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Temporary Supply – Terms of Business
2017
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Terms Of Business For The Supply Of Flexi-Worker Services
1. DEFINITIONS In these Terms of Business the following definitions apply:-
“Assignment” means the period during which the Flexi-Worker is supplied to
render services to the Client
“Client” means the person, firm or corporate body together with any
subsidiary or associated company as defined by the Companies
Act 2006 to whom the Flexi-Worker is supplied or introduced.
“Comparable Employee” has the meaning given to it in the Regulations
“Effective Date” means the date these Terms of Business are accepted by the
Client pursuant to clause 2.1.
“The Employment
Business”
means SM Global Consultancy Ltd Company Reg 08694233 T/As
Staffing Match, Bradley Business Centre, 1st Floor Central Way,
North Feltham Trading Estate, Feltham Middlesex TW14 0XQ
“Engagement” means the engagement, employment or use of the Flexi-Worker
directly by the Client or any third party or through any other
employment business on a permanent or temporary basis,
whether under a contract of service or for services; an agency,
license, franchise or partnership arrangement; or any other
engagement; directly or through a limited company of which
the Flexi-Worker is an officer or employee.
“Flexi-Worker” means the individual whose services are supplied by the
Employment Business to the Client.
“Introduction” means the Clients interview of a Flexi-Worker in person or by
telephone, following the Clients instruction to the Employment
Business to search for a Flexi-Worker or the passing to the Client
of a curriculum vitae or other information which identifies the
Flexi-Worker and which leads to an Engagement of that Flexi -
Worker by the Client.
“Introduction Fee” means the fee payable in accordance with clause 7.1(b) below
and Regulation 10 of the Conduct of Employment Agencies and
Employment Business Regulations 2003.
“Qualifying Period” has the meaning given to it in the Regulations
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“Relevant Period” means the later of either 14 weeks from the first day on which
the Flexi-Worker was, supplied by the Employment Business to
work for the Client, or 8 weeks from the day after the Flexi -
Worker was last supplied by the Employment Business to the
Client.
“The Relevant Terms
Conditions”
has the meaning given to it in the Regulations and
“The Regulations” means The Agency Workers Regulations 2010
“AWR Claim” means any complaint or claim to a tribunal or court made by or
on behalf of the Flexi- Worker against the Hirer and/or the
Employment Business for any breach of the Agency Workers
Regulations;
“Calendar Week” means any period of seven days starting with the same day as
the first day of the First Assignment;
“extended Period Of hire” means any additional period that the Hirer wishes the Agency
Worker to be supplied for beyond the duration of the original
Assignment or series of Assignments as an alternative to paying
a Transfer Fee;
“Transfer Fee” means the fee payable in accordance with clause 7.1(b) below
and Regulation 10 of the Conduct of Employment Agencies and
Employment Businesses Regulations 2003.
1.2 Unless the context otherwise requires, reference to the singular includes the plural and
reference to the masculine includes the feminine and vice versa.
1.3 The headings contained in these Terms of Business are for convenience only and do not
affect their interpretation.
1.4 These terms and conditions take effect from the Effective Date and shall supersede all
previous terms and conditions.
1.5 If any provision of the Contract is found to be invalid or unenforceable such invalidity or
unenforceability shall not affect any other provisions and if such provision would be valid
or enforceable if some part of the provision was deleted the provision in question shall
apply with such modifications as may be necessary to make it valid and enforceable.
2 THE CONTRACT
2.1 These Terms of Business govern all transactions between the Employment Business and the
client, whether signed or not, and the supply of the Flexi -Worker’s services by the
Employment Business to the client. These terms are deemed accepted by the client by
virtue of its request for, interview with or Engagement of the FlexiWorker or the passing of
any information about the Flexi-Worker. Where applicable the Employments Business’s
Terms of Business for the introduction of Permanent Staff also apply to this agreement.
2.2 No variation or alteration to these Terms of Business shall be valid unless approved in
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writing by a Director of the Employment Business.
2.3 These Terms contain the entire agreement between the parties and unless otherwise
agreed in writing by a Director of the Employment Business, these Terms prevail over any
terms of business or purchase conditions proffered by the Client.
2.4 The Employment Business shall act as an employment business (as defined in Section 13(3)
of the Employment Agencies Act 1973) when Introducing Agency Workers for
Assignments with the Client.
