BGL Introduction & Supply of Consultants Terms & Conditions of Purchase
Version date: 19 June 2018
1. About us
1.1 Company details.
BGL Group Limited (company number 2593690) (BGL) is a company registered in England and Wales and our registered office is at Pegasus House, Bakewell Road, Orton Southgate, Peterborough, PE2 6YS.
1.2 Contacting us.
To contact us telephone or e-mail the originator of and as set out in the Purchase Order. How to give us formal notice of any matter under the Contract is set out in clause 21.
2.1 Our contract.
2. Our contract with you
These terms and conditions (Terms) apply to the Purchase Order entered into by you on a non-exclusive basis to introduce and supply consultants and perform other related services for BGL and the Group Companies for the period set out in the Purchase Order. These Terms, the Purchase Order and any annexes attached to the Purchase Order constitute the contract (Contract). These Terms apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Entire agreement.
The Contract constitutes the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
These Terms and the Contract are made only in the English language.
2.4 Your copy.
You should print a copy of these Terms for future reference.
3. Definitions and interpretation
In these Terms, the following words and expressions shall have the following meanings:
the assignment(s) described in the Purchase Order which BGL or a Group Company wishes you to undertake;
the minimum qualifications and other criteria which the Consultancy Staff must have to perform the Assignment as set out in the Purchase Order;
BGL employees who facilitate day to day coordination of the appointment of Consultancy at BGL or other Group Company as notified to you from time to time;
the date of the Purchase Order;
Conduct Regulations 2003:
the Conduct of Employment Agencies and Employment Business Regulations 2003 as amended from time to time;
all information relating to the business, operations, affairs, business activities, dealings, customers, suppliers, business partners or employees of either party (or, in the case of BGL, of any Group Company), whether such information is in written, verbal, electronic or any other form and whether or not expressly stated to be confidential. For the purposes of the Contract Confidential Information of BGL includes, but is not limited to (i) all know-how, techniques, computer programmes and software, methodology and information used by BGL or any Group Company in determining any products or services to be offered to any customer and/or the terms upon which or the prices at which any product or services are offered (ii) any information relating to any contract, agreement, arrangement or business relationship to which BGL or any Group Company is or has been party at any time or which BGL or any Group Company is at any time or has been at any time considering entering into (iii) any information relating to any supplier, process, equipment, computer hardware or computer software used by BGL or any Group Company in connection with its business or its use or application of any such computer software and (iv) all methodology, know-how, experience, data, databases, flow charts, reports, tables and other material devised, created or acquired by any Consultancy in the performance of any Assignment;
means the person, firm or corporate body which you Introduce to BGL to carry out the Assignment and includes Consultancy Staff and any third party to whom the performance of the Assignment is assigned or sub-contracted with the prior approval of BGL and any officers, employee, worker or representative of any such third party);
the fees payable by BGL to you in accordance with clause 8 in respect of each Consultancy supplied to BGL or a Group Company by you;
means any officer, employee, worker or representative of the Consultancy supplied to carry out the Assignment (and includes any officer, employee, worker or representative of any third party to whom the performance of the Assignment is assigned or sub-contracted with the prior approval of BGL);
the items set out in the Purchase Order as being provided by you to BGL and/or any other Group Company including any other information, documents, products, and materials developed, prepared or written by you (or your agents, subcontractors, consultants and employees) for BGL or any Group Company in relation to the Services in any form whatsoever;
for the purposes of clause 10, the party disclosing Confidential Information and/or to whom Confidential Information relates;
Employment Business Commission:
any fee, commission or expense charged by you to BGL in relation to the supply of any Consultancy which forms part of the Consultancy Fee but is not passed to the Consultancy by you;
the employment or engagement of a Consultancy by BGL or a Group Company on a permanent, temporary or fixed-term basis directly or indirectly through any employment business other than through you as a direct result of any Introduction to BGL or Group Company and the terms Engaged or Engagement shall be construed accordingly;
BGL, any subsidiary or holding company of BGL and any subsidiary of any such holding company (as defined in s1159 Companies Act) whether having their registered office in the United Kingdom or overseas;
Intellectual Property Rights:
all patents, trade marks, domain names, trade secrets, goodwill, copyright, database rights, designs, inventions, know how and any other industrial or intellectual property rights of any nature whatsoever, whether registered, registrable or not, whether present or future, in any part of the world and the right to sue for any infringements of those rights;
the provision to BGL by you of a curriculum vitae which identifies the Consultancy or Consultancy Staff (and such other information in such format approved by BGL) as requested by BGL in writing or by email from the personalised email address of BGL Personnel from time to time. Introduction and Introduce shall be construed accordingly;
The introduction fee set out in the relevant Purchase Order;
a director, employee or professional advisor of the Receiving Party who has a legitimate need to receive and consider particular Confidential Information for the purposes of the Receiving Party exercising its rights and/or performing its obligations under the Contract;
the party receiving Confidential Information from or relating to the Disclosing Party;
has the meaning set out in regulation 10(5) and (6) of the Conduct Regulations 2003;
the Introduction and supply of Consultancy by you to BGL and the Group Companies and such other services (including any advertising or marketing services) as set out in the Purchase Order;
the United Kingdom, Gibraltar and all other countries within the European Economic Area;
the trade names, trading styles, brands, brand names and trade marks (whether registered or unregistered), service marks, logos and/or domain names used and/or owned by BGL or Group Company as may be notified to you from time to time, and, unless the context otherwise requires, the expression Trade Marks shall also include any modification or adaption (whether authorised or otherwise) made to any of the same by any party or any person who has access to the same;
Valid Opt-Out Notice:
a written notice from the Consultancy Staff and the company or corporate entity which supplies the Consultancy Staff confirming that both have exercised their right under s.32(9) of the Conduct Regulations 2003 to opt out of the Conduct Regulations 2003.
Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other gender.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to writing or written includes email but not where expressly stated to the contrary.
Any words following the terms including, include, in particular 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.
4. BGL Personnel
4.1 You shall only take instructions in relation to the Contract or any Assignment from BGL Personnel. Other than the BGL Personnel, you shall not:
4.1.1 provide any information by any means about an Assignment or any Consultancy Introduced to BGL or any Group Company, to any other department or employee of BGL or any Group Company; or
4.1.2 actively contact, either directly or indirectly, any employee of BGL or any Group Company
without the express prior written authorisation of BGL Personnel.
5. Your obligations
5.1 In relation to the Introduction and supply of a Consultancy pursuant to the Contract, you will be acting as an employment business as defined in the Conduct Regulations 2003.
5.2 You will:
5.2.1 perform the Services for BGL and each of the Group Companies in accordance with the terms of the Contract;
5.2.2 comply with your obligations under the Contract using all due skill, care and diligence in accordance with good industry practice;
5.2.3 comply with the delivery dates set out in the Contract (or subsequently varied by agreement between the parties);
5.2.4 use personnel and only Introduce and/or supply any Consultancy who are suitably skilled and experienced to perform the services required of them, and in sufficient numbers to ensure that your obligations are fulfilled in accordance with the Contract. BGL may request you to provide evidence of prior experience and specific skills of any Consultancy supplied under the terms of the Contract;
5.2.5 carry out the following background checks at your own expense (or as agreed between the parties) on any Consultancy supplied under the terms of the Contract:
(i) Basic disclosure and Barring Services checks (DBS) (which must be no older than 3 months);
(ii) Credit Enquiry with Electoral Roll & ID Verification;
(iii) Credential Verification;
(iv) 3 years employment referencing with 28 day gap verification and document collection;
(v) Public Safety Verification/Sanctions;
FCA Approved Person's roles will require additional checks:
(i) Standard Disclosure and Barring Services checks (DBS) (which must be no older than 3 months)
(ii) Statutory Director Checks
(iii) 6 years employment referencing with 28 day gap verification and document collection
(iv) Adverse Media Search
and shall provide copies of the completed checks to BGL prior to the commencement of the Assignment. BGL may at any time request the original documents to evidence completion of the checks; and
5.2.6 co-operate with BGL and the Group Companies in all matters relating to provision of the Services.
5.3 You warrant, represent and undertake that:
5.3.1 you have the power and authority to enter into and perform your obligations under the Contract;
5.3.2 by virtue of entering into the Contract you are not and will not be in breach of any express or implied obligation to any third party binding upon you;
5.3.3 you will not do, or omit to do, or permit to be done, any act which will or may weaken, damage or be detrimental to BGL's or any Group Company’s reputation or goodwill;
5.3.4 you will comply with the provisions of all applicable legislation, regulations and codes of practice which govern your conduct when performing your obligations under the Contract;
5.3.5 you will not do, and shall not recommend or advise that BGL or any Group Company do, anything which would put BGL or any Group Company in breach of any applicable law, regulation or code of practice;
5.3.6 before the Commencement Date, you have obtained and will at all times maintain, all necessary licences and consents in relation to the performance of your obligations;
5.3.7 you will not do or omit to do anything which may cause BGL or any Group Company to lose any licence, authority, consent or permission on which you rely upon for the purposes of conducting your business, and you acknowledge that BGL and each Group Company may rely or act on the information received from you and any advice received from you in relation to the Services and/or the appointment of a Consultancy; and
5.3.8 you will not offer BGL or any Group Company any commission, gift or other financial benefit or inducement in relation to the whole or any part of the Services. You will also ensure that your employees, agents and subcontractors do not offer BGL or any Group Company any such commission, gift, benefit or inducement. If you become aware that any such commission, gift, benefit or inducement has been offered, you will forthwith give BGL full details of such commission, gift, benefit or inducement and all other information requested by BGL.
