Terms and conditions of supply of temporary staff by a recruitment agency

TERMS AND CONDITIONS

 

             MattDrive Limited (“MattDrive”)

             (Company number 06598161)

             29 Blyford Way

             Felixstowe

 

1.             Acceptance of Terms and Conditions

 

The Client shall be deemed to have accepted and agreed to these Terms and Conditions, which shall prevail over any other terms put forward by the Client, when any of the following events occur:

1.1               the Client requests MattDrive to supply a Driver for any Assignment; or

1.2               MattDrive supplies a Driver to the Client; or

1.3               a Driver begins an Assignment for the Client.

 

2.             Definitions

 

In these Terms and Conditions, the following words shall have the following meanings:

 

"Affiliate" in relation to a Party, any person that Controls, is Controlled by, or is under common Control with that Party;

"Agreement" the agreement containing these Terms and Conditions;

"Assignment" the period during which a Driver performs services or carries out work for or on behalf of the Client, beginning when the Driver first reports to the Client to take up duties (or, if earlier, the commencement of such work or services by the Driver) and ending on the cessation by the Driver of all such work or services;

"Cancellation Fee" a cancellation fee payable by Clients cancelling an order later than 13:00 on the day before a Driver was due to start work (pursuant to clause 4.2) as set out in MattDrive’s driver tariffs (as amended from time to time).

"Client" any person, firm or company who approaches MattDrive with a view to placing an order with MattDrive for the introduction or supply of a Driver;

"Commencement Date" the date on which MattDrive accepts the first Driver Order for the provision of a Driver;

"Control" in relation to a Party, direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that Party, as the case may be;

"Driver" one or more persons introduced or supplied by MattDrive to the Client with a view to that person carrying out work for the Client;

"Driver Order" means an order (in MattDrive’s standard form) for the provision of a Driver(s) for an Assignment(s);

"Engage(s)" (or "Engagement" or "Engaged") the employment or engagement, whether under a contract of service or contract for services, and whether on a permanent or temporary basis, of a Driver by or on behalf of the Client;

"Fee(s)" the fees payable by the Client to MattDrive resulting from the Engagement of one or more Driver(s) at the rates set out in the Schedule;

"Parties" MattDrive and the Client, and "Party" shall mean either one of them;

"Recruitment Services" the supply to the Client by MattDrive of Drivers for vacancies of which the Client has notified MattDrive;

"Regulations" the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

 

3.             Recruitment Services

 

3.1               MattDrive shall from the Commencement Date provide the Recruitment Services to the Client in consideration for the Client’s paying the Fees to MattDrive, subject to these Terms and Conditions.

3.2               MattDrive shall use reasonable endeavours to supply to the Client Drivers suitable to carry out work of such nature as the Client shall notify to MattDrive.  MattDrive does not warrant, represent or undertake to find a suitable candidate for each vacancy notified to it by the Client.

3.3               When supplying a Driver to a Client, MattDrive shall inform the Client, so far enabled to do so by information provided by the Driver to MattDrive:

3.3.1               of the Driver’s identity;

3.3.2               that the Driver has the necessary or required experience, training, qualifications and any authorisation required by law or a professional body to work on the Assignment.

Where such information has not been given in writing before the commencement of the Assignment, it shall be confirmed in writing by the end of the third business day (excluding Saturdays, Sundays and any bank or other public holidays) after the commencement of the Assignment.

3.4               MattDrive shall:

3.4.1               pay each Driver the remuneration and reimbursement of expenses to which the Driver is entitled by reason of carrying out work for the Client;

3.4.2               take such reasonable steps to ensure that each Driver (who is self-employed) accounts to H M Revenue and Customs for income tax and National Insurance;

3.4.3               where appropriate (where a Driver is employed by MattDrive), make deductions and account to H M Revenue and Customs for income tax and National Insurance in respect of the remuneration of each Driver.