2.5 The Employment Business shall apply for credit references on the Client.
2.6 The Employment Business will monitor and record information relating to a Client’s trade
performance and such records will be made available to credit reference agencies, who
will share that information with other businesses in assessing applications for credit and
fraud prevention.
3. CHARGES
3.1. The Client agrees to pay the hourly charges of the Employment Business as notified at
the commencement of the Assignment and as may be varied from time to time
during the Assignment.
3.2. The charges are calculated according to the number of hours worked by the Flexi
Worker (to the nearest quarter hour). These charges are comprised mainly of the
Flexi-Workers remuneration but also include the Employment Business’ commission,
employer’s National Insurance contributions (in the case of PAYE but not Limited
Company Contractors and being the amount that would be due based on the
hourly charge and hours worked were that paid to the Flexi -Worker by the
Employment Business) and any travel, hotel or other expenses as may have been
agreed with the Client or if there is no such agreement, such expenses as are
reasonable. VAT is payable on the entirety of these charges.
3.3. The Client shall inform the Employment Business at the time of booking of any order
number or other reference which it might adopt in respect of the Flexi-Worker.
3.4. The charges are invoiced to the Client on a weekly basis and are payable within 30
days of the date of invoice. VAT is payable at the applicable rate on the entirety of
the charges. The Employment Business reserves the right to charge interest on any
overdue amounts at the rate of 2% per annum above the base rate from time to time
of Barclays Bank Plc from the due date until the payment date. In the event of non-
compliance to our payment terms all sums outstanding will become immediately due
for payment.
3.5. The Client shall make all payments due under the Terms of Business without any
deduction whether by way of set off, counterclaim, discount, abatement or
otherwise unless the Client has a valid court order requiring an amount equal to such
deduction to be paid by the Employment Business to the Client.
3.6. The Employment Business reserves the right to vary the Charges agreed with the
Client, by giving written notice to the Client:
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3.6.1. in order to comply with any additional liabil ity imposed by statute or other legal
requirement or entitlement, including but not limited to the Agency Workers
Regulations; and/or
3.6.2. if there is any variation in the Relevant Terms and Conditions.
4. INFORMATION TO BE PROVIDED
4.1. When making an Introduction of a Flexi-Worker to the Client the Employment Business
shall inform the Client of the identity of the Flexi-Worker; that the Flexi-Worker has the
necessary or required experience, training, qualifications and any authorisation
required by law or a professional body to work in the Assignment; whether the Flexi -
Worker will be employed by the Employment Business under a contract of service
and that the Flexi-Worker is willing to work in the Assignment.
4.2. Where such information is not given in paper form or by electronic means it shall be
confirmed by such means by the end of the third business day (excluding Saturday,
Sunday and any public or Bank holiday) following, save where the Flexi -Worker is
being Introduced for an Assignment in the same position as one in which the Flexi-
Worker had previously been supplied within the previous five business days and such
information has already been given to the Client.
4.3. The Client undertakes that it knows of no reason why it would be detrimental to the
interests of the Flexi-Worker for the Flexi-Worker to fill the Assignment and will provide
confirmation of the identity of the Client and the nature of the Client’s business; the
date on which the Client wants the Flexi-Worker to start work and the duration or
likely duration of the Assignment; the position which the Client seeks to fill, including
the type of work the FlexiWorker will be required to do, the location at which and the
hours during which the Flexi-Worker will be required to work; any risks to health and
safety known to the Client and the steps taken by the Client to prevent or control
such risks; details of the experience, training, qualifications and any authorisation
which the Client considers necessary or the Flexi-Worker requires to have by law or by
the requirements of any professional body in order to carry out the Assignment; any
expenses payable by or to the Flexi-Worker; induction training and full details of the
basic working and employment conditions (as defined by the Regulations) which the
Flexi-Worker would have enjoyed had they been recruited directly by the Client.
4.4. The Client shall provide such personal protective equipment (PPE) necessary to ensure
the health, safety and welfare of the Flexi-Worker without charge to the Employment
Business. Where through any failure on the part of the Client to provide PPE, the
Employment Business provides the Flexi-Worker with PPE; the Client shall reimburse to
the Employment Business the cost of that PPE.