5.4 Unless it has been specifically authorised to do so by BGL in writing in advance, you shall not:
5.4.1 have any authority to incur any expenditure in the name of or for the account of BGL or any Group Company; or
5.4.2 hold yourself out as having authority to bind BGL or any Group Company.
6.1 You shall:
6.1.1 undertake a screening and selection of each Consultancy based on the relevant Assignment Requirements, including a preliminary interview with any Consultancy to be presented to BGL or the relevant Group Company,
6.1.2 only Introduce to BGL and Group Companies Consultancy who meet the Assignment Requirements and who have the right to work in the Territory.
6.2 BGL and each Group Company reserves the right to arrange for any checks to be conducted (whether in addition to or in substitution of any checks arranged by you) in relation to any Consultancy Staff. In the event that the result of any such checks in relation to any Consultancy Staff are considered unsatisfactory by BGL (in its sole discretion), BGL and/or any Group Company may withdraw any offer made to the Consultancy and/or terminate any Assignment on notice and no Consultancy Fee shall be payable to you by BGL in connection with such Consultancy. Where any Consultancy Fees have previously been paid to you in relation to such Consultancy, you shall reimburse BGL promptly on demand.
6.3 Where any Consultancy Staff are required by law or any professional body to have any qualifications or authorisations to work on the Assignment, you will:
6.3.1 obtain and provide copies of any relevant qualifications or authorisations and two references to BGL; and
6.3.2 confirm that the Consultancy Staff are suitable for the Assignment.
6.4 Prior to the commencement of the Assignment, you will send BGL written confirmation of:
6.4.1 the identity of the Consultancy Staff;
6.4.2 the Consultancy's experience, training, qualifications and authorisations necessary for the Assignment;
6.4.3 the Consultancy’s willingness to carry out the Assignment; and
6.4.4 any other information reasonably requested by BGL or any Group Company.
6.5 You shall, where relevant, inform BGL whether you hold a Valid Opt Out Notice for any Consultancy Staff that you Introduce to BGL or any Group Company.
6.6 BGL is responsible for paying any Introduction Fees and/or Consultancy Fees agreed with you as part of the Purchase Order. You shall be responsible for the payment of any fees payable by you to any Consultancy and (as between you and BGL) shall be responsible for the deduction and payment of all tax, National Insurance contributions and other taxes and levies in respect of persons employed by you or Consultancy Staff supplied to BGL or any Group Company by you.
6.7 You shall notify BGL immediately if you believe or become aware of any matter that indicates that any Consultancy Introduced by you is or may be unsuitable for the Assignment or there is any inconsistency with any information previously provided by you including where a Consultancy Introduced by you ceases to meet the Assignment Requirements, ceases to be approved or have the right to work in the Territory or where the Contract may be or has been breached.
6.8 If BGL decides (in its sole discretion) that a Consultancy is unsuitable to perform the Assignment for any reason, then BGL shall notify you in writing of that fact giving the grounds for its dissatisfaction with such Consultancy.
6.9 If BGL notifies you of an unsuitable or unsatisfactory Consultancy in accordance with clause 6.8:
6.9.1 within 48 hours of the commencement of the Assignment, then the Assignment will immediately terminate and no Consultancy Fees shall be payable; and
6.9.2 in all other cases the Assignment shall terminate at the end of the day on which you were notified, and Consultancy Fees shall be payable up to the date of such termination.
6.10 In addition to and without prejudice to the generality of clause 6.9, BGL will be entitled to terminate an Assignment with immediate effect in the event that:
6.10.1 the Consultancy in question fails to comply with any lawful instruction given to them by BGL or with any other of the requirements set out at clause 6.15 below or is guilty of any other misconduct; and/or
6.10.2 it is or becomes unlawful for the Consultancy to continue providing services to BGL.
6.11 Any termination of an Assignment in accordance with clause 6.9 and/or 6.10 may be effected in writing, by way of verbal communication, or by email, by an authorised representative of BGL.
6.12 Following termination of any Assignment under clauses 6.9 and/or 6.10 above, you shall provide a replacement Consultancy without delay if (and only if) requested to do so by BGL.
6.13 Without prejudice to any rights BGL may have, in the event that an Assignment is terminated in accordance with clause 6.10 then BGL shall only be liable to pay Consultancy Fees on a pro rata basis in accordance with the period of time for which the Consultancy has provided services under the Assignment. BGL shall not be liable to pay any Consultancy Fees in respect of the relevant Assignment as from the date the Assignment was terminated.
