Service Agreement

Standard terms and conditions for the supply of services of contractors

1. Definitions and interpretation

1.1 In this Agreement the following definitions shall apply:

Agreement means the terms and conditions of business between the Company and the Client as set out in this document;

Assignment Schedule means the relevant written confirmation from the Company confirming the details of each Assignment to be performed by the Contractor pursuant to this Agreement, and "Assignment" shall be construed accordingly;

AWR means the Agency Workers Regulations 2010 (as amended);

AWR Claim means any complaint or claim to a tribunal or court made by or on behalf of the Contractor against the Client and/or the Company for any breach of the AWR;

Candidate means the individual who is the subject of an Introduction by the Company;

Charges means the charges payable by the Client for the Contractor calculated in accordance with clause 6;

Client means the person, firm or corporate body together with any Group Company to which any Candidate is Introduced by the Company and/or to which the Contractor is supplied;

Company means Dartmouth Partners Limited (company number 05974472) incorporated in England and Wales whose registered office is 125 London Wall, London, EC2Y 5AS;

Conduct Regulations means The Conduct of Employment Agencies and Employment Businesses Regulations 2003;

Confidential Information means any and all confidential commercial, financial, marketing, technical or other information or data of whatever nature relating to the Client or the Company or their business or affairs (including but not limited to the Contract, data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium;

Contractor means a Temporary Worker or Supplier who is engaged for the Assignment together with, in the case of a Supplier, such Staff as may be supplied from time to time to perform services for the Client;

Contract means the contract between the Client and the Company for the supply of the Contractor to the Client comprising this Agreement and any Assignment Schedule;

Costs means expenses, including any travel, hotel or other expenses as may have been agreed with the Client or, if there is no such agreement, such expenses as are reasonable;

Data Protection Legislation means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, privacy and electronic communications including without limitation, (a) the Data Protection Act 2018; and (b) the UK General Data Protection Regulation (Retained Regulation (EU) 2016/679);

End Date means the date detailed in the relevant Assignment Schedule or any extension thereof issued by the Company;

Exempt Organisation means an organisation which is exempt from the Off-Payroll Rules;
Group Company means in relation to a company, that company, any subsidiary or holding company or subsidiary undertaking of a common parent (as defined by section 1162 of the Companies Act 2006);

Inside IR35 means an Assignment which the Client has determined meets the conditions of Section 61M of the Income Tax (Earnings and Pension) Act 2003;

Introduction means the earlier of (a) the provision by the Company to the Client of a curriculum vitae or other information which expressly or impliedly identifies the Candidate or (b) the Client’s interview of a Candidate (in person, by telephone, by video call or by any other means), and “Introduces" and "Introduced" will be construed accordingly;

Losses means all losses, liabilities, damages, costs, expenses (including management time and reasonable legal fees) and charges arising out of or resulting from actions, omissions, defaults, proceedings, claims and demands;

Off-Payroll Rules means Chapter 10 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003;

Opt-Out Notice means a notice given by the Contractor in accordance with Regulation 32(9) of the Conduct Regulations to opt-out of the application of the Conduct Regulations, and the term "Opted Out" shall be construed accordingly;

Outside IR35 means an Assignment which the Client has determined does not meet the conditions of Section 61M of the Income Tax (Earnings and Pensions) Act 2003;

Relevant Period means the later of:

(a) 8 weeks commencing on the day after the day on which the Contractor last worked for the Client having been supplied by the Company (whether under this Agreement or otherwise); or
(b) 14 weeks commencing on the first day on which the Contractor worked on an Assignment with the Client pursuant to the most recent supply of the Contractor's services to the Client by the Company, provided that if there is a period of more than 42 days between Assignments this period shall commence on the first day of the most recent Assignment following such period between Assignments;

Sanctions means any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant authority;
Status Determination Statement means a written statement which meets the requirements of Section 61NA of the Income Tax (Earnings and Pensions) Act 2003 and in which the Client confirms its decision, and the reason for its decision, on the application of the Off-Payroll Rules to an Assignment;

