Terms of Business for the Supply of Temporary Drivers
These Terms and Conditions of Business and the Rate Confirmation Form (together the ‘Terms’) should be read carefully because they are binding.
In the Terms the following definitions apply:
’Assignment’ means the period during which a Worker supplies services to the Client via Drivers on Demand.
‘Drivers on Demand’ means DRIVERS ON DEMAND LIMITED (company no. 02402594).
‘Conduct Regulations’ means the Conduct of Employment Agencies and Employment Businesses Regulations 2003 as from time to time amended or replaced.
‘Client’ means the person, firm or associated firms, or incorporated body identified as “the Company” on the Rate Confirmation Form.
‘Engagement’ means the Client’s:
a) engagement or employment of any worker introduced by Drivers on Demand to the Client (whether or not any such worker becomes a Worker as defined); or
b) other arrangement for any such worker to provide services to the Client,
in the case of (a) or (b), either directly or indirectly including via an employment business (as defined under the Conduct Regulations) other than Drivers on Demand.
‘Force Majeure’ means any cause preventing a party from performing any or all of its obligations arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party so affected.
‘Losses’ means all losses, liabilities, damages, costs, expenses whether direct, indirect, special or consequential (including, without limitation, any economic loss or other loss of profits, business or goodwill, management time and reasonable legal fees) and charges, including such items arising out of or resulting from actions, proceedings, claims and demands.
‘Rate’ means the payment rate applicable to the relevant Assignment as set out on the Rate Confirmation Form or, if none, as set out in the then current Drivers on Demand scale rate of charges.
‘Rate Confirmation Form’ means the schedule agreed with the Client setting out the relevant features of the Assignment.
‘Relevant Period’ means whichever of the following periods ends later:
- the period of eight weeks commencing on the day after the day on which the Worker last provided services to the Client via Drivers on Demand (whether under these Terms or otherwise); or
- the period of fourteen weeks commencing on the first day on which the Worker provided services to the Client pursuant to the most recent supply of the Worker’s services to the Client by Drivers on Demand before the Worker provides services other than via Drivers on Demand.
‘Remuneration’ means the total of all taxable emoluments payable to or receivable by the Worker pursuant to the Assignment.
‘Transfer Fee’ means a fee in accordance with Drivers on Demand’s current scale of charges (available on request) and based on the Worker’s gross annual salary or fees (based on a 40 hour week for hourly paid workers) with the Client or other third party. If total remuneration including all taxable emoluments cannot be accurately established then the Transfer Fee shall be an amount equal to 160 times the relevant Rate.
‘Worker’ means the person introduced to the Client by Drivers on Demand and who performs services for the Client via Drivers on Demand subject to these Terms.
In the absence of any express prior acceptance of the Terms by the Client, the Client is deemed to agree and to accept the Terms by interviewing any applicant introduced by Drivers on Demand for employment or engagement or the performance of an Assignment.
1. Payment
1.1 The Client shall, within 30 calendar days of the date of each of Drivers on Demand’s invoices, pay to Drivers on Demand the invoiced sum.
1.2 For the avoidance of doubt, in the calculation of the sums due to Drivers on Demand in relation to the services performed by the Worker a timesheet signed by a representative of the Client (or, where a representative of the Client is not made available to sign the Worker’s timesheet, presented by the Worker in accordance with clause 3.5) shall be conclusive evidence that the services of the Worker have been performed to the satisfaction of the Client at the times and for the total period of time set out in such timesheet. If the Client disputes the hours claimed, it shall inform Drivers on Demand without delay and shall co-operate with Drivers on Demand to establish the hours worked by the Worker. Failure by the Client to sign any such timesheet does not absolve the Client from its obligation to pay Drivers on Demand the fees for the services in accordance with this clause 1.
1.3 Drivers on Demand is responsible for payment of the Worker and will, or will use reasonable endeavours to procure that the Worker will (as appropriate), account to the appropriate authorities for all tax and National Insurance contributions payable in respect of the sums paid by Drivers on Demand to the Worker in connection with the Worker’s performance of services for the Client.
