LIMITED COMPANY AGREEMENT

 

 

1. DEFINITIONS AND INTERPRETATION

 

1.1. In this Agreement, the following definitions apply:

Assignment means the temporary project or role which the Contractor undertakes for the Client pursuant to this Agreement;

Assignment Schedule means the confirmation document sent to the Client and the Contractor by Fusion on commencement of an Assignment;

AWR means the Agency Workers Regulations 2010;

Best Industry Practice means the skill, diligence, prudence, foresight and judgment which would be expected from a highly skilled and experienced contractor engaged in the same type of undertaking under the same or similar circumstances, applying the best standards currently applied in their industry;

Client means the person, firm or corporate body to which the Contractor Services are provided, as identified in the Assignment Schedule and, where appropriate, a reference to the Client shall also mean the Client’s client;

Conduct Regulations means the Conduct of Employment Agencies and Employment Businesses Regulations 2003;

Confidential Information shall mean any and all confidential, commercial, financial, marketing, technical or other information of whatever nature relating to the Client or their business or affairs (including but not limited to all data, records, reports, agreements, software, programs, specifications, know-how, trade secrets and other information concerning the Assignment) in any form or medium provided or disclosed to the Contractor in relation to the Assignment by the Client or by a third party on behalf of the Client whether before or after the date of this Agreement;

Contractor means the limited company specified in the Assignment Schedule;

Contractor Fees means the fees payable to the Contractor by Fusion for providing the Contractor Services;

Contractor Services means the services to be provided to the Client by the Contractor as specified in the Assignment Schedule;

Contractor Staff means the Contractor’s employees, workers or directors provided to perform the Contractor Services;

Effective Date means the date on which this Agreement is signed by the Contractor or the date on which the Contractor commences the provision of Contractor Services, whichever is the earlier;

Fusion means Fusion People Limited (Registered in England & Wales No. 04873626) of 2nd Floor, 3700 Parkway, Whiteley, Fareham, Hampshire, England, PO15 7AW;

Intellectual Property means all copyright, trademarks, database rights, design rights, patents and other intellectual property of any type, whether capable of registration or not, together with any registration rights in the same existing anywhere in the world;

Intermediaries Legislation means Chapter 10 of Part 2 of ITEPA;

ITEPA means the Income Tax (Earnings and Pensions) Act 2003;

Losses means all losses, liabilities, damages, costs, expenses, claims (actual or threatened), fees (including legal fees) and charges;

Online Assessment means a completed assessment from the HMRC checking tool at https://www.tax.service.gov.uk/check-employment-status-for-tax;

Opt Out means a written notice which has been given under Regulation 32(9) of the Conduct Regulations. Opted Out shall be interpreted accordingly;

Progress Report means a document setting out the progress of the Contactor Services and periods in which the Contractor Services were provided for the purpose of calculating the Contractor Fees;

Public Authority means a public authority as defined in Chapter 10 of Part 2 of ITEPA;

Relevant Jurisdiction means the location in which the Contractor Services are performed;

Relevant Period means the period defined in Regulation 10(5) of the Conduct Regulations;

Reporting Obligations means the Employment Intermediaries reporting obligations under s716B of ITEPA;

Restricted Period means the 6 month period following termination of the Assignment;

Special Conditions means any conditions specific to an Assignment as set out in the Assignment Schedule;

Subcontractor means a personal services company to which the Contractor subcontracts the Contractor Services;

Subcontractor Staff means the Subcontractor’s employees or directors; and

Substitute means an alternative or replacement member of Contractor Staff provided by the Contractor from time to time.

1.2. Unless the context otherwise requires, references to the singular include the plural and references to the masculine include the feminine and vice versa.

1.3. The headings contained in this Agreement are for convenience only and do not affect their interpretation.

1.4. Any reference, express or implied, to an enactment includes a reference to that enactment as amended from time to time and all subordinate legislation made under it.

 

2. THE CONTRACT

2.1. The Contractor shall be deemed to have accepted the terms of this Agreement upon signing the agreement or, if earlier, upon providing the Contractor Services or submitting any Progress Report or invoice to Fusion.

