (including the attached schedules) together with any applicable Assignment Details Form;
“Timesheet” means a job report printed by an Agency Worker from the Software on which an Agency Worker has indicated in manuscript the hours worked during all or part of an Assignment (as applicable);
“Transfer Fee” means the fee payable in accordance with clause 8 of these Terms and Regulation 10 of the Conduct Regulations; “Vulnerable Person” means any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen;
“Worker Rating” has the meaning given to it in clause 3.11. Note that the software will refer to “Seeker Rating” rather than using “Worker Rating”;
“WTR” means the Working Time Regulations 1998 and/ or the Working Time Regulations (NorthernIreland)1998.
1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.
1.3. The headings contained in these Terms are for convenience only and do not affect their interpretation.
1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, re-enacted, replaced or applied by or under any other enactment (whether before or after the date of these Terms) and all subordinate legislation made (before or after these Terms) under it from time to time.
2. THE CONTRACT
2.1. These Terms constitute the contract between the Employment Business and the Provider for the supply of the Agency Worker’s services by the Employment Business to the Provider via. the Provider’s use of the Software and are deemed to be accepted by the Provider by virtue of its registration with the Employment Business via. the Software, its log-in to and use of the Software, the Engagement of the Agency Worker, and/or the passing of any information by the Provider about an Agency Worker to any third party following an Introduction (as applicable).
2.2. These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by the Employment Business, these Terms prevail over any terms of business or purchase conditions (or similar) put forward by the Provider. These Terms shall also, in the event of conflict and notwithstanding anything to the contrary therein, prevail over any terms which from time-to-time govern the Provider’s access to, and use of, the Software (save insofar as the terms governing access to, and use of, the Software relate to limitations of the Employment Business’s liability in which case, in the event of a conflict, the terms governing access to, and use of, the Software shall prevail).
2.3. Subject to clause 6.3, no variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Employment Business and the Provider and are set out in writing and a copy of the varied Terms is given to the Provider stating the date on or after which such varied Terms shall apply.
2.4. The Employment Business shall act as an employment business (as defined in Section 13(3) of the Employment Agencies Act 1973 or in the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981) (as amended) when Introducing Agency Workers for Assignments with the Provider.
3. PROVIDER OBLIGATIONS
3.1 Provider hereby warrant that they do and shall, at all times, comply with all relevant statutes, laws, regulations and codes of practice from time to time in force under applicable law.
3.2 Provider shall ensure that any subcontractor or other intermediary (including any Group Companies of the Provider, any subcontractor or other intermediary) shall, at all times comply with their obligations under the Agency Regulations, the Conduct Regulations and all other applicable law. This includes but is not limited to:
3.2.1 providing family-related rights to eligible Agency Workers in accordance with Parts VI and VII of the Employment Rights Act 1996;
3.2.2 providing Agency Workers with access to collective facilities and amenities and employment opportunities in accordance with regulations 12 and 13 of the Agency Regulations; and
3.2.3 to the extent that, under the Agency Regulations, it is the Client’s responsibility, providing Qualifying Agency Workers with their entitlements under regulation 5 of the Agency Regulations.
3.3 Provider warrant that they shall not post Assignments or participate in Engagements where the Agency Worker is or would be providing Agency Worker Services to cover (whether directly or indirectly) duties normally performed by a worker who is taking part in a strike or other industrial action.
3.4 If either the Provider or the Employment Business receive an allegation that there has been a breach of the Agency Regulations or the Conduct Regulations in relation to the supply of an Agency Worker to the Provider, the receiving party shall provide a copy of that allegation to the other party within seven days of receipt. Both parties shall co-operate with each other in responding to that allegation, including by supplying any information which may be reasonably requested by the other and complying with any reasonable requests in relation to the contents of any response.
3.5 In complying with AWR it is our policy that after 8 continuous weeks of an Agency Worker working with the Provider the Provider will be required to provide to the Employment Business when it is asked of you , the pay and working conditions of a permanent employee to ensure that the workers AWR rights are upheld.
3.6. The Provider will promptly comply with all the Employment Business' requests for information and any other requirements to enable the Employment Business to comply with the AWR.