5. CLIENT OBLIGATIONS UNDER AGENCY WORKER REGULATIONS
5.1. The Client will comply with its obligations under Regulations 12 (Rights of agency
workers in relation to access to collective facilities and amenities) and 13 (Rights of
agency workers in relation to access to employment) of the Agency Workers
Regulations.
5.2. To enable the Employment Business to comply with its obligations under the Agency
Workers Regulations, the Client undertakes as soon as possible prior to the
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commencement of each Assignment and during each Assignment (as appropriate)
and at any time at the Employment Business' request:
5.2.1. to inform the Employment Business of any Calendar Weeks since 1 October 2011
in which the relevant Agency Worker has worked in the same or a similar role
with the Client via any third party prior to the date of commencement of the
relevant Assignment and/or during the relevant Assignment which count or may
count towards the Qualifying Period;
5.2.2. if, since 1 October 2011, the Agency Worker has w orked in the same or a similar
ole with the Client via any third party prior to the date of commencement of the
relevant Assignment and/or works in the same or a similar role with the Client via
any third party during the relevant Assignment, to provide the Employment
Business with all the details of such work, including (without limitation) details of
where, when and the period(s) during which such work was undertaken and any
other details requested by the Employment Business;
5.3. to inform the Employment Business if, since 1 October 2011, the Agency Worker has
prior to the date of commencement of the relevant Assignment and/or during the
relevant Assignment:
5.3.1. completed 2 or more assignments with the Client;
5.3.2. completed at least 1 assignment with the Client and 1 or more earlier
assignments with any member of the Client's Group; and/or
5.3.3. worked in more than 2 roles during an assignment with the Client and on at least
two occasions worked in a role that was not the same role as the previous role;
5.4. save where the Agency Worker will not complete the Qualifying Period during the
term of the Assignment, to:
5.4.1. provide the Employment Business with written details of the Relevant Terms and
Conditions the Agency Worker would be entitled to for doing the same job if the
Agency Worker had been recruited directly by the Client as an employee or
worker at the time the Qualifying Period commenced or with those of a
Comparable Employee;
5.4.2. inform the Employment Business in writing whether the Relevant Terms and
Conditions provided are those of a hypothetical directly recruited employee or
worker or those of a Comparable Employee; 5.4.3 if the Relevant Terms and
Conditions provided are those of a Comparable Employee, provide the
Employment Business with a written explanation of the basis on which the Client
considers that the relevant individual is a Comparable Employee; and
5.4.3. inform the Employment Business in writing of any variations in the Relevant Terms
and Conditions made at any time during the relevant Assignment after the
Qualifying Period commenced.
5.5. The Client will comply with all the Employment Business' requests for information and
any other requirements to enable the Employment Business to comply with the
Agency Workers Regulations.
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5.6. The Client warrants that:
5.6.1. all information and documentation supplied to the Employment Business in
accordance with clauses 5.4 and 5.5 is complete, accurate and up-to-date;
and
5.6.2. it will, during the term of the relevant Assignment, immediately inform the
Employment Business in writing of any subsequent change in any information or
documentation provided in accordance with clauses 5.4 and 5.5
5.7. Without prejudice to clauses 9.11 and 9.12, the client shall inform the Employment
Business in writing of any:
5.7.1. oral or written complaint the Agency Worker makes to the Client which is or may
be a complaint connected with rights under the Agency Workers Regulations; or
any
5.7.2. written request for information relating to the Relevant Terms and Conditions that
the Client receives from the Agency Worker as soon as possible but no later than
7 calendar days from the day on which any such oral complaint is made to or
written complaint or request is received by the Client and the Client will take
such action and give such information and assistance as the Employment
Business may request, and within any timeframe requested by the Employment
Business, in order to resolve any such complaint or to provide any such
information in a written statement to the Agency Worker within 28 days of the
Client's receipt of such a request in accordance with Regulation 16 of the
Agency Workers Regulations and the Client will provide the Employment Business
with a copy of any such written statement.
5.8. The Client undertakes that it knows of no reason why it would be detrimental to the
interests of the Agency Worker for the Agency Worker to fill the Assignment.
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 or is completed before the end of a week) the Client
shall sign the Employment Business’ time sheet verifying the number of hours worked
by the Flexi-Worker during that week.