2.2. Fusion may request that the Contractor provides Contractor Services from time to time in accordance with this Agreement.

2.3. This Agreement constitutes the entire agreement between Fusion and the Contractor for the provision of the Contractor Services to the exclusion of any alternative terms proposed by the Contractor.

2.4. No variation or alteration to this Agreement shall be valid unless the details of such variation are agreed between Fusion and the Contractor and set out in writing and a copy of the varied Agreement is given to the Contractor stating the date on or after which such varied Agreement shall apply.

2.5. The Assignment Schedule shall specify the Contractor Services, Client, Contractor Fees, notice period (if any) and any other information relevant to the Assignment. Any Special Conditions shall be set out in the Assignment Schedule and, in the event of any conflict, shall take priority.

 

3. RELATIONSHIP BETWEEN THE PARTIES

3.1. Fusion shall endeavour to identify potential Assignments for the Contractor to perform from time to time but:

3.1.1. Fusion is under no obligation to offer any Assignment to the Contractor; and

3.1.2. the Contractor is under no obligation to accept any Assignment which is offered by Fusion.

3.2. Fusion and the Contractor agree that:

3.2.1. each party is a separate independent business and there is no intention to create any partnership or joint venture between the parties;

3.2.2. the Contractor rather than Fusion is responsible for paying any expenses, holiday pay, sick pay, pension contributions and other statutory payments to the Contractor Staff; and

3.2.3. there is no intention for any contractual or employment relationship to exist between Fusion and the Contractor Staff or between the Client and the Contractor Staff at any time.

3.3. The Contractor may supply services to any third party at any time provided that this does not affect the provision of the Contractor Services, create a conflict of interest or otherwise put the Contractor in breach of this Agreement.

 

4. SUBCONTRACTING

 

4.1. Notwithstanding the Contractor’s right to appoint a substitute member of Contractor Staff under clause 6.5, the Contractor may subcontract the Contractor Services to a Subcontractor provided that:

4.1.1. the Contractor obtains prior written consent from Fusion in writing, such consent not to be unreasonably withheld or delayed;

4.1.2.the appointment of a Subcontractor shall not obviate the Contractor’s obligations under this Agreement;

4.1.3. the Contractor shall be liable for the acts or omissions of the Subcontractor in the performance of the Contractor Services; and

4.1.4.the Contractor shall be responsible for making payments to the Subcontractor in respect of the Contractor Services and the Contractor shall indemnify Fusion for any claim (actual or threatened) made by the Subcontractor, Subcontractor Staff or any third party against Fusion in respect of such payments.

 

4.2. The Contractor must ensure that:

4.2.1. a written contract exists between the Contractor and the Subcontractor which incorporates the relevant obligations and warranties in this Agreement;

4.2.2. the agreement referred to in clause 4.2.1 includes a valid third party rights clause in favour of Fusion and the Client, which Fusion and the Client may enforce directly against the Subcontractor at their entire discretion;

4.2.3. the Subcontractor complies with the Contractor’s obligations and warranties under this Agreement;

4.2.4. the subcontracted Contractor Services are performed by the Subcontractor Staff and not by any self-employed person or sub-subcontractor;

4.2.5. the Subcontractor takes out and maintains the insurance policies in accordance with clause 14; and

4.2.6. where the Assignment is performed for a Public Authority and has been deemed to fall within the Intermediaries Legislation pursuant to clause 6.6:

4.2.6.1. the Contractor deducts from its payments to the Subcontractor the relevant PAYE tax and National Insurance Contributions in respect of the Subcontractor Staff and               remit the same to HMRC; and

4.2.6.2. the Contractor provides all such information as Fusion shall require to prove that the relevant deductions for PAYE tax and National Insurance Contributions have been made by the Contractor.