1.4 The Client agrees to pay Drivers on Demand the Rate (plus VAT) for the services of the Worker for all hours worked (8 hours each day minimum) and statutory breaks plus travelling and other expenses as agreed with the Client which will be shown separately on Drivers on Demand’s invoice in addition to the hourly charges. The charges made by Drivers on Demand to the Client for the services of the Worker are confidential and should not be disclosed to him/her. The Client shall not pay the Worker directly under any circumstances.
1.5 If the Client requires the Worker to provide services to the Client of a different nature from those originally requested, Drivers on Demand will charge the Client at the Rate appropriate to the category of services description booked or for that actually undertaken whichever is the greater.
1.6 Unless otherwise agreed by Drivers on Demand:
- Drivers on Demand shall not be obliged to make any rebates or refunds of fees or other sums payable to Drivers on Demand by the Client; and
- all payments due to Drivers on Demand under these Terms shall be paid by the Client by direct bank transfer to Drivers on Demand’s bank account.
1.7 Drivers on Demand shall be entitled to charge the Client interest on any overdue amount at the rate of half of one percent (0.5%) of the overdue amount for each week (or part thereof) that the sum remains overdue calculated from the day after the thirtieth (30th) day after the debt fell due until the date of payment, and any such interest shall be payable on demand.
1.8 All amounts payable under these Terms (including, for the avoidance of doubt, under clause 5) are exclusive of value added tax and any other like taxes applicable in the UK, which shall be payable by the Client at the rate prevailing at the time and accounted to the relevant taxation authority by Drivers on Demand.
2. Drivers on Demand’s Obligations
2.1 Drivers on Demand will use its reasonable endeavours to procure that the services of the Worker are supplied for the duration of an Assignment, but this cannot be guaranteed (whether for all or any part of the period). The Client accepts that no liability attaches to Drivers on Demand for not supplying the services of the Worker for part of and/or the whole period of an Assignment.
2.2 If the Worker fails in the reasonable opinion of the Client to perform the services satisfactorily, the Client shall notify Drivers on Demand (and shall do so in writing giving reasons if requested by Drivers on Demand) immediately (and in any event within 4 hours of the Client forming such opinion) and Drivers on Demand shall use its reasonable endeavours to procure that a suitable replacement worker is available to perform the services as soon as possible. If no such replacement is available within a reasonable period after receipt by Drivers on Demand of the Client’s notification of unsatisfactory performance, then the Client may terminate the Assignment by written notice with immediate effect
2.3 Drivers on Demand shall be entitled from time to time, without prejudice to the other terms of these Terms, to offer the Client a replacement worker, provided that the Client shall be under no obligation to accept any such replacement if in the Client’s reasonable opinion such replacement is not suitable (whether by reason of experience, training, qualifications or any authorisation which the Client considers are necessary to perform the services, or which are required by law or by any professional body).
3. Client’s Obligations
3.1 The Client warrants and confirms that if Drivers on Demand issued, or caused to be issued, any advertisement in order to source potentially suitable workers to perform the Assignment, the Client had, prior to any such issue, given Drivers on Demand authority to source such workers.
3.2 The Client warrants and confirms that it has given to Drivers on Demand sufficient information in order for Drivers on Demand properly to consider the Worker’s suitability to perform the Assignment.
3.3 The Client agrees that if the Worker fails to have the experience, training, qualifications or any authorisation which the Client considers are necessary, or which are required by law or by any professional body, Drivers on Demand shall have no liability to the Client in respect of this.
3.4 The Client shall:
1. make clear to the Worker what rules (including health and safety and site and security regulations) apply in respect of the Client’s sites;
2. check and sign timesheets (in a form approved by Drivers on Demand) verifying the number of hours worked by the Worker and evidencing satisfactory performance of the Assignment (or any part of the Assignment) by the Worker;
3. while the Worker is engaged in the performance of the Assignment, supervise and direct the Worker’s performance;
4. notify Drivers on Demand immediately (and in any event within 4 hours) if it is dissatisfied with the performance by the Worker of the services (in which case the provisions of clause 2.2 shall apply); and
5. (without limitation to the above) not commit any act or omission constituting unlawful discrimination or harassment of the Worker in connection with the performance of the Assignment.