6.14 Either party may terminate an Assignment within the first 5 days of the commencement of the Assignment by giving the other party 1 day’s prior notice. In addition, BGL may terminate an Assignment at any time upon the notice period agreed in the Purchase Order. In the absence of a specific period set out in the Purchase Order, the notice period for the purpose of this clause 6.14 shall be 7 days. Consultancy Fees shall only be payable up to the date of such termination. BGL reserves the right to change its requirements at any time before the commencement of the Assignment by a Consultancy Introduced by you without any liability of BGL or any Group Company to you whatsoever. Such cancellation or amendment shall be effective immediately upon the giving by BGL of notice to you (which may be given by telephone, e-mail or in writing).
6.15 You shall ensure that each Consultancy is contractually obliged:
6.15.1 to comply with all relevant statutes, laws, regulations and codes of practice from time to time in force in the performance of an Assignment and applicable to BGL’s and any Group Company’s business;
6.15.2 to comply with BGL’s and the Group Company’s health and safety policy whilst the Consultancy Staff are on BGL’s or the Group Company’s premises or any of BGL or the Group Company customers' or suppliers' or agents' (direct or indirect) premises;
6.15.3 not to disclose any Confidential Information of BGL and/or Group Companies or any of BGL’s or the Group Company’s customers or suppliers or agents (whether directly or indirectly), which they may acquire during the course of or otherwise in connection with any Assignment or any discussions or negotiations relating to any actual or potential Assignment and shall ensure that each Consultancy is made aware of and observes the terms of clause 10 as if that Consultancy had given the undertakings contained in clause 10 directly to BGL and each Group Company;
6.15.4 to deliver up to BGL or as it may direct, forthwith on demand all Confidential Information of BGL and any Group Company and all documents and other items or materials in whatever form or medium containing or embodying any of such Confidential Information or otherwise devised, created or acquired by the Consultancy in connection with any Assignment or the provision of any Services
6.15.5 to carry out all work required by BGL in a timely manner and using all reasonable care, skill and diligence;
6.15.6 to act at all times whilst working for BGL in accordance with any BGL rules, policies or procedures made known to them and otherwise in accordance with any lawful instructions given by BGL from time to time;
6.15.7 to act at all times whilst working for BGL in good faith and in the best interests of BGL;
6.15.8 to assign to BGL or as it may direct absolutely (including by way of present assignment of future copyright) with full title guarantee and free from all third party rights all Intellectual Property Rights and all other rights in all documents, data, methodologies, drawings, databases, computer software, information and other items and materials in whatever form or medium devised, created or acquired by the Consultancy in connection with any Assignment or the provision of any Services;
6.15.9 in connection with any work carried out for BGL, to not do or wrongfully omit to do anything that would infringe, or result in BGL infringing, the intellectual property or other rights of any third party;
6.15.10 at the end of the relevant Assignment (or at such other times as may be directed by BGL), to return to BGL any and all personal protective equipment, tools, keys, security passes, manuals, records (in whatever medium) and other items which were lent to the Consultancy by BGL and/or which belong to BGL and are in the Consultancy's possession;
and shall ensure that all such contractual obligations are enforceable by BGL or any Group Company.
6.16 You shall use your best endeavours by giving appropriate instructions and otherwise taking all reasonable steps to enforce the terms of the contract between you and the Consultancy to ensure that the Consultancy complies with each of the requirements set out in clause 6.15 of the Contract.
6.17 Without prejudice to clause 6.15.3 above, where any Consultancy Staff are likely to (i) have access to any Confidential Information of BGL or any Group Company or of any third party with whom BGL or any Group Company has any agreement, arrangement or business relationship, or (ii) develop, prepare, write or create any documents, images, products or materials for BGL, you shall procure that the Consultancy Staff enter into a direct confidentiality undertaking or assignment of Intellectual Property Rights in favour of BGL and/or any relevant BGL Group Company or third party in such form as BGL reasonably requires.
6.18 Where any Consultancy creates any copyright or other intellectual property rights in the course of working for BGL, you shall procure to be executed or done by the Consultancy or any other necessary person all such deeds, documents, acts and things as BGL may from time to time reasonably require in order to effect an assignment of such rights in favour of BGL or such other person as BGL may direct.
7. BGL's obligations
7.1 During the term of the Contract, BGL shall endeavour to:
7.1.1 co-operate with you in all matters relating to the Services; and
7.1.2 provide such information and access to BGL's premises and data, and such office accommodation and other facilities to you as reasonably requested by you and BGL considers reasonably necessary, in order to carry out the Services, in a timely manner.
7.2 BGL warrants and undertakes to you that:
7.2.1 BGL has the power and authority to enter into the Contract and to perform its obligations under the Contract;
7.2.2 BGL will comply with all legislation and statutory regulations which apply to BGL when performing its obligations under the Contract.