 

5. CONTRACTOR’S WARRANTIES

5.1. The Contractor warrants to Fusion that:

5.1.1. by entering into and performing this Agreement it will not breach any obligation which it owes to any third party;

5.1.2. the Contractor Staff have the necessary skills and qualifications to perform the Contractor Services;

5.1.3. all information provided by the Contractor and the Contractor Staff to Fusion is and shall be accurate and not misleading;

5.1.4. the Contractor Staff have declared and shall declare to Fusion any unspent criminal convictions and, if the Assignment falls within the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, any spent convictions;

5.1.5. where relevant, the Contractor Staff have accurately disclosed any security clearances that the Contractor Staff hold and shall update Fusion if there are any relevant changes to such security clearances;

5.1.6. the Contractor Staff are legally entitled to work in the Relevant Jurisdiction and shall be throughout the term of any Assignment;

5.1.7. all payments made by the Contractor to the Contractor Staff in respect of the Contractor Services shall be treated as employment income and subject to deductions for PAYE tax and National Insurance Contributions;

5.1.8. subject to any deductions which may be made by Fusion under clause 8.6, the Contractor shall account to HMRC or the appropriate tax authorities in the Relevant Jurisdiction for all taxes arising on the business activities of the Contractor or in respect of any payments made by the Contractor to the Contractor Staff;

5.1.9. the Contractor’s agreement with each Contractor Staff member requires the Contractor Staff member to comply with any relevant obligations in this Agreement including, without limitation, any obligations in respect of confidentiality and intellectual property;

5.1.10. the Contractor is not a “managed service company” as defined in section 61B of ITEPA;

5.1.11. the Contractor is a private limited company, registered in England, Wales or Scotland, and in good standing with Companies House; and

5.1.12. it shall notify Fusion without delay if any member of the Contractor Staff is an agency worker within the meaning of the AWR.

5.2. The Contractor warrants that the Contractor Staff have consented in writing to Fusion, Fusion’s professional advisors and service providers, the Client and any other intermediary involved in supplying the services of the Contractor to the Client:

5.2.1. storing and processing the Contractor Staff’s personal data and sensitive personal data (Data) for purposes connected with this Agreement; and

5.2.2. transferring and processing the Data in jurisdictions outside the European Economic Area for purposes connected with this Agreement.

5.3 Where applicable, the Contractor warrants that the Contractor Staff have consented to Fusion providing information about their security clearances to the Client and to any third party acting on behalf of the Client for the purpose of assessing their suitability, verifying their security clearances or applying for any additional security clearances which they may require to carry out the Assignment.

 

5.4. The Contractor acknowledges that the warranties given in this clause 5 are given on a continuing basis and the Contractor must notify Fusion without delay if the Contractor is unable to confirm any of the warranties at any time.

 

6. CONTRACTOR’S OBLIGATIONS

 

6.1 The Contractor shall and must ensure that the Contractor Staff:

6.1.1. perform the Contractor Services in accordance with Best Industry Practice;

6.1.2. determine the manner in which to perform the Contractor Services and the times at which to perform the Contractor Services but in doing so use best endeavours to comply with the reasonable operational requirements of the Client, subject to clause 6.6 where relevant;

6.1.3. observe any relevant rules and regulations of the Client’s establishment or the premises where the Contractor Services are being performed, including but not limited to those relating to health and safety, site security and IT usage to the extent that they are applicable to an independent Contractor;

6.1.4. take all reasonable steps to safeguard their own safety and the safety of any third party during the Assignment;

6.1.5.comply with all relevant legislation at all times and not do anything or permit there to be done anything which would place the Client or Fusion in breach of any legislation;

6.1.6. comply with the Data Protection Act 1998 in respect of any data to which they are given access during the course of the Assignment;

6.1.7. do not at any time divulge to any person, nor use for their own benefit, any Confidential Information;

6.1.8. do not engage in any conduct detrimental to the interests of Fusion or the Client;

6.1.9. do not discriminate against, harass or victimise any member of Fusion’s or the Client's staff;

6.1.10. do not hold themselves out to be an employee or worker of either Fusion or the Client;

6.1.11. do not purport to bind Fusion or the Client contractually without the express written consent of Fusion or the Client as the case may be; and

6.1.12. return, in good condition, upon termination of an Assignment or at any time upon demand any property or equipment belonging to the Client or Fusion which has been provided to the Contractor or to the Contractor Staff.