6.2. Signature of the time sheet by the Client indicates satisfaction with the services
provided by the Flexi-Worker and confirmation of the number of hours worked. If the
Client is unable to sign a time sheet produced authentication by the Flexi -Worker
because the Client disputes the hours claimed, the Client shall inform the
Employment Business as soon as is reasonably practicable and shall co-operate fully
and in a timely fashion with the Employment Business to enable the Employment
Business to establish what hours, if any, were worked by the Flexi -Worker. Failure to
sign the timesheet does not absolve the Client of its obligation to pay the Charges in
respect of the hours worked.
6.3. The Client shall not be entitled to decline to sign a timesheet on the basis that he is
dissatisfied with the work performed by the Flexi-Worker. In cases of unsuitable work
the Client should apply the provisions of clause 11.1 below.
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6.4. Invoices are prepared from the Flexi-Workers time sheet. Save as otherwise agreed
between the parties in writing the week following the booking.
6.5. The Client undertakes to ensure compliance with the provisions of the Working Time
Regulations 1998 in respect of work undertaken by the Flexi-Worker in the case of
PAYE but only where legally required for Limited Company Contractors and
acknowledges and accepts that if it causes a breach of the Regulations it will
indemnify the Employment Business in respect of any claims costs or damages arising
there from.
7. REMUNERATION
7.1. The Employment Business assumes responsibility for payment of the Flexi -Workers
remuneration and where appropriate for the deduction and payment of National
Insurance Contributions and PAYE Income Tax applicable to the Flexi -Worker,
pursuant to sections 44-47 of the Income Tax (Earnings and Pensions) Act 2003. The
Client must not therefore give any form of payment direct to the Flexi-Worker.
7.2. The Employment Business will ensure that Flexi-Workers are either:
7.3. employed by the Employment Business under a contract which complies with the
requirements of Regulation 10 of the Regulations; or
7.4. afforded equal treatment under the provisions of Regulation 5 of the Regulations
where applicable to such Flexi-Workers after completing the Qualifying Period.
8. TRANSFER AND INTRODUCTION FEES
8.1. In the event of the Engagement or introduction of a Flexi-Worker supplied by the
Employment Business either (1)directly by the Client or (2) by the Client pursuant to
being supplied by another employment business or (3) introduce the Flexi -Worker to a
third party during the assignment, within the Relevant Period the Client shall be liable,
to either:
8.1.1. Subject to electing upon giving 7 days written notice, an extended period of hire
of the Flexi-Worker being 26 weeks during which the Employment Business shall
be entitled to the charges set out in clause 3.1 above for each hour the Flexi-
Worker is so employed or supplied; or
8.1.2. A Transfer/introduction Fee calculated as follows: 17.5% of the Remuneration
applicable during the first 12 months of the Engagement or, if the actual amount
of the Remuneration is not known, the hourly charges referred to in clause 3.1
multiplied by 250 times. No refund of the Transfer Fee will be paid in the event
that the Engagement subsequently terminates. VAT is payable in addition to any
fee due.
8.2. In the event that the Engagement of the Flexi-Worker is for a fixed term of less than 12
months, the fee in clause 8.1(b), calculated as a percentage of the Remuneration,
will apply pro-rata. If the Engagement is extended beyond the initial fixed term or if
the Client re-engages the Flexi-Worker within 3 months of the termination of the first
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Engagement the Client shall be liable to pay a further fee based on the additional
Remuneration applicable for the period of Engagement following the initial fixed
term up to the termination of the second Engagement or the first anniversary of its
commencement, whichever is sooner.
8.3. In the event that the Flexi-Worker is introduced by the Client to a third party which
results in the Engagement of the Flexi-Worker by the third party within the Relevant
Period the Client shall be liable to pay a Transfer Fee calculated as follows: 17.5% of
the Remuneration applicable during the first 12 months of the Engagement or, if the
actual amount of the Remuneration is not known, the hourly charges refer red to in
clause 3.1 multiplied by 250 times. No refund of the Transfer Fee will be paid in the
event that the Engagement subsequently terminates. VAT is payable in addition to
any fee due.
