Upsilon Global Ltd

A company incorporated in England and Wales under company number 10507512 and whose registered office is at Basepoint, Little High Street, Shoreham-by-Sea, West Sussex, BN43 5EG, United Kingdom (the Employment Business”)

Master Services Agreement – Freelancers

 

1. Definitions

1.1      In these terms-

“Assignment” means the period during which the Contractor renders the Services to the Client via the Employment Business;

“Candidate” means the person or company introduced by the Employment Business to the Client for an Engagement including, but not limited to, any officer or employee of the Candidate if the Candidate is a limited company, any member or employee of the Candidate if the Candidate is a limited liability partnership, and members of the Employment Business’s own staff͖

“Client” means the person, firm or corporate body together with any subsidiary or associated company (as defined by s.1159 of the Companies Act 2006) to whom the Employment Business supplies or introduces the Candidate and/or Contractor;

“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);

“Contractor” means the person or company supplied to the Client by the Employment Business;

“Contractor Schedule” means the schedule provided by the Employment Business to the Client confirming the details of each Assignment;

“Engagement” means the engagement, employment or use of the Candidate and/or Contractor by the Client or by any third party to whom or to which the Candidate and/or Contractor was introduced by the Client (whether with or without the Employment   Business’s knowledge or consent) on a permanent or temporary basis, whether under a contract of service or for services; under an agency, license, franchise or partnership agreement; or through any other engagement directly or through a limited company of which the Candidate is an officer or employee or through a limited liability partnership of which the Candidate and/or Contractor is a member or   employee; or indirectly through another employment business or company which holds itself out as such and “Engages” and “Engaged”  shall be construed accordingly;

“Introduced” means:

1. a) the Client’s interview of a Candidate in person or by telephone; or
2. b) the passing to the Client of a curriculum vitae or information about the Candidate; whichever is earlier and “Introduces” and “Introduction” shall be construed accordingly;

“Off-Payroll” means the off-payroll working rules set out in Chapters 8 and 10 Part 2 of the Income Tax (Earnings and Pensions Act 2003 (“ITEPA”) as amended from time to time;

“Personal Data” means any information relating to a living individual who can be identified, directly or indirectly, in particular by reference to:

(a)              an identifier such as a name, an identification number, location data or an online identifier, or

(b)              one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;

“Remuneration” means basic salary, shift or weighting allowances, guaranteed and/or   anticipated bonus and commission earnings, car allowance and any other benefit or allowance;

“Representative” means the employees, officers or representatives of the Contractor, specified in the Contractor Schedule who renders the Services on behalf of the Contractor;

“Services” means the services to be undertaken by the Contractor pursuant to these Terms, as described in the Contractor Schedule;

“Terms” means these terms of business and shall include any Contractor Schedules issued pursuant to these terms of business; and

“Transfer Fee” means the fee set out within the Contractor Schedule.

 

2. These Terms

• These Terms are effective from [XXX]
• These Terms shall be deemed to be accepted by the Client and to apply by virtue of (a) the passing of information about a Candidate to the Client by the Employment Business or (b) an Introduction to the Client of, or the Engagement by the Client of, a Candidate or (c) the Client’s interview or request to interview a Candidate (including interview by video conferencing or by telephone) or (d) the signature by the Client on a timesheet relating to services provided by the Contractor or (e) the 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 the Candidate is Engaged by the Client for the same type of work as that for which the Introduction was originally effected.
• 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 the Client.
• For the purposes of these Terms, the Employment Business acts as an employment business as defined within the Conduct Regulations.
• The Client authorises the Employment Business to act on its behalf in seeking Candidates and, if the Client so requests, shall advertise for Candidates through such methods as are agreed with the Client

Where there is a conflict of provisions between these Terms and the Contractor Schedule, the Contractor Schedule shall take precedence.

 

3. Client Obligations

3.1      The Client shall be responsible for providing   office accommodation for the Representative and any necessary resources and facilities, save where the Client agrees that such resources shall be provided by the Contractor.

3.2      These Terms are personal to the Client and shall not be assigned without the prior written consent of the Employment Business. For the avoidance of doubt, this restriction shall include any assignment to any subsidiary, associated company or member of the Client’s group.

3.3      The Client shall provide the Employment Business with details of any specific health and safety risks in relation to the Services, together with details of any steps taken to prevent or control such risks.