6.2. The Contractor must:

6.2.1. provide at its own cost all such equipment, tools and training as is necessary for the performance of the Contractor Services, unless otherwise agreed with Fusion;

6.2.2. ensure that any computer equipment and software belonging to the Contractor which is used for providing the Contractor Services is protected by up-to-date anti-virus protection;

6.2.3. not install any software onto any computer equipment or network belonging to the Client without the consent of the Client; and

6.2.4. not download, install or introduce any computer virus, spyware or similar malware into any computer equipment or network belonging to Fusion or the Client.

6.3. The Contractor shall not and shall procure that the Contractor Staff do not without the consent of Fusion, supply services which are materially similar to the Contractor Services to the Client, directly or indirectly:

6.3.1. within the Restricted Period if the Contractor and Contractor Staff have Opted Out; or

6.3.2. otherwise within the Relevant Period.

6.4. The Contractor must notify Fusion without delay if:

6.4.1. the Contractor is unable to provide the Contractor Services during an Assignment for any reason;

6.4.2. the Contractor is aware of any reason why the Contractor or Contractor Staff are not suitable for an Assignment; or

6.4.3. the Client expresses any intention to vary the nature, scope or location of the Assignment.

6.5. Subject to clause 6.6, if any member of Contractor Staff is unable or unwilling to perform the Contractor Services, the Contractor shall appoint a Substitute and ensure that:

6.5.1. the Substitute has the relevant experience, training, qualifications, authorisations and necessary clearances to perform the Contractor Services;

6.5.2. the Contractor rather than Fusion is responsible for paying any remuneration to the Substitute; and

6.5.3. there is no delay to or adverse effect upon the performance of the Contractor Services.

6.6. Where the Client is a Public Authority which has deemed the Assignment to be within the Intermediaries Legislation:

6.6.1. clauses 6.1.2 and 6.5 shall not apply; and

6.6.2. the Contractor shall ensure that the Contractor Staff works under the supervision, direction and control of the Client at all times during the Assignment.

 

7. PROVISION OF INFORMATION

7.1 The Contractor must:

7.1.1. notify Fusion in writing if it becomes insolvent;

7.1.2. notify Fusion in writing if the Client wishes to extend the Assignment or if the Client offers to engage the Contractor or any Contractor Staff during the course of the Assignment or within six months of its termination;

7.1.3. provide all such information as Fusion shall require to:

7.1.3.1. comply with Fusion’s Reporting Obligations within five Business Days of Fusion requesting such information, including details of any payments made by the Contractor to a Subcontractor;

7.1.4. where relevant, show whether the Contractor operates inside or outside of the Intermediaries Legislation including, without limitation, an Online Assessment; and

7.1.5. make payment of the Contractor Fees where clause 8.6 applies including, without limitation, the Contractor Staff member’s National Insurance number, tax code and last P45.

7.2 Fusion shall:

7.2.1. issue an Assignment Schedule to the Contractor prior to commencement of an Assignment or as soon as reasonably practicable thereafter; and

7.2.2. advise the Contractor of any relevant health and safety information relating to the Assignment which Fusion receives from the Client and, if the Contractor and Contractor Staff have not Opted Out, any information specified in the Conduct Regulations.

 

8. INVOICING & PAYMENTS

8.1. At the end of each week of the Assignment or at such interval as may be agreed between the Contractor and Fusion from time to time, the Contractor shall submit to Fusion a Progress Report in a format acceptable to Fusion and to the Client.

8.2. The Contractor shall obtain the written approval of the Progress Report by an authorised representative of the Client and the approved Progress Report must be received by Fusion together no later than 12:00pm on the Wednesday following the week to which it relates, together with a corresponding invoice unless the Contractor has entered into a self-billing agreement with Fusion.

8.3. Subject to clause 8.12, Fusion shall not pay any Contractor Fees to the Contractor in respect of any Progress Report which has not been approved by the Client.

 

8.4. Following receipt of the Progress Report and, where relevant, the Contractor’s invoice, Fusion will pay the Contractor Fees within the period specified in the Assignment Schedule, subject to the right of set off or deduction clause 8.13.