9. LIABILITY
9.1. Whilst every effort is made by the Employment Business to give satisfaction to the
Client by seeking to ensure reasonable standards of skills, integrity and reliability from
Flexi-Workers and further to provide them in accordance with the Clients booking
details; the parties agree save where otherwise agreed in writing by the Employment
Business that as the Client is best able to assess any potential loss to the Client and to
insure against the same where necessary, the Employment Business is not liable for
any loss expense, damage, delay costs or compensation arising from any failure to
provide any Flexi-Worker for all or part of the period of booking or from the
negligence dishonesty misconduct or lack of skill of the Flexi -Worker. For the
avoidance of doubt the Employment Business does not exclude liability for death or
personal injury arising from its own negligence.
9.2. The Client shall indemnify and keep indemnified the Employment Business against any
costs, claims or liabilities incurred by the Employment Business arising out of any
Assignment and/or as a result of any breach of these Terms of Business by the Client
including claims for loss or damage (including consequential loss), personal injury or
death arising out of any act or omission of the Flexi-Worker.
9.3. The Employment Business shall be entitled to set off the above rights of indemnity
against any claim which the Client might seek to bring against it.
9.4. The Employment Business shall supply to the Client details of the identity of the Flexi -
Worker, all relevant experience, training and qualifications and confirmation that the
Flexi-Worker is willing to work in the position the Client seeks to fill. Any information,
which is given to the Client by the Employment Business about the FlexiWorker,
depends upon the Flexi-Worker giving the Employment Business true and accurate
information. Accordingly, the Employment Business cannot warrant the accuracy of
any such information and will not be liable for any losses, costs, damages, expenses
or other payments of any kind incurred by the Client as a result of the Client relying
on such information or the Flexi-Worker’s negligence, dishonesty or misconduct.
9.5. Flexi-Workers supplied by the Employment Business are engaged under a contract of
services but are deemed to be under the supervision, direction and control of the
Client from the time they report to take up dut ies and for the duration of the
Assignment. The Client agrees to be responsible for all acts, errors or omissions of the
FlexiWorker, whether wilful, negligent or otherwise as though the Flexi-Worker was on
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the payroll of the Client. The Client will also comply in all respects with all statutes
including, for the avoidance of doubt, the Working Time Regulations, Health and
Safety At Work Act etc., by-laws, codes of practice and legal requirements to which
the Client is ordinarily subject in respect of the Client’s own staff (excluding the
matters specifically mentioned in Clause 6 above), including in particular the
provision of adequate Employer’s and Public Liability Insurance cover for the Flexi-
Worker during all Assignments.
9.6. All disciplinary and grievance matters relating to a Flexi -Worker employed by the
Employment Business shall be dealt with by the Employment Business. As soon as the
Client is aware of any circumstances w hich give rise to any disciplinary action or
grievance in respect of any such Flexi-Worker, the client shall immediately refer the
matter to the Employment Business for action to be taken.
9.7. The Employment Business shall indemnify the Client against any liability arising from a
failure by the Employment Business to comply with its obligations under the
Regulations except to the extent that the failure arises from a failure by the Client to
comply with clause 4.3 above.
9.8. The Client shall advise the Employment Business of any special health and safety
matters about which the Employment Business is required to inform the Flexi -Worker
and about any requirements imposed by law or by any professional body, which
must be satisfied if the Flexi-Worker is to fill the Assignment.
9.9. The Client will also comply in all respects with all statutory provisions as are in force
from time to time including, for the avoidance of doubt, but not limited to the
Working Time Regulations, Health and Safety At Work etc. Act 1974, the
Management of Health and Safety at Work Regulations 1999, by-laws, codes of
practice and legal requirements to which the Client is ordinarily subject in respect of
the Client’s own staff (excluding the matters specifically mentioned in clause 6
above), including in particular the provision of adequate Employer’s and Public
Liability Insurance cover for the Flexi-Worker during all Assignments.
9.10. The Client undertakes not to request the supply of an Flexi-Worker to perform
the duties normally performed by a worker or employee who is taking part in official
industrial action or duties normally performed by a worker or employee who has
been transferred by the Client to perform the duties of a person on strike or taking
official industrial action.
9.11. The Client shall inform the Employment Business in writing of any AWR Claim
which comes to the notice of the Client as soon possible but no later than 7 (seven)
calendar days from the day on which any such Flexi-Worker AWR Claim comes to the
notice of the Client.
