For the Provision of Interim Contractors
1. Acceptance and Interpretation. The following definitions and rules of interpretation and acceptance apply in this agreement.
1.1 Acceptance. The Client will be deemed to have accepted and agreed to the terms of this agreement (which will prevail over any other terms and conditions put forward by the Client), when any of the following events occurs (regardless as to whether or not this agreement has been signed by either of the parties): (i) the Client requests Dartmouth Partners to Introduce a Contractor for any Assignment, role or position; or (ii) the Client, the Client’s Group, Holding or Subsidiary, or a third party acting on the Client's behalf, interviews a Contractor; or (iii) the Client Engages a Contractor in any capacity; or (iv) a Contractor begins work for the Client in any capacity; or (v) Dartmouth Partners provides any recruitment, staffing or introduction services to the Client.
Assignment: has the meaning given in clause 3.1 (Client's obligations) and set out in any Assignment Schedule (as defined in clause 3.2).
AWR 2010: the Agency Workers Regulations 2010 (SI 2010/93).
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Client: the person, firm or corporate body together with any subsidiary or associated Company as defined by the Companies Act 2006 to which the Contractor is introduced.
Commencement Date: has the meaning given in clause 7(Term).
Conduct Regulations 2003: the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319).
Engage: the employment of a Contractor or engagement or use, either as a worker, temporary worker, worker, employee, service provider or independent contractor directly or indirectly through any employment business or other third party other than through Dartmouth Partners (whether for a definite or indefinite period) as a direct result of any Introduction or Assignment to the Client and the terms Engaged or Engagement shall be construed accordingly.
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time.
Holding Company: has the meaning given in clause 1.5.
Introduce: the provision to the Client of any information by Dartmouth Partners by whatever means which allows for the objective identification of identifies the Contractor and Introduction and Introduced shall be construed accordingly.
Introduction Date: the date on which Dartmouth Partners Introduces the Contractor to the Client in accordance with clause 2 (Dartmouth Partners’ obligations).
Introduction Fee: has the meaning given in the Assignment Schedule (if applicable).
Screen: carry out pre-vetting checks to the level and criteria as reasonably requested by the Client within the limit of the applicable law prior to commencement of the Assignment and Screening shall be construed accordingly.
Subsidiary: has the meaning given in clause 1.5.
Contractor: a company or other legal entity, as the case may be, and its representative or suitably qualified substitute Introduced and supplied by Dartmouth Partners to the Client to provide services to the Client not as an employee of the Client or as an employee of Dartmouth Partners, which is subject to a Valid Opt-Out, unless otherwise stated in any applicable Assignment Schedule.
Contractor Fees: has the meaning given in clause 6.1.
Territory: the United Kingdom and Germany.
Unsatisfactory Contractor: has the meaning given in clause 5.2.
Valid Opt-Out: means written notification from a company candidate and the individual provided by that company candidate in accordance with regulation 32(9) of the Conduct Regulations 2003, as amended from time to time.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Vulnerable Person: has the meaning given in regulation 2 of the Conduct Regulations 2003.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written email.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Dartmouth Partners’ obligations
2.1 These terms set out the agreement between Dartmouth Partners and the Client for the supply of Contractors by Dartmouth Partners to the Client. For the purposes of the Conduct Regulations 2003, Dartmouth Partners acts as an employment business in relation to the Introduction and supply of Contractors pursuant to this agreement.
2.2 Dartmouth Partners agrees to search, in the Territory and within such timeframe as the Client may specify, for candidates for the Client as Contractors who meet the Client's stipulated minimum criteria for the Client’s staffing requirements on its Assignments as set out in any applicable Assignment Schedule.
2.3 Dartmouth Partners shall Screen candidates before Introducing them to the Client and shall Introduce to the Client only candidates who meet the minimum criteria for the position stipulated by the Client in accordance with clause 3and any Applicable Assignment Schedule and who have an interest in the positions for which they are Introduced. Dartmouth Partners shall Introduce only candidates who have the right to work in the Territory and, in particular, where applicable, Dartmouth Partners shall comply with the Immigration Asylum and Nationality Act 2006, the Immigration Act 2016 and other relevant UK legislation or equivalent legislation in the relevant jurisdiction as well as any regulations or relevant codes of practice regarding the reporting of labour movements, concealed employment and the employment of foreign workers.