3.4      The Client shall ensure that the Representative works in a safe environment in accordance with a safe system of work. The Client shall indemnify and keep indemnified the Employment Business from and against all loss or liability suffered or incurred by the Employment Business as a result of any claim by the Contractor and/or Representative arising out of any injury or damage to his/her property suffered in the course of performing the Services.

3.5      The Client undertakes to confirm in writing to the Employment Business –

1. a) the date upon which the Candidate is required to commence the provision of the Services; and
2. b) the expected duration of the Engagement; and
3. c) the nature of and/or specifics of the services required to be provided by the Candidate; and
4. d) the location/s the Candidate is expected to deliver the Services; and
5. e) the number of hours/days and any specific time-keeping and recording requirements the Client expects of the Contractor; and
6. f) any experience, training, qualifications, professional body authorisations the Client requires the Candidate to possess to provide the Services; and
7. g) any expenses payable by or to the Candidate; and
8. h) any site regulations, IT access/security/usage policies, any other procedures or policies the Client requires the Candidate to adhere to and shall provide copies of any such policies/procedure to the Employment Business.

3.6      The Client undertakes to notify the Employment Business immediately of its intention to –

1. a) Engage a Candidate Introduced by the Employment Business; or
2. b) extend an Assignment of or otherwise Engage directly or indirectly a Candidate Introduced and/or supplied via the Employment Business; or
3. 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).

3.7      Where Off-Payroll applies to Client and Services are in scope, Client undertakes and agrees to assess the working practices of Services to be provided during Assignment and to issue Employment Business with its status determination statement (“SDS”) and the reasons for the decision in writing prior to the commencement of Assignment and to comply with statutory requirements to notify Contractor.

3.8      Where Off-Payroll applies to Client or applies to end user, Client undertakes and agrees to provide any information reasonably requested at any time by Employment Business promptly in order to assist Employment Business to comply with Off-Payroll.

3.9      Client undertakes and agrees to notify Employment Business in the event of changes to information provided under clauses 5.7 or 5.8 that occur during Assignment and reissue an SDS if working practices and conditions change.

3.10    Client warrants and undertakes that all information it provides to Employment Business under these Terms are true and accurate.

3.11    Client warrants to comply with its statutory obligations to provide a status disagreement process and to use best endeavours to resolve status determination disagreements equitably and within forty-five (45) calendar days, beginning with the day the disagreement representation is received.

3.12    Client warrants to comply with its statutory obligation to, upon request by Employment Business, confirm its size under Off-Payroll and to notify of a change in its size

3.13    Client undertakes and agrees to notify Employment Business where the Client or end user is based wholly overseas as defined under Off-Payroll.

 

4. The Employment Business’s Obligations

4.1      The Employment Business shall use reasonable endeavours to introduce Candidates to the Client who meet the Client’s stated requirements.

4.2      Where the Employment Business and the Client have agreed that the Employment Business will supply the Client with the services of a Candidate, the Employment Business shall give the Client a Contractor Schedule confirming the name of the Contractor and the Representative, the agreed pay rates/fees, term of the Assignment, description of the Services, notice periods and any other relevant details communicated and agreed between the parties.

4.3      The Employment Business shall use reasonable endeavours to ensure that the Contractor and the Representative co-operates with the Client and complies with all the Client’s reasonable and lawful instructions.

4.4      The Employment Business shall use reasonable endeavours to ensure that the Contractor enters into an agreement which contains an obligation   on the Contractor and the Representative to assign to the Client, the Contractor’s and the Representative’s intellectual property rights of whatever nature and, if registrable, whether registered or not, in all documents or other material and data or other information and devices or processes provided or created by  the Contractor and the Representative in the provision of the services.

4.5      The Employment Business shall use reasonable endeavours to ensure that the Contractor enters into an agreement which contains an obligation on the Contractor and Representative to keep confidential all confidential information of the Client obtained during the Assignment. For the purposes of this clause, confidential information is confidential if it is clearly marked confidential or if the Client states it is confidential clearly in writing to the Temp.

 

5. Charges/Fees

5.1      The Client agrees to pay the Employment Business’s charges for the Introduction and the services of Contractors/Candidates as set out in the relevant Contractor Schedule.

5.2      Signature by the Client of timesheets or other verification of hours or days worked is confirmation of the amount of time worked by the Representative. Failure to sign the timesheet does not absolve the Client of its obligation to pay the charges for the Services provided by the Representative on behalf of the Contractor.

