INTRODUCTION & SUPPLY OF TEMPORARY WORKERS

1.        DEFINITIONS & INTERPRETATION
1.1.     In these terms of business (Terms), the following definitions apply:

Agency Worker means an individual who is (i) engaged directly by Fusion as a PAYE worker (ii) employed by an Intermediary under a contract of service or (iii) the Representative of a Contractor which has been deemed to be inside of the Off Payroll Rules;

Assignment means the temporary role or project which the Temporary Worker may undertake for the Client;

Assignment Schedule means the document issued by Fusion confirming details of the Assignment;

AWR means the Agency Workers Regulations 2010;

Charges means the charges made by Fusion for the supply of the Temporary Worker which include the remuneration or fees payable to the Temporary Worker, Fusion’s margin and any statutory costs incurred by Fusion in supplying the Temporary Worker to the Client including, where applicable and without limitation, holiday pay, employers National Insurance Contributions, pension costs and apprenticeship levy;

Client means the person, firm, partnership, organisation, public sector body or company to which the Recruitment Services are provided under these Terms;

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

Connected Party means any (i) holding, subsidiary, associated or connected company of the Client (ii) organisation or business within the same purchasing group as the Client or (iii) organisation or business which is demonstrably connected to the Client through common ownership, management or control;

Contractor means a limited company or limited liability partnership engaged by Fusion under a contract for services and supplied to perform the Services;

Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the Data Protection Act 2018 or the GDPR insofar as it is applicable to the United Kingdom;

Engagement means the engagement, employment, hire or use of the Temporary Worker directly or through any party other than Fusion, pursuant to any agreement or arrangement whatsoever and whether on a temporary, permanent, fixed term, consultancy or any other basis. “Engage,” “Engaged” and “Engages” each have the corresponding meaning;

Extended Hire Period means an extension of the Assignment for 20 weeks, which shall commence upon expiry of the Client’s notice under clause 14.1;

Fusion means Fusion People Limited (Registered in England & Wales No. 4873626) whose registered office is at 3700 Parkway, Solent Business Park, Whiteley, Hampshire, PO15 7AW;

Intermediary means a third party umbrella company or contractor services company which employs or engages Temporary Workers and supplies them to Fusion for onward supply to the Client;

Introduction has the meaning in clause 3.2. “Introduce”, “Introduces” and “Introduced” each have the corresponding meaning;

IPR means all copyright, trademarks, database rights, design rights, patents and other intellectual property of any type existing anywhere in the world, whether capable of registration or not, together with any registration rights in the same;

ITEPA means the Income Tax (Earnings and Pensions) Act 2003;

Off Payroll Rules means Chapter 10 of Part 2 of ITEPA;

Opted Out means opted out of the Conduct Regulations under Regulation 32(9);

Payment Terms means 7 days from the date of Fusion’s invoice;

Recruitment Services means the Introduction and supply of Temporary Workers by Fusion to the Client;

Relevant Period means the later of (i) the period of 8 weeks commencing on the day after the Temporary Worker last worked for the Client during an Assignment or (ii) the period of 14 weeks commencing on the first day on which the Temporary Worker worked for the Client during an Assignment but, in determining the first day on which the Temporary Worker worked for the Client, a prior Assignment shall be disregarded where more than 42 days have passed between Assignments;

Remuneration means (i) the gross annualised remuneration package payable to the Temporary Worker for the Engagement including, without limitation, basic salary, guaranteed and anticipated bonuses, guarantee payments, commission, allowances, all other emoluments and benefits in kind. A notional sum of £5,000 shall be added to the Remuneration in respect of any company car provided to the Temporary Worker or (ii) if the Temporary Worker is Engaged on a self-employed basis, via a personal services company or through any third party company, firm or business, the total estimated annualised fees payable in respect of the Temporary Worker’s services;

Representative means the director, employee, worker or subcontractor of a Contractor who performs the Services on behalf of the Contractor;

Restricted Period means the later of (i) 6 months from the end of the Assignment or (ii) 12 months from the most recent Introduction of the Temporary Worker to the Client;

SDC means supervision, direction, or control (or the right thereof) as to the manner in which the Temporary Worker performs the Services;

Services means the work to be carried out by the Temporary Worker during an Assignment;

Shared Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation which relates to a Temporary Worker and which is shared between the parties pursuant to these Terms;

Small Undertaking means a company, undertaking or person which qualifies as small under sections 60A to 60F of ITEPA;

Status Determination means a written assessment, in a format acceptable to Fusion, as to whether the Assignment falls inside or outside of IR35 pursuant to the Off Payroll Rules;

Subcontractor means a self-employed person engaged through an Intermediary under a contract for services;

Substitute means an alternative Representative or subcontractor, appointed by a Contractor to perform the Services in addition to or in the place of the original Representative;

Tax means income tax, National Insurance or social security contributions and all other statutory deductions arising upon any payment which is made to a Temporary Worker;

Temporary Worker means the person, firm or limited company Introduced by Fusion for an Assignment and, save where otherwise indicated, includes a Contractor, Representative, Subcontractor and Agency Worker;

Transfer Fee means the fee payable by the Client upon the Engagement of a Temporary Worker;

Work Product means any document, design, plan, schematic or deliverable which is designed, created, or produced by the Temporary Worker in the course of performing the Assignment; and

WTR means the Working Time Regulations 1998.

1.2.     A reference to a party shall mean either Fusion or the Client as applicable and a reference to the parties shall mean both Fusion and the Client.

1.3.     The clause headings used in these Terms shall not affect the interpretation of any clause.

1.4.     Unless otherwise indicated by the context (i) references to the singular include the plural and vice-versa (ii) references to the masculine include the other genders and vice-versa.