2.4 Where a candidate is required by law or any professional body to have any qualifications, authorisations or certification to work on the Assignment or the Assignment involves working with any Vulnerable Persons, Dartmouth Partners shall take all reasonably practicable steps to obtain, and offer to provide copies of, any relevant qualifications or authorisations or certification and two references. Dartmouth Partners shall also take all reasonably practicable steps to confirm that the candidate is suitable for the Assignment. If Dartmouth Partners is unable to fully comply with these requirements, it shall inform the Client of the steps it has taken to obtain the necessary information.
2.5 Dartmouth Partners shall use commercially reasonable efforts to ensure that the Contractor shall not hold itself out as having any relationship with the Client, other than as provided for under this agreement and/or the applicable Assignment Schedule.
2.6 Prior to the commencement of the Assignment, Dartmouth Partners shall send the Client written confirmation of:
(a) the identity of the Contractor;
(b) the Contractor's experience, training, qualifications and authorisations necessary for the Assignment;
(c) the Contractor's willingness to carry out the Assignment;
(d) the hourly rate charged by Dartmouth Partners in accordance with clause 6.1;
(e) any notice period to terminate the Assignment; and
(f) the intervals at which invoices shall be rendered to the Client by the Employment Business.
2.7 The parties shall meet regularly to review the services provided by Dartmouth Partners. Any resulting changes agreed to the services, remuneration or any other aspect of the agreement shall be of no effect unless confirmed in writing.
2.8 Dartmouth Partners is not obliged to offer an Assignment to any Contractor and the Contractor shall not be obliged to accept any Assignment offered by Dartmouth Partners or by the Client.
2.9 Dartmouth Partners accepts that it is subject to the provisions of the Modern Slavery Act (MSA) 2015 and will take all necessary action to prevent exploitation and human trafficking within its business activities and supply chain.
3. Client's obligations
3.1 When making a request for the provision of a Contractor to perform certain services (Assignment), the Client will give Dartmouth Partners details of:
(a) the date on which the Client requires the Contractor to commence work and the duration, or likely duration, of the work;
(b) the position which the Client seeks to fill, including the type of work the Contractor in that position would be required to do, the location at which, and the hours during which, the Contractor would be required to work, and any risk to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(c) the experience, training, qualifications and any authorisation 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 work in the position;
(d) any expenses payable by or to the candidate; and
(e) any information reasonably required by Dartmouth Partners in order for Dartmouth Partners to fulfil its obligations under the AWR 2010.
3.2 The Client undertakes to ensure that when the Contractor provides services pursuant to the Assignment Schedule, the Contractor shall be entitled to set its or their own hours and place of work and to determine how the work is done, within the contractual scope of the Assignment (as defined in the applicable Assignment Schedule).
3.3 The Client accepts that there is no mutuality of obligations between the Client, Dartmouth Partners and the Contractor. As such, whilst the parties are contractually bound from a commercial perspective to adhere to the terms of each Assignment, the Contractor has no obligation to accept work from Dartmouth Partners or the Client.
3.4 The Client acknowledges that where possible, the Contractor shall provide its own equipment for use on the Assignment, and where applicable, shall maintain insurance in respect of claims arising out of services provided by it or them pursuant to the Assignment.
3.5 The Client undertakes that the Contractor shall not be integrated into the Client’s business more than is absolutely necessary for the proper performance of the Assignment. As such, the Client undertakes that it shall not: (i) hold the Contractor out as a member of the Client’s company; and (ii) permit the Contractor to be entitled to or participate in any of the Client’s employee-type benefits. As such, the Client undertakes that the Contractor shall not be subject to the Client’s internal policies and procedures, but shall only be subject to such policies and procedures which apply to external contractors, notably in regards to all health and safety requirements to which the Client is subject within the course of its business, and which apply to the Assignment as set out in the Assignment Schedule.
3.6 The Client shall be precluded from agreeing the payment of any benefits or bonuses with the Contractor, and shall in no circumstances make any direct payments to the Contractor, save that the Client shall be entitled to agree the payment of a commission to the Contractor based on the certain targets and/or milestones achieved by the Contractor during performance of the Assignment.
3.7 The Client accepts that it is subject to the provisions of the Modern Slavery Act (MSA) 2015 and will take all necessary action to safeguard against exploitation and human trafficking within its business activities and supply chain.
3.8 The parties agree that the provisions of this agreement shall govern the overall relationship between the parties and the Assignments, but that for each Assignment, the Client shall enter into a separate shall enter into a separate assignment schedule which shall take into account all Assignment details as well as any special conditions or other information, including information related to the Contractor (the Assignment Schedule).
3.9 In the event of any conflict between the terms of this agreement and its schedules and an Assignment Schedule, the provisions of the Assignment Schedule shall apply.
