SOLUTIONS DRIVEN LIMITED – TERMS AND CONDITIONS

1. Interpretation

The following definitions and rules of interpretation apply in these Terms.

1.1 Definitions:

Assignment means the engagement by the Client of SD for the purpose of Introducing a Candidate to be employed by the Client;

Commercial Contract means the schedule outlining the particulars of the Assignment;

Assignment Agreement has the meaning set out in the Commercial Contract;

Business Day means a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Glasgow are open for business;

Candidate means the person Introduced to the Client by SD, including, for the avoidance of doubt, SD employees;

Charges means the charges payable by the Client for the supply of the Services;

Client means the person, firm or corporate body who engages SD to provide Services as set out in the Commercial Contract;

Contract means these Terms and Conditions and, if applicable, any Commercial Contract, Assignment Agreement or ancillary documents which refer to this document;

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures shall have the meanings as defined in the Data Protection Legislation;

Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;

Engagement means the engagement, employment or use of the Candidate by the Client or any third party on a permanent or temporary basis;

First Year Earnings means the basic salary (or equivalent), and any guaranteed earnings (including car allowance, guaranteed bonus, and any sign on bonuses) paid or payable to a Candidate appointed by the Client;

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Introduction” means the provision of identifying information about the Candidate to the Client; and “Introduced” and “Introduces” and “Introducing” will be construed accordingly;

Services means the recruitment services supplied by SD to the Client and particularised in the Commercial Contract and Assignment Agreement, if applicable;

SD means Solutions Driven Limited, registered in Scotland with company number SC208337; and

Terms means these terms and conditions as amended from time to time in accordance with clause 10.5;

UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) as amended or updated from time to time, or any other law relating to data protection, the processing of personal data and privacy resulting from the United Kingdom leaving the European Union.

1.2 Interpretation:

(a) Unless the context requires otherwise, references to the singular include the plural.

(b) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(c) 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.

(d) A reference to writing or written includes fax and email.

2. Basis of contract

2.1 The Contract is deemed to come into effect by virtue of (a) an Introduction to Client of a Candidate; (b) the Engagement by Client of a Candidate; (c) Client’s interview or request to interview a Candidate; or (d) Client’s written acceptance of these Terms, including signature at the end of these terms and/or a Commercial Contract. For the avoidance of doubt, these terms 2 apply whether or not the Candidate is Engaged by Client for the same role the Introduction was intended for and regardless of the manner in which they are Engaged.

2.2 This Contract supersedes all previous agreements between the parties in relation to the subject matter hereof.

2.3 These terms prevail over any other terms of business put forward by the client save where expressly agreed otherwise by SD.

3. Supply of Services

3.1 For the purposes of the Contract, SD acts as an employment agency as defined within the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended) and is authorised to act on Client’s behalf in seeking appropriate Candidates.

3.2 SD shall supply the Services to the Client with reasonable care and skill at all times.

3.3 SD shall use all reasonable endeavours to meet any performance dates specified in the Commercial Contract and Assignment Agreement (as applicable), but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4 The scope of the Services shall be set out in an Assignment Agreement agreed between SD and the Client prior to commencement of any recruitment activity.

3.5 Should the Engaged Candidate leave employment with the Client during the first year of Engagement, or as set out in the relevant Commercial Contract, SD agrees to conduct one free replacement search for the same particulars outlined in the Assignment Agreement. This replacement search will only be carried out if invoices have been paid in line with the payment terms. The following conditions must be met in order for a Client to qualify for a free replacement search:

a) Client must notify SD that the Candidate’s employment has ended within 7 days of the employment ending or within 7 days of notice being given to end the employment (whichever is earlier) together with a reason for the premature end of the employment;

b) All SD invoices in respect of the Charge must have been paid within the payment terms outlined in the relevant Commercial Contract;

c) The Candidate’s employment is not terminated by reason of redundancy or re-organisation or change in strategy of Client;

d) The Candidate’s employment is not terminated by reason of poor performance prior to the completion of any induction or training period;

e) If the Candidate’s employment is terminated by reason of misconduct, a replacement is only possible where such misconduct was reasonably foreseeable by SD;

f) The Candidate did not leave the employment because he/she reasonably believed that the nature of the actual work was substantially different from the information Client provided prior to the Candidate’s acceptance of the employment;

g) The Candidate did not leave the employment as a result of discrimination or other acts against the Candidate; and

h) The Candidate was not at any time in the 12 months prior to the start of the employment employed or hired (whether on a permanent or contract basis, directly or indirectly) by Client.

3.6 Where the Client re-Engages the Candidate on any basis within 12 months of the termination of a previous Engagement, a fee of 20% of the Candidates first year earnings shall be immediately payable to SD.

3.7 SD reserves the right to amend the terms of the Commercial Contract and the Assignment Agreement if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and SD shall notify the Client in any such event.

