AGREED TERMS
- INTERPRETATION
1.1 The definitions and rules of
interpretation in this clause applies to this agreement.
Assignment: the temporary services to be carried out by the Temporary
Worker for the Client, as more particularly described in Clause 3 and in the Booking Placement Form.
AWR 2010: the Agency Workers Regulations 2010 (SI 2010/93).
Booking
Placement Form: written confirmation of the
detail of a particular Assignment to be given to the Temporary Worker on
acceptance of that Assignment, attached at the Schedule 1.
Business Day: a day other than a Saturday, Sunday or public holiday when
banks in London are open for business.
Calendar Week:
shall have the meaning in regulation 7(4) of the AWR
2010.
Client: the person, firm, partnership, company or Group company (as
the case may be) to whom the Temporary Worker is Introduced or supplied.
Conduct
Regulations 2003: the Conduct of Employment
Agencies and Employment Business Regulations 2003 (SI 2003/3319).
Confidential
Information: information in whatever form
(including without limitation, in written, oral, visual or electronic form or
on any magnetic or optical disk or memory and wherever located) relating to the
business, customers, products, affairs, and finances of the Client, the
Employment Business or any Group company for the time being confidential to the
Client, the Employment Business or any Group company and trade secrets
including, without limitation, technical data and know-how relating to the business of the Client or the Employment Business or of any Group company or
any of its or their suppliers, customers, agents, distributors, shareholders,
management or business contacts, and including (but not limited to) information
that the Temporary Worker creates, develops, receives or obtains in connection
with the Assignment, whether or not such information (if in anything other than
oral form) is marked confidential.
Engage: the Employment of a Temporary Worker or the engagement directly
or indirectly through any Employment business other than through the Employment
Business (whether for a definite or indefinite period) of a Temporary Worker as
a direct result of any Introduction or Assignment to the Client and the term Engaged
shall be construed accordingly.
Group: in relation to a company, that company, each and any
subsidiary or holding company from time to time of that company, and each and
any subsidiary from time to time of a holding company of that company.
Holding
company: has the meaning given in Clause 1.5.
Introduce: the provision to the Client of information by the Employment
Business which identifies the Temporary Worker and Introduction and Introduced
shall be construed accordingly.
Introduction
Fee: a fee payable by the Client to the Employment Business
in the circumstances set out in Clause 4.
Other
Qualifying Period Payment: any remuneration payable to the
Temporary Worker (other than the Qualifying Period Rate of Pay), which is not excluded
by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium,
commission or any bonus, incentive or rewards which are directly attributable
to the amount or quality of work done by a Temporary Worker and are not linked
to a financial participation scheme (as defined by the AWR 2010).
Qualifying
Period: 12 continuous Calendar Weeks, as defined in regulation
7 of the AWR 2010, subject always to regulations 8 and 9 of the AWR 2010.
Qualifying
Period Rate of Pay: the rate of pay that will be paid
to the Temporary Worker on completion of the Qualifying Period, if this rate is
higher than the Rate of Pay. Such rate will be paid for each hour worked during
an Assignment (to the nearest quarter hour) weekly in arrears, subject to any
deductions that the Employment Business is required to make by law and to any
deductions that the Temporary Worker has specifically agreed can be made.
Rate of Pay: the rate of pay that will be paid to the Temporary Worker
prior to completion of the Qualifying Period. Such rate will be paid for each
hour worked during an Assignment (to the nearest quarter hour) weekly in
arrears, subject to any deductions that the Employment Business is required to
make by law and to any deductions which the Temporary Worker has specifically
agreed can be made.
Relevant
Period: shall have the meaning set out in regulation 10(5) and
(6) of the Conduct Regulations 2003.
Relevant Terms
and Conditions: the relevant terms and conditions
as defined in regulation 6 of the AWR 2010 that apply once the Temporary Worker
has completed the Qualifying Period.
Required
Assignment Information: shall have the meaning set
out at Clause 3.3.
Subsidiary: has the meaning given in Clause 1.5.
Temporary
Worker: a worker Introduced and supplied by the Employment Business
to the Client to provide services to the Client, not as an employee of the
Client, who is deemed to be an Agency worker for the purposes of regulation 3
of the AWR 2010.
Temporary Work
Agency: shall have the meaning set out in regulation 4(1) of the AWR
2010.
Vulnerable
Person: shall have the meaning set out in regulation 2 of the
Conduct Regulations 2003.
WTR 1998: the Working
Time Regulations 1998 (SI 1988/1833).
1.2 A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality) and that person’s personal
representatives, successors and permitted assigns.