8.5. Fusion shall determine whether the Contractor Services fall within the Construction Industry Scheme (where relevant) and, if so, shall make deductions from the Contractor Fees as required by law.

8.6. If the Client or, where relevant, the Client’s client is a Public Authority and has determined that the Assignment falls within the Intermediaries Legislation, unless the Assignment is being performed by a Subcontractor pursuant to clause 4.1:

8.6.1. Fusion shall deduct from the Contractor Fees any PAYE tax, Employers and Employees National Insurance Contributions in respect of the Contractor Staff and remit the same to HMRC;

8.6.2. Fusion shall deduct from the Contractor Fees any additional statutory charges or levies arising in relation to the deductions under clause 8.6.1 including, without limitation, the Apprenticeship Levy;

8.6.3. after making the relevant deductions under clauses 8.6.1 and 8.6.2, Fusion shall remit the remaining balance to the Contractor; and

8.6.4. the deduction of PAYE tax and National Insurance Contributions from the Contractor Fees shall not cause the Contractor Staff to be an employee or worker of Fusion at any time and the Contractor Staff shall not therefore be entitled to any statutory or contractual right or benefit which would ordinarily be available to employees or workers of Fusion including, without limitation, any right to SSP, SMP or to participate in Fusion’s pension scheme.

8.7. If Fusion has agreed to pay expenses to the Contractor in addition to the Contractor Fees, no such expenses shall be payable by Fusion until the Contractor has submitted an invoice, supported by itemised receipts.

8.8. Fusion shall be under no obligation to pay the Contractor Fees in respect of any Progress Report which is submitted to Fusion more than three months after the week to which it relates.

8.9. Fusion shall not be obliged to pay the Contractor for any period in which the Contractor Services are not provided, whether this is due to the Contractor being unable to provide the Contractor Services, the Client not requiring the provision of Contractor Services or any holiday, illness or absence of the Contractor Staff.

8.10. Fusion shall only pay the Contractor Fees to a UK-based bank account held in the name of the Contractor and shall not make payment to any third party, including any member of Contractor Staff.

8.11. If the Client notifies Fusion that it shall not pay for any part of the Contractor Services, the Contractor shall provide all such assistance as Fusion shall require to investigate the Client’s reasons for non-payment and, subject to clause 8.12, Fusion shall not be liable to pay for any part of the Contractor Services for which the Client is unwilling or unable to pay Fusion.

8.12. If the Contractor and Contractor Staff have not Opted Out:

8.12.1. Fusion shall accept a Progress Report from the Contractor which has not been approved by the Client but the payment of the relevant Contractor Fees may be delayed for a reasonable period while Fusion seeks approval of such Progress Report from the Client or confirmation of the Contractor Services which were actually performed in the period specified on the Progress Report; and

8.12.2. Fusion undertakes to pay the Contractor Fees irrespective of whether Fusion expects to receive payment from the Client.

8.13. If any sum of money is owed to Fusion by the Contractor for any reason including, without limitation,a prior overpayment or any liability of the Contractor under this Agreement or obligation by the Contractor to indemnify Fusion or the Client, Fusion may set off and deduct that sum from any amount due or which at any later time is due to the Contractor.

 

9. TERM AND TERMINATION

9.1. This Agreement shall commence on the Effective Date and shall continue until terminated by other party giving not less than one week’s written notice. Any Assignment in progress at the time of termination of this Agreement shall continue until completed or terminated in accordance with clause 9.2 or 9.3.

9.2. The Assignment shall commence on the date set out in the Assignment Schedule and, subject to any notice provision within the Assignment Schedule, may be terminated by either party at any time and without liability.