5.3 If the Client is unable to sign a timesheet (or other agreed method of verification of hours/days) produced for authentication by the Representative because the Client disputes the amount of time claimed, then the Client shall notify the Employment Business within two (2) working days from presentation to the client of the claimed hours/days for verification and shall co-operate fully and in a timely fashion with the Employment Business, including

providing documentary evidence of the hours/days worked by the Representative, to enable the Employment Business to establish what periods of time, if any, the Contractor worked.

5.5      There are a no refunds or rebates payable in respect of the Employment Business’s charges.

5.6      The Client shall pay the Employment Business all reasonable business expenses incurred by the Contractor in the provision of the Services as agreed within the Contractor Schedule.

5.7      VAT shall be payable on charges/fees where applicable.

5.8      The Employment Business may at any time increase the fees by an appropriate amount if the payments it is obliged to make to the Contractor must be increased to comply with any additional liability imposed by statute or other legal requirement or entitlement, including but not limited to the Working Time Regulations, the Pensions Act 2008 or with Off-Payroll.

5.9     The Client acknowledges that it has no right to set-off, withhold or deduct monies from sums due to the Employment Business under these Terms.

5.10    In the event notification in accordance with 3.7 is provided to the Employment Business after the commencement of Assignment or in the event of information provided in accordance with clauses 3.12 and 3.13, Client agrees and accepts that the Employment Business is entitled to vary its charge to the Client and nature of Services in order to comply with Off-Payroll.

 

6. Invoices

6.1      The Employment Business shall raise invoices monthly (unless otherwise specified in the Contractor Schedule) in respect of the charges payable and shall be paid by the Client within thirty (30) days of the date of the invoice, unless otherwise specified in the Contractor Schedule.

6.2      All invoices will be deemed to be accepted in full by the Client in accordance and paid within thirty (30) days of date of invoice unless the Client notifies the Employment Business in writing within five (5) days of the amount the Client disputes and the reason the Client disputes that amount. In the event the Client does so notify the Employment Business that it wishes to dispute part of an invoice, the Client shall pay the undisputed part of the invoice within the agreed payment terms and shall co-operate fully with the Employment Business in order to resolve the dispute as quickly as possible.

6.3      The Employment Business reserves the right to charge interest of 8% on invoiced amounts overdue at the statutory rate as prescribed pursuant to Section 6 of the Late Payment of
Commercial Debts (Interest) Act 1998 (and as may be calculated using the calculator   on the website: www.payontime.co.uk).

 

7. Termination of Assignments

7.1      The Client may instruct the Employment Business, in writing, to end the Services of the Contractor immediately in the event of substantial non-performance of or serious misconduct by the Contractor, provided that the Client provides detailed, written confirmation   of the non-performance and/or misconduct.

7.2      The Employment Business may end any and/or   all Assignments immediately by giving the Client notice in writing if the Client is in material breach of these Terms.

7.3      Either party may terminate an Assignment prior to the end of the assignment by giving not less than thirty (30) days’ notice in writing, or such other notice as set out in the relevant Contractor Schedule.

7.4      When notice of termination of an Assignment is served by the Client, payment for each week of notice shall be based on the specified hours/days agreed in the Contractor Schedule or actual hours worked by the Representative, whichever the greater. Payment shall be made by the Client in accordance with clauses 5 and 6 above irrespective of whether or not the Contractor continues to provide the Services during this notice period.

7.5      In any event of termination of an Assignment pursuant to clause 7.1 above, the Employment Business shall use reasonable endeavours to provide an alternative Contractor within fourteen (14) days that in the reasonable opinion of the Employment Business is suitable to provide the Services.

7.6      These Terms may be terminated by either party by giving to the other immediate notice in the event that either the Employment Business or the Client goes into liquidation, becomes bankrupt or enters into an arrangement with creditors or has a receiver or administrator appointed or where the Employment Business has reasonable grounds to believe the Client will not pay the Employment Business’s invoice within the payment terms agreed within clause 6.2.

7.7      The Employment Business may substitute the Contractor and/or any Representative with another suitably qualified and similarly skilled   Contractor and/or Representative with reasonable notice at its absolute discretion.

 

8. Engagement of Representatives by Clients or Third Parties

8.1      In the event the Client:

1. a) Employs a Representative or
2. b) Engages a Representative, other than through the Employment Business, during the Assignment, the Client shall notify the Employment Business of that Employment or Engagement and shall pay the Employment Business the Transfer Fee stated in the Contractor Schedule irrespective of the planned duration of the Engagement. No refund of the Transfer Fee will be paid in the event that the Employment or Engagement subsequently terminates. VAT is payable in addition to any fee due.

