The General 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 the Letter of Engagement, accompanying this Terms of Service Agreement.
"The Terms of Service Agreement”; or the “Agreement" means this Agreement; comprising the Letter of Engagement and this 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 General 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 the Letter of Engagement and the Terms of Service Agreement;
"Letter of Engagement" means the letter sent to each Client accompanying these general Terms of Service. In each Letter of Engagement there will be included a ‘Section A’, comprising details of the assignment and the scope of the work; a ‘Section B’, comprising the agreed timescales and deliverables; and a ‘Section C’, comprising the agreed fees and charges for the work;
"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
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 Oaks, 3 Village Road, West Kirby, Wirral, CH48 3JN.
2.4 In relation to the General Terms of Service: subsections 11, 12, 13, 14, 15 and 16 relating respectively to Warranty, Indemnity, Limitation of Liability, Renewal and 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 28 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. Copies of our insurance policies are available upon request.
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, and Fees and Charges. 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 72 hours of such change.
2.11 Clients must agree to and sign our General Terms of Service before HR Consultancy Services can be provided.
2.12 Our Terms of Service are valid for 12 months from the date of signature unless stated otherwise.
3. The Services
3.1 HR Consultancy Services will normally be provided between 9.00am and 5.00pm Monday to Friday. We are happy to provide services on a planned basis outside of these times as clients may require. There may, however, be additional charges to clients for this. If this is the case, we will seek agreement with clients in writing on this basis prior to the commencement of provision of those services.
3.2 We will provide clients with an estimate of how long a particular project or piece of casework should take, to include production of documentation and file notes where necessary. This must however be treated as an estimate and may change if circumstances change.
3.3 We are happy to meet with clients at their premises, or another suitable location as agreed.
3.4 With the exception of our work on Fixed Price Packages, we charge for HR Consultancy Services from the start of our planned meeting time with clients.
3.5 We charge a flat attendance fee of £40+ VAT for attendance at meetings with clients at places outside of Runcorn Old Town but 20 miles unless these are included in packages of work, or an alternative agreement is made in advance in writing.
3.6 We agree travel and / or attendance expenses with clients in advance and in writing where we are required attend meetings at places in excess of 20 miles of Runcorn Old Town.
3.7 We reserve the right to treat our attendance as such in terms of fees and time where we have travelled and clients have cancelled or changed meeting arrangements at short notice.
3.8 Depending upon the HR Consultancy Services being delivered, we draft all of the documentation that clients may need, tailored to each case or project.
3.9 To ensure that there are good records of the advice that we have given, we may send filenotes to our clients as part of our HR Consultancy Services. These may be in the form or advisory emails, or standalone documents. These filenotes act as a record for both us and our client of the advice given and the context of that advice. We make our filenotes as accessible as possible. Clients should review all filenotes that we send and within a reasonable period of time bring to our attention any matters that may require further attention.
3.10 We advise Clients on all HR matters including contentious and non-contentious issues. In the rare case where an employee or employees of the client commence Employment Tribunal proceedings by completing and submitting a claim form to an Employment Tribunal Office within the prescribed time limit, the Client will be informed of this when it receives form ET1 from the Employment Tribunal Office. At this stage Clearlink HR will advise the Client to instruct a solicitor of the Client’s choice who specialises in employment matters. We will assist the Client to prepare a suitable response to the ET1 form under the supervision of the Client’s solicitor if agreed by the Client. Clearlink HR does not provide advice in relation to employment tribunal proceedings or associated correspondence.
4. Pay As You Go HR Consultancy Services
4.1 Whilst clients are not required to commit to a minimum or maximum of Pay As You Go HR Support each month, provision of HR Consultancy Services on this basis is subject to agreement with us and to our availability.
4.2 We calculate time used in 5-minute blocks rounded up to the nearest 5 minutes. No later than working day 6 of each calendar month, clients will receive a statement of time used and a summary description of the work that has been completed in the previous calendar month.
By way of illustration, for relatively straightforward individual staffing issues, it can often take:
*Up to 5 hours of hour time to fully understand and advise clients on how to deal with an issue and to ‘stabilise’ matters
*A further 5 hours to support clients to take the matter through the first stage of a formal process, where there is potential for an outcome other than dismissal
4.3 There is a minimum £50 +VAT charge to clients for each month that services are used. Where total charges are in excess of £50 +VAT for that calendar month, the amount will be for the actual time used at £85 +VAT per hour (pro rata and rounded up to the nearest 5 minutes).
4.4 Where clients have a requirement for a product that forms part of our Fixed Price HR Packages, we will charge for this in addition to any Pay As You Go HR Services subject to agreement in writing.
4.5 We will send Clients an invoice for Pay As You Go HR Consultancy services by working day 6 of the month following that in which the client received these services. Clients must usually pay our invoice within 28 calendar days unless otherwise agreed.