3.7. The Provider warrants that:
3.7.1. all information and documentation supplied to the Employment Business in accordance with clauses 3.5, 3.6 and 3.7 is complete, accurate and up-to-date; and 3.7.2. it will, during the term of the relevant Assignment, immediately inform the Employment Business in writing of any subsequent change in any information or documentation provided in accordance with clauses 3.5, 3.6 and 3.7; and 3.8.3. it shall not seek to structure Assignments in such a manner as to avoid the application to an Agency Worker or Agency Workers of the AWR.
3.8 Without prejudice to clauses 14.7 and 14.8, the Provider shall inform the Employment Business in writing of any:
3.8.1. oral or written complaint the Agency Worker makes to the Provider which is or may be a complaint connected with rights under the AWR;
3.8.2. written request for information relating to the Relevant Terms and Conditions that the Provider receives from the Agency Worker as soon as possible but no later than 7 calendar days from the day on which any such oral complaint is made to or written complaint or request is received by the Provider and the Provider will take such action and give such information and assistance as the Employment Business may request, and within any timeframe requested by the Employment Business, in order to resolve any such complaint or to provide any such information in a written statement to the Agency Worker within 28 days of the Provider's receipt of such a request in accordance with Regulation 16 of the AWR and the Provider will provide the Employment Business with a copy of any such written statement.
3.9. The Provider undertakes that it knows of no reason why it would be detrimental to the interests of the Agency Worker for the Agency Worker to fill the Assignment.
3.10. The Provider agrees that promptly following receipt of a request from the Employment Business in relation to working hours pursuant to either clause 5.1.1 or 5.1.2 it shall provide via. the Software a rating of the Agency Worker based on the following non-exclusive factors: punctuality, reliability, work ethic and expertise (an “AW Rating”).
3.11. If an Agency Worker receives Worker Rating which he or she considers unjustified, the Employment Business will, in a timely fashion, review the relevant WORKER Rating provided always that the Agency Worker has provided promptly to the Employment Business in writing the reasons the Agency Worker considers the WORKER Rating to be unjustified, along with any supporting documentation relevant to the same. The Provider agrees to co-operate with any such review conducted by the Employment Business, including by providing it with such further information as the Employment Business in its sole and absolute discretion considers relevant to the same. Upon conclusion of any such review the Employment Business will in its sole and absolute discretion determine whether to uphold, adjust or remove the relevant WORKER Rating. The Provider agrees that the decision of the Employment Business in this regard shall be final and that the Provider shall have no right to appeal against the same.
4. INFORMATION TO BE PROVIDED BY THE EMPLOYMENT BUSINESS TO THE PROVIDER
4.1. When Introducing an Agency Worker to the Provider the Employment Business shall inform the Provider:
4.1.1. of the identity of the Agency Worker;
4.1.2. that the Agency Worker is willing to work in the Assignment;
4.1.3. the Charges.
4.2. Details of only those Agency Workers who have confirmed to the Employment Business that they have the experience, training, qualifications and any authorisation(s)which the Provider has, by completing the appropriate Assignment Posting on the Software, informed the Employment Business that it considers are necessary, or required by law or by any professional body, to work in an Assignment will be provided via. the Software to the Provider pursuant to the process summarised at clause 3.2.
4.3. Where such information is not given in paper form or by electronic means it shall be confirmed by such means by the end of the third business day (excluding Saturday, Sunday and any Public or Bank Holiday) following, save where the Agency Worker is Introduced for an Assignment in the same position as one in which the Agency Worker had previously been supplied within the previous 5 business days and such information has already been given to the Provider, unless the Provider requests that the information be resubmitted.
5.1. The Agency Worker shall input on the “Check-out” page of the Software the number of hours worked during the preceding shift of an Assignment (or during the Assignment, if for only one shift) within 12 hours of the end of such shift which the Provider shall then be required to review.
5.1.1. promptly, and in any event before 5.30pm every Wednesday, access the appropriate page of the Software to review and approve the number of hours worked during the preceding week (Monday-Sunday) inputted therein by the Agency Worker;
5.2. Where the Provider fails to comply with the obligations pursuant to clause 5.1, the Employment Business will have the right input on the appropriate page of the Software the number of hours worked by the Agency Worker during the Assignment to the best of their knowledge
5.3. By complying with clause 5.1 above the Provider is confirming the number of hours worked. If the Provider is unable to comply with clause 5.1.1 and/or, where relevant, because the Provider disputes the hours claimed, the Provider shall inform the Employment Business as soon as is reasonably practicable. In the aforementioned circumstances, and where the Agency Worker disagrees with the input made by the Provider the Provider shall 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 Agency Worker. Failure to engage with the aforementioned processes does not absolve the Provider of its obligation to pay the Charges in respect of the hours worked.