4.1 Subject to payment of a penalty equivalent twelve (12) weeks’ remuneration hereunder calculated in accordance with the rates payable to Dartmouth Partners’ under the applicable Assignment Schedule, the Client shall not (and shall procure that its Group, Holding Companies or Subsidiaries or any client of the Client shall not), either on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of twelve months from, the end of the term of the applicable Assignment Schedule or any renewals or extensions thereof: (i) solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any Contractor from Dartmouth Partners; or (ii) Engage, liaise, collaborate, engage, employ by or otherwise utilise the services of any Contractor without utilising the services of Dartmouth Partners.
4.2 The parties acknowledge that the Contractors shall be subject to a Valid Opt-Out and therefore accept that the terms of this clause 4 are fair and reasonable to protect Dartmouth Partners’ objective and legitimate business interests.
5. Unsatisfactory Contractors
5.1 Dartmouth Partners shall notify the Client immediately if it believes that any Contractor is unsuitable for the Assignment or if it becomes aware of any matter that indicates that a Contractor may be unsuitable for the Assignment or is inconsistent with any information previously provided including where a Contractor ceases to have the appropriate skills, approvals or a right to work in the United Kingdom.
5.2 If the Client decides that a Contractor is unsuitable to perform the Assignment (an Unsatisfactory Contractor), then the Client shall notify Dartmouth Partners in writing of that fact giving the grounds for its dissatisfaction with the Unsatisfactory Contractor and also requesting that the Assignment be terminated.
5.3 If the Client notified Dartmouth Partners of an Unsatisfactory Contractor in accordance with clause
5.2 then the Assignment shall terminate according to the timeframe set out in the Assignment Schedule, and Contractor Fees shall be payable up to and including the date of such termination.
5.4 Dartmouth Partners or the Client may terminate an Assignment at any time on reasonable notice. The Client reserves the right to change its requirements at any time before the commencement of the Assignment without any liability of the Client to Dartmouth Partners whatsoever, save for the payment of Contractor Fees due and payable for services already performed. Such cancellation or amendment shall be effective immediately upon the Client giving notice to Dartmouth Partners (which must be given in writing).
5.5 Nothing in this clause 5 (including but not limited to notice periods) shall be construed as conferring any mutuality of obligations on either or the parties or on the Contractor to provide and/or accept work. Any such notice period referred to in clauses 5.3 and 5.4 above is to ensure that the parties are able to effectively manage their commercial relationship and the logistics related to the Assignment.
6. Fees and VAT
6.1 The Client will pay Dartmouth Partners Contractor Fees in respect of Contractors as set out in the applicable Assignment Schedule.
6.2 The Contractor Fees comprise the Contractor's rates, and include Dartmouth Partners’ commission. When booking a Contractor for an Assignment, the agreed Contractor Fees for that Contractor shall be set out in the applicable Assignment Schedule. The following conditions apply to the Contractor Fees:
(a) the Client shall during the Assignment sign a time sheet verifying the number of hours worked by the Contractor during a particular week. If the Client is unable to sign a time sheet produced for authentication by the Contractor because the Client disputes the hours claimed, the Client shall inform Dartmouth Partners as soon as is reasonably practicable and shall co-operate fully and in a timely fashion with Dartmouth Partners to enable Dartmouth Partners to establish what hours, if any, were worked by the Contractor. Failure to sign the time sheet does not absolve the Client of its obligation to pay the Contractor Fees in respect of the hours actually worked; and
(b) the Client acknowledges that it shall not decline to sign a time sheet on the basis that it is dissatisfied with the work performed by the Contractor. In cases of unsuitable or unsatisfactory work the provisions of clause 5.2 shall apply; and
(c) Dartmouth Partners shall submit all invoices together with the applicable signed time sheets verifying the number of hours worked by the Contractor; and
(d) Dartmouth Partners shall invoice the Client monthly in arrears and invoices are payable within 7 calendar days of receipt. No fee is incurred by the Client until the Contractor has commenced the Assignment; and
(e) the Client shall not be required to pay Contractor Fees for any absences (for whatever reason) of a Contractor.
6.3 Where applicable, Dartmouth Partners shall charge VAT to the Client, at the prevailing rate, after Dartmouth Partners has provided the Client with a VAT invoice.
6.4 If the Client fails to make a payment due to Dartmouth Partners under this agreement by the due date, then the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
7.1 This agreement shall commence on the date on which the Client was deemed to accept the terms of this agreement as set out in clause 1 or the date at the head of this agreement (whichever is earlier) (the Commencement Date) and shall continue, unless terminated earlier in accordance with clause 8 (Default and early termination) until either party gives to the other party 30 Business Days' notice to terminate, expiring on or after the first anniversary of the Commencement Date.
