Privacy Policy
Terms and Conditions
Version 01/26
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).
1. INTERPRETATION
1.1 Definitions:
“Business Day”: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Business Hours”: the period from 9.00 am to 4.30 pm on any Business Day.
“Charges”: the charges payable by the Customer for the supply of the Services in accordance with clause 8.
“Cleaners”: the individuals engaged by the Supplier to clean the Premises in accordance with the Contract.
“Cleaning Visit”: a visit to the Premises by the Cleaners to carry out the Services.
“Commencement Date”: has the meaning given in clause 2.2.
“Conditions”: these terms and conditions as amended from time to time in accordance with clause 14.7.
“Contract”: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
“Contract Year”: a 12-month period starting on the Commencement Date or an anniversary of it.
“Customer”: the person or firm who purchases Services from the Supplier.
“Customer Default”: has the meaning set out in clause 6.2.
“Data Protection Laws”: all applicable legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including:
(i) the Data Protection Act 2018,
(ii) the UK GDPR, and
(iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
“Order”: the Customer’s order for Services as set out the Customer’s written acceptance of the Supplier’s Quotation.
“Premises”: the property, or area or rooms within the property, at which the Services are to be provided, as specified in the Quotation or, if different, in the Supplier’s written acceptance of the Order.
“Quotation”: the Supplier’s written quotation for the delivery of the Services to the Customer.
“Services”: the standard cleaning services to be supplied by the Supplier to the Customer as set out in the Supplier’s Quotation or, if different, in the Supplier’s written acceptance of the Order.
“Supplier”: CRYSTAL KLEAN COMMERCIAL LIMITED registered in England and Wales with company number 14719586.
“Supplier Group”: means the Supplier, any subsidiary or holding company of the Supplier, and any subsidiary of that holding company from time to time.
“Supplier Materials”: has the meaning set out in clause 6.1.9.
“UK GDPR”: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2 Interpretation:
1.2.1 A reference to legislation or a legislative provision:
(a) is a reference to it as amended, extended or re-enacted from time to time; and
(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.2.2 A reference to a person includes an individual, corporate or unincorporated body and any other entity (whether or not having separate legal personality).
1.2.3 The Schedule forms part of the Contract. If there is an inconsistency between any of the provisions in the main body of the Contract and the Schedule, the provisions in the main body of the Contract shall prevail.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 To the maximum extent permitted by law, no terms are implied into the Contract by law, trade custom, practice or course of dealing.
3. TERM
3.1 The Contract shall begin on the Commencement Date.
3.2 Unless terminated earlier in accordance with its terms, the Contract shall be for an initial period of 12 months (Initial Term) and shall automatically extend for a further period of 12 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term.
3.3 Either party may give written notice to the other party, not later than 3 months before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
3.4 The Customer may terminate the Contract in accordance with clause 8.4.
4. TUPE
The provisions of SCHEDULE 1 relating to TUPE shall apply at the start of the Services and on termination of the Services.
5. SUPPLY OF SERVICES
5.1 The Supplier shall supply the Services to the Customer at the Premises in accordance with these Conditions.
5.2 Each standard Cleaning Visit:
5.2.1 comprises the routine cleaning services set out in the Supplier’s Quotation or, if different, in the Supplier’s written acceptance of the Order;
5.2.2 shall take place with the frequency and on the days and (subject to reasonable changes) times set out in the Supplier’s Quotation or, if different, in the Supplier’s written acceptance of the Order, not including bank holidays, or on any alternative schedule agreed in writing by the parties from time to time.
5.2.3 shall last for the approximate duration specified in the Supplier’s Quotation or, if different, in the Supplier’s written acceptance of the Order.
5.3 The Customer may specify priorities for the Cleaners during a Cleaning Visit but acknowledges that doing so may impact on the ability of the Cleaners to perform all the elements of the routine clean that they ordinarily perform during each Cleaning Visit. The Customer shall not request the Cleaners to work beyond the hours allotted for a Cleaning Visit save where the Cleaners arrive late at the Premises in which case the Customer may require the Cleaners to make up the lost time at the end of the scheduled Cleaning Visit.
5.4 Unless otherwise agreed with the Customer, the Supplier shall provide all equipment and materials (including vacuum cleaners, mops, sponges and cloths, buckets, portable ladders, cleaning detergents and other products) necessary to perform the Services. Subject to clause 6.1.8, the Supplier may agree to use equipment provided by the Customer.