9.3. Notwithstanding any notice provision within the Assignment Schedule, Fusion may without notice and without liability terminate the Assignment at any time, where:

9.3.1. the Contractor or Subcontractor commits a material breach of the Client’s rules, regulations or procedures, to the extent that they are applicable to an independent contractor;

9.3.2. the Contractor commits a material breach of any obligation under this Agreement;

9.3.3. the Contractor refuses or fails to provide the Contractor Services;

9.3.4. the Client is dissatisfied with the Contractor Services;

9.3.5. any member of the Contractor Staff is convicted of a criminal offence;

9.3.6. either the Client or the Contractor becomes insolvent;

9.3.7. Fusion, acting reasonably, considers that it would be detrimental to the interests of the Contractor or the Client for the Assignment to continue;

9.3.8. the agreement between the Client and Fusion is terminated for any reason.

9.4. On termination of this Agreement:

9.4.1. the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination; and

9.4.2. clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

10. INTELLECTUAL PROPERTY RIGHTS

 

10.1.The Contractor warrants and must ensure that:

10.1.1. the Contractor and the Contractor Staff assign to the Client without charge all present and future interests of whatever nature in any Intellectual Property which is created or discovered or which otherwise arises out of or in connection with the Assignment;

10.1.2. the Contractor will do everything and will procure that the Contractor Staff will do everything that the Client may reasonably require to vest the rights referred to in clause 10.1 in the Client or such third party as the Client specifies, whether before or after the termination of this Agreement;

10.1.3. the Client retains ownership of all intellectual property rights of whatever nature in the documents, data and other materials provided to or provided by the Contractor in relation to an Assignment. For the avoidance of doubt, the Client shall not be deemed to have granted the Contractor any licence to use the documents, data or other materials other than for the purposes of performing the relevant Assignment;

10.1.4. the Contractor discloses to the Client without delay any idea, method, invention, discovery, design, concept or other work made or created by the Contractor during the course of an Assignment; and

10.1.5. the Contractor Services do not breach the intellectual property rights of any third party.

10.2. The Contractor irrevocably and unconditionally waives in favour of the Client all moral rights conferred on it by statute for any intellectual property, design or copyright work in which rights are or should be vested in the Client pursuant to this clause 10 and the Contractor shall procure the same waiver from the Contractor Staff.

10.3. The Contractor shall indemnify the Client and Fusion against any Losses arising out of or in connection with any allegation that any work or work product performed or delivered by the Contractor in connection with this Agreement infringes the intellectual property rights of any third party.

 

11. CONFIDENTIALITY

11.1. In order to protect the confidentiality and trade secrets of the Client and without prejudice to every other duty to keep secret all information given to it or gained in confidence, the Contractor shall and must ensure that the Contractor Staff shall:

11.1.1. not at any time whether during or after the Assignment (unless expressly authorised by the Client as a necessary part of the performance of the Contractor Services) disclose to any person or make use of any of the trade secrets or Confidential Information of the Client with the exception of information already in the public domain;

11.1.2. deliver up to the Client or Fusion (as directed) at the end of the Assignment all documents and other materials belonging to the Client which are in its possession including documents and other materials created by the Contractor during the Assignment;

11.1.3. not at any time make any copy, abstract, summary or précis of the whole or any part of any document or other material belonging to the Client except when required to do so in the course of the Assignment, in which event any such item shall remain the property of the Client; and

11.1.4. enter into any supplementary confidentiality agreement or undertaking as may be reasonably requested by Fusion or the Client from time to time.

 

12. ANTI-BRIBERY COMPLIANCE

12.1. The Contractor shall:

12.1.1. comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

12.1.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

12.1.3. comply with the Client’s Ethics and Anti-Bribery Policies as notified to the Contractor, in each case as may be updated from time to time (Relevant Policies);

12.1.4. have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 12.1.2, and will enforce them where appropriate; and

12.1.5. promptly report to Fusion any request or demand for any undue financial or other advantage of any kind received by the Contractor in connection with the performance of this Agreement.

13. COMPLIANCE INFORMATION

13.1. The Contractor must provide on demand and without delay all such documents and information as may be required by Fusion in relation to the engagement and payment of any member of Contractor Staff including, without limitation, any contract, right to work and identification check, payslip, remittance advice, RTI return, P11d, P87 and P60.

13.2. The Contractor warrants that each member of Contractor Staff has unconditionally agreed to the Contractor providing to Fusion any data, documents and information relating to the Contractor Staff which Fusion may require pursuant to this clause 13.