8.2      Where there has been an Introduction of a Candidate to the Client which does not immediately result in the supply of the services of that Candidate by the Employment Business to the Client, but which later leads to an Engagement of the Candidate by the Client within twelve (12) months from the date of Introduction, the Client shall notify the Employment Business of that Engagement and shall be liable to pay a Transfer Fee in accordance with clause 8.1 above.

8.3      All Introductions are confidential. If during the Assignment the Client passes details of a Candidate and/or Contractor and/or Representative to any third party resulting in the Engagement of that Candidate and/or Contractor and/or Representative, then the Client shall be liable to pay the Transfer Fee in accordance with clause 8.1 above.

8.4      The Client acknowledges and agrees that where it fails to notify the Employment    Business of the actual Remuneration/fees it intends to pay the Candidate/Representative, the Employment Business shall be entitled to base the calculation of the Transfer Fee on comparable market rates for similar roles.

 

9. Warranties and liability
   • While Employment Business will make reasonable efforts to ensure reasonable standards of skills, integrity and reliability in Contractors and to comply with the Client’s requirements, the Client accepts and agrees that Employment Business gives no warranty as to the suitability of any Contractor for any Assignment.
   • Employment Business confirms that, in supplying any Contractor to the Client, it is not aware of anything which will cause any detriment to the interests of that Contractor or the Client if the Contractor fulfils the Assignment.
   • Neither Employment Business nor any of its staff will be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with the introduction or supply of a Contractor to the Client or with any failure by Employment Business to introduce or supply a Contractor for all or part of any period booked by the Client (except that in the latter case the Client may be entitled to a reduction or cancellation of the Fee payable), unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of Employment Business. In particular, but without limitation, Employment Business will not be liable for any loss, injury, damage, expense or delay arising from, or in any way connected with:
     • any failure of the Contractor to meet the Client’s requirements for all or any of the purposes for which the Contractor is required by the Client.
     • any act or omission of a Contractor, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; or
     • any loss, injury, damage, expense or delay suffered by a Contractor.
   • Should it be found that Employment Business owes a liability to Client for any reason, the damages will be capped in aggregate at £10,000.
   • Except in the case of death or personal injury caused by Employment Business’s negligence, the liability of Employment Business under or in connection with these Terms whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever will not exceed the Fee(s) paid or due to be paid by the Client to Employment Business under these Terms. Employment Business will not be liable for any matter not reported to it within five (5) days of its occurrence.
   • Neither Party will be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
   • Each of the Parties acknowledges that, in entering into these Terms, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in these Terms, and any conditions, warranties or other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law. Nothing in these Terms excludes liability for fraud.
   • The Client agrees and undertakes to indemnify Employment Business for and against any and all costs, fees, charges and expenses that Employment Business may incur as a result of or arising from late or non-payment of any charges payable under these Terms, including, but not limited to, any and all legal and other professional costs and expenses it may incur as a result of instituting legal or other proceedings against the Client for non or late payment of any Fees due.

 

10. Alternative Hire Period

10.1    Where the Conduct Regulations apply, as an alternative to the Transfer Fee agreed in clause Error! Reference source not found. the Client may provide the Employment Business with the written notice in accordance with clause Error! Reference source not found. above and to require the Employment Business to supply the services of the Representative for a further period set-out as the Alternative Hire Period within the Contractor Schedule, during which period the Client shall pay the charges agreed pursuant to clause Error! Reference source not found. above

10.2    Where the Conduct Regulations apply, as an alternative to the Transfer Fee agreed in clause Error! Reference source not found., the Client may provide the Employment Business with five (5) days written notice to require the Employment Business to supply the services of the Candidate for the Alternative Hire Period agreed in the Contractor Schedule, during which period the Client shall pay the charges agreed pursuant to clause Error! Reference source not found. above

10.3    Upon completion of the entire duration of Alternative Hire Period and the payment in full of invoices relating thereto, the Client may engage with the Representative directly or indirectly without any additional payment to the Employment Business

10.4    Where the Client does not give such notice as stated in clauses Error! Reference source not found. and 0 above before the Candidate/Representative is Engaged, the Client agrees and acknowledges that Transfer Fee shall be due.

10.5    Pursuant to clauses Error! Reference source not found. and Error! Reference source not found. above, a further Contractor Schedule shall be issued and these Terms shall continue in full force and effect during the Alternative Hire Period.