8. Consultancy Fees
8.1 BGL will pay you the Consultancy Fees as applicable in respect of any Consultancy supplied to BGL or other Group Company (as applicable) in accordance with this clause 8.
8.2 The amount of any Employment Business Commission shall be stated in the Purchase Order.
8.3 Calculation of the Consultancy Fees shall be as set out in the relevant Purchase Order. The Consultancy Fees shall be inclusive of any out of pocket expenses incurred by the Consultancy in undertaking the Assignment, including but not limited to travel, subsistence and accommodation incurred by the Consultancy, unless specifically stated otherwise in the Purchase Order and no additional expenses shall be payable.
8.4 You shall invoice BGL for the Consultancy Fees monthly in arrears. BGL shall pay your invoice within 30 days of receipt of such invoice.
8.5 No fee shall be payable by BGL until the Consultancy commences the Assignment. No increase in the Consultancy Fees payable under the Contract by BGL to you may be made unless agreed in accordance with clause 27.
8.6 BGL shall not be required to pay Consultancy Fees for any period of time (for whatever reason) where the Consultancy is unable to carry out the Assignment. You shall not withhold any payment due to a Consultancy because of any failure by BGL to pay you.
8.7 The Consultancy Fees set out in the Purchase Order shall be inclusive of Value Added Tax unless stated otherwise. Where applicable, VAT will be paid by BGL following production by you of a valid VAT invoice.
8.8 In the event that BGL acting in good faith disputes an invoice BGL shall as soon as reasonably practicable notify you. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. BGL shall be entitled to withhold the entire payment of the disputed invoice, or any part thereof, pending resolution of the dispute between the parties. Your obligations to perform the Services and your other obligations under the Contract shall not be affected by any such dispute.
8.9 Save where BGL withholds payment under clause 8.6 or 8.8, if any sums due under the Contract are not received by you within a period of 30 days following the relevant due dates you may charge interest on the overdue amount at the rate of 2% above the base rate of Barclays Bank PLC for the time being from the expiry of that period until the overdue sums have been received by you in cleared funds. You acknowledge that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
8.10 BGL will be entitled to set-off against the Consultancy Fees, the Introduction Fee and any other sums payable to you any amount properly due from you to BGL or any Group Company relating to the Contract.
9. Introduction fees
9.1 BGL shall be liable to pay you an Introduction Fee where you Introduce the Consultancy to BGL and BGL Engages the Consultancy or any Consultancy Staff other than through you within a period of 6 months from the termination of the Assignment in respect of which the Consultancy or the Consultancy Staff was supplied, or if there was no supply, within 6 months of the Introduction of the Consultancy by you to BGL.
9.2 If the Engagement of the Consultancy or any Consultancy Staff is terminated:
9.2.1 within three months from the start of the Engagement, unless such termination is due to: (a) involuntary redundancy; (b) the liquidation, bankruptcy, insolvency or dissolution of BGL or the Group Company concerned; or (c) unfair dismissal, you shall immediately refund the Introduction Fee to BGL in full;
9.2.2 after three months from the start of the Engagement then, subject to you complying with your obligations under the Contract, you shall be entitled to keep the Introduction Fee in full.
10.1 The Receiving Party undertakes to the Disclosing Party that:
10.1.1 it shall treat and safeguard as private and confidential all Confidential Information of the Disclosing Party;
10.1.2 it shall only use the Confidential Information of the Disclosing Party to the extent that such use is necessary for the purposes of performing its obligations or exercising its rights under the Contract;
10.1.3 except as permitted under clause 10.2, it shall not at any time disclose or reveal any part of the Confidential Information of the Disclosing Party to any person other than a Permitted Recipient;
10.1.4 it shall ensure that each Permitted Recipient to whom Confidential Information of the Disclosing Party is to be disclosed is made aware of and observes the terms of this clause 10 as if that person had given the undertakings contained in this clause 10 directly;
10.1.5 it shall immediately upon written request by the Disclosing Party deliver to the Disclosing Party a list of all individuals to whom the Confidential Information of the Disclosing Party has been disclosed;
10.1.6 it shall indemnify the Disclosing Party and keep it indemnified from and against all costs, claims, losses, damages, expenses and other liabilities which arise out of or in connection with the unauthorised disclosure or use of the Confidential Information or any part of it by the Receiving Party or any person to whom the Confidential Information has been disclosed by the Receiving Party.
10.2 The provisions of clause 10.1 above shall not apply to any Confidential Information to the extent that such Confidential Information:
10.2.1 is publicly available or becomes publicly available through no act or omission of the Receiving Party;
10.2.2 is required to be disclosed by law or by order of a court of competent jurisdiction or other competent authority provided that (to the extent it is permitted to do so) the Receiving Party gives all reasonable notice of that disclosure to the Disclosing Party.