1.5.     Any reference to legislation includes an amendment or re-enactment of such legislation from time to time and any secondary legislation which may be made under such legislation.

2. FORMATION & BASIS OF AGREEMENT

2.1.     If the Client has not signed these Terms or otherwise confirmed acceptance of the Terms in writing, the Client shall be deemed to have accepted the Terms by (i) instructing Fusion to Introduce Temporary Workers (ii) interviewing or meeting with a Temporary Worker who has been Introduced (iii) Engaging a Temporary Worker or (iv) instructing Fusion to supply a Temporary Worker, whichever occurs first following receipt of these Terms.

2.2.     Once accepted in accordance with clause 2.1, these Terms shall apply to all Recruitment Services provided by Fusion until terminated in accordance with clause 15.6.

2.3.     No variation to these Terms shall be effective unless agreed in writing between a representative of the Client and a director of Fusion. Nothing in this clause shall prevent Fusion from updating and issuing a revised version of these Terms from time to time.

2.4.     Unless otherwise agreed in writing by a director of Fusion, these Terms form the entire agreement between the parties for the provision of Recruitment Services to the exclusion of any terms proposed or issued by the Client.

2.5.     In the event of any conflict or inconsistency, the Assignment Schedule shall take priority over the main body of these Terms.

3. INTRODUCTIONS

3.1.     Fusion shall use reasonable endeavours to Introduce Temporary Workers from time to time who (i) meet the criteria specified by the Client under clause 4.1 or (ii) Fusion believes may otherwise be of interest to the Client.

3.2.     An Introduction shall take place upon:

3.2.1.   Fusion providing a CV or other information to the Client which expressly or impliedly identifies a Temporary Worker;

3.2.2.   Fusion arranging an interview or meeting between the Client and a Temporary Worker whether face to face, by telephone, by web conference or by any other means; or

3.2.3.   Fusion supplying or agreeing to supply a Temporary Worker to the Client.

4. PROVISION OF INFORMATION

4.1.     The Client must inform Fusion of all such information as Fusion shall reasonably require regarding the position which the Client is seeking to fill including:

4.1.1.   the information relating to an Assignment specified in Regulation 18 of the Conduct Regulations;

4.1.2.   whether the Temporary Worker requires a DBS disclosure or any other check or security clearance to carry out the Assignment;

4.1.3.   any Health and Safety information which is relevant to the Assignment; and

4.1.4.   any reason why it may be detrimental to the interests of the Temporary Worker to carry out the Assignment.

4.2.     Fusion may advertise the position which the Client is seeking to fill in such format and including such information as Fusion considers appropriate unless the Client notifies Fusion in writing that it may not advertise such position or otherwise specifies the information about the position which may not be advertised.

4.3.     Fusion shall issue an Assignment Schedule to the Client on commencement of the Assignment or otherwise within three business days of its commencement. If the Client considers any of the information within the Assignment Schedule to be incorrect, the Client must notify Fusion in writing as soon as practicable and in any event within three business days of receipt.

4.4.     The Client must notify Fusion immediately if the Client intends to Engage a Temporary Worker, extend an Assignment or otherwise vary an Assignment in any way.

5. TEMPORARY WORKER CHECKS

5.1.     Where required to do so under the Conduct Regulations, Fusion shall:

5.1.1.   take all reasonably practicable steps to ensure that the Temporary Worker and the Client are each aware of any requirements imposed by law, or by any professional body, which must be satisfied by the Client or the Temporary Worker to enable the Temporary Worker to perform the Assignment;

5.1.2.   make all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the Temporary Worker or the Client for the Temporary Worker to perform the Assignment; and

5.1.3.   ensure that the Temporary Worker is willing to carry out the Assignment.

5.2.     Where required to do so under Regulation 22 of the Conduct Regulations due to the specific nature of the Assignment, Fusion shall also take all reasonably practicable steps to:

5.2.1.   obtain copies of any relevant qualifications or authorisations of the Temporary Worker and offer to provide copies of those documents to the Client;

5.2.2.   obtain two references from persons who are not relatives of the Temporary Worker and who have agreed that the reference provided may be disclosed to the Client; and

5.2.3.   confirm that the Temporary Worker is suitable for the Assignment.

5.3.     Fusion shall use reasonable endeavours to ensure that the Temporary Worker:

5.3.1.   assigns any IPR in the Work Product to the Client or such third party as the Client may specify;

5.3.2.   waives any moral rights in any copyright subsisting in the Work Product; and

5.3.3.   enters into such supplementary agreements and warranties as the Client may request to protect the Client’s IPR, confidentiality and data.

6. CLIENT OBLIGATIONS

6.1.     The Client shall:

6.1.1.   provide a safe working environment for the Temporary Worker;

6.1.2.   comply with all statutory provisions, by-laws, codes of practice and other legal obligations in respect of the Temporary Worker’s health and safety;

6.1.3.   maintain records of any accident or injury affecting any Temporary Worker, provide copies of such records to Fusion upon demand and, where applicable, submit the necessary report under RIDDOR;

6.1.4.   not require the Temporary Worker to operate any plant, equipment, or vehicle which the Temporary Worker is not qualified to operate; and

6.1.5.   ensure that the Temporary Worker is covered under the Client’s own insurance policies or, in the case of a Contractor operating outside of the Off Payroll Rules, under insurance policies which are acceptable to the Client.

6.2.     The Client will comply and will assist Fusion with complying with the latest Government guidance on Coronavirus (Covid-19) including, without limitation, all relevant guidance from Public Health England or the equivalent body in the applicable jurisdiction. In particular, the Client must:

6.2.1.   ensure that its operations protect the workforce and minimise the spread of Covid-19;

6.2.2.   notify Fusion of the measures taken to minimise the risk of Covid-19 transmission in the workplace; and

6.2.3.   provide a copy of any risk assessment which it has carried out in respect of Covid-19.