1.3 The Schedules form part of
this agreement and shall have effect as if set out in full in the body of this
agreement. Any reference to this agreement includes the Schedules.
1.4 A reference to a company shall include any company,
corporation or other bodies corporate, wherever and however incorporated or
established.
1.5 A reference to a statute or the statutory provision is a reference to it as amended, extended or re-enacted
from time to time.
1.6 A reference to a statute or
statutory provision shall include all subordinate legislation made from time to
time OR as at the date of this
agreement under that statute or statutory provision.
1.7 A reference to writing or written includes fax and e-mail.
1.8 Any obligation on a party
not to do something includes an obligation not to allow that thing to be done.
1.9 References to clauses and
Schedules are to the clauses and Schedules of this agreement and references to
paragraphs are to paragraphs of the relevant Schedule.
1.10 Any words following
the terms including, include, in particular, for example
or any similar expression shall be construed as illustrative and shall not
limit the sense of the words, description, definition, phrase or term preceding
those terms.
- THE AGREEMENT
2.1 These terms set out the entire agreement between the Employment Business and the Temporary Worker for
the supply of services to the Client and shall govern all Assignments
undertaken by the Temporary Worker (including, for the avoidance of doubt,
where the Temporary Worker undertakes an Assignment without having signed these
terms). No contract shall exist between the Employment Business and the
Temporary Worker between Assignments.
2.2 For the avoidance of doubt,
this agreement constitutes a Contract for services and not a Contract of
Employment between the Employment Business and the Temporary Worker or the Temporary
Worker and the Client.
2.3 For the purposes of the
Conduct Regulations 2003, the Employment Business acts as an Employment Business
in relation to the Introduction and supply of the Temporary Worker to the
Client.
- ASSIGNMENTS
3.1 The Employment Business
will endeavor to obtain suitable Assignments for the Temporary Worker to
perform escorting activities. This will be limited to attending on clients for
the purpose of providing a personal company. The Employment Business is not
obliged to offer an Assignment to the Temporary Worker and the Temporary Worker
shall not be obliged to accept any Assignment offered by the Employment
Business.
3.2 The Temporary Worker
acknowledges that the nature of temporary work means that there may be periods
when no suitable work is available. The Temporary Worker agrees that
suitability of an Assignment shall be determined solely by the Employment Business
and that the Employment Business shall incur no liability to the Temporary
Worker should it fail to offer Assignments of the type of work specified in the
Booking Placement Form or any other work.
3.3 Except as provided below,
at the same time as an Assignment is offered to the Temporary Worker, the
Employment Business shall provide the Temporary Worker with the following
information (the Required Assignment Information):
(a) the
identity of the Client,
(b) the
date the Assignment is to commence;
(c) the
Rate of Pay and any expenses payable by or to the Temporary Worker;
(d) any risks to health
and safety known to the Client in relation to the Assignment and the steps the
Client has taken to prevent or control such risks; and
(e) the experience,
training, qualifications and any authorisation which the Client considers are
necessary or which are required by law or a professional body for the Temporary
Worker to possess in order to work in the Assignment.
3.4 Where the Required
Assignment Information is not given in paper form or by electronic means, the
Employment Business shall confirm it in writing or electronically as soon as
possible and in any event no later than the end of the third Business Day
following the day on which the Assignment was offered to the Temporary Worker.
3.5 Unless the Temporary
Worker requests otherwise, Clause 3.3
will not apply where the Temporary Worker is being introduced or supplied to
the Client to work in the same position as one in which the Temporary Worker
has previously been supplied within the previous five Business Days and the
Required Assignment Information (with the exception of the date or likely
duration of the Assignment) is the same as that already given to the Temporary
Worker.
3.6 Where the provisions of Clause 3.6 have been met but the Assignment
extends beyond the intended five consecutive Business Day period, the
Employment Business shall provide the remaining Required Assignment Information
to the Temporary Worker in paper or electronic form within eight Business Days
of the start of the Assignment or by the end of the Assignment, if sooner.
- REMUNERATION
4.1 Subject to the Temporary
Worker submitting properly authorised timesheets in accordance with Clause 7, the Employment Business shall pay
the Rate of Pay to the Temporary Worker until the Temporary Worker completes
the Qualifying Period. The Rate of Pay will be set out in the relevant Booking
Placement Form for a particular Assignment.
4.2 Subject to the Temporary
Worker submitting properly authorised timesheets in accordance with Clause 7, if the Temporary Worker has
completed the Qualifying Period on the start date of the relevant Assignment or
following completion of the Qualifying Period during the relevant Assignment,
the Employment Business shall pay to the Temporary Worker:
(a) the Qualifying Period Rate
of Pay; and
(b) the Other Qualifying Period
Payments,
which will be set out in the relevant Booking Placement Form.