10.3 A Purchase Order will contain Confidential Information. In order to perform the Services, you may need to disclose such Confidential Information to a potential Consultancy. You are permitted to the extent necessary to perform the Services to disclose to the relevant Consultancy the Confidential Information as set out in the Purchase Order subject always to clause 6.15.3. You are not permitted to disclose any other Confidential Information to the Consultancy or other third parties.
10.4 Whenever requested by the Disclosing Party:
10.4.1 the Receiving Party shall immediately return, and ensure that all Permitted Recipients immediately return, to the Disclosing Party all matter provided by the Disclosing Party in tangible form which constitutes the Confidential Information, or any part of it, together with all copies; and
10.4.2 the Receiving Party shall immediately destroy (or if kept electronically, expunge), and ensure that all Permitted Recipients immediately destroy or expunge, any notes, memoranda or other records or working materials (in whatever medium) which contain any Confidential Information.
10.5 In relation to any Confidential Information of any Group Company references in this clause 10 to the Disclosing Party shall be deemed to include such Group Company provided that BGL shall be entitled to enforce any provision of this clause 10 in relation to any Confidential Information of any Group Company.
11. Data Protection
11.1 For the purposes of this clause the following terms shall have the following definitions:
(a) “Customer Data” means any and all Personal Data or other data (including customer data) which is supplied by or on behalf of you and/or any Consultancy or any Group Company to the Consultancy or which is obtained by you in connection with the Contract at any time, whether before, on, or after the date of the Contract;
(b) “Data Protection Legislation” means i) the Data Protection Act 1998; ii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; iii) from 25 May 2018 the General Data Protection Regulation (EU 2016/679) and any legislation implemented in connection with the General Data Protection Regulation; iv) any data protection legislation coming into force as a result of the United Kingdom leaving the European Union and v) any replacement legislation in respect of any of the same coming into effect from time to time and in each case as amended, extended or superseded from time to time
(c) “Personal Data” has the meaning given to that term in the Data Protection Legislation in force from time to time;
(d) “Processing” has the meaning given to that term in the Data Protection Legislation in force from time to time.
11.2 To the extent that you and/or any Consultancy processes Personal Data on behalf of BGL in connection with the Contract, you shall and shall procure that each such Consultancy shall:
11.2.1 comply with BGL's instructions in connection with the Processing of Personal Data;
11.2.2 solely Process the Personal Data for the purposes of fulfilling the obligations under the Contract or in connection with any Assignment;
11.2.3 keep a record of any Processing of Personal Data you carry out on behalf of BGL or any Group Company;
11.2.4 take appropriate technical and organisational measures against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data taking into account the harm that might result from such unauthorised or unlawful processing, loss, destruction or damage and the nature of the Personal Data to be protected;
11.2.5 not transfer any Personal Data outside the countries of the European Economic Area without the prior written consent of BGL; and
11.2.6 notify BGL immediately if you receive any complaint, notice or communication which relates directly or indirectly to the Processing of the Personal Data or to either party's compliance with the Data Protection Legislation, and provide full co-operation and assistance in relation to any such complaint, notice or communication.
11.2.7 notify BGL immediately if any instructions of BGL relating to the Processing of Personal Data are unlawful;
11.2.8 notify BGL immediately in writing if:
(a) the Consultancy or any third party engaged by on behalf of the Consultancy to Process Personal Data suffers a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data; or
(b) the Consultancy or any third party engaged by on behalf of the Consultancy to process Personal Data receives any data security breach notification, complaint, notice or communication which relates directly or indirectly to the Processing of the Personal Data or to either party's compliance with the Data Protection Legislation,
and in each case the Consultancy shall provide full co-operation, information and assistance to BGL in relation to any such data security breach, complaint, notice or communication; and
11.2.9 make available to BGL all information necessary to demonstrate compliance with the obligations set out in this clause 11 and allow for and contribute to audits, including inspections, conducted by or on behalf of BGL including allowing BGL or its representatives access to the Consultancy’s premises.
12. Intellectual Property Rights
12.1 You assign to BGL absolutely (including by way of present assignment of future copyright), with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the Deliverables.
12.2 You shall, promptly at BGL's request, do (or procure to be done) all such further acts and procure the execution of all such other documents as BGL may from time to time require for the purpose of securing for BGL the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to BGL in accordance with clause 12.1.
12.3 You warrant, represent and undertake that BGL's and each Group Company’s use of the Deliverables provided by you in accordance with the Contract will not infringe the Intellectual Property Rights of any third party and that you have the right to grant BGL the rights in the Deliverables as contemplated by the Contract.