6.1. The Provider agrees to pay the Charges as notified to and agreed with the Provider in writing.
6.2. Subject to clause 6.3, Unless otherwise notified to and agreed with the Provider in writing, the Charges will be calculated on the following basis: Number of hours worked by the Agency Worker multiplied by the Agency Worker’s hourly rate of pay (gross) multiplied by a factor (the Multiplier). The Multiplier shall be agreed in writing between the Employment Business and the Provider in advance of the commencement of any Assignment or, if agreed, series of Assignments, and the commencement of any Assignment shall be subject to and conditional on such prior written agreement.
6.2. Charges are subject to; paid holiday leave to which the Agency Worker is entitled in connection with the WTR which is accrued during the course of an Assignment (at the statutory rate of 12.07% of the hourly gross wage), employer’s National Insurance contributions and pension contributions
6.3. The Employment Business reserves the right to apply the following additional Charges, which will be in addition of the Charges calculated in accordance with clause 6.2:
6.3.1. an amount equal to any paid holiday leave to which the Agency Worker is entitled in excess of the statutory entitlement referred to in clause 6.2, whether pursuant to the WTR, the AWR or otherwise;
6.3.2. an amount equal to any bonus or commission that the Provider awards to the Agency Worker in accordance with clause 6.2 immediately following any such award (and the Employment Business will pay any such bonus to the Agency Worker)
6.3.3. any other, or additional, amounts to which the Agency Worker is entitled under the AWR or any other applicable legal requirement or entitlement
6.4. The Employment Business further reserves the right to vary the Charges agreed with the Provider, by giving written notice to the Provider:
6.4.1. in order to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the AWR and/or pensions auto-enrolment legislation; and/or
6.4.2. if there is any variation in the Relevant Terms and Conditions.
6.5. Unless otherwise agreed in writing, howsoever the Charges are determined (including pursuant to clauses 6.2 and 6.3 above) they shall include in addition a sum equal to any travel, hotel or other expenses as may have been agreed with the Provider or, if there is no such agreement, such expenses as are reasonable, in respect of the specific Assignment or Assignments.
6.6. The Employment Business will invoice the Charges to the Provider on a weekly basis. The Provider will pay the Charges within 30 days of the date of the invoice to the Employment Businesses chosen bank account.
6.7. VAT is payable at the applicable rate on the entirety of the Charges.
6.8. The Employment Business reserves the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 on invoiced amounts unpaid by the due date at the rate of 8% per annum above the base rate from time to time of the Bank of England from the due date until the date of payment.
6.9. No refunds are payable by the Employment Business in respect of the Charges.
6.10. The Provider’s obligations under this clause 6 shall be performed without any right of the Provider to invoke set-off, deductions, withholdings or other similar rights.
6.11. The Provider consents to the Employment Business conducting credit checks on it. Such checks may be conducted at any times following entry into these Terms and on more than one occasion, and the Provider shall promptly provide the Employment Business with any information requested by it in connection with the same. Without prejudice to the generality of clause 11 below regarding termination of Assignments, the Employment Business may in its sole and absolute discretion render the commencement or continuance of any Assignment subject to and conditional on the Provider paying to the Employment Business in advance of commencement or continuation of the Assignment a sum equal to the Employment Business’s best estimate (in its sole and absolute discretion and based on facts reasonably available to it at the relevant time) of the Charges likely to be incurred by the Provider in connection with the relevant Assignment. Where the Provider makes such a pre-payment the Employment Business will still invoice the Charges to the Provider on a weekly basis in accordance with clause 6.5. No payment shall be required in respect of an invoice issued in such circumstances unless the Employment Business, in its sole and absolute discretion, requires that the Provider within 30 days of the date of the invoice pays to the Employment Business via. Direct Debit a sum equal to the amount (if any) by which the Charges on the relevant invoice exceed the prepayment made by the Provider in respect of the period covered by the invoices and/or previous invoices in respect of the same Assignment. Where applicable the Employment Business will within 14 days of the date of the final invoice in respect of an Assignment reimburse the Provider in respect of the amount (if any) that the pre-payment made by the Provider in respect of the relevant Assignment exceeded the Charges actually incurred by the Provider in respect of the same. For the avoidance of doubt, the Provider agrees that no interest shall be payable by the Employment Business in respect of any such excess.
