(1)TBCincorporated and registered in TBC with company number TBC whose registered office is at TBC (the Client).
(2)DCG IT LTD(trading as Digisourced) incorporated and registered in England and Wales with company number 13137996 whose registered office is at Third Floor Eastgate Castle Street, Castlefield, Manchester, United Kingdom, M3 4LZ (DCG IT Ltd) .
BACKGROUND
(A) We are delighted to be working with TBCand want to deliver the best service possible to you.
(B) So that you fully understand the way that our relationship will work, what follows is a detailed outline of our terms and conditions.
(C) These Standard Terms and Conditions of Business (“Standard Terms”) regulate the relationship between DCG IT Ltd and the Client. They are effective from October 2014 and supersede all previous terms issued by DCG IT Ltd. These form the entire agreement between the parties (the “Agreement”).
(D) DCG IT Ltd has been assigned to supply Contractors to the Client for a fee. These Standard Terms regulate the Supply of Contract Personnel by DCG IT Ltd to the Client only. Alternative terms and conditions (from time to time in place) apply to placement of Permanent Staff. These are available on request.
AGREED TERMS
1 DEFINITIONS:
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“Assignment” |
The work to be performed or intended to be performed by the Contractor or Candidate for the Client under the terms of this Agreement and/or as further set out in the Assignment Schedule. |
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“Assignment Schedule” |
The attached assignment schedule providing further detailed information regarding the Assignment to be performed for the Client by the candidate. |
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“Candidate” |
Candidate means the person, personnel or limited company Introduced by DCG IT Ltd to the Client who/which is intended to provide services to the Client under assignment |
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“Client” |
The person, organization, firm or corporate body (together with any Associate or Associated Company as defined by the Companies Act 1985) requiring the services of the Contractor through DCG IT Ltd. |
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“Conduct Regulations 2003” |
the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319). |
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“Confidential Information” |
any confidential information concerning the business, affairs, customers, clients or suppliers of the other party |
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“Contractor” |
The person supplied by DCG IT Ltd or a limited company supplier through DCG IT Ltd to provide services to the Client and named in the Assignment Schedule. |
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“Contractor Personnel” |
Where the Contractor is a limited company, any individuals engaged by the Contractor to provide services to the Client pursuant to the Assignment and named in the Assignment Schedule. |
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“Engage”, “Engaged” or “Engagement” |
To employ, engage or retain or otherwise accept services from a Candidate or Contractor Introduced by DCG IT Ltd to the Client whether directly or indirectly in any capacity whatsoever (including as a permanent placement). |
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“Introduced”, “Introduces” or “Introduction” |
The provision by DCG IT Ltd to the Client of any details relating to and identifying a Candidate whether written or oral. |
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“DCG IT Ltd” |
DCG IT Ltd whose registered office are First Floor Eastgate Castle Street, Castlefield, Manchester, United Kingdom, M3 4LZ |
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“Remuneration Package” |
Engagement being the aggregate value of his/her salary, any agreed bonus or commission payments (whether guaranteed or anticipated and even if the payment is made in the subsequent year of Engagement), car or car allowance, relocation allowance, pension, health insurance and any other emoluments. If the value of any part of the projected remuneration is uncertain the best estimate available to DCG IT Ltd shall be used. If a car is provided by the Client to the Candidate as part of his/her remuneration a minimum value of £5,000 will be added to his/her total remuneration for the purposes of calculating the Remuneration Package. |
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“Services” |
The selection, recruitment, resourcing and payrolling of Candidates, Contractors and Contractor Personnel for Engagement on Assignments with the Client. |
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“Supply” or “Supplied” or “Supplies” |
The provision by DCG IT Ltd to the Client of a Contractor. |
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“Unsuitable” |
By reason of skills, qualifications |
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“Data Processing or “Data Controller” or “Your Rights” or “GDPR” |
This refers to the new data regulations coming into effect on May 25 th 2018. Under the new General Data Protection Regulations, it is our responsibility to process and keep your data in a safe way. We only process your data with your prior consent and we will be upfront about how we handle your information and where we process your data. Data Processing will refer to the provisions taken to transfer your data from one place to another, Your Rights refer to those protected under GDPR. These rights include your Right to be informed, Rights of access, Rights to rectification, Rights to erasure, the Right to restrict processing, The Right to data portability, The Right to object, and your Rights to know how your data can be affected through automated decision making and profiling. |
2 AGREEMENT
These Standard Terms are deemed to be accepted by the Client from the time a request is made by the Client to DCG IT Ltd for information relating to a Candidate or DCG IT Ltd Introduces or Supplies a Candidate to the Client whichever shall be the earlier. They apply whether or not the Candidate is Engaged by the Client for the same type of work for which the Introduction or Supply was originally affected and whether or not the Client is also seeking to fill the relevant vacancy by other means such as internal or external advertising.