4.3 Subject to any applicable
statutory entitlement and to Clause 8
and Clause 9, the Temporary Worker is not
entitled to receive payment from the Employment Business or the Client for time
not spent working on the Assignment, whether in respect of holidays, illness or
absence for any other reason, unless otherwise agreed.
- TERMINATION
5.1 The Employment Business,
the Client or the Temporary Worker may terminate the Assignment at any time
without prior notice or liability.
5.2 The Temporary Worker
acknowledges that the continuation of an Assignment is subject to and dependent
on the continuation of the agreement entered into between the Business and the
Client. If that agreement is terminated for any reason, the Assignment shall
cease with immediate effect without liability to the Temporary Worker, except
for payment for work done up to the date of termination of the Assignment.
5.3 Unless exceptional
circumstances apply, the Temporary Worker’s failure to inform the Client or the
Employment Business of their inability to attend work as required by Clause 5.3 will be treated as termination
of the Assignment by the Temporary Worker.
5.4 If the Temporary Worker is
absent during the course of an Assignment and the Assignment has not otherwise
been terminated, the Employment Business will be entitled to terminate the
Assignment in accordance with Clause 10.1
if the work to which the Temporary Worker was assigned is no longer available.
- CONFIDENTIALITY
6.1 In order to protect the
confidentiality and trade secrets of the Employment Business and the Client,
the Temporary Worker agrees not at any time:
(a) whether during or after an
Assignment (unless expressly so authorised by the Client or the Employment Business
as a necessary part of the performance of their duties), to disclose to any
person or to make use of any of the trade secrets or the Confidential Information
of the Client or the Employment Business; or
(b) to make any copy, abstract
or summary of the whole or any part of any document or other material belonging
to the Client or the Employment Business except when required to do so in the
course of the Temporary Worker’s duties under an Assignment, in which
circumstances such copy abstract or summary would belong to the Client or the
Employment Business, as appropriate.
6.2 The restriction in Clause 12.1 does not apply to:
(a) any use or disclosure
authorised by the Client or the Employment Business or as required by law a
court of competent jurisdiction or any governmental or regulatory authority;
(b) any information which
is already in, or comes into, the public domain otherwise than through the
Temporary Worker’s unauthorised disclosure; or
(c) the making of a
protected disclosure within the meaning of section 43A of the Employment Rights
Act 1996.
- WARRANTIES AND
INDEMNITIES
7.1 The Temporary Worker
warrants that:
(a) the information
supplied to the Employment Business in any application documents is correct;
(b) the Temporary Worker
is not prevented by any other agreement, arrangement, restriction (including,
without limitation, a restriction in favour of any Employment Agency, business
or client) or any other reason, from fulfilling the Temporary Worker’s
obligations under this agreement; and
(c) the Temporary Worker
has valid and subsisting leave to enter and remain in the United Kingdom for
the duration of this agreement and is not (in relation to such leave) subject
to any conditions which may preclude or have an adverse effect on the
Assignment.
7.2
The Temporary Worker shall indemnify and keep
indemnified the Employment Business and the Client against all Demands
(including legal and other professional fees and expenses) which the Employment
Business or the Client may suffer, sustain, incur, pay or be put to arising
from or in connection with:
7.2.1 any failure by the Temporary Worker to comply with its obligations
under this agreement;
7.2.2 any negligent or fraudulent act or omission by the Temporary
Worker;
7.2.3 the disclosure by the Temporary Worker of any Confidential
Information;
7.2.4 any Employment related claim brought by the Temporary Worker in
connection with the Assignment; or
7.2.5 the infringement by the Temporary Worker of the Client’s or any
Group Company’s Intellectual Property Rights.
- NO PARTNERSHIP OR
AGENCY
8.1 Nothing in this agreement
is intended to, or shall be deemed to, establish any partnership or joint
venture between any of the parties, constitute any party the agent of another
party, or authorise any party to make or enter into any commitments for or on
behalf of any other party.
8.2 Each party confirms it is
acting on its own behalf and not for the benefit of any other person.
- ENTIRE AGREEMENT
9.1 This agreement constitutes
the entire agreement between the parties and supersedes and extinguishes all
previous agreements, promises, assurances, warranties, representations and
understandings between them, whether written or oral, relating to its subject
matter.
9.2 Each party acknowledges
that in entering into this agreement it does not rely on any statement,
representation, assurance or warranty (whether made innocently or negligently)
that is not set out in this agreement.