6.3.     The Client must not request the supply of a Temporary Worker to perform the duties normally performed by (i) a worker who is taking part in official industrial action or (ii) a worker who has been transferred by the Client to perform the duties of a person taking part in official industrial action.

6.4.     The Client must not and must ensure that its employees, subcontractors, and representatives do not unlawfully discriminate against, harass, or victimise any Agency Worker, Subcontractor or Representative.

6.5.     Subject to any right of substitution under clause 8.4.1, the Client shall not engage or hire, directly or indirectly, any third-party Temporary Worker or subcontractor through a Temporary Worker which is being supplied by Fusion without the prior written consent of Fusion, such consent to be granted at Fusion’s entire discretion.

7. ADDITIONAL OBLIGATIONS RELATING TO AGENCY WORKERS

7.1.     Fusion shall be responsible for making all payments to the Agency Worker and shall ensure that (i) such payments comply with the National Minimum Wage or National Living Wage as applicable and (ii) income tax and National Insurance Contributions are deducted as required by law.

7.2.     The Client shall be responsible for the supervision, direction, and control of an Agency Worker throughout their Assignment.

7.3.     The Client shall not require an Agency Worker to provide Services for more than 48 hours per week on average unless Fusion has confirmed that the Agency Worker has opted out of the 48 hour working week under the WTR.

7.4.     The Client must comply with the AWR and assist Fusion in complying with the AWR by:

7.4.1.   notifying Fusion without delay if the Agency Worker has been supplied to the Client by any other employment business in the six-month period prior to commencement of the Assignment;

7.4.2.   providing the Agency Worker with access to collective facilities and amenities and information about permanent employment opportunities with the Client;

7.4.3.   providing written details of the relevant terms and conditions which apply to any actual or hypothetical comparator together with any amendments to such terms and conditions where appropriate;

7.4.4.   co-operating with Fusion in responding to or assisting Fusion with responding to any question or complaint made under the AWR in a timely manner;

7.4.5.   permitting a pregnant Agency Worker to attend ante-natal appointments, with pay, during working time after the 12-week qualifying period;

7.4.6.   carrying out a risk assessment in respect of any pregnant Agency Worker and making such adjustments to the Assignment as are necessary to protect the Agency Worker’s health and wellbeing or, where necessary, identifying a suitable alternative Assignment within the Client’s organisation for the Agency Worker to perform; and

7.4.7.   agreeing to a proportional increase in the Charges where necessary to ensure that the Agency Worker receives equal treatment in respect of all relevant terms and conditions after the 12-week qualifying period.

8. ADDITIONAL OBLIGATIONS RELATING TO CONTRACTORS

8.1.     The Client acknowledges and agrees that, where the Off Payroll Rules are relevant to the Client and the Contractor, the Client shall be responsible for providing relevant information about the intended or actual working practices of the Assignment.

8.2.     Where Fusion proposes the supply of a Contractor for an Assignment, the Client must notify Fusion without delay if (i) the Client is a Small Undertaking (ii) the Client becomes a Small Undertaking during the Assignment or (iii) the Client ceases to be a Small Undertaking during the Assignment.

8.3.     Unless the Client is a Small Undertaking or the Off Payroll Rules do not otherwise apply to the Client or Contractor for any reason, the Client must:

8.3.1.   provide a Status Determination to Fusion prior to commencement of the Assignment;

8.3.2.   ensure that any Status Determination provided to Fusion is accurate;

8.3.3.   provide all such information as Fusion may reasonably require, without delay, to justify or support the Status Determination; and

8.3.4.   co-operate in a timely manner with any query or appeal which Fusion or the Contractor raises in respect of the Status Determination.

8.4.     Subject to clause 8.5.1, where Fusion supplies a Contractor for an Assignment, the Client acknowledges and agrees that:

8.4.1.   the Contractor may appoint a Substitute to perform the Services from time to time provided that such Substitute is suitably skilled, qualified, security cleared (where applicable) and experienced to perform the Services;

8.4.2.   the Client must not attempt to assign a Contractor to a different task or project or otherwise vary the Assignment without first agreeing such variation with Fusion and the Contractor;

8.4.3.   subject to the Client’s reasonable operational requirements and the specific nature of the Assignment, the Contractor shall determine its own schedule when performing the Services and the location in which such Services are performed; and

8.4.4.   neither the Client nor any third party shall exercise any control over the Contractor as to how they provide their Services.

8.5.     Where the Client provides a Status Determination stating that the Contractor is operating inside of IR35 under the Off Payroll Rules:

8.5.1.   clause 8.4 shall not apply;

8.5.2.   the Representative shall be an agency worker for the purposes of the AWR; and

8.5.3.   Fusion may elect to terminate the Assignment without notice or endeavour to engage and supply the Temporary Worker on a different basis.

8.6.     The parties acknowledge and agree that the Contractor shall be supplied for the specific Assignment and there is no expectation or requirement for the Client to offer any further work to the Contractor or for the Contractor to accept any such offer which may be made.

8.7.     The Client shall indemnify and keep indemnified Fusion against any liability for Tax (including any interest and penalties) suffered or incurred by Fusion in relation to any Contractor as a result of the Client (i) providing an inaccurate Status Determination (ii) failing to provide a Status Determination where required to do so under these Terms and/or by law or (iii) otherwise failing to comply with this clause 8.

9. ADDITIONAL OBLIGATIONS RELATING TO SUBCONTRACTORS

9.1.     The Client must not exercise or permit any third party to exercise SDC over any Subcontractor who is supplied for an Assignment. Nothing in this clause shall affect the Client’s obligations under clause 6.1 or 6.2 or prevent the Client from periodically checking that the Services have been performed to the required standard.