13.3.The Contractor warrants that each Subcontractor has unconditionally agreed to provide to the Contractor and Fusion all such documents and information as Fusion may require to show that each Subcontractor has accounted to HMRC for tax and National Insurance for any period in which the Subcontractor has performed an Assignment.

13.4. The Contractor must ensure that any documents and information which are sent by the Contractor to Fusion electronically are encrypted or password protected and the Contractor shall provide such credentials as Fusion shall require to access the relevant documents and information.

13.5. Fusion warrants that it shall process and retain all data, documents and information provided by the Contractor under this clause 13 confidentially and in accordance with the Data Protection Act 1998 and Fusion shall not disclose any such data, documents or information to any third party other than Fusion’s Client’s, professional advisors and service providers or as required by law.

 

14. INSURANCE

14.1. The Contractor must, unless otherwise agreed with Fusion in writing, maintain in force throughout the course of an Assignment:

14.1.1. Employers’ Liability Insurance with cover of not less than £5,000,000 per claim, unless the Contractor is exempt under the Employers’ Liability (Compulsory Insurance) Act 1969;

14.1.2. Public Liability Insurance with cover of not less than £2,000,000 per claim; and

14.1.3. Professional Indemnity Insurance with cover of not less than £1,000,000 per claim.

14.2. The Contractor must ensure that the Professional Indemnity Insurance policy referred to in clause 14.1.3 is maintained for a period of not less than six years following termination of this Agreement.

14.3. The Contractor shall provide to Fusion and the Client on request copies of the insurance policy schedule and the receipt for payment of the annual premium.

14.4. The Contractor may be required to hold additional insurance policies or higher levels of insurance for certain Assignments. Any such requirement shall be specified by Fusion as a Special Condition.

 

15. LIABILITY & INDEMNITY

15.1. The Contractor shall be liable for and shall indemnify Fusion and the Client for any Losses suffered or incurred as a result of:

15.1.1. the Contractor’s breach of any obligation under this Agreement, negligence or other tortious act and breach of statutory duty;any act or omission of the Subcontractor;

15.1.2. any act or omission of the Subcontractor;

15.1.3. any defect or deficiency in the Contractor Services and shall, where practicable, remedy such defect or deficiency as may be capable of remedy forthwith in the Contractor’s own time and at the Contractor’s own expense;

15.1.4. any member of the Contractor Staff or Subcontractor Staff bringing or threatening to bring a claim against Fusion or the Client in the Employment Tribunal;

15.1.5. any finding or decision by a governmental body, court or tribunal that a member of Contractor Staff or Subcontractor Staff is an employee or worker of Fusion or the Client; and

15.1.6. any claim, demand or assessment made by HMRC (or an equivalent body) for income tax or National Insurance Contributions relating to payments made by Fusion to the Contractor, except to the extent that such claim, demand or assessment arises from the acts or omissions of Fusion or the Client.

15.2. Subject to clause 15.3, the liability of Fusion to the Contractor in respect of any claim or series of claims arising out of or in connection with this Agreement and whether arising in contract, tort (including negligence) or otherwise shall be limited to the Contractor Fees paid by Fusion to the Contractor in the three month period immediately prior to such claim arising.

15.3. Nothing in this Agreement should be construed as limiting or excluding Fusion’s liability for fraud or fraudulent misrepresentation, for death or personal injury arising from Fusion’s negligence or for any other claim which may not be limited or excluded by law.

 

16. GENERAL

16.1. If any provision of this Agreement shall be determined to be unenforceable, such provision shall, to the extent that it is unenforceable, be severed from the remaining terms, which shall continue to be valid to the extent permitted by law.

16.2. This Agreement shall not be enforceable by any third party except the Client who shall have the benefit of a third party right to enforce clauses 6.1, 10, 11 and 15.1 directly against the Contractor.

16.3. This Agreement shall be interpreted in accordance with English law and each party irrevocably agrees, for the sole benefit of Fusion that, subject as provided below, the courts of England & Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation. Nothing in this clause shall prevent Fusion from bringing proceedings in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.