5.5 The Supplier shall use reasonable endeavours to ensure continuity of Cleaners allocated to the Services and minimise turnover of Cleaners. Where this is not possible the Supplier shall arrange a replacement and endeavour to notify the Customer of this before the next Cleaning Visit.
5.6 The Customer may request a change to their regular Cleaner(s). The Supplier shall use reasonable endeavours to accommodate that request but the Customer acknowledges that the Supplier will not always be able to do so.
5.7 The Supplier may, by notifying the Customer, amend the Services:
5.7.1 if necessary to comply with any applicable law or regulatory requirement; or
5.7.2 if the amendment will not have a material adverse effect on the nature or quality of the Services.
5.8 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
5.9 The Supplier shall deploy an adequate number of Cleaners to perform the Services and ensure the Cleaners are competent and appropriate for the tasks allocated to them.
5.10 The Supplier shall ensure that the Cleaners:
5.10.1 have all permits, visas and consents required for the proper performance of the Contract, including the right to work in the UK; and
5.10.2 are properly screened and vetted by the Supplier to check they are fit for the tasks assigned to them.
5.11 The Supplier shall be solely responsible for all matters arising out of the employment or engagement of the Cleaners, including the payment of wages and benefits.
5.12 The Supplier shall ensure that all Cleaners attending the Premises adhere to any reasonable security and health and safety requirements provided by the Customer to the Supplier at least 5 clear Business Days before the Cleaning Visit.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
6.1.1 provide the Supplier with such information and assistance as the Supplier may reasonably require to supply the Services, and ensure that that information is and remains complete and accurate in all material respects;
6.1.2 provide the Cleaners with access to the Premises no fewer than 30 minutes before the scheduled start time of each Cleaning Visit, giving any special instructions regarding unavoidable restrictions if required, and provide them with a security pass and the use of a parking space or parking permit for the duration of the Cleaning Visit and the one hour before and after its scheduled start time and finish times;
6.1.3 during each Cleaning Visit, provide the Cleaners with unrestricted and uninterrupted access to:
(a) toilet facilities;
(b) running hot and cold water and clean drinking water;
(c) an electrical supply;
(d) waste disposal facilities;
(e) first aid and fire-fighting equipment; and
(f) any other equipment that the parties agree will be provided by the Customer in connection with the Services;
6.1.4 ensure that the Premises are kept safe and ventilated during each Cleaning Visit and that smoking is not permitted at the Premises during the Cleaning Visit;
6.1.5 secure or remove fragile or irreplaceable items before each Cleaning Visit;
6.1.6 inspect the work as soon as possible after it is completed and alert the Supplier if the work is unsatisfactory;
6.1.7 provide the Supplier with special instructions for activating and deactivating any alarm systems and ensure that any keys provided to the Cleaners open the locks without difficulty. The Supplier reserves the right to charge the full cost of a Cleaning Visit if the alarm system or keys do not enable the Cleaners to access the Premises;
6.1.8 ensure that any equipment provided by the Customer to the Supplier for the performance of the Services shall be safe to use, in good working order and accompanied by clear and detailed operating instructions where necessary. The Supplier accepts no liability for damage caused to the equipment supplied by the Customer by reason of its use by the Cleaners where the Customer has failed to comply with its obligations in this clause in respect of that equipment; and
6.1.9 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) that the Supplier reasonably needs to store at the Premises in safe custody at its own risk and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
6.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any failure by the Customer to perform any of its obligations (Customer Default), then, without limiting or affecting any other right or remedy available to the Supplier:
6.2.1 the Supplier may suspend performance, and rely on the Customer Default to relieve it from the performance, of the affected obligations until the Customer remedies the Customer Default;
6.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
6.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
7. COMPLIANCE WITH LAWS AND POLICIES
7.1 Each party shall perform its obligations under the Contract in accordance with all applicable laws, including all applicable laws relating to the prevention of bribery, corruption, fraud, slavery and human trafficking.
7.2 Each party shall maintain adequate policies and procedures to guard against bribery, corruption, fraud, tax evasion, slavery and human trafficking in its business and supply chain.