12.4 You shall obtain waivers of any moral rights in the Deliverables to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
12.5 You shall not use the Trade Marks or any other intellectual property rights owned by BGL or any Group Company without BGL's prior written consent (which may be withheld or delayed for any reason).
12.6 All information, documentation and materials provided by BGL or other Group Company to you shall be owned by BGL and/or other Group Company. You may use the Deliverables, and any other information, documentation and materials provided by BGL or other Group Company to you for all purposes necessary to perform your obligations and exercise your rights under the Contract. On termination of the Contract for any reason this right will immediately cease.
13. Indemnity and insurance
13.1 You shall indemnify and keep indemnified BGL and each Group Company from and against all costs, expenses (including legal and other professional fees and expenses) losses, damages and other liabilities (of whatever nature, whether contractual, tortious or otherwise) suffered or incurred by BGL and/or any Group Company and arising out of or in connection with:
13.1.1 any breach, negligent performance or failure or delay in performance of the Contract by you, your employees, agents or subcontractors;
13.1.2 any claim, action or demand alleging that the use by BGL or any Group Company of the Deliverables infringes the Intellectual Property Rights of any third party;
13.1.3 any National Insurance contributions, income tax or other taxation obligations where such liability, assessment, or claim arises or is made in connection with payments made by BGL or any Group Company in respect of the appointment of any Consultancy which is Introduced by you to BGL or a Group Company;
13.1.4 any Consultancy Staff having at any time claimed or being held or deemed to have been an employee of BGL or any Group Company or been otherwise engaged directly by BGL or a Group Company including any claim for wrongful or unfair dismissal or redundancy payment;
13.1.5 any termination of the Contract from any transfer or deemed or alleged transfer by operation of law of any of your employees or any Consultancy Staff including in respect of the Transfer of Undertakings (Protection of Employment) Regulation 2006;
13.1.6 any breach of clause 18 including in relation to the recruitment or engagement of the individual concerned and for any costs charges, fees and expenses incurred by BGL or any Group Company in connection with the replacement of that individual;
13.1.7 any claim made against BGL or any other Group Company by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by you, your employees, agents or subcontractors.
13.2 During the term of the Contract and for a period of 12 months thereafter, you shall maintain in force, with a reputable insurance company, professional indemnity insurance in an amount not less than £1 million pounds and shall, on BGL's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
14.1 Nothing in the Contract shall operate to limit or exclude the liability of either party for any death or personal injury caused by that party's negligence, fraudulent misrepresentation by that party or for any liability that cannot be excluded or limited or excluded as a matter of law.
14.2 Neither party will be liable to the other party (the Claimant) for any indirect, special or consequential loss or damage except insofar as indirect, special or consequential loss or damage is claimed by a third party against the Claimant and the Claimant seeks to recover such loss or damage under an indemnity given under the Contract.
14.3 The aggregate liability (inclusive of interest and legal and other costs) of BGL in respect of all claims arising under or in connection with the Contract (whether by reason of any negligence by BGL or any of its employees or agents, any non-fraudulent misrepresentation, any breach of contract or an express or implied warranty, condition or other term, breach of statutory duty, or otherwise) shall not in any event exceed the amount of the Fees paid by BGL to you in the 12 months immediately preceding the date of the claim.
15.1 BGL may terminate the Contract at any time upon not less than 28 days written notice to you.
15.2 Each Assignment may be terminated on an individual basis in accordance with clause 6.14 of the Contract and the termination of an Assignment will not affect the terms of the Contract.
15.3 Either party may terminate the Contract immediately by serving written notice to that effect on the other party if at any time any one or more of the following events occurs:
15.3.1 the other party makes any voluntary arrangement with its creditors or becomes bankrupt or enters administration or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
15.3.2 a security holder takes possession, or a receiver or administrative receiver is appointed over all or any material part of the property or assets of the other party; or
15.3.3 anything analogous to any of the foregoing occurs to the other party under the law of any jurisdiction; or
15.3.4 the other party commits a material breach of any of the provisions of the Contract and in the case of a breach capable of remedy, fails to remedy that breach within 14 days after being served with a written notice specifying the breach and requiring it to be remedied.
16. Consequences of termination
16.1 Any termination of the Contract shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of the Contract which is expressly or by implication intended to come into or continue in force on or after such termination including clauses: 3 and 10-19.
16.2 Upon termination of the Contract (for any reason whatsoever):
16.2.1 all Assignments will terminate with immediate effect;
16.2.2 your right to use the Deliverables, all proprietary material of BGL or any Group Company, and any other information documentation or materials provided by BGL or a Group Company to you shall immediately cease; and
16.2.3 you shall immediately return to BGL the Deliverables, all proprietary material of BGL or any Group Company and any other information, documentation or materials provided by BGL to you.