9.2.     If requested by Fusion, the Client shall provide sufficient information about the Assignment to satisfy Fusion that the Subcontractor is not subject to SDC.

9.3.     Notwithstanding that the Subcontractor shall be supplied on the basis that they are not subject to SDC, if the Subcontractor has been subject to SDC at any time during the Assignment, the Client must notify Fusion without delay. In such event, Fusion may terminate the Assignment without notice.

9.4.     The Client shall indemnify and keep indemnified Fusion against any liability for PAYE income tax or National Insurance contributions (including any interest and penalties) suffered or incurred by Fusion in relation to any Subcontractor where the Client fails to comply with this clause 9.

10. UNSATISFACTORY TEMPORARY WORKERS

10.1.    If the Client, acting reasonably, is dissatisfied with the Services or if the Temporary Worker does anything materially detrimental to the Client’s interests, the Client shall notify Fusion without delay and may:

10.1.1. request that the Contractor or Subcontractor, where applicable, remedies any defects in the Services; and/or

10.1.2. terminate the Assignment in accordance with clause 15.3.

10.2.    Where the Client requires a Contractor or Subcontractor to remedy any defects in the Services, Fusion shall use reasonable endeavours to procure that the Contractor or Subcontractor complies with the Client’s request but shall not be liable for any refusal or failure of the Contractor or Subcontractor in this regard.

11. TIMESHEETS       

11.1.    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 approve a timesheet in a format specified by Fusion verifying the times worked by the Temporary Worker during that week.

11.2.    The Client is responsible for ensuring that the times shown on the Temporary Worker’s timesheet are correct and that only duly authorised employees approve the timesheet.

11.3.    The Client acknowledges that Fusion shall rely upon the Client’s approval of the timesheet as confirmation of the time worked by the Temporary Worker and the Client must not retrospectively adjust the time which has been confirmed as having been worked by the Temporary Worker or subsequently refuse to pay any Charges in relation to an approved timesheet.

11.4.    The Client may only refuse to approve the Temporary Worker’s timesheet where:

11.4.1. the Client disputes the time which the Temporary Worker claims to have worked. In this event, the Client shall inform Fusion as soon as is reasonably practicable and shall co-operate with Fusion fully and in a timely manner to enable Fusion to establish the time, if any, which was worked by the Temporary Worker; or

11.4.2. the Client, acting reasonably, is dissatisfied with the Services and Fusion has confirmed in writing that the Temporary Worker has Opted Out. In this event, the Client shall provide all such information as Fusion may require in a timely manner to justify the Client’s dissatisfaction with the Services.

11.5.    If the Client refuses or fails to approve the Temporary Worker’s timesheet in breach of these Terms, Fusion may issue an invoice for the Charges which Fusion reasonably estimates to be due in respect of the time worked by the Temporary Worker.

12. CHARGES

12.1.    The Client shall be liable to pay the Charges for each Assignment as set out in the relevant Assignment Schedule.

12.2.    Fusion shall issue an invoice to the Client for the Charges each week and:

12.2.1. such invoice shall be payable by the Client within the Payment Terms;

12.2.2. VAT shall be charged at the standard rate on such invoice as, for the avoidance of doubt, Fusion is acting as an employment business and the domestic VAT reverse charge is not applicable to Fusion; and

12.2.3. unless otherwise agreed by Fusion in writing, all Charges shall be invoiced to the Client in Pounds Sterling and the Client shall bear any bank charges and currency exchange costs when paying Fusion’s invoice.

12.3.    If an invoice is not paid within the Payment Terms, Fusion may:

12.3.1. suspend or terminate the supply of Temporary Workers to the Client without notice;

12.3.2. charge interest at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment together with statutory compensation under the Late Payment of Commercial Debts (Interest) Act 1998; and

12.3.3. refer the collection of such payment to a collection agent or legal representatives and, in such circumstances, the Client shall be liable for all costs, fees (including legal fees), charges and disbursements incurred by Fusion in recovering payment from the Client.

12.4.    Fusion may vary the Charges, by giving written notice to the Client, to reflect any additional cost in supplying the Temporary Worker as a result of the AWR (where applicable) or any change in legislation.

12.5.    Fusion shall not give any refund or rebate in respect of the Charges and the Client shall pay the Charges without deduction or set off.

12.6.    If the Client employs or engages (directly or indirectly) any employee of Fusion with whom the Client has had material dealings, within 6 months of such individual leaving Fusion’s employment, the Client shall pay a fee to Fusion, which shall be a sum equivalent to 25% of the employee’s gross remuneration in the last year of the employee’s service with Fusion. The fee shall be payable by the Client within the Payment Terms.

 13. TRANSFER FEE

13.1.    Subject to clause 14, where applicable, the Client shall be liable to pay a Transfer Fee to Fusion if the Client or any Connected Party (i) Engages the Temporary Worker or (ii) introduces or supplies the Temporary Worker to a third party who Engages the Temporary Worker and in either case:

13.1.1. where the Temporary Worker has not commenced an Assignment, such Engagement commences in the Restricted Period;

13.1.2. where the Temporary Worker has commenced an Assignment and has Opted Out, such Engagement commences in the Restricted Period; or

13.1.3. where the Temporary Worker has commenced an Assignment and has not Opted Out, such Engagement commences in the Relevant Period.

13.2.    The Transfer Fee shall be a sum equivalent to 18% of the Remuneration for the Engagement. If the Remuneration is not disclosed to Fusion or if it is impracticable to calculate the Remuneration, the Transfer Fee shall be the hourly Charge at which the Temporary Worker was (or would reasonably have been) supplied to the Client multiplied by 370.

