The standard Terms of Service for provision of HR Services by Clearlink HR Limited are set out below.
Your attention is directed in particular to Section 8 in relation to Limitation of Liability.
1.1 The following definitions seek to clarify the key terms in this Agreement.
“The Assignment” means the Assignment and the Scope of Work referred to in these Terms of Service;
“The Terms of Service Agreement”; or the “Agreement” means this Agreement; comprising the Assignment and Scope of Work; Timescales, Deliverables and Milestones; Fees and Costs; and General Terms of Service;
“Client” means the organisation contracting with Clearlink HR for the provision of HR Consultancy services as identified this Agreement;
“Contract” means the contract formed by the acceptance and return by the Client of this Terms of Service Agreement, and such contract shall be governed by these Terms of Service;
“Deliverables” means those items identified as such in the Terms of Service Agreement (if any) to be provided by Clearlink HR to the Client in the course of delivering the HR Services;
“Clearlink HR” means Clearlink HR Limited;
“Clearlink HR Terms of Service” means these standard Terms of Service;
“Client Materials” means intellectual property belonging to the Client;
“HR Services” means the work to be undertaken by Clearlink HR for the Client as described in these Terms of Service;
“Scope of Work” means the statement provided to the Client by Clearlink HR in relation to the nature of the work to be done, based on the Client’s description of its requirements;
“We, Us, Our” means Clearlink HR;
“You, Your” means the Client.
2. General Terms of Service
2.1 Clearlink HR shall provide HR Services to the Client on, and subject to, this Clearlink HR Terms of Service Agreement.
2.2 By accepting the Terms of Service, the Client agrees to be bound by these Clearlink HR Terms of Service to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document). This Terms of Service Agreement, once signed and returned by the Client shall form the contract between Clearlink HR and the Client.
2.3 These are the standard terms of business for the provision of HR Services by Clearlink HR Limited, a company Registered in England and Wales, Company Number 8938319. The Registered Office of Clearlink HR Limited is The Heath Business & Technical Park, Runcorn, Cheshire, WA7 4QX.
2.4 In relation to these general Terms of Service: subsections 6, 7, 8, 9, 10 and 11 relating respectively to Warranty, Indemnity, Limitation of Liability, Termination, Intellectual Property and Confidentiality; shall survive expiry or termination of this Agreement howsoever caused and shall remain thereafter in full force and effect after termination.
2.5 In the event of any conflict between these terms of business and any others displayed elsewhere, the terms of business as displayed on the Clearlink HR website shall prevail.
2.6 The Terms of Service Agreement shall, unless otherwise stated, remain capable of acceptance by the Client for a period of 90 days from the date provided and signed by Clearlink HR. The HR Services provided by Clearlink HR to the Client shall commence upon this Agreement being signed and dated by both parties.
2.7 Clearlink HR shall provide HR Services in line with the standards set out in the Professional Code of Conduct of the Chartered Institute of Personnel and Development and using reasonable skill and care. Clearlink HR carries Professional Indemnity Insurance and Public Liability Insurance.
2.8 Clearlink HR shall liaise directly with the Client only via an identified contact person in matters relating to the Assignment and Scope of Work; Timescales, Deliverables and Milestones; Fees and Costs. Any disagreement in relation to this Agreement shall be discussed with the identified contact person at first; and escalated as appropriate thereafter.
2.9 All agreements on the part of either Clearlink HR or the Client which comprise more than one person or entity shall be joint and several and the neuter singular gender throughout this agreement shall include all genders and the plural and the successor in title to the parties.
2.10 Clearlink HR and the Client shall give notice to the other of a change to or acquisition of any address, telephone or similar details at the earliest possible opportunity but in any event within 24 hours of such change.
3. Payment of Fees and Charges
3.1 The Client agrees to pay the Fees and Charges set out in Section C*** above which are based on Clearlink HR’s understanding of the Client’s requirements as set out Section A* above: the Assignment – Scope of Work.
3.2 All invoices shall be paid by the Client to Clearlink HR within 30 days of the date of the invoice. Payment shall be made in full and in cleared funds, to a bank account nominated in writing by Clearlink HR.
3.3 Without prejudice to any other right or remedy that Clearlink HR may have, if the Client fails to pay Clearlink HR as per this Agreement, then Clearlink HR reserves the right to charge the Client interest and costs of recovery in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended). Interest would be at an annual rate of 2% above the base lending rate from time to time of HSBC.
3.4 Clearlink HR may also suspend all HR Services until payment has been made in full.
3.5 Clearlink HR shall ensure that every individual engaged to provide HR Services to the client completes time sheets recording the time spent on that work. These timesheets shall be used to calculate the charges and fees covered by each invoice.