3.5 The Client is responsible for ensuring that someone in authority is present when appropriate to receive returned receipts and expenses and to sign the Worker’s timesheet. In the absence of such person in authority, the Worker’s own record of working times will be accepted by Drivers on Demand for invoicing purposes
3.6 The Client is responsible for ensuring that, before signing the Worker’s timesheet, any expenses or running money given to the Worker is accounted for.
3.7 The Client is responsible for ensuring that the Worker complies with all relevant provisions of the Transport Act 1968 and all other relevant legislation and it is the Client’s responsibility to take proper steps in relation to the insurance, maintenance and safety of vehicles and legality of documents and to effect all necessary insurance including employers’ liability insurance and third party risks insurance in relation to the supply of any Worker’s services to the Client. The Client accepts that it has sole responsibility and control over the Worker’s obligations, journeys, breaks and hours of work and all statutory duties in respect of driving licences and where appropriate tachographs. The Client will assist Drivers on Demand in complying with Drivers on Demand’s obligations under the Road Transport (Working Time) Regulations 2005 by supplying relevant information about the Assignment as and when requested. The Client will not cause Drivers on Demand to be in breach of its obligations under the Working Time (Road Transport) Regulations 2005.
3.8 If the Client requires or may require the services of the Worker for more than 48 hours in any week, the Client must notify Drivers on Demand of this requirement before the commencement of that week.
3.9 The Client shall, at any time on Drivers on Demand’s request and within 5 days of any such request, provide Drivers on Demand with any and all such information as Drivers on Demand may require in order to comply with its obligations under the Agency Workers Regulations 2010, including (without limitation) written details of the terms and conditions of any employees or workers comparable with the Worker.
3.10 The Client accepts that no liability attaches to Drivers on Demand for not supplying the services of the Worker for part of and/or the whole period of an Assignment.
3.11 If the Worker fails in the reasonable opinion of the Client to perform the services satisfactorily, the Client shall notify Drivers on Demand (and shall do so in writing giving reasons if requested by Drivers on Demand) immediately (and in any event within 4 hours of the Client forming such opinion) and Drivers on Demand shall use its reasonable endeavours to procure that a suitable replacement worker is available to perform the services as soon as possible. If no such replacement is available within a reasonable period after receipt by Drivers on Demand of the Client’s notification of unsatisfactory performance, then the Client may terminate the Assignment by written notice with immediate effect
3.12 Drivers on Demand shall be entitled from time to time, without prejudice to the other terms of these Terms, to offer the Client a replacement worker, provided that the Client shall be under no obligation to accept any such replacement if in the Client’s reasonable opinion such replacement is not suitable (whether by reason of experience, training, qualifications or any authorisation which the Client considers are necessary to perform the services, or which are required by law or by any professional body).
4. Acknowledgements and Liability
4.1 Nothing contained in these Terms shall in any way constitute the Worker as the employee of Drivers on Demand or the employee or worker of the Client.
4.2 The Client acknowledges that:
1. Drivers on Demand is in the business of providing resourcing services which comprise the sourcing and introduction of a suitable Worker to the Client and the contractual arrangements for the provision of the Worker’s services to the Client;
2. the Worker is not supervised on a day to day basis by Drivers on Demand;
3. it may accept or reject (in accordance with these Terms) the Worker provided via Drivers on Demand with a view to performing the Assignment;
4. should it entrust the Worker with the handling of money, securities, valuables, negotiable documents or confidential information, it does so at its sole risk;
5. only the Client is in a position to assess and insure against risks in respect of or during or arising out of the Worker’s performance of the Assignment; and
6. the charges made by Drivers on Demand reflect only those sourcing, selection and introduction services agreed to be supplied by Drivers on Demand and do not indicate acceptance of any liability for the Worker’s acts or omissions.