13.3.    Fusion shall issue an invoice for the Transfer Fee on commencement of the Engagement or as soon as practicable thereafter and such invoice shall be payable within the Payment Terms. No refund of the Transfer Fee will be given by Fusion for any reason.

14. EXTENDED HIRE PERIOD (OPTED IN TEMPORARY WORKERS)

14.1.    If the Temporary Worker has not Opted Out then, instead of paying a Transfer Fee, the Client may give one week’s written notice to Fusion to commence an Extended Hire Period, commencing on the date on which such written notice expires.

14.2.    During an Extended Hire Period, Fusion shall supply the Temporary Worker (i) on terms no less favourable than the terms which applied immediately before Fusion received the notice pursuant to clause 14.1 or (ii) where Fusion has not previously supplied the Temporary Worker to the Client, on such commercial terms as Fusion may reasonably specify.

14.3.    If Fusion is unable to supply the Temporary Worker for any part of an Extended Hire Period for a reason outside of Fusion’s control (including, without limitation, any adverse credit information relating to the Client or the prior termination of the Recruitment Services by either party) or if the Client does not wish to hire the Temporary Worker on the terms set out in clause 14.2, the Client shall pay the Transfer Fee, reduced in proportion to any part of the Extended Hire Period for which the Temporary Worker was supplied by Fusion following expiry of the Client’s written notice under clause 14.1.

15. TERMINATION

15.1.    Subject to clauses 15.2 to 15.4, either party may terminate an Assignment at any time by giving the period of notice specified in the Assignment Schedule of, if no notice is specified, at any time and without notice.

15.2.    Fusion may terminate an Assignment without notice if:

15.2.1. it becomes aware of any reason why (i) the Temporary Worker is unsuitable to carry out the Assignment or (ii) it would be detrimental to the interests of the Client or the Temporary Worker for the Assignment to continue; or

15.2.2. the Client has (i) committed a serious or persistent breach of its obligations under these Terms (ii) undergone a change of control or (iii) become insolvent.

15.3.    The Client may terminate the Assignment without notice if the Client, acting reasonably, is dissatisfied with the Services or if the Temporary Worker has done anything materially detrimental to the Client’s interests.

15.4.    If the Client is dissatisfied with the Services, the Client may terminate the Assignment on the first day (i) within the first 4 hours where the booking was for more than 7 hours or (ii) within the first 2 hours where the booking was for 7 hours or less. If the Client provides written reasons for termination in writing within 48 hours, Fusion shall cancel the Charges for such period.

15.5.    Fusion shall use reasonable endeavours to ensure that the Temporary Worker observes the agreed notice period, if any, for terminating the Assignment but shall not be liable if the Temporary Worker fails to comply with an agreed notice period.

15.6.    Either party may terminate the provision of Recruitment Services at any time by notifying the other party in writing. Any Assignment in progress at that time shall continue until terminated in accordance with these Terms.

15.7.    Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by Fusion prior to such termination and Fusion’s right to charge a Transfer Fee where applicable.

16. LIABILITY & INDEMNITY

16.1.    Fusion shall use reasonable endeavours to Introduce Temporary Workers to the Client but shall not be liable if it does not Introduce a Temporary Worker for any reason.

16.2.    Fusion shall not be liable for (i) the acts or omissions of any Temporary Worker (ii) any loss, theft or damage to any materials, equipment or other property issued to or used by the Temporary Worker during the Assignment (iii) the performance or non-performance of the Services or (iv) the absence or unavailability of a Temporary Worker during an Assignment.

16.3.    Fusion shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, business, reputation, or goodwill howsoever arising.

16.4.    Subject to clause 16.5, the aggregate liability of Fusion to the Client in respect of any claim or series of claims arising out of or in connection with these Terms, and whether arising in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to the margin earned by Fusion in relation to the relevant Temporary Worker during the period of the Assignment or, if there was no supply of a Temporary Worker or if the claim does not relate directly to the supply of a specific Temporary Worker, the sum of £10,000.

16.5.    Fusion does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.

16.6.    All warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

16.7.    Any claim which the Client may bring against Fusion pursuant to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.

16.8.    The Client shall indemnify and keep indemnified Fusion against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by Fusion as a result of the Client’s breach of contract, negligence (or any other tortious act) or breach of statutory duty.

17. CONFIDENTIALITY & DATA PROTECTION

17.1.    The Client shall treat all information relating to a Temporary Worker which is provided by Fusion with the utmost confidentiality and, in particular, must (i) not use such information for any other purpose without the prior consent of Fusion and the Temporary Worker and (ii) ensure that its employees, contractors, representatives and agents are all bound by written confidentiality obligations in respect of such information.

17.2.    Save to the extent that Fusion is required to disclose such information to the Temporary Worker, Fusion shall keep confidential any information provided by the Client in relation to the AWR and not use it for any other purpose.

17.3.    Fusion and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall (i) control and process the Shared Data in accordance with the Data Protection Legislation (ii) place the Temporary Worker on notice of their data processing activities through notices which comply with the Data Protection Legislation and Fusion shall assist the Client in this regard if requested to do so (iii) take appropriate technical and organisational measures to safeguard the security of Shared Data under their control (iv) co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data and (v) co-operate with the other party where any Temporary Worker seeks to exercise their statutory rights respect of the Shared Data.

18. BRIBERY & HUMAN TRAFFICKING

18.1.    The Client and Fusion warrant that they shall:

18.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

18.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms; and

18.1.3. Take reasonable steps and carry out appropriate checks to ensure that their respective businesses and business supply chains are free of slavery and human trafficking.

19. GENERAL PROVISIONS

19.1.    The Client shall not assign any of its rights or obligations under these Terms without the written consent of Fusion.