5. Pay Monthly HR Consultancy Services
5.1 We offer Pay Monthly HR Consultancy Services at 5 Levels. All of these services are of excellent quality and the ‘levels’ refer to amounts of services to be provided only. We recommend and agree to levels of service with clients based on a number of factors including:
*The size and composition of the Client’s workforce
*Whether there are known, ongoing HR issues at the outset
*The specific outcomes that the Client wishes to achieve and the Client’s timescales for these
*The Client’s in-house capacity and skillset in relation to dealing with people matters
5.2 We provide a free HR Documents and Procedures Check for all Pay Monthly clients at Level 3 and above. Clients should agree how and when this check will be undertaken by Clearlink HR.
5.3 We calculate time used in 5-minute blocks rounded up to the nearest 5 minutes. At the end of each calendar month, clients receive a statement of time used and a summary description of the work that has been completed.
5.4 We will send clients an invoice for Pay Monthly HR Consultancy services by working day 6 of the month in which they receive these services. Clients must pay our invoices within 28 calendar days unless a shorter payment period is agreed.
5.5 Pay Monthly HR Consultancy Services may only commence from the first day of any calendar month. Any HR Advice that is provided during a part-month will usually be charged on a Pay As You Go basis.
5.6 Whilst clients have access to a guaranteed amount of HR support each month, provision of Pay Monthly HR Consultancy Services and attendance at client premises on this basis is subject to our availability and to agreement with us. It is to our, and our Clients’ benefit that regular contact is therefore maintained. Clients are encouraged to arrange support from Clearlink HR in advance wherever possible.
5.7 All Pay Monthly HR Consultancy Services must be used within the calendar month to which they relate. Clients are advised to agree availability in advance with us for specific issues where support is time-critical. Unused Pay Monthly HR Consultancy Services may not be ‘rolled over’ into another calendar month except in exceptional circumstances and with our written agreement in advance.
5.8 We will provide an outline of time used so far to clients within any calendar month upon request. We will endeavour to inform clients when they have used around 75% of their Pay Monthly hours in any calendar month although we cannot guarantee this in every case.
5.9 Levels 2-5 of our Pay Monthly HR Consultancy Services include visits to Client premises subject to a maximum number. For distances in excess of 20 miles, we agree specific arrangements with each client.
5.10 Clearlink HR can plan to attend client premises on an out-of-hours basis if required. We will discuss and agree in advance any costs that clients may incur in this respect as appropriate. We do, however, acknowledge that many of our clients operate on an ‘antisocial hours’ or 24/7 basis; therefore we will endeavour to accommodate this as part of our normal support to clients wherever possible.
5.11 Where clients have a requirement for a product that forms part of our Fixed Price HR Packages, we will charge for this in addition to any Pay Monthly HR Consultancy Services, subject always to prior agreement in writing with clients.
5.12 Clients in receipt of Pay Monthly HR Consultancy Services are entitled to a 10% discount on the advertised price of any Clearlink HR Fixed-Price HR Packages.
5.13 We will charge clients on a Pay As You Go basis at a preferential rate for any time that we spend providing HR Consultancy Services in excess of the agreed monthly amount. We will send clients an invoice for these additional Pay As You Go HR Consultancy services by working day 6 of the month following that in which they received these services. Clients must pay this invoice within 28 calendar days.
5.14 Clients may ‘step up’ one or more levels of Pay Monthly HR Consultancy Services at any time, subject to this being at the start of a calendar month. Upon ‘stepping up’ to a higher level, clients must agree to a new 6-month contract with Clearlink HR.
5.15 Clients may not ‘step down’ to a different level of Pay Monthly HR Consultancy Services during the 6-month contract period.
5.16 Clients should carefully note the notice requirements for ending their Pay Monthly HR Consultancy services if they wish to stop receiving these.
5.17 Clients in receipt of Pay Monthly HR Consultancy Services are entitled to a 10% discount on the advertised price of any Clearlink HR Training or Events. In the rare event that we are not able to offer this discount (for example because the event is a charity fundraising event, or is provided in partnership with another organisation), then Pay Monthly Clients will be advised of this. Clients should discuss this on a case-by-case basis with us if required.
5.19 Clients in receipt of Pay Monthly HR Consultancy Services are entitled to a 5% discount on those services where they agree to pay any and all invoices, including invoices for HR Consultancy Services in excess of the agreed amount, within 5 working days. Clients should discuss this on a case-by-case basis with us if required.
5.20 Clients in receipt of Pay Monthly HR Consultancy Services are entitled to a 5% discount on those services where they agree to pay the whole contract value at the start of the Contract period. Clients may benefit from an additional 5% discount where they are able to pay this invoice within 5 working days, taking the maximum discount to 10% overall. Clients should discuss this on a case-by-case basis with us if required.
6. Fixed Price HR Packages
6.1 We will send invoices for Fixed Price HR Packages in line with our prior agreement as to how and when we will invoice clients for these services. Invoice agreements are usually 50% upfront / 50% upon completion; or at intervals throughout the duration of the project. Clients must pay our invoices within 28 calendar days unless otherwise agreed.
6.2 Although we keep records of our time used to work on Fixed Price HR Services, we do not invoice clients for our time spent, or visits to client premises, since these costs are included in the overall price.