7.2 The termination of an Assignment shall be governed by the provisions of clause 5 herein, unless otherwise set out in the applicable Assignment Schedule.
8. Default and early termination. Without affecting any other right or remedy available to it, the Client may terminate this agreement with immediate effect by giving written notice to Dartmouth Partners if:
(a) Dartmouth Partners commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of receipt of notice in writing to do so; or
(b) Dartmouth Partners suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
9.1 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.
9.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Neither party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11. Audit and record-keeping
11.1 For the duration of this agreement and for a period of [six years] from the termination or expiry of this agreement, Dartmouth Partners shall maintain full and accurate records of:
(a) the services provided by Dartmouth Partners under this agreement including but not limited to how it has complied with its obligations under clause 2(Employment Business's obligations);
(b) all expenditure reimbursed by the Client;
(c) all payments made by the Client;
(d) the terms on which it or any subcontractors engage any Contractors;
(e) the Screening undertaken on any Contractors; and
(f) the insurance certificates and details of cover referred to in clause 12.
11.2 Dartmouth Partners shall promptly on request provide the Client or the Client's representatives with copies of such records referred to in clause 11.1 as the Client may from time to time reasonably request and Dartmouth Partners shall provide the Client or the Client's representatives with access, on reasonable notice and within normal working hours, to any of its premises for the purposes of inspecting and/or taking copies of such records.
12. Liability and insurance
12.1 Whilst every effort is made by Dartmouth Partners to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from Contractors and further to provide them in accordance with the Client’s requirements as set out in the applicable Assignment Schedule, Dartmouth Partners is not liable for any loss, expense, damage or delay arising from any failure to provide any Contractor for all or part of the period of booking or from the negligence, dishonesty, misconduct or lack of skill of the Contractor.
12.2 Further, Dartmouth Partners is acting as a staffing agency and shall have no liability arising out of the Contractor’s conduct on site or performance of the Assignment or the Contractor’s work product or deliverables. To this end, Dartmouth Partners shall act reasonably in the provision of staffing services in accordance with industry standards and the terms of this agreement.
12.3 Dartmouth Partners’ total liability under this agreement shall (i) be limited to direct and consequential loss only; and (ii) never exceed 100% of the fees paid by the Client for the Assignment in respect of which Dartmouth Partners’ liability arose. For the avoidance of doubt, Dartmouth Partners does not exclude liability for death or personal injury arising from its own negligence.
12.4 Contractors supplied by Dartmouth Partners are engaged under contracts for services. They are not the employees of Dartmouth Partners and shall not be under the supervision and direction and control of the Client, save for ensuring compliance with health and safety requirements as set out herein, from the time they report to take up duties and for the duration of the Assignment. The Client shall be solely responsible for all acts, errors or omissions of the Contractor, whether willful, negligent or otherwise, incurred during performance of the Assignment.
12.5 The Client will also comply in all respects with all statutes including but not limited to, for the avoidance of doubt, the Working Time Regulations, Health and Safety At Work Act, by-laws, codes of practice and legal requirements to which the Client is ordinarily subject in respect of the Client’s responsibility towards external contractors, including in particular the provision of adequate insurance cover for Contractors and its or their performance of the Assignments, during all Assignments.
12.6 The Client shall advise Dartmouth Partners of any special health and safety matters about which Dartmouth Partners is required to inform the Contractor and about any requirements imposed by law or by any professional body, which must be satisfied if the Contractor is to fill the Assignment. Where applicable, the Client will assist Dartmouth Partners in complying with Dartmouth Partners’ duties under the Working Time Regulations by supplying any relevant information about the Assignment requested by Dartmouth Partners and the Client will not do anything to cause Dartmouth Partners to be in breach of its obligations under these Regulations.
12.7 The Client undertakes that it knows of no reason why it would be detrimental to the interests of the Contractor for the Contractor to fill the Assignment.
12.8 The Client undertakes not to request the supply of a Contractor to perform the duties normally performed by a worker who is taking part in official industrial action or duties normally performed by someone who has been transferred by the Client to perform the duties of the person on strike or taking official industrial action.