19.2.    Fusion may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company.

19.3.    Subject to clause 19.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.

19.4.    If any provision of these Terms is determined by a court to be unenforceable, the unenforceable provision shall be severed from these Terms solely to that extent and the remainder of the Terms shall continue to be valid and enforceable to the extent permitted by law.

19.5.    No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

19.6.    Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of their obligations under these Terms if such delay or failure result from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations.

19.7.    For the purposes of the Conduct Regulations, Fusion shall act as an employment business when providing Recruitment Services under these Terms.

19.8.    These Terms shall be interpreted in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising in relation to the construction, interpretation, or performance of these Terms.

INTRODUCTION OF PERMANENT & FIXED TERM CANDIDATES

1. DEFINITIONS & INTERPRETATION

1.1.     In these Terms of Business (Terms) the following definitions apply:

Cancellation Fee means the fee payable by the Client to Fusion in accordance with clause 6 if the Client withdraws an offer of Engagement;

Candidate means a person who is Introduced by Fusion to the Client;

Client means the person, firm, company or business to which the Candidate is Introduced by Fusion;

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

Data Protection Legislation means (i) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018;

Engagement means the engagement, employment or use of the Candidate by the Client on any basis whatsoever, whether directly or indirectly through any third party;

Fixed Term Contract means a fixed term Engagement of less than 12 months;

Fusion means Fusion People Limited (Registered in England & Wales No. 4873626) whose registered office is at 3700 Parkway, Solent Business Park, Whiteley, Hampshire, PO15 7AW;

Introduction means (i) the provision by Fusion to the Client of a CV or other information which expressly or impliedly identifies a Candidate (ii) the arrangement by Fusion of an interview or meeting between the Client and a Candidate whether face to face, by telephone, by web/video conference or by any other means or (iii) any discussion or negotiations between the parties regarding the potential Engagement of a specific Candidate; “Introduce,” “Introduces” and “Introduced” shall be interpreted accordingly;

Introduction Fee means the fee payable by the Client to Fusion;

Introduction Period means the 6 month period from the most recent Introduction or Third Party Introduction of a Candidate;

Payment Terms means 14 days from the date of Fusion’s invoice;

Recruitment Services means the Introduction of Candidates to the Client by Fusion;

Refund Period means the 10 week period from commencement of a Candidate’s engagement;

Remuneration means (i) the gross annualised remuneration package payable to the Candidate by the Client (or third party where relevant) including, without limitation, basic salary, guaranteed bonuses and commission, 50% of all estimated bonuses and commission, allowances and all other taxable and non-taxable emoluments. £5,000 shall be added to the Remuneration in respect of any company vehicle provided to the Candidate or (ii) if the Candidate is Engaged on a self-employed basis or via a personal services company or any third party, the total estimated annualised charges payable by the Client (or third party where relevant) for the Candidate’s services;

Shared Data means personal data and special/sensitive personal data within the meaning of the Data Protection Legislation which relates to a Candidate and which is shared between the parties pursuant to these Terms;

Third Party Engagement means the engagement of a Candidate by a party other than the Client following a Third Party Introduction; and

Third Party Introduction means the disclosure of a Candidate’s details to a third party by the Client, including disclosure to any holding, subsidiary or associated company of the Client.

1.2.     Unless the context requires otherwise, references to the singular include the plural.

1.3.     A person includes a natural person, firm, corporate or unincorporated body (whether or not having a separate legal personality).

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

1.5.     A reference to a statute or statutory provision is reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.6.     The headings in these Terms are for convenience only and do not affect the interpretation of any clause.

2.        BASIS OF CONTRACT

2.1.     These Terms shall form the contract between Fusion and the Client for the Introduction of Candidates and shall be deemed to be accepted upon the Client signing them or otherwise accepting them in writing, instructing Fusion to Introduce a Candidate, the Client interviewing a Candidate pursuant to an Introduction by Fusion or the Client otherwise acting upon an Introduction, whichever occurs first.

2.2.     These Terms comprise the entire agreement between the parties and prevail over any terms or conditions of purchase proposed or issued by the Client unless otherwise agreed in writing by a director of Fusion.

2.3.     No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between a director of Fusion and the Client, are set out in writing and a copy of the varied terms is given to the Client stating the date on or after which such varied terms shall apply.

2.4.     The Client warrants that it has not relied on any contractual statement, promise or representation made or given by or on behalf of Fusion which is not set out in these Terms.

2.5.     For the purposes of the Conduct Regulations, Fusion shall act as an Employment Agency when providing services to the Client pursuant to these Terms.

3.        INTRODUCTIONS & OFFERS

3.1.     Fusion shall provide Recruitment Services to the Client and use reasonable endeavours to Introduce Candidates from time to time who:

3.1.1.   Meet the criteria specified in clause 9.1 where applicable; or

3.1.2.   Fusion believes may otherwise be of interest or relevance to the Client.

but Fusion shall not be liable to the Client for not Introducing any Candidates to the Client.

3.2.     An Introduction by Fusion shall be deemed to be the sole and effective cause of any Engagement of the Candidate unless all of the following conditions apply:

3.2.1.   The Client has, in the six month period prior to Fusion’s Introduction of the Candidate, been in active discussions with the Candidate, directly or through another employment agency, with a view to employing the Candidate in the same position; and

3.2.2.   The Client provides evidence of such active discussions to Fusion’s reasonable satisfaction; and

3.2.3.   The Client has not requested or arranged an interview of the Candidate through Fusion or otherwise instructed Fusion to facilitate the Engagement of the Candidate to any extent.