3 ASSIGNMENTS
3.1 DCG IT Ltd will use its reasonable endeavors to ensure that Candidates are efficient, honest and reliable but DCG IT Ltd gives no warranty in this regard and it remains the Client’s responsibility to ensure that the Candidate is suitable for the requirement.
3.2 Prior to the commencement of the Assignment, DCG IT Ltd will send the Client a completed Assignment Schedule detailing:
3.2.1 the identity of the Contractor and/or any Contractor Personnel;
3.2.2 the daily rate charged by DCG IT Ltd;
3.2.3 the duration of the Assignment;
3.2.4 the notice period to terminate the Assignment; and
3.2.5 the intervals at which invoices shall be rendered to the Client by DCG IT Ltd.
3.3 The Client shall have no right to, nor shall seek to, exercise any direction, control, or supervision over the Contractor in the provision of the services. The Contractor shall endeavor to co-operate with the Client’s reasonable requests within the scope of the services, however it is acknowledged that the Contractor shall have autonomy over their working methods.
3.4 The Contractor shall provide the services using suitably qualified personnel of their own choosing. The Contractor reserves the right to substitute any personnel, provided the Client is reasonably satisfied that the substitute possesses the necessary skills and qualifications for the satisfactory completion of the services. The Contractor will remain liable for the services completed by substitute personnel and will bear any costs.
3.5 The Client is under no obligation to offer further contracts or services to the Contractor nor is the Contractor under obligation to accept such contracts or services if offered. The Contractor is not obliged to make its services available except for the performance of its obligations under this Agreement. Both parties agree and intend that there be no mutuality of obligations either during or following the agreement, whatsoever.
3.6 If the Client decides that a Contractor and/or any Contractor Personnel is unsuitable to perform the Assignment then the Client shall notify DCG IT Ltd in writing of that fact giving the grounds for its dissatisfaction. If the Client gives notice of such dissatisfaction within the first two hours of the Contractor’s Assignment (time to be of the essence), then the Assignment will immediately terminate, and no charge or fee will be payable for the hours worked by the Contractor and/or any Contractor Personnel up to the time of the notification. In all other circumstances, the Assignment shall terminate at the end of the day on which DCG IT Ltd was notified, and the Client shall be liable for all fees and charges up to the date of such termination and the fees that would have been incurred during the notice period specified in the Assignment Schedule.
3.7 Subject to clause 3.8, the Client or DCG IT Ltd may terminate an Assignment by serving written notice to DCG IT Ltd for the time period set out in the Assignment Schedule.
3.8 The Assignment of a Contractor may be terminated by either party without notice and with immediate effect in the event of:
3.8.1 a material breach of these Standard Terms by either the Client or DCG IT Ltd and (if such a breach is remediable) fails to remedy that breach within 7 days of receipt of notice in writing to do so; or
3.8.2 a material breach by the Contractor of (for the purposes of DCG IT Ltd) DCG IT Ltd’ agreement with the Contractor; or
3.8.3 (for the purposes of the Client), in the event that the Contractor and/or any Contractor Personnel commits an act of gross misconduct.
3.9 In the event that the Assignment is terminated pursuant to clause 3.8 above, the Client shall be liable to pay DCG IT Ltd for all fees and charges up to the date of such termination but shall not be liable for the fees that would have been incurred during the notice period specified in the Assignment Schedule.
4 PAYMENT
4.1 The Client shall pay DCG IT Ltd a fee for the Supply of the Contractor, calculated by reference to the number of hours worked by the Contractor and/or any Contractor Personnel and the rate specified in the Assignment Schedule (or such other rate as DCG IT Ltd may agree from time to time with the Client) (the “Fee”). Any travelling, hotel or other expenses as may be agreed separately between the Client and the Contractor do not form part of this Agreement and will be itemized and invoiced separately in addition to the Contractor’s hourly or daily rate charges (as the case may be) and may be administered and paid by DCG IT Ltd as an agent to the Client.