3.6 Clearlink HR reserves the right to make additional charges for:
i. Time spent in excess of that estimated as a result of any delays caused in delivery of HR Services due to any act or omission of the Client;
ii. Time spent travelling to any location in excess of 1 hour in either direction;
iii. Time for any activity requested by the Client in addition to those allowed for in the Terms of Service Agreement;
iv. Services or materials requested in writing by the Client that Clearlink HR agrees in writing to provide and that are additional to those allowed for in the Terms of Service Agreement, which shall then become part of the Services.
3.7 Clearlink HR may also charge the Client for reasonable expenses incurred in the provision of HR Services including, where necessary:
i. Travel, accommodation and subsistence (mileage to be charged at £0.45 per mile);
ii. Any bought-in goods, services and sub-contracted items referred to in the Terms of Service Agreement as being necessary and charged for separately from the fees quoted in the Terms of Service Agreement.
iii. Value Added Tax, where applicable, shall be payable by the Client on all fees and expenses at the rate in force at the date of invoicing. All prices are quoted exclusive of Value Added Tax.
3.8 Clearlink HR shall issue invoices in accordance with this Agreement. Depending on the nature of the work, Clearlink HR may issue invoices at the end of each discrete piece of work or at the end of each month; such arrangements shall be set out in the Fees and Charges in Section C*** above. If the Client causes the provision of HR Services to be delayed, Clearlink HR may submit interim invoices. Clearlink HR shall also submit invoices in respect of any work carried in addition to that set out in Section A above.
3.9 Where a Client has caused a refund to be due to them from Clearlink HR, Clearlink HR reserves the right to deduct any administrative bank or credit card charges from the refund. Where the refund is necessitated due to the actions of Clearlink HR, no deductions shall be made.
3.10 If Clearlink HR wishes to increase charges or fees for HR Service beyond what is agreed in the Terms of Service Agreement, it shall notify the Client as such in writing giving thirty days’ notice of any such change. Unless the Client objects to the increases within seven calendar days of notification, the HR Services shall then be provided at the increased rates. If the Client objects to the increased rates, the Client shall remain liable for the existing fees and charges payable until the matter is resolved.
4. Client Obligations
4.1 The Client agrees to cooperate with Clearlink HR in the performance of the HR Services and to give such support, facilities and information as may be reasonably required. The Client acknowledges and agrees that, in order to derive benefits from the HR Services, its personnel shall be required to make such commitment as is appropriate to the HR Services being provided.
5. Alterations to Terms of Service
5.1 No variation of or alteration to this Agreement shall be valid unless it is approved in writing on behalf of both Clearlink HR and the Client.
6.1 Both Clearlink HR, and the Client, warrants its power to enter into this Agreement and has obtained all necessary approvals to do so. In accepting this Agreement, the Client authorises Clearlink HR to proceed with all relevant preparations for provision of the HR Services, for example but not limited to the planning of work, purchase of materials, and booking of venues if required.
7.1 Clearlink HR shall use all reasonable endeavours to meet any milestones and deadlines specified in the Agreement; however, any such dates shall be estimates only. If Clearlink HR’s obligations under this Agreement are prevented or delayed by any act or omission of the Client, then Clearlink HR shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from the prevention or delay.
7.2 The Client guarantees to Clearlink HR that it has permission to use any text, graphics, photos, designs, trademarks, or other materials that it provides for inclusion in any materials prepared for it by Clearlink HR. The Client shall indemnify Clearlink HR against all costs, claims, demands, expenses and liabilities of any nature arising out of or in connection with any breach of this warranty.
7.3 The Client shall be liable to pay to Clearlink HR, on demand, all reasonable costs, charges or losses sustained or incurred by Clearlink HR arising directly or indirectly from any fraud, negligence, failure to perform or delay in the performance of any of the Client’s obligations under the Agreement, subject to Clearlink HR confirming such costs, charges and losses to the Client in writing.
7.4 Whilst Clearlink HR’s employees or sub-contractors are working on the Client’s premises, the Client shall ensure the health and safety of those people. The Client shall indemnify Clearlink HR and keep Clearlink HR indemnified against all losses, damages and expenses incurred or suffered by Clearlink HR in connection with any and all claims made in respect of any injury, death or loss suffered by those employees or sub-contractors as a result of working at the Client’s premises.
8. Limitation of Liability – YOUR ATTENTION IS DIRECTED IN PARTICULAR TO THIS SECTION
8.1 In providing the HR Services, Clearlink HR shall use its reasonable endeavours to give sound HR advice based on the information available, but the Client shall remain wholly responsible for determining matters of policy or action related to that advice.
8.2 All warranties, conditions and other terms implied or expressed by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement. Clearlink HR shall not be liable to the Client for loss of profit, loss of business, or depletion of goodwill in any case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever which arise out of or in connection with this Agreement.
8.3 The total liability of Clearlink HR in contract, tort, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Terms of Service Agreement, shall be limited to the value of the Contract, or the value of the work completed, whichever is the smaller.