7. PAYMENT OF THE AGENCY WORKER
The Employment Business is responsible for paying the Agency Worker and for the deduction and payment of National Insurance Contributions and PAYE Income Tax applicable to the Agency Worker pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003.
8. TRANSFER FEES
8.1. The Provider shall be liable to pay a Transfer Fee if the Provider Engages an Agency Worker Introduced by the Employment Business other than via the Employment Business or introduces the Agency Worker to a third party and such introduction results in an Engagement of the Agency Worker by the third party other than via the Employment Business and:
8.1.1. where the Agency Worker has been supplied by the Employment Business, such Engagement takes place during the Assignment or within the Relevant Period; or 8.1.2. where the Agency Worker has not been supplied, such Engagement takes place within 6 months from the date of the Introduction to the Provider. The Provider agrees that Transfer Fees will be calculated in accordance with the Commercial Terms agreed in writing prior to the commencement of the first assignment by an Agency Worker supplied by the Employment Business on behalf of the Provider.
8.2. The Provider undertakes to inform in writing the Employment Business immediately upon becoming aware that a Transfer Fee is, or may be, payable, and to co-operate fully and in a timely fashion with the Employment Business to facilitate compliance with the Provider’s obligations pursuant to this clause.
8.3. If the Provider wishes to Engage the Agency Worker via the Employment Business without liability to pay a Transfer Fee the Provider may, on giving written notice to the Employment Business and in compliance with the agreed Commercial Terms, engage the Agency Worker.
8.4. VAT is payable in addition to any Transfer Fee as stated in the Commercial Terms.
9. SUITABILITY CHECKS AND INFORMATION TO BE PROVIDED IN SPECIAL SITUATIONS
9.1.1. the Agency Worker is required by law, or any professional body to have any qualifications or authorisations to work on the Assignment, the Employment Business will take all reasonably practicable steps to obtain and offer to provide to the Provider copies of any relevant qualifications or authorisations of the Agency Worker we necessary;
9.2. The Provider shall advise the Employment Business at the time of instructing the Employment Business to supply an Agency Worker whether during the course of the Assignment, the Agency Worker will be required to work with, care for or attend one or more Vulnerable Persons or engage in regulated activity as defined in the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
9.3. The Provider shall assist the Employment Business by providing any information required to allow the Employment Business to comply with its statutory obligations under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 and to allow the Employment Business to select a suitable Agency Worker for the Assignment.
9.4. In particular in the event that the Provider removes an Agency Worker from an Assignment in circumstances which would require the Employment Business to provide information to the Disclosure and Barring Service (or the equivalent authority) under the Safeguarding Vulnerable Groups Act 2006 or the Protecting Vulnerable Groups (Scotland) Act 2007 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, the Provider will provide sufficient information to the Employment Business to allow it to discharge its statutory obligations.
10. UNSUITABILITY OF THE AGENCY WORKER
10.1. The Provider undertakes to supervise and instruct the Agency Worker sufficiently to ensure the Provider’s satisfaction with the Agency Worker’s standards of work. If the Provider reasonably considers that the services of the Agency Worker are unsatisfactory, the Provider may terminate the Assignment either by instructing the Agency Worker to leave the Assignment immediately, or by directing the Employment Business to remove the Agency Worker. The Employment Business may, in its absolute discretion, in such circumstances, reduce or cancel the Charges for the time worked by that Agency Worker, provided that the Provider has notified the Employment Business immediately that they have asked the Agency Worker to leave the Assignment or the Assignment terminates:
10.1.1. within 4 hours of the Agency Worker commencing the Assignment where the Assignment is for more than 7 hours; or
10.1.2. within 2 hours for Assignments of 7 hours or less; and provided that notification of the unsuitability of the Agency Worker is confirmed in writing to the Employment Business within 48 hours of the termination of the Assignment.