4. Client’s obligations

4.1 The Client shall:

(a) provide SD with all relevant details of the position(s) which the Client seeks to fill, including the type of work that the Candidate would be required to do; the location and hours of work; the experience, training, qualifications and any authorisation which the Client considers necessary or which are required by law or any professional body for the Candidate to possess in order to work in the position; and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks; the date the Client requires the Candidate to commence the Engagement, whether the position is permanent or fixed term; the minimum rate of remuneration, expenses and any other benefits that would be offered;

(b) ensure that the terms of the Commercial Contract and Assignment Agreement and any information it provides in such documents are complete and accurate;

(c) co-operate with SD in all matters relating to the Services;

(d) provide SD with such information and materials as SD may reasonably require in order to supply the Services, and ensure that such information is complete and accurate;

(e) within 24 hours notify SD if a Candidate is already known to them and provide evidence of such;

(f) immediately notify SD when an offer has been made to a Candidate and provide the details of such offer;

(g) satisfy itself as to the suitability of the Candidate. Client is responsible for obtaining work permits and/or such other permission to work as may be required, including but not limited to medical examinations, background checks and qualifications or permission required by the law and regulations of the country in which the Candidate is to be Engaged to work.

(h) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(i) NOT and shall not seek to cause SD to unlawfully discriminate in relation to the Services

(j) comply with all applicable laws; and

(k) comply with any additional obligations as set out in the Commercial Contract and the Assignment Agreement.

4.2 If SD’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation:

(a) without limiting or affecting any other right or remedy available to it, SD shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays SD’s performance of any of its obligations;

(b) SD shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SD’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

(c) the Client shall reimburse SD on written demand for any costs or losses sustained or incurred by SD arising directly or indirectly from the Client Default.

5. Charges and payment

5.1 SD shall be entitled to Charges or a fee where the Client Engages, whether directly or indirectly, any Candidate within 12 months from the date of SD’s Introduction.

5.2 The Charges for the Services shall be calculated on the basis set out in the Commercial Contract and SD shall invoice the Client in accordance with the Commercial Contract schedule.

5.3 In the event that a Candidate is Engaged by the Client outside of the basis of a Commercial Contract, regardless of the manner of Engagement Client shall be liable to pay a fee of 20% of the Candidate’s First Year Earnings.

5.4 Client shall not solicit or encourage any SD employee to leave their employment during or within 6 months of the completion of a Commercial Contract. In the event that any employee of SD with whom the Client has had personal dealings is Engaged by the Client during or within 6 months of leaving the employment of SD, regardless of the cause of Engagement, the Client shall be liable to pay a fee to SD. For the purpose of this clause, that fee shall be calculated as 50% of the value of most recent project on which SD was engaged by the Client, or 50% of the last 12 month’s revenue with the Client, whichever is greater.

5.5 The Client shall pay each invoice submitted by SD in accordance with the terms set out in the Commercial Contract in full and in cleared funds to a bank account nominated in writing by SD, and time for payment shall be of the essence in the Contract.

5.6 Where applicable VAT and/or any relevant taxes will be added to the Charges.

5.7 All invoices will be deemed to be accepted in full by Client unless Client notifies SD in writing, within 5 days of receiving the invoice, stating the amount Client disputes and the reason Client disputes that amount. In the event Client does so notify SD that it wishes to dispute part of an invoice, Client agrees to pay the undisputed part of the invoice within the agreed payment term and shall co-operate fully with SD in order to resolve the dispute as quickly as possible.

5.8 If the Client fails to make a payment due to SD under the Contract by the due date, then, without limiting SD’s remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

Data Protection
6.1 For the purposes of this clause 6 “Data Subject” means as set out in, and will be interpreted in accordance with Data Protection Legislation. For the avoidance of doubt, Data Subject includes Candidate.

6.2 The parties hereto acknowledge that SD is a Data Controller in respect of the Personal Data of Candidate and provides such Personal Data to Client in accordance with the Data Protection Legislation for the purposes anticipated by these Terms.

6.3 The parties hereto acknowledge that Client is a Data Controller but the parties hereto are not Joint Controllers (as defined within Data Protection Legislation) save where a specific agreement is made to that effect between the parties hereto.

6.4 The parties hereto warrant to each other that any Personal Data relating to a Data Subject, whether provided by Client, SD or by Candidate, will be used, Processed and recorded by the receiving party in accordance with Data Protection Legislation.

6.5 The parties hereto will take appropriate technical and organisational measures to adequately protect all Personal Data against accidental loss, destruction or damage, alteration or disclosure.

6.6 Client will –

(a) comply with the instruction of the SD as regards the transfer/sharing of data between the parties hereto. If Client requires Personal Data not already in its control to be provided by SD, Client will set out their legal basis for the request of such data

and accept that SD may refuse to share/transfer such Personal Data where, in the reasonable opinion of SD, it does not comply with its obligations in accordance with Data Protection Legislation;

(b) not cause SD to breach any of their obligations under the Data Protection Legislation.

6.7 In the event Client becomes aware of an actual or any reasonably suspected Personal Data Breach, it will immediately notify SD and will provide SD with a description of the Personal Data Breach, the categories of data that was the subject of the Personal Data Breach and the identity of each Data Subject affected and any other information the SD reasonably requests relating to the Personal Data Breach.