3.5               MattDrive shall take all reasonable steps to ensure that the Driver is the holder of a current licence to drive a vehicle of the class or description that the Client has notified to MattDrive and has any other certificates or qualifications required in order to lawfully drive on the journeys specified by the Client and shall if requested provide such evidence as the Client may reasonably require of such licences, certificates or qualifications.

3.6               MattDrive shall require that each Driver shall deliver to the Client, on the termination of an Assignment or at any time during it, all documents, papers, materials and other property (including any copies) belonging to or relating to the business of the Client which may be in the Driver’s possession or under his or her control.

3.7               If the Client breaches any of these Terms and Conditions, MattDrive reserves the right to withdraw without notice any Drivers supplied without incurring any liability to the Client. 

 

4.             Fees and Payment

 

4.1               The Client shall pay to MattDrive for the supply of the Driver:

4.1.1               the hourly Fees in respect of each Driver for all hours worked by that Driver as set out in MattDrive’s driver tariffs (as amended from time to time) (a copy of the current version is attached hereto); and

4.1.2               such travel and other expenses as have been agreed by the Parties in advance

The payment of the Fees, travel and other expenses shall be made by the Client to MattDrive within 28 days of the date of MattDrive’s invoice.

4.2               If the Client cancels an Assignment after requesting MattDrive to supply a Driver but before the Driver has started work, the Client shall not be liable for any Fees where MattDrive shall have received written notification of such cancellation prior to 13:00 on the day before the Driver was due to start work. Where notice of cancellation is received after 13:00 on the day before the Driver was due to start work, MattDrive shall be entitled to charge a Cancellation Fee.

4.3               If the Client either Engages any Driver or effectively introduces any Driver to any third party, whether directly or indirectly, including any Affiliate of the Client, and that introduction results in an engagement of the Driver by that third party, the Client shall:

4.3.1               immediately notify the engagement to MattDrive; and

4.3.2               pay to MattDrive an introduction fee of £1,000 (or such other sum as set out in MattDrive’s driver tariffs (as amended from time to time)) unless the Engagement occurs more than 6 months after the date on which the Driver last provided service to the Client.

4.4               All amounts stated are exclusive of VAT and any other applicable taxes, which will if applicable be charged in addition at the rate in force at the time the Client is required to make payment.

4.5               If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in these Terms and Conditions, then MattDrive shall be entitled:

4.5.1               to charge interest on the outstanding amount at the rate of 4% a year above the base lending rate of Santander UK plc, accruing daily;

4.5.2               to require the Client to pay, in advance, for any Recruitment Services, or any part of the Recruitment Services, which have not yet been performed;

4.5.3               not to perform any further Recruitment Services, or any part of the Recruitment Services;

4.5.4               to withdraw without notice any Drivers currently Engaged by the Client; and

4.5.5               where MattDrive (or one of its Drivers) is in possession of a vehicle owned and/or operated by the Client (“Vehicle”) MattDrive shall be entitled to retain possession of the Vehicle until the Client has paid all sums due to MattDrive.

4.6               When making a payment the Client shall quote relevant reference numbers and the invoice number.

4.7               Obtaining judgement against a client does not negate the lien set out in clause 4.5.5 above.

 

5.             Client’s obligations and acknowledgements

 

5.1               The Client shall:

5.1.1               specify its exact requirements by providing full details of the work for which the Driver is required and, in particular, by notifying MattDrive when placing the Driver Order of:

5.1.1.1               any special skills required for such work;

5.1.1.2               any special health and safety matters about which MattDrive is obliged to inform the Driver; and

5.1.1.3               any requirements imposed by law which must be satisfied if the Driver is to fill the Assignment.

