1. DEFINITIONS

“Agency” means the person, firm or corporate body and to which the Company supplies the Services of the Contractor which is acting in the capacity of an employment business as defined by the Employment Agencies Act 1973.

“Assignment” means the Services to be supplied, subject to the terms and conditions of this Contract, during the period of the engagement as more particularly set out in any Assignment Schedule agreed between the parties from time to time.
“Assignment Schedule” means any assignment confirmation note or assignment details whether agreed between the parties verbally or in writing.
“Authorised Representative” means any person which the Client holds out as authorised to validate expenses claims and/or timesheet for the Contractor’s Services.
“Client” means any person firm or corporate body together with any subsidiary or associated company as defined by the Companies Act 2006, requiring the Service.
“Company” means Pinnacle Payroll, Unit 3 Satellite Park, Macmerry, Tranent, Scotland, EH33 1RY
“Contract” means these terms and conditions, together with any Assignment Schedule from time to time, agreed between the parties.
“Contractor” means the person, firm or company assigned to provide the Services to the Client.
“Related Claim” means a claim by a Contractor for any issue not dealt with in a timesheet, including but not limited to claims for expenses and shall include the paperwork relating to the same.
“Services” means the particular services required from time to time by the Agency to be provided to the Client by the Contractor and which the Company from time to time agrees to provide.
“The 2003 Regulations” means the Conduct of Employment Agencies and Employment Business Regulations 2003.
1.2 The headings contained in these terms are for convenience only and do not affect their interpretation.
1.3 Unless the Contract requires otherwise reference to the singular include the plural and reference to the masculine include the feminine and vice versa.
1.4 Reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and all statutory instruments or orders made pursuant to it.
1.5 References to documents shall include original and copies of any written or diagrammatic material relating to the Assignment whether in hard copy or electronic format.

2. THE CONTRACT

2.1 This Contract, to the exclusion of all other terms and conditions not expressly incorporated into this Contract by reference and signed by a director of each party, constitutes the terms agreed between the Agency an the Company for the supply from time to time of the Contractor’s Services to the Client and are deemed to be accepted by the Agency by virtue of its request for or engagement of a Contractor.

2.2 This Contract may be transferred, sub-contracted, assigned or made over to a third party by the company or the Agency, provided that the prior written agreement of the other parties is obtained such agreement not to be unreasonably withheld or delayed.
2.3 This Contract replaces any other agreement or contracts between the Company and Agency in respect of any Assignment between the parties.
2.4 The Agency has no obligation to offer future contracts to the Company and if it does make any such offer, the Company is not obliged to accept it.
2.5 No variation or alteration of these terms shall be valid unless prior written approval is obtained from a director or each of the Company and the Agency.
2.6 At no point is it considered that the Contractor will be held to be an employee of the company, Agency or the Client, but in the event of any such claim that the Contractor is an employee or seeks rights of an employee, the parties shall provide to each other all reasonable co-operation in dealing with any such claim.
2.7 The expiration or termination of this Contract, however arising, shall not operate to affect any of the provisions contained in Clauses 4, 12 and 14, which are hereby expressed to operate after such termination or expiration.

3. FEES

3.1 The Company will receive payment from the Agency for an Assignment at the rate specified in the Assignment Schedule for each hour agreed in accordance with clause 6.4 as being worked, plus VAT where appropriate.

3.2 All payments due are arising under this Contract or any Assignment Schedule will be made to the Company without counterclaim or set off, but nothing in the clause 3.2 shall prevent the Company from factoring its debts in accordance with clause 3.6.
3.3 The Agency shall settle all approved invoices issued by the Company relating to the provision of Services within 28 days of the date specified on the invoice unless otherwise agreed in writing.
3.4 Neither the Agency nor the Client will pay statutory sick pay, holiday pay or statutory maternity pay to the Company or its Contractors.
3.5 The Agency shall not be responsible for any PAYE, Income Tax or National Insurance contributions any other taxes and statutory deductions require in respect of any payment made to the Company as appropriate (but excluding VAT) and the Company agrees (Subject to the Agency providing the Company with such assistance and information in relation to such liability as the Company shall require) to indemnify the Agency against any claims, or demands in respect of the same (but excluding VAT). The Agency shall not make any payment referred to in this clause 3.5 without first providing the Company with reasonable time and opportunity to consider and, if thought fit, to dispute any such liability.
3.6 The Company shall be entitled to factor it debts and to appoint third parties to assist in the factoring and/or recovery of any payments due to the Company from the Agency under this Contract or any Assignment and the Company shall be entitled to recover and the Agency shall indemnify and keep indemnified the Company in respect of all costs, fees and expenses incurred by or on behalf of the Company in taking such action.