Supplier means a limited liability company or other body corporate Introduced to the Client by the Company to carry out an Assignment (and, save where otherwise indicated, includes any officer, employee, worker or representative thereof and any third party to whom the provision of the Assignment is assigned or subcontracted with the prior written approval of the Client);

Staff means the person or persons employed or engaged by the Supplier to perform services pursuant to an Assignment;

Temporary Worker means the PAYE temporary worker whose services are supplied by the Company to the Client;

Transfer Fee means the fee set out within Assignment Schedule; and

WTR means the Working Time Regulations 1998.

1.2 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 this Agreement) and all subordinate legislation made (before or after the date of this Agreement) under it from time to time.

1.3 The headings in this Agreement are inserted for convenience only and shall not affect its construction.

1.4 A reference to the singular includes the plural and vice versa and a reference to one gender shall include any gender.

1.5 Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. The Agreement

2.1 This Agreement forms the entire agreement between the parties relating to the supply of the Contractor and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.

2.2 This Agreement shall apply (and shall be deemed to be accepted by the Client) on the earlier of the Client:

(a) instructing the Company to Introduce Candidates;

(b) being Introduced to a Candidate by the Company;

(c) interviewing or engaging a Candidate following an Introduction; or

(d) passing information about the Candidate to a third party following an Introduction.

2.3 In the event of any conflict or inconsistency between this Agreement and an Assignment Schedule, the provisions in the relevant Assignment Schedule shall take precedence to the extent of that inconsistency.

2.4 No variation to the Contract shall be valid unless it is in writing and signed by an authorised signatory of the parties, save that any personnel of the Company may agree to vary the Charges.

2.5 When providing services for the supply of Contractors governed by the Conduct Regulations pursuant to this Agreement, the Company is acting as an employment business as defined in the Employment Agencies Act 1973.

2.6 In the event that the Client instructs the Company to provide services for permanent staffing, or where the Client decides to engage a Candidate on a direct basis which is not immediately preceded by a period of use of the services of such Candidate on a temporary assignment basis, such services shall be governed by the Company’s standard terms of business for permanent and fixed term contracts, available on request, which shall be deemed as fully incorporated into this Agreement and are expressly accepted by both parties, as if such terms were reproduced herein in full.

3. The Company's obligations

3.1 When putting forward a Candidate, the Company shall:

(a) inform the Client of the identity of the Candidate and, in the case of a Supplier, the Staff to be supplied to do the work;

(b) confirm that the Candidate is willing to work in the position that the Client seeks to fill and has the necessary or required experience, training, qualifications and any authorisations required by law or a professional body to carry out the Assignment;

(c) ensure that the Client and the Candidate are aware of any requirements imposed by law or by any professional body;

(d) procure that it would not be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the position the Client seeks to fill; and

(e) where the Candidate will be working with children or vulnerable adults, the Company will take all reasonable steps to obtain and offer to provide copies to the Client of two references from persons who are not relatives of the Candidate pursuant to Regulation 22 of the Conduct Regulations.

3.2 In respect of a Contractor, the Company shall:

(a) use reasonable endeavours to procure that the Contractor will comply with the Client’s regulations, policies and protocols as notified by the Client to the Company from time to time, including (without limitation) on health and safety, security (including IT security when accessing or using the Client’s systems) and anti-bribery and corruption; and

(b) notify the Client as soon as reasonably practicable if, for any reason, the Contractor is unable to attend the relevant location to perform the Assignment, specifying the reasons for the delay or the absence and keep the Client informed of the reason for any continued absence.

3.3 In respect of a Temporary Worker, the Company shall ensure that the Temporary Worker has valid and subsisting leave to work in the United Kingdom for the duration of the relevant Assignment.