5.1.2               not allow any Driver to undertake any work other than that which has been notified to MattDrive by the Client in placing the order for that Driver in accordance with clause 5.1.1;

5.1.3               verify at the beginning of the Assignment that the Driver is suitable for the purposes for which he is required and that he has the capability to carry out the duties required;

5.1.4               be responsible for obtaining any work and other permits needed and for ensuring that the Driver satisfies any medical requirements or other qualifications that may be appropriate or required by law;

5.1.5               comply with all obligations, duties and regulations, whether statutory or otherwise including those relating to the place, nature or system of work, in any way arising from or directly or indirectly connected with the services rendered by a Driver;

5.1.6               assist MattDrive in complying with MattDrive’s duties under the Working Time Regulations 1998 by supplying any relevant information about the Assignment requested by MattDrive; and

5.1.7               do nothing to cause MattDrive to be in breach of its obligations under the Working Time Regulations 1998, and where the services of a Driver are required or may be required for more than 48 hours in any week, notify MattDrive of this requirement before the commencement of that week.

5.2               The Client agrees that each Driver shall be treated as if he is the employee of the Client throughout the duration of the Assignment and undertakes to exercise all appropriate supervision, direction and control over the manner, time and place in which each Driver carries out his or her work for the Client.

5.3               The client acknowledges that each Driver supplied to the Client is supplied to the Client on the Client’s express warranty and undertaking (repeated on the acceptance by MattDrive of each Driver Order) that the Client is the holder of a valid operator’s licence where this is required and shall:

5.3.1               take all necessary steps to ensure that each Driver complies with all applicable road transport legislation;

5.3.2               take all steps that may be required by law in relation to the insurance, maintenance and safety of vehicles, and in particular:

5.3.2.1               satisfy itself that the vehicles are roadworthy and properly maintained, and

5.3.2.2               in no circumstances require the Driver to check such matters, and

5.3.3               control the driving duties of each Driver, his journeys and hours of work and comply with all statutory duties in relation to the Driver’s driving duties and to driving licences, tachographs and logbooks.

5.4               The Client acknowledges and agrees that:

5.4.1               unless otherwise specified by MattDrive Drivers supplied by MattDrive are engaged under contracts for services and are not the employees of MattDrive;

5.4.2               Drivers supplied by MattDrive are deemed to be under the supervision, direction and control of the Client from the time when they report to the Client to take up their duties until their Assignment ends;

5.4.3               the Client is responsible for all acts, errors and omissions, whether wilful, negligent or otherwise, as if the Driver was the Client’s employee;

5.4.4               the Client shall in all respects comply with all statutes, bylaws and other legal requirements and codes of practice to which the Client is ordinarily subject in respect of its own staff, including the Working Time Regulations 1998 and the Health and Safety at Work Act 1974;

5.4.5               the Client shall provide adequate employer’s and public liability insurance cover for the Driver during all Assignments;

5.4.6               if the Client reasonably considers the Driver to be unsatisfactory, it shall make a complaint to MattDrive by telephone and confirm it in writing within one day of the finding, but shall not have the right to withhold from MattDrive payment of any Fee due.

5.5               The Client shall at all times treat all Drivers with due respect and dignity and in particular must take all steps within its control to avoid any illegal or discriminatory conduct against them.

5.6               The Client:

5.6.1               confirms that it is not aware of anything which will cause a detriment to the interests of the Driver or the Client in any Assignment; and

5.6.2               shall inform MattDrive immediately if it becomes aware of any circumstances which would render any Assignment detrimental to the interests of the Driver or the Client.

6.             Time sheets

 

6.1               At the end of each week of an Assignment, or at the end of the Assignment where it is for a period of one week or less, the Client shall sign MattDrive’s time sheet for each Driver verifying the number of hours worked by that Driver during that week.

6.2               The Client’s signature of the time sheet shall be confirmation of the number of hours worked.  If the Client does not sign the time sheet because it disputes the number of hours claimed, the Client shall inform MattDrive as soon as reasonably practicable and shall co-operate fully and promptly with MattDrive to establish what hours, if any, were worked by the Driver.  Any failure by the Client to sign the time sheet shall not absolve the Client’s obligation to pay the Fees in respect of the hours worked by the Driver.