8.4 Clearlink HR shall not be liable to the Client for loss or damage to the Client’s property unless due to the negligence or other failure of the Clearlink HR to perform its obligations under this Agreement or the general law. In the event of damage to physical property, where it is established that such damage to property has arisen as a direct result of the negligence of Clearlink HR whilst providing HR Services, Clearlink HR’s liability shall be limited to a maximum of £1,000,000 (one million pounds) per claim or series of related claims.
8.5 Nothing in this Agreement shall exclude or limit Clearlink HR’s liability for death or personal injury caused by the negligence of Clearlink HR, nor for any liability that cannot be excluded by law. Nothing in this section shall limit or exclude any liability for fraud.
9.1 This Agreement may be terminated for any reason by either Clearlink HR or the Client giving the other party ninety days’ notice in writing to that effect.
9.2 If, however, this agreement is breached either by Clearlink HR or the Client for any of the following reasons, then the party not in breach shall be able to terminate this Agreement by immediate written notice and the rights and liabilities of the parties shall then be determined in accordance this Agreement:
i. Failure on the part of the Client to make punctual payment of all sums due to the Clearlink HR under this Terms of Service Agreement;
ii. Failure by Clearlink HR to remedy any potential breach of its obligations within this Agreement within a reasonable time following written notice from the Client which refers to this clause; specifies the potential breach with full particulars; indicates the Client’s view of how the potential breach is to be remedied and specifies the Client’s opinion of a reasonable time for remedy;
iii. The Client enters into voluntary or compulsory liquidation, or compounds with or convenes a meeting of its creditors, or has a receiver or manager or an administrator appointed over any part of its assets, or ceases for any reason to carry on business, or takes or suffers any analogous action which in the opinion of Clearlink HR means that the Client may not be able to pay its debts;
iv. Any act or omission by the Client due to which the rights of Clearlink HR in any intellectual property may be prejudiced or put in jeopardy;
v. Any serious or persistent breach by the Client of its obligations.
9.3 If this Agreement is terminated, then all fees and costs owed to date by either party in relation to this Agreement will immediately become due and payable.
9.4 On termination, both Clearlink HR and the Client shall immediately return to the other party all property of the other party in its custody, possession or control.
10. Intellectual Property
10.1 Clearlink HR shall own all copyright and any other intellectual property rights throughout the world, subsisting in the contents of this Agreement, between itself and the Client. Clearlink HR licences all intellectual property rights to the Client free of charge and on a non-exclusive basis to the extent that is necessary to enable the Client to make reasonable use of the HR Services provided. This applies to all work produced by Clearlink HR in the course of provision of the HR Services in any form or media. Excluded from this, however, is information that the Client has supplied to Clearlink HR, which is referred to as Client Materials.
10.2 The Client agrees that it shall not copy or amend anything provided by Clearlink HR as part of its HR Services that may infringe or devalue Clearlink HR’s copyright or other intellectual property rights. The Client may make copies of materials provided as part of the HR Services for distribution to its own workers and strictly for internal business purposes only. The Client shall ensure that each such copy bears a statement acknowledging its source.
10.3 Clearlink HR shall not cause or permit anything which may damage or endanger the intellectual property of the Client or the Client’s title to it or assist or allow others to do so.
10.4 With the Client’s written permission, Clearlink HR may refer to the work done for the Client as part of case studies, web logs (blogs) or other portfolio arrangements. Clearlink HR undertakes that neither the Client nor its workers shall be identifiable unless the Client has specifically agreed to this.
10.5 The Client shall keep all materials, documents and information provided to it by Clearlink HR confidential to itself and its employees. The Client shall not distribute any materials provided by Clearlink HR to any third party without Clearlink HR’s prior written consent.
11.1 Clearlink HR undertakes to protect the Client’s confidential interests. This Agreement shall be treated as confidential information.
11.2 The Client and its workers shall keep in strict confidence any commercial know-how, processes or initiatives which are of a confidential nature disclosed to the Client by Clearlink HR; only disclosing that information as required to meet any obligations under this Agreement.
11.3 Both Clearlink HR and the Client agree to keep confidential any information that is obtained in connection with the provision of HR Services that is designated as ‘confidential’ or that is by its nature clearly confidential. Neither Clearlink HR nor the Client shall use this information except in connection with the HR Services as agreed; and neither shall divulge it to any third party without the prior written consent of the other party. The following scenarios shall however remain as exceptions:
i. Information that is in, or comes into, the public domain except as a result of a breach of this Agreement;
ii. Information that was already in the possession of the Disclosing Party at the time of its receipt from the other party;
iii. Information that is received by the Disclosing Party from a third party who was not under a legal obligation of confidentiality with respect to it;
iv. Information that is required by law to be disclosed by the Disclosing Party.