10.2. The Employment Business shall notify the Provider immediately if it receives or otherwise obtains information which gives the Employment Business reasonable grounds to believe that any Agency Worker supplied to the Provider is unsuitable for the Assignment and shall be entitled to terminate the Assignment forthwith without prior notice and without liability. Notwithstanding, the Provider shall remain liable for all Charges incurred prior to the termination of the Assignment.
10.3. The Provider shall notify the Employment Business immediately, without delay and in any event within the same working day on which it becomes aware of the same if in respect of the Assignment or any part thereof the Agency Worker:
10.3.1. is more than 30 minutes late to arrive at the location at the start time specified in the Assignment Posting; and/or
10.3.2. fails to attend work, and shall promptly provide the Employment Business with details of when and how it became aware of the same along with details of, and where applicable copies of, any explanation and any other information or supporting documentation supplied to it by the Agency Worker in connection with the same.
10.4. On receipt of a request by the Provider the Employment Business shall use reasonable endeavours to organise for an alternative Agency Worker to attend work in place of an Agency Worker who has failed to attend work during an Assignment, provided always that provision of an alternative Agency Worker by the Employment Business shall not impact on a Provider’s obligations to pay to the Employment Business the Charges (to the extent any are applicable) in respect of the Agency Worker who has failed to attend work during an Assignment.
11. TERMINATION OF THE ASSIGNMENT
11.1. Any of the Provider, the Employment Business or the Agency Worker may terminate an Assignment at any time without prior notice and without liability (except in the case of termination by the Provider, who shall be liable for any Charges due under clause 6 above).
11.2. Without prejudice to the generality of the foregoing, where an Agency Worker has on multiple occasions either been late to arrive at a location at a start time specified in an Assignment Posting and/or has failed to attend work, whether for the Provider or other Provider(s), the Employment Business reserves the right to terminate any ongoing and/or future Assignments of that Agency Worker. Before undertaking such action the Employment Business may seek to consult with relevant Providers if the Agency Worker has ongoing or future Assignments, although the Employment Business shall have the final decision in this regard in its sole and absolute discretion.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. All information relating to an Agency Worker is confidential and subject to the Data Protection Laws and is provided solely for the purpose of providing staffing services to the Provider. Such information must not be used for any other purpose nor divulged to any third party and the Provider undertakes to abide by the provisions of the Data Protection Laws in receiving and processing the data at all times. The Provider acknowledges and accepts the Website, Use, Privacy and Cookies Policy contained on the Employment Business’ website (as amended from time to time).
12.2. The Employment Business undertakes to keep confidential all Relevant Terms and Conditions that the Provider discloses to the Employment Business and not to use such information except for the purposes of compliance with the AWR (including, for the avoidance of doubt and without limitation, when dealing with any request for information or complaint made by any Agency Worker or any AWR Claim).
12.3. Information relating to the Employment Business’ business which is capable of being confidential must be kept confidential and not divulged to any third party, except information which is in the public domain.
12.4. In the event an Agency Worker works for a Provider in an area of business giving him/her access to confidential information, the Provider shall bear sole responsibility to ensure that the Agency Worker is made aware the information is confidential and where applicable, may require the Agency Worker to sign a confidentiality or non-disclosure or other similar agreement. For the avoidance of doubt, and without prejudice to clause 14, the Employment Business shall not have any liability for any loss, liability, costs, damages, expenses or otherwise arising from any breach by the relevant Agency Worker of the terms of any such agreement or, in the event that no such agreement has been entered into, the Agency Worker’s misuse or unauthorised disclosure of confidential information or trade secrets.
13. INTELLECTUAL PROPERTY RIGHTS AND LICENCE
13.1. All copyright, trademarks, patents and other intellectual property rights deriving from the Assignment shall belong to the Provider. Accordingly the Employment Business shall use its reasonable endeavours to ensure that the Agency Worker shall execute all such documents and do all such acts in order to give effect to the Provider’s rights pursuant to this clause.
13.2. With effect from the Provider inputting an order on the Software for the supply of an AW’s services, the Provider hereby grants the Employment Business and its group entities a royalty-free, non-exclusive licence to use the Provider’s name, logos, product and service names, and slogans of the Provider and the Provider’s Group, for the purposes of promoting the Employment Business’s services (including without limitation the Software). The Provider warrants and represents that it has all required rights to grant the aforementioned licence and that it shall, on demand by the Employment Business, provide the Employment Business with its current name, logos, product and service names, and slogans in such format as the Employment Business may reasonably require.