7.3 Each party warrants and represents that it has the right, power and authority to enter into and perform its obligations under the Contract and doing so does not violate the terms of any agreement, or any judgment or order, to which it is bound.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Charges in accordance with this clause 8.
8.2 The Charges shall be as set out in the Quotation or, if different, in the Supplier’s acceptance of the Order.
8.3 The Charges have been calculated in accordance with the Supplier’s hourly fee rates, as varied from time to time. If the Customer requests (or if the Supplier provides) Services additional to those set out in the Quotation or, if different, in the Supplier’s acceptance of the Order, such additional Services will be charged in addition to the price set out in the Quotation (or, if different, in the Supplier’s acceptance of the Order) at the Supplier’s hourly rates from time to time.
8.4 The Supplier may increase the Charges following not less than four weeks’ written notice at any time (Charges Increase Notice). The Charges Increase Notice may be sent to the Customer by email. The Customer may give written notice to the Supplier, within 21 days of the date of the Charges Increase Notice, that it does not agree to the increase in charges stated in the Charges Increase Notice, and that it wishes to terminate the Contract. If the Customer serves notice to terminate the Contract within 21 days of the date of the Charges Increase Notice, the Contract will terminate on the date falling 3 calendar months after the date of actual receipt by the Supplier of the Customer’s notice to terminate the Contract.
8.5 The Charges are inclusive of the cost of labour, equipment and cleaning products.
8.6 If the Customer requires the Cleaner(s) to collect keys to the Premises from a third party, the Supplier may charge the Customer for doing so. The Supplier may levy an additional charge if the Cleaner(s) are required to return the keys to the same or another third party address.
8.7 The Supplier shall invoice the Customer weekly in arrears for the Charges incurred.
8.8 The Customer shall pay each invoice submitted by the Supplier:
8.8.1 within 7 days of the date of the invoice; and
8.8.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
8.9 The Customer shall not settle an invoice by making payment to a Cleaner.
8.10 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
8.11 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.11 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.12 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. LIMITATION OF LIABILITY
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in the Contract limits or excludes:
9.2.1 the Customer’s liability for payment of Charges properly due and owing to the Supplier;
9.2.2 either party’s liability under any indemnity in SCHEDULE 1; or
9.2.3 any liability which cannot legally be limited or excluded, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
9.3 Subject to clause 9.2, the Supplier’s total liability for events arising in any Contract Year shall not exceed 100% of the Charges paid or payable in that Contract Year.
9.4 The Supplier accepts no liability for any breakages unless notified to the Supplier before the end of the next Business Day following the relevant Cleaning Visit. In the event of a breakage for which the Supplier accepts responsibility, the Supplier shall, at its option and as the Customer’s sole remedy, either repair the item at its cost or credit the Customer with the item’s present actual cash value against the Supplier’s next invoice.
9.5 The Supplier’s liability for the costs of replacement keys or a locksmith arising from the Cleaners losing keys shall not exceed £100 per loss.
9.6 Subject to clause 9.2, the Supplier shall not be liable for any loss suffered by the Customer caused by:
9.6.1 a failure to activate the Customer’s alarm system following a Cleaning Visit or otherwise failing to adequately secure the Premises, save where this arises through the wilful default of the Cleaner(s);
9.6.2 any equipment or cleaning products provided by the Customer; and
9.6.3 the Customer’s failure to properly seal any surfaces.
9.7 Subject to clause 9.2, this clause 9.7 sets out the types of loss that are wholly excluded:
9.7.1 loss of profits;
9.7.2 loss of sales or business;
9.7.3 loss of agreements or contracts;
9.7.4 loss of anticipated savings;
9.7.5 loss of use or corruption of software, data or information;
9.7.6 loss of or damage to goodwill; and
9.7.7 indirect or consequential loss.
9.8 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the following notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred (as opposed to the Customer becoming aware of its having grounds to make a claim in respect of it) and shall expire 2 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.9 The Customer agrees and acknowledges that the allocation of risk in this clause 9 is fair and reasonable in the circumstances, having been taken into account in setting the Charges.
10. CANCELLATION OF A CLEANING VISIT
The Customer may cancel an appointment for a Cleaning Visit by written notice to the Supplier (and not the Cleaner(s)) not less than 48 hours before the start time of the scheduled visit. The Supplier reserves the right to charge the full cost of the Cleaning Visit if notice is given after this time.