10.6    In the event the Candidate/Representative ceases to provide services for whatever reason during the Alternative Hire Period, the Client agrees and acknowledges that the Transfer Fee in accordance with clauses Error! Reference source not found. and Error! Reference source not found. above shall become due minus the portion relating to the gross profit the Employment Business charged during the Alternative Hire Period.  Save where the cessation of the services is due to the direct fault of the Employment Business.

10.7    For the avoidance of doubt, there shall be no refund of any fees or charges by the Employment Business to the Client where the Alternative Hire Period is terminated early howsoever arising

 

11. Indemnity

11.1    The Client shall indemnify and keep indemnified the Employment Business against any costs, claims or liabilities incurred directly or indirectly

by the Employment Business arising out of or in connection with any Assignment including (without limitation) as a result of:

1. a) any breach of these Terms by the Client (including its employees, subcontractors and agents); and
2. b) any breach by the 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).

11.2    The Client agrees and undertakes to indemnify the Employment Business for and against any and all costs, fees, charges and expenses that the Employment Business may incur as a result of or arising from late or non-payment of any charges payable under these Terms, including, but not limited to, any and all legal and other professional costs and expenses it may incur as a result of instituting legal or other proceedings against the Client for non or late payment of any fee(s) due.

12. Data protection
    • The parties will comply with their respective obligations under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018, or other applicable data protection legislation. In particular, Employment Business will provide Candidates with information about how their Personal Data will be processed, including:
      • the purpose of the processing and the legal basis for it;
      • if the basis for the processing is the legitimate interests of Employment Business or the Client, what those legitimate interests are;
      • any recipients of the Personal Data (including the Client); and
      • the period for which the Personal Data are retained (or the criteria used to determine that period).
    • Employment Business will:
      • co-operate fully with the Client in order to enable the Client to comply with its obligations under applicable data protection legislation;
      • implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of Personal Data and against accidental loss and destruction of or damage to Personal Data;
      • immediately upon notification by the Client, take all appropriate action to enable the Client to properly comply with any request from a data subject in relation to access to and/or rectification or erasure of Personal Data; and
      • immediately notify the Client of any data breach relating to Personal Data about which Employment Business becomes aware.

Employment Business may from time to time transfer data outside of the EEA.  Should this occur, Employment Business will ensure that the company to whom they are transferring the data has adequate data protection procedures in place

13. General

13.1    The Employment Business shall have no liability for any delay or failure in performance of its obligations to the Client where this arises from matters outside its reasonable control.

13.2    Any failure by the Employment Business to enforce at any particular time any one or more of these Terms shall not be deemed a waiver of such rights or of the right to enforce these Terms subsequently.

13.3    Headings contained in these Terms are for reference purposes only and shall not affect the intended meanings of the clauses to which they relate.

13.4    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 shall
remain in full force and effect to the extent permitted by law.

13.5    No provision of these Terms shall be enforceable by any person who is not a party to it pursuant to the Contract (Rights of Third Parties) Act 1999 (“the Act”). This does not, however, affect any right or remedy of a third party that exists or is available independently of the Act.

13.6    Notwithstanding clause 2.2, whereupon these Terms including the relevant Contractor Schedule are executed by the signature of duly authorised representatives of the parties this forms for a binding agreement and shall supersede all previous agreements or representations whether written or oral including without limitation the Client’s Terms and Conditions, purchase order or other Client documents with respect to the provision of the Services of the Contractor. These Terms may not be modified or amended except in writing and signed by a duly authorised representative of the Employment Business.

13.7    The parties acknowledge that the Conduct Regulations may not necessarily apply to these   Terms nor does the Representative works or shall work under the control of the Client.

 

14. Notices

14.1    Any notice required to be given under these Terms (including the delivery of any timesheet or invoice) shall be delivered by hand, sent by e-mail or prepaid first class post to the recipient at its address specified in these Terms (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms)

14.2    Notices in connection with these Terms shall be deemed to have been given and served,

5. a) if delivered by hand, at the time of delivery if delivered before 5.00pm on a business day or in any other case at 00am on the next business day after the day of delivery;
6. b) if sent by facsimile or 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 facsimile or e-mail message was received in an incomplete or illegible form; or
7. c) if sent by prepaid first-class post, 48 hours from the time of posting.

 

15. Governing Law

15.1    These Terms shall be governed and construed in accordance with English Law and the Courts of England shall have exclusive jurisdiction.