6.3               The Driver shall be paid as appropriate by MattDrive immediately on receipt of a time sheet signed by the Client, which shall be deemed conclusive evidence that the Client:

6.3.1               is satisfied with the work done by the Driver;

6.3.2               agrees to and accepts these Terms and Conditions; and

6.3.3               agrees to pay the Fees in accordance with clause 4 in full and without dispute or deduction.

6.4               The Client shall not be entitled to decline to sign a time sheet on the grounds that it is dissatisfied with the Driver’s work.  In cases of unsatisfactory work, the Client should apply the provisions of clause 7.

 

7.             Termination of an Assignment

 

7.1               Save as otherwise provided the Client or MattDrive or the Driver may terminate an Assignment at any time without prior notice and without liability.

7.2               The Client undertakes to properly supervise the Driver to ensure that the Driver works to the standards that the Client expects.  If the Client reasonably considers that the services of the Driver are unsatisfactory, the Client may terminate the Assignment either by instructing the Driver to leave the Assignment immediately or by directing MattDrive to remove the Driver.

7.3               If an Assignment is terminated early, MattDrive may reduce or cancel the Fees for the time worked by that Driver, provided that:

7.3.1               the Assignment terminates within twenty four (24) hours of the Driver’s commencing the Assignment; and

7.3.2               the Client provides to MattDrive confirmation in writing of the unsuitability of the Driver, including reasonably satisfactory evidence, within twenty four (24) hours of the termination of the Assignment.

7.4               The Client shall notify MattDrive immediately and without delay and in any event within four (4) hours if the Driver fails to attend work or notifies the Client that the Driver is unable to attend work for any reason.

7.5               MattDrive shall notify the Client immediately if it receives or otherwise obtains information which gives it reasonable grounds to believe that a Driver supplied to the Client is unsuitable for the Assignment, and shall terminate the Assignment under the provisions of clause 7.2.

 

8.             Confidentiality

 

8.1               Each Party (“Receiving Party”) shall keep the confidential information of the other Party (“Supplying Party”) confidential and secret, whether disclosed to or received by the Receiving Party.  The Receiving Party shall only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under this Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause 8.1, and ensure that the Receiving Party’s officers, employees and agents meet the obligations. 

8.2               The obligations of clause 8.1 shall not apply to any information which:

8.2.1               was known to or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;

8.2.2               is, or becomes, publicly available through no fault of the Receiving Party;

8.2.3               is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

8.2.4               was developed by the Receiving Party, or on its behalf by a third party who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or

8.2.5               is required to be disclosed by order of a court of competent jurisdiction. 

8.3               This clause shall survive termination of this Agreement.

 

9.             Warranties, liability and indemnities

 

9.1               While MattDrive shall make reasonable efforts to ensure reasonable standards of skill, integrity and reliability in Drivers and to comply with the Client’s requirements, the Client accepts and agrees that MattDrive gives no warranty as to the suitability of any Driver for any Assignment.

9.2               MattDrive confirms that, in supplying any Driver to the Client, it is not aware of anything which will cause any detriment to the interests of that Driver or the Client if the Driver fulfils the Assignment.

9.3               Neither MattDrive nor any of its staff shall be liable to the Client for any loss, injury, damage, expense or delay incurred or suffered by the Client arising directly or indirectly from or in any way connected with (i) the introduction or supply of a Driver to the Client or (ii) with any failure by MattDrive to introduce or supply a Driver for all or part of any period booked by the Client including where a Driver fails to attend work or is unable to work for any reason (except that in the latter case the Client may be entitled to a reduction or cancellation of the Fee payable), unless such loss, damage, costs or expenses are the direct result of the negligent acts or omissions of MattDrive. In particular, but without limiting the generality of the foregoing, MattDrive shall not be liable for any loss, injury, damage, expense or delay arising from or in any way connected with:

9.3.1               any failure of the Driver to meet the Client’s requirements for all or any of the purposes for which the Driver is required by the Client; or

9.3.2               any act or omission of a Driver, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;

9.3.3               any loss, injury, damage, expense or delay suffered by a Driver.