4. ASSIGNMENTS

4.1 Whilst the Company is not obliged to provide the Services for the minimum number of hours each day or week, the Company agrees to ensure compliance with any milestone targets set by the Client in any Assignment Schedule and which is agreed in writing by an Authorized Representative of the Company and to ensure that the Services are provided to the Client in a timely manner.

4.2 The Services shall be performed at such location as the Client and Contractor may agree from time to time.
4.3 The Contractor will determine the method of performance of the Services but in doing so shall co-operate with the Client and comply with all reasonable and lawful instructions within the scope of the Assignment made by the Client.
4.4 Nothing in this Contract shall compel the Company to accept an Assignment which has not already been accepted by it in writing. The Company shall be entitled to terminate an Assignment where the Agency seeks to introduce a change to that Assignment, the terms of which the parties are unable to reach an agreement on.

5. ASSIGNMENT SCHEDULE

5.1 The Assignment Schedule is confirmation of the Contract. Details of the fee and duration of each Assignment will be detailed within the Assignment Schedule.

5.2 A separate Assignment Schedule will be issued for every Assignment. Assignment is a separate contract, each of which shall be subject to the terms and conditions of this Contract.
5.3 Where there is any conflict between this Contract and any Assignment Schedule or any terms upon which the Agency purports to trade, the terms of this contract shall prevail.

6. COMPANY’S OBLIGATIONS

6.1 The Company agrees:
(a) To take all reasonable steps to safeguard the health & safety of the Contractor and any other person affected by the Contractors’ actions on the Assignment;
(b) To procure that the Contractor will provide the Agency or Client with any progress reports which may be reasonably requested from time to time;
(c) To comply with all applicable requirements of the VAT legislation and the Companies Act 1985 relevant to the Assignment;
(d) To notify the Agency if the Company becomes insolvent, dissolves or is subject to a Winding Up Petition;
(e) To use its reasonable endeavours to ensure that any Contractor engaged to provide Services on the Assignment does not engage in any conduct detrimental to the interest of the Agency or Client which includes any conduct tending to bring the Agency or the Client into disrepute.