4.3 1. Drivers on Demand shall not be liable for any Losses arising out of:
A. any act or omission or misrepresentation (whether before or after the date of these Terms) of the Worker;
B. any special, indirect or consequential damages or loss; or
C. any loss of profit, business, revenue, goodwill, anticipated savings and/or any claims made under third party contracts, arising out of any failure by Drivers on Demand to perform any obligations under these Terms,
but so that nothing in this clause 4.3 shall operate to exclude or limit liability for fraud.
4.4 The Client shall indemnify and keep indemnified Drivers on Demand against any Losses incurred by Drivers on Demand arising out of these Terms and/or as a result of any breach of these Terms by the Client and/or arising out of the Client’s use of the Worker’s services.
5. Protection of Drivers on Demand’s Business
5.1 If, following the provision of any worker’s details to the Client (the ‘Introduction’), the Client wants an Engagement to commence within a period of twelve months from the date of the Introduction or an Engagement occurs within such period and such worker has not commenced provision of services via Drivers on Demand, the Client shall notify Drivers on Demand and pay to Drivers on Demand the Transfer Fee, unless the Client elects by written notice to Drivers on Demand to engage Drivers on Demand to arrange for such worker to provide the required services, under and in accordance with these Terms, for three months
5.2 If the Worker has commenced an Assignment and the Client notifies Drivers on Demand that it wants an Engagement to commence within the Relevant Period and an Engagement does so commence or an Engagement occurs within the Relevant Period, the Client shall notify Drivers on Demand and pay to Drivers on Demand the Transfer Fee, unless the Client elects by written notice to Drivers on Demand to engage Drivers on Demand to arrange for the Worker to provide the required services, on terms similar to those contained in these Terms and no less favourable to the Client than those which applied immediately before Drivers on Demand received such notice, for three months
5.3 If the Client gives Drivers on Demand written notice of election in accordance with the provisions of clause 5.1 or clause 5.2 and Drivers on Demand does not supply the relevant services for three months and Drivers on Demand is in no way at fault (including, without limitation, if an Engagement occurs or the Worker does not agree to provide services via Drivers on Demand for three months), the Client shall, if an Engagement occurs within the Relevant Period, pay to Drivers on Demand such proportion of the Transfer Fee as equates to the proportion of the three months during which Drivers on Demand does not supply the Services
5.4 No refund of the Transfer Fee shall be payable if the Engagement terminates.
5.5 If the Client introduces any worker whose details Drivers on Demand has supplied to the Client, including any Worker (as defined), to a third party (other than an employment business as defined under the Conduct Regulations) (including, without limitation, any member of the Client’s group or any client of or supplier to the Client’s group) and such third party employs or otherwise engages, directly or indirectly (other than via Drivers on Demand), such worker:
1. if such worker has at any time provided services to the Client via Drivers on Demand, within the Relevant Period; or
2. if such worker has not so supplied services, within a period of twelve months from the date of such introduction,
5.6 the Client shall pay to Drivers on Demand the Transfer Fee and no refund of the Transfer Fee shall be payable if any such employment or engagement terminates.
6. Termination
6.1 Any Assignment may be terminated:
6.1.1 by notice with immediate effect by either party if there is any breach of these Terms by the other party, which is, in the reasonable opinion of the terminating party, incapable of being remedied;
6.1.2 by 14 calendar days’ notice by either party if there is any other serious or repeated breach of these Terms by the other party, which is, in the reasonable opinion of the terminating party, capable of remedy and which is not remedied within 14 calendar days after an earlier notice requiring it to do so;
6.1.3 by notice with immediate effect by either party if that party shall become unable to commence, continue or completely perform its obligations under these Terms by reason of illness, injury, other incapacity or by reason of Force Majeure affecting that party, which is not within that party’s reasonable control;
6.1.4 by notice with immediate effect by Drivers on Demand if the Worker is, for any reason, unable or unwilling to continue to perform the services required under the Assignment; or
6.1.5 by notice with immediate effect by Drivers on Demand if the Client fails to pay any amount due under the Terms on the due date for payment and remains in default 7 calendar days or more after Drivers on Demand has notified the Client to make such payment;
6.1.6 by notice with immediate effect by Drivers on Demand if:
6.1.6.1 the Client suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
6.1.6.2 the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
6.1.6.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client;
6.1.6.4 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Client;
6.1.6.5 a person becomes entitled to appoint a receiver over the Client’s assets or a receiver is appointed over the Client’s assets;
6.1.6.7 the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
7. General
7.1 For the purposes of the Conduct Regulations Drivers on Demand shall operate as an employment business in relation to the Client (except where any permanent placement results from Drivers on Demand’s introduction to the Client, in which case Drivers on Demand shall act as an employment agency).