11. TERMINATION
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days after being notified in writing to do so;
11.1.2 any step or action is taken by, or in relation to, the other party in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986 (IA 1986), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), or having a receiver appointed to any of its assets;
11.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the IA 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
11.1.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.1.5 the other party’s financial position deteriorates to such an extent that, in the terminating party’s opinion, the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 If the Customer fails to pay any amount due under the Contract by the due date for payment, the Supplier may suspend its performance of the Contract until that amount is paid in full. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract on written notice to the Customer if the Customer fails to pay any amount due under the Contract within seven days of its due date for payment.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract the Supplier shall collect all of the Supplier Materials stored at the Premises. If the Customer fails to allow the Supplier to do so, then the Supplier may enter the Premises and take possession of them. Until they have been collected by the Supplier, the Customer shall be solely responsible for their safe keeping and shall not use them.
12.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
13. NON-SOLICITATION
Except in respect of any transfer of staff pursuant to SCHEDULE 1, neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the other party any person employed or engaged by the other party in the provision or receipt of the Services at any time during the term of the Contract or for a further period of six months after its termination other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other party.
14. GENERAL
14.1 Force majeure. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate the Contract by giving 3 months’ written notice to the affected party.
14.2 Assignment and other dealings.
14.2.1 Subject to clause 14.2.2, neither party shall assign, novate or transfer any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
14.2.2 The Supplier may, on written notice to the Customer, assign, novate or transfer any or all of its rights and obligations under the Contract to a member of the Supplier Group or to any person to which it transfers its business or that part of its business to which the Contract relates.
14.3 Subcontracting. Either party may subcontract any of its obligations under the Contract without the prior written consent of the other party. The subcontracting party shall be responsible for all acts and omissions of its subcontractors as if they were its own acts or omissions.
14.4 Confidentiality.
14.4.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information (whether disclosed or made available to it in writing, orally or by any other means) concerning the business, assets, affairs, pricing, customers, suppliers, plans, products or know-how of the other party, except as permitted by clause 14.4.2.
14.4.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know that information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its Representatives to whom the other party’s confidential information is made available in connection with the Contract are informed of its confidential nature and comply with this clause 14.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that it gives the other party as much prior notice of that disclosure as possible (where lawful and practical to do so).
14.4.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14.5 Entire agreement.
14.5.1 The Contract constitutes the entire agreement between the parties.
14.5.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
14.6 Announcements.
14.6.1 The Supplier may use the Customer’s name and logo for the purposes of promoting its work and its business including on the Supplier’s website and in credentials pitches.
14.6.2 Subject to clause 14.6.1, neither party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of the Contract, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
14.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.8 Waiver.
14.8.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
14.8.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14.9 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
14.10 Notices.
14.10.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
14.10.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
14.10.3 This does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.11 Third party rights.
14.11.1 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.11.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
14.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
SCHEDULE 1 — TUPE
1. INTERPRETATION
“Employee Liability Information”: has the meaning given in regulation 11(2) of the Employment Regulations.
“Employment Regulations”: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).
“Entry Transferring Employees”: those employees whose contracts of employment transfer to the Supplier from the Customer or a Former Supplier as at the Commencement Date, and who have been identified in writing to the Supplier in a list titled “Entry Transferring Employees” prior to the Commencement Date.
“Exit Transferring Employees”: those employees whose contracts of employment will be transferred to the Customer or a Replacement Supplier pursuant to the Employment Regulations on termination of the Contract.
“Former Supplier”: a supplier supplying services to the Customer before the Commencement Date that are identical or substantially similar to the Services (or any part of the Services), including any subcontractors of that person.
“Loss”: all claims (threatened or actual), demands, proceedings, awards, compensation, damages, fines and losses, and all related payments (including settlement payments), costs and expenses (including all reasonable legal expenses and other professional fees together with any VAT).
“Replacement Services”: any services which are identical or substantially similar to any of the Services and which the Customer receives in substitution for any of the Services following the termination of the Contract, whether those services are provided by the Customer internally or by any Replacement Supplier.
“Replacement Supplier”: any third party supplier of Replacement Services appointed by the Customer from time to time.
“Service Transfer Date”: the date on which the Services (or any part of the Services) transfer from the Supplier to the Customer or any Replacement Supplier.