7. TIMESHEETS

7.1 At the end of each week of an Assignment (or at the end of the Assignment where an Assignment is for a period of less than one week or is completed before the end of the week) the Contractor shall deliver to the Agency the Agency’s timesheet, duly complete to indicate the number of hours worked by the Contractor during the preceding week (or shorter period as indicated above) and signed by an Authorised Representative of the Client. Such timesheets must be forwarded by the Contractor to the Agency within a mutually agreed time, which shall be reasonable in all respects.
7.2 All invoices submitted by the Company to the Agency for work carried out by the Contractor should bear the Contractor’s name, the Company’s registration number, VAT number and should state any VAT due on the invoice.
7.3 The Client shall satisfy itself prior to the Authorised Representative signing a timesheet that the timesheet in question properly represents the hours worked and that any related paperwork properly represents the Related Claims. Signature of the timesheet and/or approval of a Related Claim by the Authorised Representative will constitute acceptance that the Services have been provided for the hours indicated therein and that all claims in respect of Related Claims are correct. Neither the Client nor the Agency shall, save in the event of fraud or fraudulent misrepresentation, challenge a timesheet once signed by an Authorised Representative.
7.4 All payments made in consequence of the authorisation of a timesheet or Related Claim in accordance with clause 7.3 shall, save in the event of fraud or fraudulent misrepresentation by the Company, not be recoverable from the Company. Where the Client or the Agency subsequently become aware of and, within a period of twelve (12) months of such payment, notify the Company of a discrepancy in any claim referred to in clause 7.3 above leading to an overpayment, or of any overpayment made in error by the Client and/or Agency in seeking repayment from the Contractor of any sums overpaid (and may charge the Agency for its services on so doing). Notwithstanding the provisions in this clause, the Company shall not, save in respect of fraud or fraudulent misrepresentation made by the Company, be liable to the Client or Agency for any overpayment. Following the period of twelve (12) calendar months of payment by the Agency, the Company’s obligations, and liabilities to the Agency in respect of overpayments shall, save in respect of fraud or fraudulent misrepresentation by the Company, cease.
7.5 All payments due in accordance with clause 7.3 shall be paid in accordance with this Agreement. The Company shall not, save in the event of any fraud or fraudulent misrepresentation made by the Company, be liable to the Client or the Agency in respect of any claims arising from any such incorrect information or omissions contained in any timesheet or Related Claim and which has been authorised in accordance with clause 7.3 and the Agency shall not withhold any sums otherwise due to the Company in set off against any such sums which may have been received and paid out by the Company as a result of any such fraud, fraudulent misrepresentation, error, omission or otherwise.
7.6 The Agency shall, acting in good faith, provide such reasonable assistance and information as the Company shall reasonably require, to enable the company to seek repayment of the overpaid sums on behalf of the Agency. The company shall, subject to the provisions of clause 7.7, have the entire discretion as to whether and to what extent the Contractor is pursued for repayment.
7.7 Where an overpayment has been made, the Company shall be entitled to offer, as an alternative to the provisions of clause 7.4, to assign its rights under its contract with the Contractor to such of the Agency and/or the Client, as the parties shall agree. Upon the making of any such offer, the Company’s obligations in respect of seeking to reclaim and accounting to the Agency for any such overpayment so reclaimed, shall cease.
7.8 All payments made by the Agency to the company shall be accompanied by a remittance advice which shall set out the invoice numbers to which such payments relate.

8. LIABILITIES OF THE COMPANY

8.1 Subject to the provisions of clauses 9.6; 9.7; 9.8 the company shall only be liable for any loss, damage or injury to the Agency directly arising from the negligent acts or omissions of the Contractor during the Assignment and for which the Company received prompt notification from the time of the Agency becoming aware of events giving rise to a claim:
(a) where the Contractor performs the Services as an individual sole trader, within such time as is specified by statute; and
(b) where the Contractor performs the Services through the medium of a firm, LLP or Company, at any time during the Assignment and subject to any statutory limitation period. At any time during which the Contractor is providing services through the Company.
8.2 the Agency shall not (without the prior written approval of the Company) bring any action against the Contractor for any loss or damage arising and shall indemnify the Company for any such claims made against the Company either by virtue of the Company being named as co-respondent to an action brought against the Contractor by the Agency or Client or as a result of the Company being the subject of a claim from the Contractor as a result of a claim against the Contractor by the Agency or Client.
8.3 In the event that there is any dispute as to whether the workmanship of the Contractor is faulty or defective, the parties agree to refer the issue to an independent arbiter from a relevant professional body with experience and expertise in the provision for the type of work carried out by the Contractor for resolution of the dispute. Where the parties are unable to agree on an independent arbiter within 10 days of the matter being raised, either party may refer the matter to the president of the relevant professional body for the appointment of an independent arbiter by that body. The cost of appointing the arbiter will be divided equally between the parties, except where it is decided by the arbiter that the work carried out by the Contractor is faulty or defective, in which case the costs of the dispute resolution shall be the Company’s account.
8.4 The Company’s liability in respect of the Contractor failing to complete an Assignment shall be limited to the Assignment price.
8.5 The Company shall ensure the provision of adequate Public Liability Insurance and Professional Indemnity insurance in respect of its Contractors engaged on an Assignment sufficient to satisfy the term of this Contract and shall make a copy of these policies available to the Agency or Client upon request.
8.6 Save in respect of death, personal injury or fraud, the Company and the Contractor’s combined liability to any party under this Contract whether arising under any statute, in contract or tort, shall in respect of any claim or series of related claims do not exceed £1,000,000 Sterling.
8.7 Neither the Company nor the Contractor (including, where the Contractor is a business entity, their personnel) shall be liable to any party for:
(a) losses and liabilities where such loss or liability arises as a result of the Contractor (or their personnel) carrying out the specific instructions of the Client, its employees or agents and the Contractor has either not been grossly negligent in providing the Services or has advised the Client, its employees or agents that the proposed Services are against the Contractor’s advice, inappropriate or other unsafe, incompatible with good industry practice or in breach of any applicable law or regulation; and
(b) indirect and consequential loss including but not limited to loss of profit loss of use, loss of production, loss of revenue, loss of contractors, business disruption or loss of opportunity (whether arising directly or indirectly) howsoever arising and irrespective of whether such losses were reasonably foreseeable, in the contemplation of the parties or otherwise.
8.8 Save as otherwise arising at law, the Company shall not be liable to the Agency in contract, tort or otherwise for gross negligent acts or omissions of the Contractor where the Agency has not accepted liability or been found by a court or body of competent jurisdiction not to be liable and Agency shall indemnify the Company and keep the Company indemnified in respect of any such claims so arising.