4.2 The Client is required, during the term of the Assignment in respect of each Contractor and/or any Contractor Personnel, to approve and countersign a DCG IT Ltd timesheet (or other authorisation where agreed) at the end of each week worked by the Contractor verifying the number of hours worked by the Contractor and/or any Contractor Personnel during a particular week. Authorisation of timesheets (or other mechanisms where agreed) by the Client confirms acceptance by the Client that the Contractor’s services have been supplied to the Client for the hours (or days) indicated on the timesheets
4.3 If the Client does not sign a timesheet produced for authentication by the Contractor and/or any Contractor Personnel because the Client disputes the hours claimed, the Client shall inform DCG IT Ltd as soon as is reasonably practicable and shall co-operate fully and in a timely fashion with DCG IT Ltd to enable it to establish what hours, if any, were worked by the Contractor and/or any Contractor Personnel. Failure to sign the timesheet does not absolve the Client of its obligation to pay the Fee in respect of the hours actually worked.
4.4 It is agreed and acknowledged that the Client shall not decline to sign a time sheet on the basis that it is dissatisfied with the work performed by the Contractor and/or any Contractor Personnel (and, in any event, failure to sign the timesheet does not absolve the Client of its obligation to pay the Fee in respect of the hours actually worked). In cases of unsuitable or unsatisfactory work the provisions of clause 3.6 shall apply. For the avoidance of doubt, unless the Client gives notice of dissatisfaction in accordance with clause 3.6 (i.e. within the first two hours of the Contractor’s Assignment) the Client shall, in all cases, be liable to pay the Fee for the hours worked by the Contractor and/or any Contractor Personnel.
4.5 The Client shall make all payments of whatever nature to DCG IT Ltd and will not disclose to the Contractor the details of any charges paid by the Client to DCG IT Ltd for the provision of the Contractor.
4.6 Where applicable, DCG IT Ltd shall charge VAT to the Client, at the prevailing rate, after DCG IT Ltd has provided the Client with a VAT invoice.
4.7 The full amount of DCG IT Ltd fees (and any VAT where relevant) shall be paid by the Client without any deduction whatsoever on or before the due date of DCG IT Ltd invoice whether or not the Client has signed a Contractor’s timesheet. If the Client fails to make any payment due, then DCG IT Ltd reserves the right to charge interest and compensation on overdue invoices at the rate set out under the Late Payment of Commercial Debts Regulations 2002 (from time to time in place) and to recover any and all reasonable legal fees incurred for the recovery of outstanding fees.
4.8 DCG IT Ltd shall not be obliged to pay the candidate in the unlikely event that the client goes into administration or DCG IT Ltd receives information of pending action towards administration the client might be taking. DCG IT Ltd will only pay the contractor any money owed once received from the client or the administrators.
4.9 Where there is a supply of PAYE workers, the Fee will incorporate a figure for employer’s national insurance and holiday pay which shall be calculated at the statutory rate from time to time in place. Any subsequent statutory adjustments shall adjust the fee accordingly.
4.10 DCG IT Ltd and the Client agree that no refund or rebate shall be payable by DCG IT Ltd to the Client in respect of any fees paid by the Client to DCG IT Ltd pursuant to these Standard Terms under any circumstances whatsoever.
5 LIABILITY AND INSURANCE
5.1 Save as for in the event of negligence on the part of DCG IT Ltd in the performance of the Services, for which DCG IT Ltd hereby indemnifies the Client, neither DCG IT Ltd nor its staff shall be liable for any loss or damage caused to the Client, its staff or property or any third party as a result of the Introduction of, or non-Introduction of a Candidate or the Supply, or non-Supply of a Contractor or Candidate (including, for the avoidance of doubt any acts or omissions of the Candidate or Contractor). This indemnity is enforceable (subject to a proportional reduction) in the event of contributory fault on the part of the Client.
5.3 DCG IT Ltd will take out and maintain throughout the Services, Public Liability Insurance to the sum of £10 million; Employer's Liability Insurance to the sum of £10 million; and Professional Indemnity Insurance to the sum of £5 million.
5.4 Subject to clause 4.2, neither party shall be liable to the other for any of the following types of loss or damage arising under or in relation to this Agreement:
5.4.1 any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or
5.4.2 any indirect or consequential loss or damage whatsoever, even if that party was advised in advance of the possibility of such loss or damage.
5.5 Subject to clause 5.2, the entire liability of DCG IT Ltd under or in connection with this Agreement is limited, in aggregate and in any 12-month rolling period, to either (i) 2 (two) times the total monies paid under this Agreement; or (ii) such sums as are recoverable under the insurance stipulated in clause 5.2 above.
6 CONFIDENTIALITY, GDPR AND HOW WE PROCESS YOUR DATA
(For further clarification please see our Privacy Notice on our website)
6.1 Both parties shall keep confidential all information connected with the other party or which comes to the other party’s knowledge under or as a result of the Assignment and shall not disclose it to any third party or use it other than for performance of its obligations under this Agreement. Exceptions to this provision are (i) with the prior written agreement of the party whose Confidential Information is to be disclosed or (ii) by requirement of law.