6.3 Where we do not offer a Fixed Price HR Package to meet client needs, we will undertake this work according to another type of package (e.g. Pay As You Go, Pay Monthly, or Bespoke) in agreement with clients.
7. Bespoke Services
7.1 We agree the scope of Bespoke HR Services in writing with clients prior to the commencement of these services.
7.2 We send clients invoices for provision of Bespoke HR Services according to our written agreement in terms of:
*Payment terms and any discounts
7.3 We send clients records of the work we have undertaken as per our agreement at the outset.
7.4 Project review meetings will take place as agreed at the outset to ensure that there is appropriate progress in relation to time, methods, deliverables, costs etc.
8. Payment of Fees and Charges
8.1 Clients agree to pay the Fees and Charges set out in Section C of their Letter of Engagement which are based on Clearlink HR’s understanding of the Client's requirements as set out Section A of the Engagement Letter referring to the Assignment – Scope of Work.
8.2 All invoices shall be paid by the Client to Clearlink HR within 28 days of the date of the invoice or as otherwise agreed in writing between the parties. Payment shall be made in full and in cleared funds, to a bank account nominated in writing by Clearlink HR. Any query of an invoice should be made within 7 days of receipt.
8.3 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 8% above the base lending rate from time to time of HSBC. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.
8.4 Clearlink HR may also suspend all HR Services until payment has been made in full. We would not to do this before consulting with Clients first.
8.5 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 inform the charges and fees covered by each invoice.
8.6 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 for any activity requested by the Client in addition to those allowed for in the Terms of Service Agreement;
iii. 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.
8.7 Clearlink HR may also charge the Client for reasonable expenses incurred in the provision of HR Services. This will always be agreed in writing in advance between Clearlink HR and the Client and may include:
i. Travel, accommodation and subsistence (mileage to be charged at 45 pence 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. Our VAT registration number is 186 1727 83.
8.8 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 of the Client’s Letter of Engagement as described. 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 of the Client’s Letter of Engagement.
8.9 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.
8.10 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 28 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.
9. Client Obligations
9.1 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.
10. Alterations to Terms of Service
10.1 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.
11.1 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.
12.1 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.
12.2 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.
12.3 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.
12.4 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.
13. Limitation of Liability – YOUR ATTENTION IS DIRECTED IN PARTICULAR TO THIS SECTION
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
14. Renewal and Termination
14.1 If you have entered into an agreement for the Pay Monthly HR Consultancy services your subscription period will be specified in Section B of your Letter of Engagement.
14.2 The Pay Monthly HR Consultancy services will end on the expiration date and you cannot cancel them prior to this date. We do not provide refunds if you decide to stop using the services during your subscription term.
14.3 Your subscription will automatically renew at the end of your subscription term. This will start a further 6-month contract. To prevent renewal, you must provide written notice of non-renewal and this must be received no more than 56 days but no less than 28 days in advance of the end of the subscription term. One of our team will endeavour to contact you within this period. If you decide not to renew, you may send the notice of non-renewal by email to firstname.lastname@example.org.
14.4 For all other services, with the exception of Pay Monthly HR Consultancy Services, this Agreement may be terminated for any reason by either Clearlink HR or the Client giving the other party 28 days’ notice in writing to that effect.
14.5 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. Breaches are defined as:
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.
14.6 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.
14.7 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.
15. Intellectual Property
15.1 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.
15.2 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.
15.3 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.
15.4 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.
15.5 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.
16.1 Clearlink HR undertakes to protect the Client’s confidential interests. This Agreement shall be treated as confidential information.
16.2 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.
16.3 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.
16.4 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.
17. Force Majeure
17.1 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.
18. Independent Contractors and Recruitment
18.1 Clearlink HR Consultants are independent contractors. They are not employees of the Client.
18.2 Where Clearlink HR Consultants are independent contractors, they 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.
18.3 Clearlink HR Consultants shall not be subject to directions from the Client as to the manner in which they perform their work; and Clearlink HR shall be entitled to sub-contract to its independent contractors any activities under this Agreement. Clearlink HR will, however, discuss any such matters with the Client before taking any such action.
18.4 Clients of Clearlink HR shall not, either during the provision of the HR Services or thereafter for a period of three months, directly or indirectly, offer employment or assignments to any Clearlink HR’s 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 Clearlink HR to the individual immediately prior to such individual ceasing to provide services to Clearlink HR.
19.1 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.
20. Headings and Severability
20.1 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.
20.2 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.
21.1 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.
22.1 Clearlink HR shall give 28 days’ notice of its intention to change the charging basis for any current and continuing projects.
22.2 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.
23.1 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 28 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.
24. Entire Agreement
24.1 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.
25. Third Parties and Exclusivity
25.1 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.
25.2 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.
26. Equality and Diversity
26.1 Clearlink HR is committed to promoting equality and diversity in all of our dealings with clients, third parties and employees. Please contact us if you require a copy of our Equality and Diversity Policy.
27. Governing Law
27.1 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.
28.1 By signing the Letter of Engagement, you acknowledge and confirm (whether on your own, or on a Company’s behalf, whichever is applicable) acceptance of all the Terms of the Service Agreement.