9.12. If the Flexi-Worker brings, or threatens to bring, any AWR Claim, the Client will
take such action and give such information and assistance as the Employment
Business may request, and within any timeframe requested by the Employment
Business and at the Client's own cost, to avoid, dispute, resist, mitigate, compromise
or defend any such AWR Claim and to appeal against any judgment given in
respect thereof.
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10. DATA PROTECTION
10.1. The Client shall comply with the 1998 Act and any other applicable data
protection legislation. In particular, the Client agrees to comply with the obligations
placed on the Employment Business by the Seventh Data Protection Principle set out
in the 1998 Act and maintain technical and organisational security measures
sufficient to comply with those obligations, only process personal data (as defined in
the 1998 Act) for and on behalf of the Employment Business or in accordance with
the performance of the Assignment and to allow the Employment Business to audit its
compliance on reasonable notice and/or to provide the Employment Business with
evidence of its compliance.
10.2. The Client shall fully indemnify the Employment Business against all claims and
proceedings and all liabilities, losses, costs (including legal costs) or expenses incurred
in connection with or arising out of any breach of this paragraph 9 by the Client
and/or as result of any claim made or brought by an individual in respect of any loss,
damage or distress caused to that individual arising from the Client’s unauthorised or
unlawful processing, destruction and/or use of personal data.
11. TERMINATION
11.1. The Client undertakes to supervise the Flexi-Worker sufficiently to ensure the
Clients satisfaction with the FlexiWorkers standards of workmanship. If the Client
reasonably considers that the services of the Flexi- Worker are unsatisfactory, the
Client may terminate the Assignment either by instructing the Flexi -Worker to leave
the Assignment immediately, or by directing the Employment Business to remove the
Flexi-Worker. The Employment Business may in such circumstances at its discretion
reduce or cancel the charges for the time worked by that Flexi -Worker, provided that
the Assignment terminates:-
11.1.1. Within four hours of the Flexi-Worker commencing the Assignment where the
booking is for more than seven hours; or
11.1.2. Within two hours for a booking of seven hours or less; and also provided that
notification of the unsuitability of the Flexi-Worker is given to the Employment
Business within 4 hours and confirmed in writing by recorded delivery within 24
hours of the termination of the Assignment.
11.2. Any of the Client, the Employment Business or the Flexi-Worker may terminate
an Assignment at any time without prior notice and without liability.
12. TERMS OF BUSINESS FOR THE SUPPLY OF TEMPORARY DRIVERS “O” LICENCED VEHICLES
12.1. Flexi-Workers are supplied by the Employment Business as drivers (“drivers”) on
the sole understanding that the Client holds an operator’s license under the Transport
Act 1968 as amended (“the Act”) when required and that it will ensure all vehicles
comply with all the relevant legislation, British and European standards, regulations,
codes of practice, guidance notes and other requirements of any relev ant
government or governmental agency and to the extent that such regulations are
advisory, compliance with which is advisable but not mandatory, the minimum
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compliance to be achieved should be best industry practice.
12.2. As far as is possible, the Employment Business will check references of drivers
and will examine driving licenses and permits; notwithstanding this, the client agrees
to take direct responsibility for all statutory duties where applicable in respect of
driving licenses and permits, drivers’ hours and records, the issue and collection of
tachograph cards, maintenance and safety of vehicles, Health and Safety
Regulations, and Road Traffic and liability insurance, including but not limited to fully
comprehensive insurance for the vehicle to be driven and its contents.
12.3. The client shall on request permit the Employment Business to inspect its
operator’s license and policies of insurance for the vehicles to be driven by the Flexi-
Worker.
12.4. To assist clients in complying with the relevant provisions of the Transport Act,
the Employment Business agrees to provide the client upon request with such
information as is available to the Employment Business about any driving assignments
carried out by the driver in the seven days immediately preceding the
commencement of an assignment with the Client, provided the driver shall have
worked for a client of the Employment Business during those seven days.
13. LAW
13.1. These Terms of Business are governed by English Law and are subject to the
exclusive jurisdiction of the English Courts.
For and on behalf of
Signature
Print Name
Job Title
Date
For and on behalf of SM GLOBAL CONSULTANCY LTD ta Staffing Match
Signature
Print Name
Job Title
Date
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