9. AGENCY’S OBLIGATIONS
9.1 The Agency shall ensure that the Client shall maintain throughout the Assignment adequate insurance (in keeping with good business practice) in respect of the use by the contractor of plant and machinery provided in the pursuance of the Assignment and shall ensure that the Client shall apply the benefit of such insurance in the event of any claim arising from such use by the Contractor to the Company.
9.2 The Agency warrants that it shall comply (and shall procure the Client to comply) with all applicable data protection laws in force from time to time and shall indemnify and keep indemnified the company in respect of all costs and claims arising from the Agency or Client failing to adhere to any such data protection laws in respect of the use by the Agency or Client f personal information relating to the Contractor which has been provided to the Agency by the Company.

10. TERM AND TERMINATION

10.1 An Assignment shall end on the earlier of the date specified in the Assignment Schedule or termination of this Contract in accordance with the provisions herein or, in the absence of any such date, upon the earlier of completion of the Services or termination of the Contract in writing in accordance with the terms set out herein.
10.2 Either the Agency or the Company may end an Assignment at any time upon giving in writing the notice specified in the Assignment Schedule and in the absence of any such notice period being specified, upon reasonable notice.
10.3 The Agency may without notice instruct the Company to cease work on an Assignment at any time where:
(a) a Contractor has acted in breach of the rules and regulations in operation at the Client’s place of work;
(b) the Client reasonably believes that a Contractor has not observed any condition of confidentiality applicable to the Contractor from time to time;
(c) the Client has requested the Contractor to leave the Client’s place of work for reasons arising from a breach of the rules and regulations in operation at the Client’s place of work;
(d) the Client has requested the Agency to cease performing the Services for whatever reason;
(e) for any reason the Contractor proves to be unsatisfactory to the Client;
(f) the Company becomes, insolvent, dissolved or subject to Winding up Petition.
10.4 the Contract may be terminated by either party by giving the other not less than three months’ notice in writing.
10.5 A party shall be entitled to terminate this Contract for default with immediate effect by filing written notice to the defaulting party if:
(a) a defaulting party is in material breach of its obligations under this contract and, if capable of remedy, the defaulting party has failed to remedy such breach within a period of 30 days after being given notice by the other to remedy the breach (such notice having included a statement that it intends to exercise its rights of termination if such a default is not so remedies and specifying the remedial action that it required the defaulting party to take);
(b) a defaulting party makes a composition with its creditors; or
(c) a defaulting party is unable to pay its debts (within the meaning of Section 123(1) of the
Insolvency Act 1986 or if any voluntary arrangement is proposed in relation to it under section 1 of the act; or
(d) a defaulting party suffered the appointment of a receiver or administrative receiver (as such terms are defined in Section 70 and 251 of the Insolvency Act 1986); or
(e) a defaulting party has an administration order under Section 8 of the Insolvency Act 1986 made in relation to it.
10.6 The Company reserves the right to provide a suitably qualified substitute for the Contractor. In the event that a suitably qualified substitute cannot be found, then the Company shall inform the Agency as soon as is reasonably practicable. In the event that the Company cannot provide a substitute and notice of the same has been given to the Agency, the Agency shall be entitled to terminate the Assignment summarily provided that the Company received all fees due up to and including the date of termination of the Assignment.
10.7 The Parties acknowledge that the continuation of an Assignment is subject to the continuation of the contract entered into between the Agency and the Client. In the event that the contract between the Agency and the Client is terminated for any reason then the Assignment will cease with immediate effect.
10.8 The termination of an Assignment or this Contract shall not affect a party’s accrued right and liabilities at the time of such termination, or any continuing obligations under this Contract.