7.2 These Terms constitute the entire agreement between the parties and supersede all previous agreements and arrangements (if any) whether written, oral or implied between Drivers on Demand and the Client relating to the Assignment and all such agreements and arrangements still effective at the commencement date of the Assignment shall be deemed to have been terminated by mutual consent with effect from the date the Assignment commences but without prejudice to any rights which have arisen prior to such termination and so that nothing in this clause 7.2 shall operate to exclude or limit the liability of any party in respect of fraud.
7.3 The Client acknowledges that, in agreeing to the Terms, it has not relied on any representations by Drivers on Demand or the Worker made before the agreement of the Terms other than those expressly set out in the Terms.
7.4 The Terms are personal to the Client and it shall not be entitled to assign or sub-contract its obligations or rights under the Terms to any third party without the prior written consent of Drivers on Demand. Drivers on Demand shall however be entitled to assign this Agreement to any third party and, upon such assignment, without prejudice to the assignor’s rights in respect of matters arising prior to such assignment, all references to Drivers on Demand shall be deemed to refer to the assignee.
7.5 No variation or amendment to the Terms is effective unless it is in writing and signed on behalf of Drivers on Demand by a director and on behalf of the Client by an authorised representative of the Client
7.6 Any notice required to be given under these Terms (including the delivery of any timesheet or invoice) shall be:
7.6.1 in writing signed by a person duly authorised by the sending party;
7.6.2 delivered by hand, sent by facsimile, e-mail or prepaid first class post to the recipient at its fax number or address specified in these Terms (or as otherwise notified from time to time to the sender by the recipient for the purposes of these Terms); and
7.6.3 deemed to have been given and served:
7.6.3.1 if delivered by hand, at the time of delivery;
7.6.3.2 if sent by facsimile or e-mail, at the time of despatch if despatched on a working day before 5.30 p.m. or in any other case at 10.00 a.m. on the next working day after the day of despatch, unless the transmission report indicates a faulty or incomplete transmission or, within the relevant working day, the recipient informs the sender that the facsimile or e-mail message was received in an incomplete or illegible form; or
7.6.3.3 if sent by prepaid first class post, 48 hours from the time of posting.
7.7 The Terms shall be governed by and construed in all respects in accordance with English law.
7.8 Any restrictions contained in the Terms are considered reasonable by the parties, but, if any such restriction is found void but would be valid if some part of the restriction were deleted, such restriction shall apply with such deletion as may be necessary to make it valid and effective.
7.9 If any provision or any part of the Terms is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
7.9.1 such provision or part shall to that extent be deemed not to form part of the Terms but the enforceability of the remainder of the Terms shall not be affected;
7.9.2 to the extent permitted by law, Drivers on Demand and the Client shall negotiate in good faith a replacement to any provision severed under clause 7.9.1 by a provision which is of similar effect but which is not illegal or unenforceable.
7.10 None of the provisions of the Terms is intended to be for the benefit of, or enforceable by third parties (other than permitted assignees of Drivers on Demand who shall be entitled to enforce the provisions of this Agreement as if original parties to it) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
7.11 Each party warrants to the other that, in relation to this Agreement, it shall comply strictly with all requirements of the Data Protection Act 1998, any applicable statutory or regulatory provisions and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data.