“Supplier’s Staff List”: a list prepared and updated by the Supplier of all Exit Transferring Employees.
2. TRANSFER OF EMPLOYEES TO THE SUPPLIER ON THE COMMENCEMENT DATE
2.1 If the Employment Regulations will apply at the start of the Contract to transfer employees from the Customer or the Customer’s incumbent supplier to the Supplier, then the provisions of paragraphs 2.2 to 2.8 shall apply.
2.2 The Customer and the Supplier believe that, pursuant to the Employment Regulations, the Supplier will become the employer of the Entry Transferring Employees on the Commencement Date.
2.3 The Customer warrants and represents that it has provided Employee Liability Information to the Supplier regarding each of the Entry Transferring Employees in accordance with the requirements of the Employment Regulations and that this information is complete and accurate in all material respects.
2.4 The Customer shall indemnify the Supplier in full for and against all Losses suffered or incurred by the Supplier in relation to:
2.4.1 any failure by the Customer or a Former Supplier to comply with its obligations under regulation 13 of the Employment Regulations, except to the extent that it arises from the failure by the Supplier to comply with regulation 13(4) of the Employment Regulations;
2.4.2 any act or omission by the Customer or a Former Supplier in respect of any of the Entry Transferring Employees before the Commencement Date which is deemed to have been done by the Supplier by virtue of the Employment Regulations; and
2.4.3 any salary, benefits, incentive payments, holiday pay and other emoluments (including PAYE, national insurance contributions and pension contributions) payable in relation to any Entry Transferring Employees in respect of any period on or before the Commencement Date.
2.5 If any person who is not identified by the Customer as an Entry Transferring Employee claims, or is determined, to have become an employee of or have rights against the Supplier by virtue of the Employment Regulations, then the Supplier shall, within five Business Days of becoming aware of that fact, inform the Customer of the person’s name and whether or not it wishes to employ them. If the Supplier does not wish to employ the person, the Customer shall, within five Business Days of being advised, make (or procure that a third party makes) to that person an offer in writing to employ them under a new contract of employment on terms which, taken as a whole, are substantially the same as or better than that person’s terms of employment immediately before the making of the offer.
2.6 Upon the offer referred to in paragraph 2.4 being made (or any time after it should have been), the Supplier shall terminate the employment or alleged employment of the person concerned and the Customer shall indemnify the Supplier from and against all Losses suffered or incurred by the Supplier and arising out of the employment of that person until termination and the termination of their employment, provided that the Supplier:
2.6.1 takes reasonable steps to minimise any Losses, including by following proper termination of employment procedures; and
2.6.2 informs the Customer of the claim or determination under paragraph 2.4 within six months of the Commencement Date.
2.7 If the Supplier chooses to employ the person referred to in paragraph 2.4, that person shall be treated as an Entry Transferring Employee for the purpose of the indemnities in this SCHEDULE 1 from the date on which their employment transferred to the Supplier.
2.8 The Supplier shall indemnify the Customer in full for and against all Losses suffered or incurred by the Customer in relation to:
2.8.1 any act or omission by the Supplier relating to an Entry Transferring Employee occurring on or after the Commencement Date; and
2.8.2 any salary, benefits, incentive payments, holiday pay and other emoluments (including PAYE, national insurance contributions, pension contributions and otherwise) payable in relation to any Entry Transferring Employees in respect of any period after the Commencement Date.
2.9 If the Employment Regulations will not apply at the start of the Contract to transfer employees from the Customer or the Customer’s incumbent supplier to the Supplier, then the provisions of paragraphs 2.10 to 2.13 inclusive shall apply.
2.10 Each party considers that the start of the Services shall not constitute a relevant transfer for the purpose of the Employment Regulations.
2.11 If any person employed or engaged by the Customer or a Former Supplier claims, or is determined, to have become an employee of or have rights against the Supplier by virtue of the Employment Regulations, then the Customer shall, within five Business Days of being informed of that claim or determination, make (or procure that a third party makes) to that person an offer in writing to employ them under a new contract of employment on terms which, taken as a whole, are substantially the same as or better than the terms of employment of that person immediately before the making of the offer.