14.1. Whilst reasonable efforts are made by the Employment Business to give satisfaction to the Provider by ensuring reasonable standards of skill, integrity and reliability from the Agency Worker and to provide the same in accordance with the Assignment details as provided by the Provider, no liability is accepted by the Employment Business for any loss (including losses arising from breach of contract, indirect or consequential losses, loss of profits), expense, damage or delay arising from any failure to provide any Agency Worker for all or part of the Assignment or from any acts or omissions of, or the negligence, dishonesty, misconduct or lack of skill, of the Agency Worker or if the Agency Worker terminates the Assignment for any reason. For the avoidance of doubt, the Employment Business does not exclude liability for death or personal injury arising from its own negligence or for any other loss which it is not permitted to exclude under law.
14.2. Agency Workers supplied by the Employment Business pursuant to these Terms are engaged under contracts for services. They are deemed to be under the supervision and direction of the Provider from the time they report to take up duties and for the duration of the Assignment.
14.3 The Provider shall advise the Employment Business of any special health and safety matters about which the Employment Business is required to inform the Agency Worker and about any requirements imposed by law or by any professional body, which must be satisfied if the Agency Worker is to fill the Assignment.
14.4. The Provider will also comply in all respects with all statutory provisions as are in force from time to time including, for the avoidance of doubt, but not limited to the EQA, WTR, AWR, Health and Safety At Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 or the Health and Safety at work (Northern Ireland) Order 1978 and the management of Health and Safety at Work (Northern Ireland) Regulations 2000 (as amended), by-laws, codes of practice and legal requirements to which the Provider is ordinarily subject in respect of the Provider’s own staff (excluding the matters specifically mentioned in clause 7 above)
14.5. The Provider undertakes not to request the supply of an Agency Worker to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by a worker who has been transferred by the Provider to perform the duties of a person on strike or taking official industrial action.
14.6. The Provider shall inform the Employment Business in writing of any AWR Claim which comes to the notice of the Provider as soon possible but no later than 7 calendar days from the day on which any such AWR Claim comes to the notice of the Provider.
14.8. If the Agency Worker brings, or threatens to bring, any AWR Claim, the Provider undertakes to take such action and give such information and assistance as the Employment Business may request, and within any timeframe requested by the Employment Business and at the Provider’s own cost, to avoid, dispute, resist, mitigate, compromise or defend any such AWR Claim and to appeal against any judgment given in respect thereof.
14.9. The Provider’s indemnities and the Employment Business limitations and exclusions of liability set out in this clause 14 shall survive the termination or expiry of these Terms for whatever reason.
15.1. All notices which are required to be given in accordance with these Terms shall be in English and in writing, and may be delivered personally or by first class prepaid post to the registered office of the party upon whom the notice is to be served or any other address that the party has notified the other party in writing, or by email or facsimile transmission to any address or number (as applicable) of which the party has notified the other party in writing. Any such notice shall be deemed to have been served: if by hand when delivered, if by first class post 48 hours following posting and if by email or facsimile transmission, when that email or facsimile is sent (provided that the serving party is able to prove that the email or facsimile has been sent by provision of a printed hard copy of the sent email or facsimile).
15.2. Where the Provider is required by these Terms to inform the Employment Business of something in writing and choses to do so by email or facsimile to the address or number (as applicable) provided for the relevant purpose by the Employment Business, such email or facsimile shall only be deemed to have been received by the Employment Business on receipt by the Provider of a confirmation of receipt by the Employment Business (not to be unreasonably withheld or delayed). Where no such confirmation of receipt is received by the Provider, the Provider should consider that such email or facsimile has not been delivered to the Employment Business (and accordingly that it has not discharged the relevant obligations under these Terms), and it should resend the relevant email or facsimile after having confirmed the address or number(as applicable).
15.3. The Provider acknowledges and agrees that the Employment Business does not systematically review any comments specified in free text fields on the Software and the Work assignment description; such free text fields merely being a means by which the Employment Business facilitates communication between Agency Workers and Providers. Accordingly, the Provider acknowledges and agrees that inputting data therein will not satisfy obligations under these Terms to inform the Employment Business of any relevant data in writing. Where the Provider is required under these Terms to inform the Employment Business of something in writing it should do so in accordance with clause 15.2.