6.2 All Confidential Information which has been supplied to the Client by DCG IT Ltd is for the purposes of carrying out the services under these Standard Terms and for no other reason. DCG IT Ltd shall use reasonable endeavours to ensure that the Contractor shall destroy all such information, or return all such information, at the termination of the Assignment.
6.3 Any referral letters relating to the Candidate or Contractor supplied by DCG IT Ltd to the Client shall remain confidential. The Client shall provide a referral letter to DCG IT Ltd regarding the Contractor’s performance upon request after completion of any Assignment.
6.4 Where your personal data is held or processed, we will always endeavor to gain prior consent before we share this with a candidate or another company or individual. As an example, should you engage our recruitment services to find suitable candidates, we will gain your consent to inform candidates of your job opportunities and the name of the business.
6.5 We hold your data in the following locations and handle the processing of your data:
6.5.1 Staff computers – Every staff member has access to a computer and your data may be stored on these computers. Every computer is password protected. Please see our security Policy for further information about our computer security.
6.5.2 On each device data may be stored on a local hard drive, on saved temporary Outlook folders and in a contact database. Every computer is connected to a central network, where shared drives can be accessed by all staff. Your data will most likely be shared on this drive and be shared between staff members.
6.5.3 Staff mobile telephones – Contact information, such as name, job title will be stored on staff mobile phones. Staff will have access to stored data from their phones.
6.5.4 LinkedIn Connections – We process, store and have access to your data through LinkedIn. Once you are a contact, a LinkedIn connection or an employment need is established we will often copy contact data such as Name, email address, phone number and work history onto any data storage location listed in this section.
Please follow our right of erasureor data access request procedures should you wish to change how we process your data through LinkedIn.
6.5.5 BullHorn CRM – We use Bull Horn CRM for customer management and help match candidates with appropriate positions. The data will be stored securely and is protected by Privacy Shield protocols. Bull Horn are committed to protecting your data and will be compliant with GDPR legislation. https://www.bullhorn.com/gdpr-commitment-statement/
6.5.6 Broadbean – We use Broadbean online recruitment software for job posting and distribution, CV database search, social referral, job alerts, data analysis. Please see their commitment to GDPR regulations http://info.broadbean.com/broadbean-gdpr.
6.5.7 Lusha – We are using Lusha to enrich social profiles and attribute contact details to social media profiles. We will occasionally copy details from Lusha to notify data subject of relevant jobs. Please find Lusha’s commitment to GDPR regulations: https://www.lusha.co/gdpr.
6.5.8 Excel spreadsheets – We use spreadsheets to cross reference candidate data to make sure we manage jobs, candidates and employers efficiently.
6.6 Your Rights:
6.6.1 All personal data is stored securely in accordance with the EU General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR). For more details on security see below.
6.6.2 We use your data to provide the best possible services to you. This includes:
Providing and managing an up-to-date recruitment service with a dedicated account manager
Providing and managing access to relevant candidates and candidate information all of which will give us their consent to share their details;
Personalising and tailoring your information into groups as to match relevant candidates to your job vacancy;
Responding to communications from you;
Supplying you with email newsletters e.g., newsletters, alerts etc. that you have subscribed to (you may unsubscribe or opt-out at any time by clicking on the unsubscribe link at the bottom of every email;
Analysing your use of Our Site and gathering feedback to enable Us to continually improve Our Site and your user experience;
6.6.3 In some cases, the collection of data may be a statutory or contractual requirement, and we will be limited in the services we can provide you without your consent for Us to be able to use such data.
6.6.4 With your permission and/or where permitted by law, we may also use your data for marketing purposes which may include contacting you by email AND/OR telephone AND/OR text message AND/OR post with information, news on candidates and our services. We will not, however, send you any unsolicited marketing or spam and will take all reasonable steps to ensure that we fully protect your rights and comply with Our obligations under the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended in 2004, 2011 and 2015.
6.6.5 Under GDPR we will ensure that your personal data is processed lawfully, fairly, and transparently, without adversely affecting your rights or having an adverse effect on your personal data. we will only process your personal data if at least one of the following basis applies:
6.6.5.1 you have given consent to the processing of your personal data for one or more specific purposes;
6.6.5.2 processing is necessary for the performance of a contract to which you are a party or in order to take steps at the request of you prior to entering into a contract;
6.6.5.3 processing is necessary for compliance with a legal obligation to which we are the subject;
6.6.5.4 processing is necessary to protect the vital interests of you or of another natural person;
6.6.5.5 processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; and/or
6.6.5.6 processing is necessary for the purposes of the legitimate interests pursued by us, except where such interests are overridden by the fundamental rights and freedoms of the data subject which require protection of personal data. This would be in circumstances where jobs may be deemed relevant to a candidate or candidates would be a potential applicant for a potential employer.