3.3.     The Client shall:

3.3.1.   Notify Fusion immediately of any offer of an Engagement which it makes to a Candidate and the relevant terms of such offer;

3.3.2.   Notify Fusion immediately upon the acceptance of an offer of Engagement by a Candidate and in any event prior to commencement of the Engagement; and

3.3.3.   Provide details to Fusion of the Remuneration agreed with the Candidate and, if requested by Fusion, a copy of the proposed contract of employment.

4.        INTRODUCTION FEES

4.1.     The Client will pay an Introduction Fee to Fusion in respect of each Introduction by Fusion which results in an accepted offer of Engagement within the Introduction Period.

4.2.     Fusion shall issue an invoice for the Introduction Fee on the first day of the Engagement or as soon as reasonably practicable thereafter. VAT shall be charged on all sums invoiced under these Terms.

4.3.     Subject to clauses 4.4 and 4.7, the Introduction Fee payable to Fusion by the Client for an Introduction resulting in an Engagement shall be an amount equivalent to a percentage of the Remuneration, rounded up to the nearest pound and calculated in accordance with the following scale:

Remuneration                          Introduction Fee

Below £35,000                          18%

£35,000 and above                    22%

4.4.     The minimum Introduction Fee for an Engagement shall be £3,000.

4.5.     The Client shall settle Fusion’s invoice within the Payment Terms and time for payment shall be of the essence.

4.6.     If the Client does not pay Fusion’s invoice within the Payment Terms, Fusion may:

4.6.1.   Pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, charge late payment compensation and interest on such invoiced amounts at the rate of 8% per annum above the base rate of the Bank of England from the due date until the date of payment;

4.6.2.   Refer the collection of such payment to a collection agency or legal representatives and, if so referred, the Client shall be liable for all costs, fees (including legal fees on an indemnity basis), charges and disbursements incurred by Fusion in recovering payment from the Client.

4.7.     If the Engagement is a Fixed Term Contract, the Introduction Fee shall be calculated using the annual Remuneration and then reduced pro-rata, subject to a minimum fee of 50% of the full Introduction Fee.

4.8.     If a Fixed Term Contract is extended, or if the Client Engages the Candidate within 6 months from termination or expiry of the Fixed Term Contract, the Client shall pay the balance of the full Introduction Fee to Fusion.

4.9.     If the amount of actual Remuneration is not known or the Client fails to provide details of such Remuneration to Fusion, Fusion will charge an Introduction Fee based on the level of Remuneration which, in Fusion’s reasonable opinion, is the market rate for the Engagement.

4.10.    If the parties agree in writing that Fusion shall conduct a specific advertising campaign for the Client’s vacancies, Fusion shall submit a separate invoice to the Client upon incurring any advertising costs. Such invoice shall be payable by the Client in accordance with clause 4.3.

4.11.    All Introduction Fees shall be charged to the Client in Pounds Sterling (GBP). Where a Candidate’s Remuneration is not provided in GBP, for the purposes of calculating the Introduction Fee, Fusion shall convert the Remuneration to GBP using the exchange rate published by the Bank of England on the date of invoice and shall submit the invoice in GBP. The Client shall bear all bank and currency exchange charges when paying Fusion’s invoice.

5.        REFUND GUARANTEE

5.1.     If the Engagement terminates in the Refund Period, the Introduction Fee or part will be refunded to the Client in accordance with the scale set out in clause 5.2 (Refund), provided that:

5.1.1.   The Client paid the Introduction Fee within the Payment Terms;

5.1.2.   The Client notified Fusion in writing within 7 days of the termination of the Engagement, giving the reasons for such termination;

5.1.3.   The Candidate was not made redundant or dismissed as a result of any internal reorganisation or change in strategy;

5.1.4.   The Candidate was not wrongfully or unfairly dismissed by the Client;

5.1.5.   The Engagement was not a Third Party Engagement or Fixed Term Contract;

5.1.6.   The Client complied strictly with clause 3.3; and

5.1.7.   The Candidate was not previously supplied to the Client by Fusion as a Temporary Worker for a period of more than one month.

5.2.     Subject to clause 5.1, Fusion shall within 30 days give a Refund to the Client in accordance with the following scale:

Week Engagement Terminates                 Refund

1-2                                                         100%

3-4                                                         75%

5                                                            60%

6                                                            50%

7                                                            40%

8                                                            30%

9                                                            20%

10                                                          10%

5.3.     For the purposes of determining the applicable Refund, if any, the date of termination of the Engagement shall be the date on which the Candidate ceases working or would have ceased working for the Client but for any period of garden leave or payment in lieu of notice, whichever is later.

5.4.     If the Client Engages the Candidate again within 6 months of termination of the Engagement, the Client must notify Fusion and repay the Refund without delay. There shall be no entitlement to a Refund should this new Engagement then terminate.

6.        CANCELLATION FEE

If the Client decides to withdraw an offer of Engagement for a reason which does not relate to the Candidate’s suitability for the position, the Client shall pay to Fusion a Cancellation Fee of 25% of the Introduction Fee, which shall be invoiced in accordance with clause 4.

7.        NON-SOLICITATION

If the Client makes an offer of employment or engagement to any Fusion employee with whom the Client has had material dealings and the employee commences such employment or engagement within 6 months of leaving Fusion, the Client shall pay an Introduction Fee to Fusion, which shall be calculated and invoiced in accordance with clause 4. The Client shall not be entitled to a Refund if such employment or engagement terminates for any reason.

8.        THIRD PARTY INTRODUCTIONS

If a Third Party Introduction results in a Third Party Engagement within the Introduction Period, the Client shall pay an Introduction Fee, which shall be calculated and invoiced in accordance with clause 4. The Client shall not be entitled to a Refund if the Third Party Engagement terminates for any reason.