9.3 No variation of this
agreement shall be effective unless it is in writing and signed by each of the
parties (or their authorised representatives). A written copy of the varied
terms, including the date from which they take effect, shall be given to the
Temporary Worker no later than the fifth Business Day following the day on
which the variation was agreed.
9.4 Nothing in this clause
shall limit or exclude any liability for fraud.
9.5 Each party agrees that it
shall have no claim for innocent or negligent misrepresentation or negligent
misstatement based on any statement in this agreement.
- THIRD PARTY RIGHTS
No
one other than a party to this agreement their successors and permitted
assignees, shall have any right to enforce any of its terms.
- Anti-Modern Slavery Policy
11.1 Modern slavery is a crime and a violation of fundamental human
rights. It takes various forms, such as slavery, servitude, forced and
compulsory labour and human trafficking, all of which have in common the
deprivation of a person's liberty by another in order to exploit them for personal
or commercial gain. We are committed to acting ethically and with integrity in
all our business dealings and relationships and to implementing and enforcing
effective systems and controls to ensure modern slavery is not taking place
anywhere in our own business or in any of our supply chains.
11.2 We are committed to ensuring there is transparency in our own
business and in our approach to tackling modern slavery throughout our supply
chains, consistent with our disclosure obligations under the Modern Slavery Act
2015. We expect the same high standards from all of our suppliers and other
business partners, and as part of our contracting processes, we include
specific prohibitions against the use of forced, compulsory or trafficked
labour, or anyone held in slavery or servitude, whether adults or children, and
we expect that our suppliers w ill hold their own suppliers to the same high standards.
11.3 This policy applies to all persons working for Spark Studios or on
our behalf in any capacity, including employees at all levels, directors,
officers, agency workers, seconded workers, volunteers, interns, agents,
contractors, external consultants, third-party representatives and business
partners. This policy does not form part of any employee's contract of
Employment and we may amend it at any time.
11.4 Our Board of Directors has overall responsibility for ensuring
this policy complies with our legal and ethical obligations, and that all those
under our control comply with it. The Spark Studios Human Resources (HR)
Director has primary and day-to-day responsibility for implementing this
policy, monitoring its use and effectiveness, dealing with any queries about
it, and auditing internal control systems and procedures to ensure they are
effective in countering modern slavery. Management at all levels are
responsible for ensuring those reporting to them understand and comply with
this policy and are given adequate and regular training on it and the issue of
modern slavery in supply chains.
11.5 You are invited to comment on this policy and suggest ways in
which it might be improved. Comments, suggestions and queries are encouraged
and should be addressed to the Board of Directors.
- NOTICES
12.1 Any notice or other communication given to a party under or in
connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next
working day delivery service at its registered office (if a company) or its
principal place of business (in any other case); or
(b) sent by fax to its main fax number.
12.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the
time the notice is left at the proper
address;
(b) if sent by pre-paid
first-class post or other next working day delivery service, at 9.00 am on the
second Business Day after posting or at the time recorded by the delivery
service.
(c) if sent by fax, at 9.00 am on the next Business Day after
transmission.
12.3 This clause does not apply to the service of any proceedings or
other documents in any legal action or, where applicable, any arbitration or
other method of dispute resolution. For the purposes of this clause, “writing”
shall not include e-mail.
- SEVERANCE
13.1 If any provision or part-provision of this agreement is or becomes
invalid, illegal or unenforceable, it shall be deemed modified to the minimum
extent necessary to make it valid, legal and enforceable. If such modification
is not possible, the relevant provision or part-provision shall be deemed
deleted. Any modification to or deletion of a provision or part-provision under
this clause shall not affect the validity and enforceability of the rest of
this agreement.
13.2 If one party gives notice to the other of the possibility that any
provision or part-provision of this agreement is invalid, illegal or
unenforceable, the parties shall negotiate in good faith to amend such
provision so that, as amended, it is legal, valid and enforceable, and, to the
greatest extent possible, achieves the intended commercial result of the
original provision.
- GOVERNING LAW
This agreement and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including
non-contractual disputes or claims) shall be governed by and construed in
accordance with the law of England and Wales.
15. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales
shall have jurisdiction to settle any dispute or claim arising out of or in
connection with this agreement or its subject matter or formation (including
non-contractual disputes or claims).
This agreement has been entered into on
the date stated at the beginning of it.
THE SCHEDULE
BOOKING PLACEMENT FORM
This contract relates to the provision
of escort services. Clients are booking the Temporary worker for the provision
of personal company in the course of pre-agreed timeslots. Temporary Workers
are free and entirely unencumbered to negotiate what such personal company
should constitute. For the avoidance of doubt, the agency has no interest, role
or participation in what personal company constitutes for Temporary Workers.
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