2.12 Upon the offer being made (or any time after it should have been), the Supplier shall terminate the employment or alleged employment of the person concerned and the Customer shall indemnify the Supplier from and against all Losses suffered or incurred by the Supplier and arising out of the employment of that person until the termination of their employment or alleged employment, provided that the Supplier:
2.12.1 takes reasonable steps to minimise any Losses, including by following proper termination of employment procedures; and
2.12.2 informs the Customer of the claim or determination under paragraph 2.9 within six months of the Commencement Date.
3. EMPLOYMENT EXIT PROVISIONS
3.1 The parties envisage that if the identity of the provider of the Services (or any part of the Services) changes (whether as a result of termination of the Contract, in whole or in part, or otherwise), it may result in a relevant transfer for the purposes of the Employment Regulations.
3.2 Each party shall comply, and the Customer shall procure that any Replacement Supplier complies, with all its obligations under the Employment Regulations in respect of the Exit Transferring Employees.
3.3 Subject to compliance with Data Protection Laws, the Supplier shall provide the Supplier’s Staff List and the Employee Liability Information to the Customer or, at the direction of the Customer, to the Replacement Supplier following notice of termination of the Contract. The Supplier shall provide the Customer or Replacement Supplier (as applicable) with details of any material changes to the information previously provided.
3.4 The Customer shall provide, or procure that the Replacement Supplier provides, the Supplier with all information as may be necessary to enable it to comply with any obligation to inform and consult with the Exit Transferring Employees and any other affected employees or trade unions or employee representatives.
3.5 The Supplier shall indemnify the Customer and any Replacement Supplier in full for and against all Losses suffered or incurred by the Customer or any Replacement Supplier in relation to:
3.5.1 any failure by the Supplier to comply with its obligations under regulation 13 of the Employment Regulations, except to the extent that it arises from the Customer’s or Replacement Supplier’s failure to comply with regulation 13(4) of the Employment Regulations;
3.5.2 any act or omission by the Supplier in respect of any of the Exit Transferring Employees before the Service Transfer Date which is deemed to have been done by the Customer or Replacement Supplier by virtue of the Employment Regulations; and
3.5.3 any salary, benefits, incentive payments, holiday pay and other emoluments (including PAYE, national insurance contributions and pension contributions) payable in relation to any Exit Transferring Employees in respect of any period on or before the Service Transfer Date.
3.6 If any person who is not identified by the Supplier as an Exit Transferring Employee claims, or is determined, to have become an employee of or have rights against the Customer or Replacement Supplier by virtue of the Employment Regulations, then the Customer shall, within five Business Days of becoming aware of that fact, inform the Supplier of the person’s name and whether or not it or the Replacement Supplier wishes to employ them. If the Customer or Replacement Supplier does not wish to employ the person, the Supplier shall, within five Business Days of being advised, make (or procure that a third party makes) to that person an offer in writing to employ them under a new contract of employment on terms which, taken as a whole, are substantially the same as or better than the terms of employment of that person immediately before the making of the offer.
3.7 Upon the offer referred to in paragraph 3.6 being made (or any time after it should have been), the Customer shall terminate, or procure that the Replacement Supplier terminates, the employment or alleged employment of the person concerned and the Supplier shall indemnify the Customer or Replacement Supplier from and against all Losses suffered or incurred by the Customer or Replacement Supplier (as applicable) and arising out of the employment of that person until the termination of their employment or alleged employment, provided that the Customer or Replacement Supplier (as applicable):
3.7.1 takes reasonable steps to minimise any Losses, including by following proper termination of employment procedures; and
3.7.2 informs the Supplier of the claim or determination under paragraph 3.6 within six months of the Service Transfer Date.
3.8 If the Customer or Replacement Supplier chooses to employ the person referred to in paragraph 3.6, that person shall be treated as an Exit Transferring Employee for the purpose of the indemnities in this SCHEDULE 1 from the date on which their employment transferred to the Customer or Replacement Supplier.
3.9 The Customer shall indemnify the Supplier in full for and against all Losses suffered or incurred by the Supplier in relation to:
3.9.1 any act or omission by the Customer or Replacement Supplier relating to an Exit Transferring Employee occurring on or after the Service Transfer Date; and
3.9.2 any salary, benefits, incentive payments, holiday pay and other emoluments (including PAYE, national insurance contributions and pension contributions) payable in relation to any Exit Transferring Employees in respect of any period on or after the Service Transfer Date.