12.9 For the avoidance of doubt, this Agreement constitutes a contract for the provision of services and not a contract of employment between the parties, or between the Contractor and the Client or the Contractor and Dartmouth Partners (unless otherwise stated in an Assignment Schedule). Accordingly, the Client shall be fully responsible for and shall indemnify Dartmouth Partners for and in respect of: (a) any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with either the performance of the Assignment or any payment or benefit received by the Contractor in respect of the Assignment due to the Client’s failure to respect its obligations under this agreement, where such recovery is not prohibited by law; and (b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Contractor or any authorities against Dartmouth Partners arising out of or in connection with the provision of the Assignment due to the Client’s breach of the terms of this agreement. The Client shall further indemnify and keep indemnified Dartmouth Partners against any losses incurred by Dartmouth Partners arising out of any Assignment or arising out of any non-compliance with, and/or as a result of any breach of, this agreement by the Client.
12.10 Dartmouth Partners shall use reasonably commercial efforts to ensure that Contractors are contractually obliged to comply with:
(a) all relevant statutes, laws, regulations and codes of practice from time to time in force applicable to the performance of an Assignment and applicable to the Client's business;
(b) the Client's health and safety policy whilst the Contractors are on the Client’s premises or any of the Client's customers' or suppliers' or agents' (direct or indirect) premises; and
(c) a restriction not to disclose any confidential information of the Client or of any of the Client’s customers or suppliers or agents (direct or indirect), which they may acquire during the course of the Assignment.
12.11 During the term of this agreement (and for a period of 12 months thereafter), Dartmouth Partners shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £10 million and shall on the Client's request, produce both the insurance certificate giving details of the cover and the receipt for the current year's premium.
12.12 The provisions of this clause 12 shall survive termination of this agreement.
13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 13.2.
13.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under or in connection with this agreement.
14. Data protection
14.1 The following definitions apply in this clause 14:
Agreed Purposes: for the purposes of supplying Contractors and candidates to the Client and for performance of the Assignment Schedules.
Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party, including all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.
14.2 This clause 14 sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
14.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation. For the avoidance of doubt, the parties shall each act as separate controllers and not as joint controllers for the purposes of the Data Protection Legislation.
14.4 Each party shall:
(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
(f) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data outside of the European Economic Area unless the transferor:
(i) complies with the provisions of Article 26 of the General Data Protection Regulation (in the event the third party is a joint controller); and
(ii) ensures that the transfer complies with Article 45, Article 46 and/or 49 of the General Data Protection Regulation.
14.5 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 14; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.
15. Warranties and undertakings
15.1 Dartmouth Partners warrants that has the necessary expertise to provide the services contemplated in this agreement and will perform them in keeping with the highest professional business standards by using appropriately qualified, experienced and trained personnel.
15.2 Dartmouth Partners warrants that it does and it shall comply with the all relevant statutes, laws, regulations and codes of practice from time to time in force in the relevant Territory.
15.3 Each party warrants that it has full capacity and authority to enter into and perform this agreement.
16. Non-solicitation. The Client shall not, either on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of twelve months from, the end of the term of this agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of Dartmouth Partners who has worked on the services provided under this agreement at any time during the term of this agreement, subject to payment, for each breach of this clause 16, of a transfer fee (on presentation of an invoice to this effect) by the Client to Dartmouth Partners equating to 30% of the gross annual salary of the individual concerned as at the leaving date of that individual.
17. Assignment and other dealings
17.1 Subject to clause 18.2, neither party shall assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party.
17.2 Dartmouth Partners shall not subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent (not to include any members of its Group, any Holding Company or any Subsidiary) without the prior written consent of the Client. It shall be a condition of such consent that the subcontractor signs and observes an agreement containing terms at least as onerous as those contained in this agreement. Without prejudice to this clause, Dartmouth Partners shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised or unauthorised subcontractors and Dartmouth Partners shall be liable for the acts and omissions of any subcontractor (of any tier and authorised and unauthorised) or any intermediaries whatsoever as if they were the acts and omissions of Dartmouth Partners itself.
18. No partnership or agency
18.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20. Entire agreement
20.1 This agreement 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, in respect of the subject matter of this agreement regarding the provision of temporary workers and contractor staffing. For the avoidance of doubt, this agreement and/this clause 20.1 shall not have any impact on any other terms between the parties related to permanent recruitment services and/or any other services provided between the parties) which shall remain in force and unaffected, notwithstanding the conclusion, existence or termination of this present agreement.
20.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21. Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement, including payment, if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
22.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
22.2 If any provision or part-provision of this agreement is deemed deleted under clause 22.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Third party rights. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
24.1 With the exception of notices given by the Client pursuant to clause 5.4, which may be given by telephone, any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the Assignment Schedule.
24.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9:00am on the second Business Day after posting; and
(c) If sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 24.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Governing law. This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
26. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.