6.8 In the event of a Personal Data Breach, Client will promptly (at its own expense) provide such information, assistance and cooperation and do such things as SD may request to –

(a) investigate and defend any claim or regulatory investigation;

(b) mitigate, remedy and/or rectify such breach; and

(c) prevent future breaches.

and will provide SD with details in writing of all such steps taken.

6.9 Client will not release or publish any filing, communication, notice, press release or report concerning any Personal Data Breach without the prior written approval of SD.

6.10 Client agrees it will only Process Personal Data of a Candidate for the agreed purpose that is introduction for a Vacancy pursuant to these Terms.

6.11 Client will provide evidence of compliance with clause 6 upon request from SD.

6.12 Client will indemnify and keep indemnified Employment Agency against any costs, claims or liabilities incurred directly or indirectly by Employment Agency arising out of or in connection with any failure to comply with clause 6.

7. Liability and Indemnity

7.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for personal injury, death or fraud directly caused by the relevant party.

7.2 Subject to clause 7.1, the liability of the parties for loss of profits or revenue; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss is wholly excluded by the parties provided that nothing in this clause 7.2 shall prevent SD from recovering sums due to it under the Contract.

7.3 While SD shall use reasonable endeavours to ensure Candidate has the required standard of skill, experience and necessary qualifications as required, SD is not liable for any loss, expense, damage or delay arising from and in connection with any failure on the part of SD or of the Candidate to evidence such to Client nor for any negligence whether wilful or otherwise, dishonesty, fraud, acts or omissions, misconduct or lack of skill, experience or qualifications of Candidate.

7.4 Unless the Client notifies SD that it intends to make a claim in respect of an event within the notice period, SD shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

7.5 Client will indemnify and keep indemnified SD against any costs (including legal costs), claims or liabilities incurred directly or indirectly by SD arising out of or in connection with this Contract including (without limitation) as a result of –

7.5.1 any breach of this Contract by Client or by its employees or agents;

7.5.2 any breach by Client or by third party, or any of its employees or agents, of any applicable statutory provisions (including, without limitation, any statutory provisions prohibiting or restricting discrimination or other inequality of opportunity, immigration legislation, the Conduct Regulations and Data Protection Legislation); or

7.5.3 any unauthorised disclosure of a Candidate details by Client or by third party, or any of its employees or agents.

7.6 Subject to clause 7.1, and save as required by law, SD’s total liability arising out of or in connection with a Contract is limited to £10,000.

7.7 This clause 7 shall survive termination of the Contract.

8. Termination

8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or 5

(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

8.2 Without affecting any other right or remedy available to it, SD may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment.

8.3 Without affecting any other right or remedy available to it, SD may suspend the supply of Services under any Contract between the Client and SD if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 8.1, or SD reasonably believes that the Client is about to become subject to any of them.

9. Consequences of termination

9.1 On termination of the Contract:

(a) the Client shall immediately pay to SD all of SD’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SD shall submit an invoice, which shall be payable by the Client immediately on receipt;

(b) the Client shall return all of SD Materials which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

9.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

10. General

10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. If a Force Majeure event occurs or is likely to occur then the Party affected shall immediately notify the other Party of the nature and likely duration of the Force Majeure Event and shall take all reasonable steps to mitigate the effect of the Force Majeure Event. If the Force Majeure Event continues for a period of six weeks or more, the non–affected party shall be entitled to terminate this Contract with immediate effect by written notice provided such Force Majeure Event is continuing at the date of termination.

10.2 Assignation and other dealings.

(a) SD may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

10.3 Confidentiality.

(a) SD may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. (All information contained within the Contract will be considered confidential. Confidential information shall also include but not be limited to medical and personal information (including but not limited to names and addresses) relating to any current or former resident or service user of the Client, details of either party’s costs and pricing structure, business plans, strategies, the terms and conditions of engagement of its employees and staff and any other information which the Client or the Supplier treats as, or had notified the other Party as being, confidential but shall not include information which:

(i) is or becomes part of the public domain through no breach of this Agreement by the other Party; or

(ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party: or

(iii) is lawfully disclosed to the other party by a third Party without restriction on disclosure.

(b) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as required by law

(c) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 110.3; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.4 Entire agreement.

(a) The Contract 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.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

10.5 Variation. No variation of the Contract shall be effective unless it is approved in writing and signed by the parties.

10.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

10.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, void 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 the Contract.

10.8 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by fax to its main fax number or sent by email to the address specified in the Commercial Contract.]

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time of delivery if delivered before 5.00pm on a Business Day or in any other case at 9.00am on the next Business Day after the day of delivery; or

(ii) if sent by pre-paid first-class post, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

10.9 Equal Opportunities. The parties are committed to equal opportunities and will comply with all anti-discrimination legislation as regards the selection and treatment of Candidates.

10.10 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights to any third party to enforce any provision of the Contract.

10.11 Applicable Law. These Terms will be construed in accordance with the laws of Scotland and the parties submit to the exclusive jurisdiction of the Courts of Scotland. This shall not prevent SD from taking steps in any jurisdiction to recover any sums due to it under the Contract.