9.4               Except in the case of death or personal injury caused by MattDrive’s negligence, the liability of MattDrive under or in connection with this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise howsoever shall not exceed the Fee(s) paid or due to be paid by the Client to MattDrive under this Agreement.  MattDrive shall not be liable for any matter not reported to it within two (2) days of its occurrence.  The provisions of this clause 9.4 shall not apply to clause 9.6.

9.5               Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.  The provisions of this clause 9.5 shall not apply to clause 9.6.

9.6               The Client shall indemnify and hold harmless MattDrive from and against all Claims and Losses arising from loss, damage, liability, injury to MattDrive, it employees and third parties, by reason of or arising out of:

9.6.1               any loss, injury, expense or delay suffered or incurred by a Driver, however caused; and/or

9.6.2               any loss, injury, damage, expense or delay suffered or incurred by anyone arising directly or indirectly from or in any way connected with the acts and omissions of a Driver, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise; and

9.6.3               any loss, injury or delay suffered or incurred by MattDrive as a result of any act or omission of the Client.

that arises directly or indirectly out of or is in any way connected with the relevant Assignment, any information supplied by the Client to MattDrive or the Client’s breach of these Terms and Conditions. “Claims” shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise); and “Losses” shall mean all losses including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever.

9.7               On the acceptance of each Driver Order the Client warrants and represents that none of the circumstances described in clause 10.1.2 apply to it or in the reasonable opinion of the Client are likely to apply to it within the then following six months.

9.8               Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.  Nothing in this Agreement excludes liability for fraud.

 

10.           Termination of this Agreement

 

10.1             Without prejudice to the other remedies or rights a Party may have, either Party may terminate this Agreement, at any time, on written notice to the other Party (“Other Party”).  The notice will take effect as specified in the notice:

10.1.1             if the Other Party is in material breach of its obligations under this Agreement. If the breach is capable of remedy within fourteen (14) days, the breach is not remedied within fourteen (14) days by the Other Party receiving notice which specifies the breach and requiring the breach to be remedied; or

10.1.2             if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

10.2             On termination of this Agreement, the Client shall pay for all Recruitment Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by MattDrive for the performance of the Recruitment Services prior to the date of termination.

 

11.           General

 

11.1             Force Majeure

Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party.  The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.  If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Agreement by written notice to the other Party.

11.2             Amendments

This Agreement may only be amended in writing signed by duly authorised representatives of the Parties

11.3             Assignment

Subject to the following sentence, neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.  A Party may, however, assign and transfer all of its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.

11.4             Entire agreement

This Agreement (together with any terms specified in any Driver Order) contains the whole agreement between the Parties in respect of the provision of Drivers to the Client by MattDrive and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.  The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.  Nothing in this Agreement excludes liability for fraud.

11.5             Waiver

No failure or delay by MattDrive in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the sam nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.  The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law. 

11.6             Agency, partnership etc

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.  Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.

11.7             Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

11.8             Interpretation

In this Agreement unless the context otherwise requires:

11.8.1             words importing any gender include every gender;

11.8.2             words importing the singular number include the plural number and vice versa;

11.8.3             words importing persons include firms, companies and corporations and vice versa;

11.8.4             references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;

11.8.5             reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

11.8.6             any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

11.8.7             the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;

11.8.8             any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and

11.8.9             where the word “including” is used in this Agreement, it shall be understood as meaning “including without limitation”.

11.9             Law and jurisdiction

The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the non-exclusive jurisdiction of the English courts to which the Parties submit.

11.10           Third parties

For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

 

SCHEDULE

Driver Tariff