3.4 Where the Company and Client have agreed that the Company will supply Client with the services of a Contractor, the Company will give the Client an Assignment Schedule confirming the name of Contractor, the agreed pay rates/fees, charging mechanism, duration of Assignment, description of the services, outputs, milestones and deliverables, if applicable, notice periods and any other relevant details communicated and agreed between the parties.

4. The Client's obligations

Assignments

4.1 When requesting the Company to provide details of a Contractor for an Assignment, the Client shall provide such information to enable the Company to properly consider the suitability of the Contractor, including but not limited to details of

(a) the identity of the Client and the nature of the Client's business;

(b) the date on which the Client requires the Assignment to commence and the duration or likely duration of the Assignment

(c) the services to be providing (including the type of work, the location at which and the hours during which the services are to be provided, any risks to health and safety known to the Client and the steps taken by the Client to prevent or control such risks and any milestones, outputs or deliverables the Client expects from the services);

(d) the experience, training, qualifications and any authorisations which the Client considers are necessary, or which are required by law or by any professional body for the Contractor to possess in order to provide the services;

(e) any expenses payable;

(f) the rate payable;

(g) whether the Assignment is Inside IR35 or Outside IR35 (where the Client is not an Exempt Organisation);

(h) the length of notice period required (if any); and

(i) any other information reasonably required by the Company.

4.2 The Client agrees to the Company advertising each vacancy which the Client issues to the Company unless the Client specifies otherwise in writing.

4.3 Each Introduction made by the Company shall take priority over any duplicate applications made by or on behalf of the same Candidate provided that the Company’s Introduction was made first in time. If the Company’s Introduction is a duplicate application not made first in time, the Client shall notify the Company of this in writing, and provide satisfactory evidence of the same, within 2 (two) business days of receipt of the relevant Candidate’s details from the Company.

4.4 The Client is not obliged to accept any Candidate put forward by the Company and it is the sole responsibility of the Client to ascertain the suitability of any Candidate put forward (including interviewing the Candidate if necessary).

4.5 The Client warrants that it shall not request the Company to supply any Contractor to perform duties normally undertaken by staff who are participating in an official strike or other industrial action or duties normally undertaken by someone who has been transferred by the Client to perform the duties of the person participating in an official strike or other industrial action.

4.6 The Client warrants that it knows of no reason why it would be detrimental to the interests of the Contractor or the Client for any Contractor to undertake any Assignment and that it will notify the Company immediately if it becomes aware of any such reason.

4.7 The Company is committed to equal opportunities and expects the Client to comply with all anti-discrimination legislation as regards the selection and treatment of Contractors.

4.8 The Client shall notify the Company immediately and without delay and in any event within 24 hours if the Contractor fails to attend work or notifies the Client that they are unable to attend work for any reason.

4.9 Contractors are engaged by the Company under contracts for services. The parties acknowledge and agree that neither the Supplier nor any of its Staff are the employees or workers of the Company or the Client and no Temporary Worker is the employee or worker of the Client or the employee of the Company.

4.10 The Client shall conduct a reasonable investigation into any allegations made against a Contractor and will co-operate with the Company in any investigation which the Company may conduct, including providing the Company with documentation or evidence.

4.11 The parties acknowledge that the AWR, the Conduct Regulations and the Off-Payroll Rules are not interdependent and their applicability to an Assignment (where this is the case for any or all of them) does not determine supervision, direction or control of the Contractor by the Client.

4.12 Where the Client is an Exempt Organisation, the Client shall, upon request, provide the Company with a signed declaration in a form acceptable to the Company confirming that it is an Exempt Organisation. The Client undertakes to review its exempt status before the start of each tax year and tell the Company immediately if it ceases to be an Exempt Organisation. The Client acknowledges that if it ceases to be an Exempt Organisation, clause 4.29 shall apply.