If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the remaining Terms, which shall continue to be valid to the fullest extent permitted by applicable laws.
17. GOVERNING LAW AND JURISDICTION
These Terms are governed by the law of England & Wales and are subject to the exclusive jurisdiction of the Courts of England
SCHEDULE 1: “COMPARABLE EMPLOYEE”, “QUALIFYING PERIOD” AND “TEMPORARY WORK AGENCY”
“Comparable Employee” means as defined in Regulation 5(4) of the AWR being an employee of the Provider who: (a) works for and under the supervision of the Provider and is engaged in the same or broadly similar work as the Agency Worker having regard, where relevant, to whether the employee and the Agency Worker have a similar level of qualification and skill; and (b) works or is based at the same establishment as the Agency Worker or, where there is no comparable employee working or based at that establishment who satisfies the requirements of (a) above, works or is based at a different establishment and satisfies those requirements.
For the purpose of the definition of “Qualifying Period” in clause 1.1 of these Terms, when calculating whether any weeks completed with the Provider count as continuous towards the Qualifying Period, where: (a) the Agency Worker has started working during an assignment and there is a break, either between assignments or during an assignment, when the Agency Worker is not working; (b) the break is: (i) for any reason and not more than six Calendar Weeks; (ii) wholly due to the fact that the Agency Worker is incapable of working in consequence of sickness or injury and the break is 28 Calendar Weeks or less; paragraph (iii) does not apply; and, if required to do so by the Employment Business, the Agency Worker has provided such written medical evidence as may reasonably be required; (iii) related to pregnancy, childbirth or maternity and is at a time in a protected period, being a period beginning at the start of the pregnancy and ending at the end of the 26 weeks beginning with childbirth (being the birth of a living child or the birth of a child whether living or dead after 24 weeks of pregnancy) or, if earlier, when the Agency Worker returns to work; (iv) wholly for the purpose of taking time off or leave, whether statutory or contractual, to which the Agency Worker is otherwise entitled which is: i. ordinary, compulsory or additional maternity leave; ii. ordinary or additional adoption leave; iii. ordinary or additional paternity leave; iv. time off or other leave not listed in paragraphs (iv)i, ii, or iii above; or v. for more than one of the reasons listed in paragraphs (iv)i, ii, iii to iv above; (v) wholly due to the fact that the Agency Worker is required to attend at any place in pursuance to being summoned for service as a juror and the break is 28 Calendar Weeks or less; (vi) wholly due to a temporary cessation in the Provider’s requirement for any worker to be present at the establishment and work in a particular role for a pre-determined period of time according to the established custom and practices of the Provider; (vii) wholly due to a strike, lock-out or other industrial action at the Provider’s establishment; or (viii) wholly due tomore than one of the reasons listed in paragraphs (ii),(iii),(iv),(v),(vi) or(vii);and (c) the Agency Worker returns to work in the same role with the Provider, any weeks during which the Agency Worker worked for the Provider before the break shall be carried forward and treated as counting towards the Qualifying Period with any weeks during which the Agency Worker works for the Provider after the break. In addition, when calculating the number of weeks during which the Agency Worker has worked, where the Agency Worker has started working in a role during an Assignment and is unable to continue working for a reason described in paragraph (b)(iii) or(b)(iv)i., ii, oriii., for the period that is covered by one or more such reasons, the Agency Worker shall be deemed to be working in that role with the Provider for the original intended duration or likely duration of the relevant Assignment, whichever is the longer.
“Temporary Work Agency” means as defined in Regulation 4 of the AWR being a person engaged in the economic activity, public or private, whether or not operating for profit, and whether or not carrying on such activity in conjunction with others, of: (a) supplying individuals to work temporarily for and under the supervision and direction of Providers; or (b) paying for, or receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision and direction of Providers. Notwithstanding paragraph (b) of this definition a person is not a Temporary Work Agency if the person is engaged in the economic activity of paying for, or receiving or forwarding payments for, the services of individuals regardless of whether the individuals are supplied to work for Providers. For the purpose of this definition, a “Provider” means a person engaged in economic activity, public or private, whether or not operating for profit, to whom individuals are supplied, to work temporarily for and under the supervision and direction of that person or entity.
GIG APP LIMITED / Registered No. 9703490 / 11 BEAVOR LANE, LONDON, W6 9AR