11.4 Both Clearlink HR and the Client shall observe the requirements of the Data Protection Act 1998 and any other applicable data privacy legislation in relation to information regarding identifiable living individuals. Where Clearlink HR discloses to the Client any such information regarding living individuals, the Client acknowledges that, for the purposes of the Data Protection Act, the Client is the Data Controller. The Client shall therefore not keep such Personal Data longer than is necessary to fulfil the purpose for which it was collected; take all reasonable steps to safeguard the security of such data; exercise discretion over the access given to such data within the Client organisation; and take all reasonable steps to ensure that those given access to such data understand and respect the need for confidentiality. The Client shall indemnify Clearlink HR against all costs, claims, demands, expenses and liabilities of any nature arising out of or in connection with any breach of this section.
12. Force Majeure
12.1 Both Clearlink HR and the Client shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or if either of them renders the performance of this agreement impossible, whereupon all money accrued due under this agreement shall be paid.
13. Independent Contractors and Recruitment
13.1 Clearlink HR Consultants are independent contractors and not employees of the Client. The Consultants bear exclusive responsibility for the payment of their National Insurance contributions as self-employed people. Further, they are responsible for the discharge of any income tax and VAT liability arising out of remuneration for the work performed.
13.2 Clearlink HR Consultants shall not be subject to directions from the Client as to the manner in which they perform their work; and they shall be entitled to sub-contract any of their rights or duties under this Agreement. Clearlink HR will, however, discuss any such matters with the Client before taking any such action.
13.3 Clients of Clearlink HR shall not, either during the provision of the HR Services or thereafter for a period of six months, directly or indirectly, offer employment or assignments to any Clearlink HR’s employees or sub-contractors or solicit or procure their employment by any other company, organisation or individual with which the Client is connected. In the event of a breach by the Client of this obligation, the Client shall pay liquidated damages to Clearlink HR, of a sum equal to 33% of the annual remuneration or payment and any other benefits payable to the relevant individual by Clearlink HR, at the rate determined by taking a mean average of the 12 weeks’ of remuneration from Clealink HR to the individual immediately prior to such individual ceasing to provide services to Clearlink HR.
14.1 This contract or any of the rights and obligations under it, may not, without the prior written consent of Clearlink HR, be assigned or transferred to any other party.
15. Headings and Severability
15.1 Headings contained in this agreement are for reference purposes only and should not be incorporated into this agreement and shall not be deemed to be any indication of the meaning of the sections to which they relate.
15.2 Each section of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If, however, any provision of this Agreement is held invalid or unenforceable, then the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. The remainder of this Agreement shall nevertheless remain in full force and effect.
16.1 A waiver of any right under this Agreement is only effective if it is in writing and if it applies to circumstances for which it is given. No failure or delay by either Clearlink HR or the Client in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its furthest exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
17.1 Clearlink HR shall give thirty days’ notice of its intention to change the charging basis for any current and continuing projects.
17.2 Any notice required under this Terms of Service Agreement must be given in writing and addressed to the named contact person where this is specified. Notice shall be considered effectively served if delivered by hand or sent by first-class or airmail post to Clearlink HR at its usual address and, in the case of the Client, to the last known or usual address. Any notice personally delivered shall be deemed to have been received at the time of delivery. Any notice sent by post shall be deemed to have been delivered three Business Days after posting in the case of inter-UK communications, or five Business Days otherwise.
18.1 In the event of any dispute arising between the parties in connection with this agreement, the parties will in good faith seek to resolve that dispute through mediation where possible and the parties shall share equally the costs of the mediation. If the dispute is not resolved within thirty days or one of the parties refuses to participate in mediation, the dispute shall be resolved by way of litigation. Nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgment such action is necessary.
19. Entire Agreement
19.1 This Terms of Service Agreement between Clearlink HR and the Client in relation to the provision of HR Services, supersedes all earlier communications. Each party acknowledges that it has not relied on any commitment, representation or warranty in entering into this Agreement, other than those expressly set out herein.
20. Third Parties and Exclusivity
20.1 This Agreement exists for the benefit of both Clearlink HR and the Client. It is not intended to benefit any third party or be enforceable by any third party. The rights of the Clearlink HR and the Client to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
20.2 Clearlink HR and the Client expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by Clearlink HR, and Clearlink HR shall be entitled to offer and provide HR Services to others, solicit other Clients and otherwise advertise for the provision of HR Services.
21. Governing Law
21.1 The Contract shall be governed by the law of England and the parties agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of the Contract.
* In the Terms of Service for each client, there will be included a ‘Section A’, comprising details of the assignment and the scope of the work.
In the Terms of Service for each client, there will be included a ‘Section B’, comprising the agreed timescales, deliverables and milestones.
*** In the Terms of Service for each client, there will be included a ‘Section C’, comprising the agreed fees and charges for the work.