Health and safety, WTR and AWR

4.13 The Client shall comply fully with its health and safety obligations to the Contractor, and shall supply to the Company copies of any relevant documentation as required by law or otherwise upon request, including copies of any risk assessments carried out, copies of documentation relating to the health and safety training carried out, records of health and safety incidents including accidents and copies of the Client’s (or the Client’s customer’s) health and safety policies. The Client shall, as soon as practicable after becoming aware of the issue, inform the Company of any adverse changes to potential health and safety risks relating to the Assignment or the health and safety situation (including, without limitation, any HSE investigation, notice or prosecution relevant to the Assignment). The Client shall also inform the Company if there is a requirement for the Contractor to perform all or any part of the Assignment offshore or overseas prior to the Contractor’s departure date.

4.14 The Client accepts responsibility for reporting and keeping records of all incidents as required under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 and to inform the Company of all such incidents, including providing the Company with the relevant report.

4.15 The Client will assist the Company in complying with the Company’s duties under the WTR by supplying any relevant information about the Assignment requested by the Company and the Client will not do anything to cause the Company to be in breach of its obligations under the WTR. If the Client requires the services of a Contractor for more than 48 hours in any week during the course of an Assignment, the Client must notify the Company of this requirement before the commencement of the Assignment or, where this is not reasonably practicable, at the very latest before the commencement of the week in which the Client requires the Contractor to work in excess of 48 hours.

4.16 Where applicable, the Client will comply with its obligations under Regulation 12 (Rights of agency workers in relation to access to collective facilities and amenities) and 13 (Rights of agency workers in relation to access to employment) of the AWR.

4.17 The Client will comply with the Company’s requests, on a timely basis, for information and any other reasonable requirements to enable the Company to comply with the AWR, where applicable.

4.18 The Client warrants that:

(a) all information and documentation supplied to the Company in accordance with clauses 4.13, 4.14, 4.15 and 4.16 is complete, accurate and up-to-date;

(b) it will, during the term of the relevant Assignment, immediately inform the Company in writing of any subsequent change in any information or documentation provided in accordance with clauses 4.13, 4.14, 4.15 and 4.16; and

(c) it shall inform the Company in writing of any:

(i) oral or written complaint the Contractor makes to the Client which is or may be a complaint connected with rights under the AWR; or

(ii) written request for information relating to comparator terms and conditions that the Client receives from the Contractor,
as soon as possible but no later than 7 calendar days from the day on which any such oral or written complaint or request is received by the Client.

4.19 The Client will take such action and give such information and assistance pursuant to clause 4.18(c) as the Company may request, and within any timeframe requested by the Company, in order to resolve any such complaint or to provide such information in a written statement to the Contractor within 28 days of the Client’s receipt of such a request in accordance with Regulation 16 of the AWR and the Client will provide the Company with a copy of such written statement.

4.20 If the Contractor brings, or threatens to bring, any AWR Claim, the Client undertakes to take such action and give such information and assistance as the Company may request, within any timeframe requested by the Company and at the Client’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.

Suppliers

4.21 Neither the Supplier nor its Staff shall be under the supervision, direction or control of the Company or the Client.

4.22 The Client agrees that the Assignment may be performed by one or more members of the Supplier’s Staff, as the Suppler may consider appropriate, subject to the Company and the Client being reasonably satisfied that each such member of Staff has the required skills, qualifications and resources to provide the services to the required standard.

4.23 The Client agrees that the Supplier may, if the Supplier determines that to do so would result in the most efficient performance of the Assignment, enlist additional Staff in the performance of the Assignment or may provide substitute Staff or sub-contract all or part of the Assignment, subject to the Company and the Client being reasonably satisfied that such additional or substitute Staff or any such sub-contractors have the required skills, qualifications, resources and personnel to provide the services to the required standard.

4.24 Save as otherwise stated in the Contract, each Contractor shall be entitled to seek and perform contracts to supply its services to any third party throughout the duration of any Assignment, provided that this in no way compromises or is to the detriment of the performance of the services for the Client pursuant to the Assignment.