11. ADDITIONAL OBLIGATIONS

11.1 Where the Company and Contractor have not provided the Agency with a valid opt-out agreement pursuant to Regulation 32(9) of the 2003 Regulations, the following provisions will apply to this Assignment:
(a) the Agency shall not withhold any payments due to the Company for any hours worked by the Contractor assigned under this Contract on any of the following grounds:
(b) payment for such hours has not been received from the Client;
(c) a valid timesheet has not been provided to the Agency, but a verbal agreement
of hours worked has been agreed between the Agency and Client, timesheet to follow. However, the Agency is not prevented from reasonably delaying the payment of any disputed amount (for such time as would reasonably be necessary) whilst enquiries are made to verify the execution of hours claimed by the Contractor. Any undisputed amount due shall be paid in the agreed manner;
(d) the Contractor has not worked during any period other than that to which the payment related; or
(e) on any matter within the control of the Agency.
(f) The Agency shall advise the Company and the Contractor of any health and safety information relevant to an Assignment as soon as this information is acquired by the Agency.
(g) Where the Company received or obtains information which gives it reasonable grounds to believe that any Contractor assigned under this Contract is unsuitable for any reason, the Company shall immediately pass such information to the Agency.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 The Company acknowledges that all copyright, trademarks, patents and other intellectual property rights derived from the Services performed during the Assignment shall belong to the Client.
12.2 The Company shall not be liable to the Agency, in contract tort or otherwise in respect of the use or alleged use by the Contractor or a third party’s intellectual property rights in connection with the provision of the Services.
12.3 Where the Agency or the Client are the subject of a third party claim as a result of the Contractor being alleged to have used such third party’s intellectual party rights (in breach of that party’s rights) in the provision of the Services, the Company shall, at the cost of the Agency, provide such assistance in dealing with such claim as the Agency shall reasonably require and the Agency here indemnifies the company in respect of any such costs.

13. CONFIDENTIALITY

13.2 In order to protect any confidential information and trade secrets of the Client, and without prejudice to any other duty to keep secret all information provided during the Assignment, or which is gained in confidence, the Company agrees and shall procure that the Contractor agrees:
(a) At any time whether during or after the Assignment not to disclose to any person or to make use of any trade secret or confidential information of the Client;
(b) Not to make a copy , abstract, summary, of the whole or any part of any document or other material belonging to the Client except when required to do so in the course of providing the Services in which event any such item shall remain the property of the Client.

14. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

14.1 It is acknowledged that the Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract.

15. SEVERABILITY

15.1 Where any provision of this Contract is held invalid, illegal or unenforceable for any reason or by any court of competent jurisdiction, such provisions shall be severed, and the remainder of the provisions shall continue in full force and effect.

16. WAIVER

16.1 The failure to exercise or delay in exercising a right or remedy provided by this Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Contract or of a default under this Contract does not constitute a waiver of any other breach or default and shall not affect the other terms of this Contract. A waiver of a breach of any of the terms of this Contract or of a default under this Contract will not prevent a party from subsequently requiring compliance with the waived obligation. The rights and remedies provided by this Contract are cumulative and (subject as otherwise provided in this agreement) are not exclusive of any rights or remedies provided by law.