6.6.5.7 We may also hold or process your data as listed above. Should you no longer wish for your details to be shared in these ways please let Us know or email info@digisourced.com
6.6.5.8 You are within your rights under theGDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended in 2004, 2011 and 2015 regulations to declare which personal details we share with potential candidates or trusted 3 rd parties. For example, only phone number and name or only name and email address.
7 TERMINATION
7.1.1 a material breach of these Standard Terms by the other party and (if such a breach is remediable) fails to remedy that breach within 7 days of receipt of notice in writing to do so; or
7.1.2 if the other party shall become bankrupt or have a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or if a court of competent jurisdiction shall make an order to that effect to it the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to carry out business.
7.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
7.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
8 TRANSFER FEES AND POST TERMINATION RESTRICTIONS
8.1 A transfer fee shall become due from the Client to DCG IT Ltd if the Client:
8.1.1 Engages a Contractor or Candidate (other than pursuant to this Agreement); or
8.1.2 introduces the Contractor or Candidate to any other third party, subsequent to which the Contractor or Candidate is Engaged by that third party (other than pursuant to this Agreement, or an equivalent agreement between DCG IT Ltd and that Contractor),
in each case where the transfer takes place:
(a) at any time prior to the commencement of the Assignment following an Introduction from DCG IT Ltd.
(b) at any time within a 12-month period following the end of an Assignment carried out by the Contractor or Candidate for the Client through DCG IT Ltd.
8.2 The transfer fee shall be calculated as follows:
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Remuneration Package |
Introduction Fee |
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All salaries |
25% |
8.3 As an alternative to paying a transfer fee the Client shall have the option (by giving notice in writing) to extend a Contractor’s or Candidate’s Assignment through DCG IT Ltd for a period of 12 months under this Agreement at the end of which, the Client and/or third party (as applicable) may Engage the Contractor or Candidate other than through DCG IT Ltd without a transfer fee being payable to DCG IT Ltd.
8.4 In the event of the client engaging the Contractor or Candidate directly or indirectly without honoring clauses 8.1, 8.2 or 8.3, a one-off fee of £50,000.00 per violation will be payable from the Client to DCG IT Ltd within 14 days.
9 MARKETING
9.1 Client grants DCG IT Ltd permission to use its name in DCG IT Ltd marketing materials and to publish its name, Trademark and/or logo on the DCG IT Ltd website, solely for the purpose of identifying Client as a DCG IT Ltd client. Client retains the ability to request removal of the logo at any time with due cause.
10 MISCELLANEOUS
10.1 The Client acknowledges and agrees that it is responsible for and will comply with the obligations defined by Regulation 2(1) of the Working Time Regulations 1998 (“WTR”) for the purpose of the WTR in relation to the Contractors the Client Engages. The Client agrees that it will use all reasonable endeavours to ensure that Contractors and/or any Contractor Personnel take the necessary daily and weekly rest periods and rest breaks pursuant to Regulations 10, 11 and 12 of the WTR.
10.2 For the purposes of the Conduct Regulations 2003, DCG IT Ltd Limited acts as an employment business in relation to the Introduction and Supply of Contractors pursuant to this agreement.
10.3 The Client agrees that it will comply with the provisions of the Data Protection Act I998 in relation to the personal data of Candidates, Contractors and/or Contractor Personnel, whether Supplied to the Client by DCG IT Ltd or otherwise.
10.4 The parties agree that a failure or delay of any party to enforce at any time any of the provisions hereof shall not be construed as a waiver of such provisions.
10.5 Each clause of these Standard Terms, defined by punctuation, is separate, distinct and severable and to give meaning to the intention of the parties the Court may modify any portion that may otherwise be void; subject thereto, any void portion may be severed, and the remaining provisions shall continue in force.
10.6 Words appearing in the plural shall mean the singular where appropriate and vice versa.
10.7 No third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 in connection with this Contract.
10.8 These Standard Terms cannot be varied save in writing by a director of DCG IT Ltd and an authorised representative of the Client.
10.9 This Agreement and any Assignment Schedule constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.10 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
10.11 This Agreement is governed by the laws of England and is subject to the exclusive jurisdiction of the Courts of England.