4.25 The Client shall not require the Contractor to provide any advice or assistance in addition to the Assignment and any requests to provide such additional advice and assistance shall be subject to prior written agreement between the Company and the Client, including agreement as to the level of fees payable for such additional advice and assistance.

4.26 The Client acknowledges and accepts that where, under the Contract or otherwise, the Company is obliged to require a Supplier to do or refrain from doing something, such obligation will be discharged by inserting an appropriate provision in the Supplier Agreement.

4.27 The Client accepts that the Supplier may perform the work pursuant to an Assignment at such times and on such days as the Supplier shall decide, subject to the Supplier performing the work on such days and at such times as are necessary for the proper performance of the Assignment.

4.28 Except as otherwise agreed with the Client, the Supplier shall provide, at its own cost, all such necessary equipment as is reasonable for the satisfactory performance by the Staff of the services for the Client pursuant to the Assignment.

4.29 Where the Client (or the Client’s customer) is not an Exempt Organisation and a Supplier is engaged for an Assignment, the Client agrees that it will:

(a) subject to the provisions of this clause 4.29, comply with the Off-Payroll Rules in all relevant respects;

(b) as soon as possible, and in any event prior to the commencement of the Assignment, provide its Status Determination Assessment (SDS) to both the Supplier and the Company. The SDS must confirm whether the Assignment is Inside IR35 or Outside IR35 and give complete and accurate reasons for its determination. The Client acknowledges that if it does not provide a valid SDS:

(i) the Company may not be able to supply or Introduce a Supplier to the Client; or

(ii) if the Company does supply or Introduce a Supplier to the Client, the Client will be deemed to be the fee-payer (as defined in the Off-Payroll Rules) until such time as it does provide a valid SDS;

(c) provide promptly such full, accurate and honest information as is reasonably requested by the Company from time to time to comply with its obligations under the Off-Payroll Rules; and

(d) notify the Company immediately if there is evidence of a change of status of the Contractor and/or Staff or of the information provided under clause (c) in either case during the Assignment for the purposes of the Off-Payroll Rules.

5. Timesheets and Verification Forms

5.1 The Client shall sign the Company’s timesheet verifying the number of hours or days worked by the Temporary Worker during that week or, in the case of a Supplier, shall verify the execution of the Assignment by the Supplier by signing a form provided to the Supplier for this purpose (Verification Form). Timesheets and Verification Forms will be validly submitted in accordance with this clause 5.1 where completed or submitted electronically.

5.2 Subject to clause 5.4, the Client shall not be entitled to decline to sign a timesheet or Verification Form on the basis that it is dissatisfied with the services performed by the Contractor. However, if the Client is unable to sign a timesheet produced for authentication by the Temporary Worker, or a Verification Form provided by the Supplier, because the Client disputes the amount of time claimed, then Client will notify the Company within two working days from the presentation to the Client of the relevant timesheet/Verification Form and will co-operate fully and in a timely fashion with the Company to establish what periods of time, if any, were worked by the relevant Contractor.

5.3 Failure to sign any timesheet or Verification Form in accordance with clause 5.1 does not absolve Client of its obligation to pay the Charges of the Company in accordance with clause 6.

5.4 Where the Assignment Schedule for a Supplier specifies that the Supplier shall be paid for work or services performed upon completion of pre-agreed deliverables or milestones pursuant to a statement of work or otherwise (and irrespective of the time worked), the Client shall sign a Verification Form authorising payment by the Company to the Supplier accordingly. The Client agrees that such authorisation shall be regarded by the Company as an irrevocable instruction to the Company to pay the Supplier for the work performed and the Client shall pay the Company’s invoice issued pursuant to clause 6 in full and without any set-off or deduction. In the event of a dispute regarding completion (or non-completion) of work or services performed by the Supplier, the Client shall inform the Company as soon as is reasonably practicable and the Client, Company and Supplier shall cooperate fully and in a timely fashion to seek to resolve the same.