9.        RESPONSIBILITY FOR VETTING CHECKS

9.1.     Fusion shall endeavour to ensure that Candidates Introduced to the Client are suitable to work in the position which the Client is seeking to fill by taking reasonably practicable steps to:

9.1.1.   Ensure that it would not be detrimental to the interests of either the Client or the Candidate for the Candidate to work in the relevant position;

9.1.2.   Ensure that both the Client and Candidate are aware of any requirements imposed by law or by any professional body for the Candidate to work in the relevant position; and

9.1.3.   Confirm that the Candidate is willing to work in the position.

9.2.     Notwithstanding clause 9.1, the Client shall satisfy itself as to the suitability of the Candidate for the position they are seeking to fill by:

9.2.1.   Taking up any references provided by the Candidate before Engaging the Candidate;

9.2.2.   Checking the Candidate’s right to work and obtaining permission to work as may be required by the law of the country in which the Candidate is Engaged to work;

9.2.3.   Arranging any medical examinations and/or investigations into the medical history of any Candidate; and

9.2.4.   Checking any other requirements, qualifications or permission required for the Candidate to be Engaged by the Client.

9.3.     The Client shall provide to Fusion all such information as Fusion shall reasonably require regarding the position which the Client is seeking to fill including, without limitation, the information specified in Regulation 18 of the Conduct Regulations.

10.      CONFIDENTIALITY & DATA PROTECTION

10.1.    The Client must use any information supplied by Fusion regarding a Candidate solely for the purpose of conducting the recruitment process and must:

10.1.1. Not disclose any such information to any third party prior to making an offer of Engagement without the express written consent of Fusion;

10.1.2. Not contact the Candidate’s current employer for a reference until the Candidate has formally accepted an offer of Engagement; and

10.1.3. Ensure that its employees are subject to obligations of confidentiality preventing the disclosure of a Candidate’s details to any third party.

10.2.    Fusion and the Client understand that they shall each act as independent data controllers in respect of any Shared Data. Each party shall

10.2.1. control and process the Shared Data in accordance with the Data Protection Legislation;

10.2.2. place the Candidate on notice of their data processing activities through privacy notices which comply with the Data Protection Legislation and Fusion shall give reasonable assistance in this regard if requested by the Client;

10.2.3. take appropriate technical and organisational measures to safeguard the security of Shared Data under their control;

10.2.4. co-operate with the other party in respect of any regulatory enquiry or investigation relating to the Shared Data; and

10.2.5. co-operate with the other party where any Candidate seeks to exercise their statutory rights respect of the Shared Data.

11.      TERMINATION

11.1.    Either party may terminate the provision of Recruitment Services by Fusion at any time by notifying the other party in writing.

11.2.    Any provision of these Terms that expressly or by implication is intended to continue in force on or after termination of the Recruitment Services shall remain in full force and effect including, without limitation, the validity of any Introduction which was made by Fusion prior to such termination and Fusion’s right to charge an Introduction Fee for any Engagement within the Introduction Period.

12.      LIABILITY

12.1.    Whilst Fusion will use reasonable endeavours to ensure that any Candidate Introduced to the Client meets the requirements specified by the Client pursuant to clause 9.3, Fusion gives no warranty, whether express or implied, as to the ability, integrity or character of the Candidate .

12.2.    Fusion shall not be liable to the Client for any indirect or consequential losses or for any loss of profit, loss of business or loss of goodwill howsoever arising.

12.3.    Subject to clause 12.4, the aggregate liability of Fusion to the Client in respect of any claim or series of claims arising out of or in connection with these Terms and whether arising in contract, tort (including negligence) or otherwise, is limited to the Introduction Fee paid by the Client to Fusion in respect of the Engagement in relation to which such claim arises or, if there was no Engagement or if the claim does not relate to an Engagement, the sum of £10,000.

12.4.    Fusion does not limit or exclude liability for death or personal injury arising from its own negligence, for fraud or fraudulent misrepresentation or for any other claim which may not be limited or excluded by law.

12.5.    Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are excluded from these Terms to the fullest extent permitted by law.

12.6.    Any claim which the Client may bring against Fusion in relation to these Terms must be commenced within 12 months of the date on which the Client becomes aware or should reasonably have become aware of such claim.

12.7.    The Client shall indemnify Fusion against all losses, damages, costs, claims (whether actual or threatened) and fees (including legal fees) suffered or incurred by Fusion as a result of the Client’s breach of contract, negligence (or any other tortious act), breach of statutory duty or otherwise.

13.      BRIBERY & HUMAN TRAFFICKING

13.1.    The Client and Fusion warrant that they shall:

13.1.1. Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;

13.1.2. Promptly notify the other party of any request or demand for any undue financial or other advantage of any kind in connection with the performance of these Terms; and

13.1.3. Take reasonable steps and carry out appropriate checks to ensure that their respective businesses and business supply chains are free of slavery and human trafficking.

14.      GENERAL PROVISIONS

14.1.    The Client shall not assign any of its rights or obligations under these Terms without the written consent of Fusion.

14.2.    Fusion may assign any monies owing from the Client to a third party including, without limitation, a recruitment finance or factoring company.

14.3.    Subject to clause 14.2, the parties do not intend these Terms to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.

14.4.    The Client shall not deduct or set off against any sum due to Fusion under these Terms, any sum which is owed or which the Client alleges or claims is owed by Fusion to the Client, whether under these Terms or under any other agreement between Fusion and the Client.

14.5.    If any of the provisions of these Terms shall be determined by any competent authority to be unenforceable to any extent, such provision shall, to that extent, be severed from the Terms, which shall continue to be valid to the fullest extent permitted by law.

14.6.    No failure or delay by a party in exercising any right or remedy under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

14.7.    These Terms shall be interpreted in accordance with English law.

14.8.    The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales in respect of any dispute or claim arising between the parties in relation to the construction, interpretation or performance of the Terms.