17.1 You shall keep and maintain for the duration of the Contract and for six (6) years following its termination, full and accurate records of all acts taken and things done in performing your obligations under the Contract. You shall procure that such records and your systems, processes and controls shall, at any time while the Contract remains in force, be available for inspection and audit by BGL or its representatives on reasonable notice and BGL and its representatives shall be entitled in the course of any such inspection or audit to take copies of any such records and information relating to your systems, processes and controls.
17.2 You shall make available one or more of your managers or senior officials with the appropriate level of expertise and authority to answer relevant enquiries raised by BGL and its representatives in the course of any inspection or audit undertaken by BGL or its representatives pursuant to this clause 17.
17.3 If any inspection or audit undertaken by BGL or its representatives pursuant to this clause 17 reveals that:
17.3.1 you have overcharged BGL at any time, BGL shall notify you accordingly and you shall reimburse BGL the full amount of the overpayment within five (5) working days of receiving such notice; and/or
17.3.2 you are not or have not at any time complied with the Contract, BGL shall notify you accordingly and you shall make such changes as shall be necessary and acceptable to BGL to comply with the Contract in accordance with BGL's reasonable instructions.
You shall not, either on your own account or in partnership or association with any person, at any time while the Contract remains in force and for a period of 12 months thereafter either directly or indirectly:
solicit or seek to solicit (or seek to attempt to solicit) any employee, manager, consultant or director of BGL or any Group Company, any Consultancy currently supplied to BGL or any Group Company; and
re-solicit or seek to re-solicit (or seek to attempt to re-solicit) any Consultancy being considered or interviewed by BGL or any Group Company for an Assignment at BGL or any Group Company until BGL has notified you that such Consultancy has been unsuccessful and is not required.
In the event that any employee, manager, consultant or director of BGL or any Group Company contacts you seeking recruitment advice or services you shall immediately:
inform the individual that you can, in no way assist, due to a conflict of interest; and
notify BGL accordingly,
subject to any overarching obligations of confidentiality that you owe to the individual in question and/or any other restrictions imposed by law.
19.1.1 Neither party may assign, sub-contract, or otherwise dispose of any of its rights or obligations under the Contract without the other party’s prior written consent save that BGL may at any time assign, sub-contract or otherwise dispose of any of its rights or obligations under the Contract to any other Group Company without your consent.
19.1.2 In the event that BGL consents to you sub-contracting any of your rights or obligations under the Contract, it shall be a condition of such consent that the sub-contractor signs and observes an agreement containing terms at least as onerous as those contained in the Contract. Where you do engage a subcontractor, you shall remain fully responsible to BGL for the performance of the Contract as though no such subcontracting arrangement had been put in place.
You shall make no announcement or release any publicity concerning the Contract or Assignment, the Services or any matter ancillary thereto at any time, including during the course of any discussions and/or negotiations you may have with any third party or otherwise, except as required to perform your obligations under the Contract or as permitted in writing by BGL.
20. Events outside either party's control
20.1 Neither you nor BGL will be liable or responsible for any failure to perform, or delay in performance of, any obligations under the Contract that is caused by any act or event beyond you or BGL’s reasonable control (Event Outside A Party’s Control).
20.2 If an Event Outside A Party’s Control takes place that affects the performance of either you or BGL’s obligations under the Contract:
20.2.1 the affected party will contact the other party as soon as reasonably possible to notify them; and
20.2.2 the affected party’s obligations under the Contract will be suspended and the time for performance of their obligations will be extended for the duration of the Event Outside A Party’s Control. A new date for performance of the obligations will be agreed between the parties after the Event Outside A Party’s Control is over.
You may terminate the Contract by serving notice in writing to the other party where an Event Outside A Party’s Control has continued for more than 60 days from the date that the other party notified the other of the Event Outside A Party’s Control.
21. Communications between us
Communications between us
When we refer to "in writing" in these Terms, this includes email.
Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email
A notice or other communication is deemed to have been received:
if delivered personally, on signature of a delivery receipt;
if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second working day after posting;
if sent by email, at 9.00 am the next working day after transmission.
In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
The parties hereby agree and acknowledge that clauses 10 to 13 and 18 shall survive the termination or expiry of the Contract.
24. Third party rights
The Contract is between you and BGL. No other person has any rights to enforce any of its terms.
If either you or BGL does not insist on performance of any obligations under the Contract, or if either you or BGL does not enforce their rights against each other, or if either you or BGL delays in doing so, that will not mean that either you or BGL has waived their rights against each other or that either you or BGL does not have to comply with those obligations. If either you or BGL does waive any rights, either party will only do so in writing, and that will not mean that either party will automatically waive any right related to any later default by either you or BGL.
26. Governing law
The Contract is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.
Any variation of the Contract only has effect if it is in writing and signed by you and BGL (or our respective authorised representatives).