“AO” means A.O. Limited a company incorporated in Israel and with a place of business at Wework Paddington, 2 Eastborne Terrace, London W2 6LG;
“Assignment” means the working arrangement agreed between the Client and a Temp on the Xtras App, including Fees, and location and scope of work;
“AWR 2010” means the Agency Workers Regulations 2010 (SI 2010/93);
“Client” means the person, firm or company using the Xtras App to search for and engage Temps;
“Fees” means the fees payable by the Client to AO Fees in respect of a Temp in accordance with clause 5;
“Temp” means an individual worker who is a user of the Xtras App and whose details the Client has viewed on the Xtras App, and whom the Client wishes to engage to provide services to the Client, not as an employee of the Client but who is deemed to be an agency worker for the purposes of the AWR 2010; and
“Xtras App” means AO’s website and mobile app for recruiting and matching job seekers and employers for hospitality and events.
1.6.1 clause headings are inserted for ease of reference only and do not affect construction;
1.6.2 words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice-versa, words importing the singular shall be treated as importing the plural and vice-versa, and words importing whole shall be treated as including a reference to any part thereof.
2. Xtras App
2.1 AO shall make the Xtras App available to the Client and to Temps so that:
2.1.1 the Client can use the Xtras App to search for Temps who meet the Client's requirements;
2.1.2 the Client and Temps can track and update the status of each Assignment;
2.1.3 an electronic invoice can be generated for the Client; and
2.1.4 AO can make payment to the Temp.
2.2 The Client may use the Xtras App only for lawful purposes. The Client must not use the Xtras App in any way that breaches any applicable local, national or international law or regulation or in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect.
2.3 The Client uses the Xtras App at the Client’s own risk and AO is under no obligation to provide the Client with any technical support or to correct any errors, although AO reserve the right to do so. If the Client experiences any difficulty using the Xtras App, the Client can contact AO by email at email@example.com and AO shall endeavour to respond to the Client’s enquiry.
3.1 The Client is responsible for maintaining the confidentiality of its account details, including any user ID, passwords or any other piece of information that forms part of our security procedures, and the Client must not disclose these to any third party. The Client is responsible for all activity under the Client’s account even if someone else uses the Client’s account. The Client authorises AO to act on instructions received under the Client’s account and AO will not be liable for any loss that the Client might suffer through following such instructions whether by the Client or another person.
3.2 The Client shall be responsible for disabling the access rights of any person who is an authorised user of the Xtras App if that person's employment terminates with the Client.
4.1 AO shall take all reasonably practicable steps to ensure that Temps:
4.1.1 are not less than 18 years of age;
4.1.2 have the right to work in the UK; and
4.1.3 are suitable for the Assignment.
4.2 The Client shall ensure that:
4.2.1 the working environment at any of its premises in or at which a Temp is engaged shall comply with all applicable health and safety laws and regulations;
4.2.2 the Temp has access to the same collective facilities and amenities that the Client's other staff have access to; and
4.2.3 if an Assignment lasts twelve weeks or more, or back to back Assignments cumulatively last twelve weeks of more, the Temp enjoys the same terms and conditions as other comparable staff including in relation to basic pay (including holiday pay, overtime, bonuses, commission), working time, night work, rest breaks and annual leave.
4.3 AO shall ensure that Temps are contractually obliged to comply with:
4.3.1 all relevant statutes, laws, regulations and codes of practice from time to time in force in the performance of an Assignment and applicable to the Client's business;
4.3.2 the Client's health and safety policy whilst the Temps are on the Client’s premises or any of the Client's customers' premises; and
4.3.3 a restriction not to disclose any confidential information of the Client or any of the Client’s customers which they may acquire during the course of the Assignment.
4.4 If the Client reasonably decides that a Temp is unsuitable to perform the Assignment, then the Client shall notify AO in writing of that fact giving the grounds for its dissatisfaction with the Temp.
4.5 If the Client notified AO of an unsuitable Temp in accordance with clause 4.4:
4.5.1 within 24 hours of the commencement of the Assignment, then the Assignment will immediately terminate and no Fees shall be payable, and
4.5.2 in all other cases the Assignment shall terminate at the end of the day on which AO was notified, and Fees shall be payable up to the date of such termination.
5.1 The Fees are calculated according to the number of hours worked by the Temp (to the nearest hour) and comprise the following:
5.1.1 the Temp’s hourly rate of pay agreed by the Client and the Temp when confirming the Assignment on the Xtras App;
5.1.2 an amount equal to any paid holiday leave to which the Temp is entitled under the Working Time Regulations and, where applicable, the AWR 2010 and which is accrued during the course of an Assignment;
5.1.3 employer’s National Insurance contributions; and
5.1.4 AO’s commission, which is calculated as a percentage of the Temp’s hourly rate.
5.2 Within 24 hours following completion of the Assignment, the Client shall submit to AO by email to firstname.lastname@example.org a report of the hours worked by the Temp on the Assignment. AO shall also receive from the Temp a record of the hours worked on the Assignment.
5.3 If the time reports of the Client and the temp match to within an hour, AO shall invoice the Client.
5.4 In the event of any discrepancy, AO shall conduct an enquiry and the Client shall co-operate in good faith with AO to resolve the matter. Once AO has resolved the matter and made a determination, AO shall invoice the Client.
5.5 The Client shall pay the Fees for the minimum period of the Assignment as stated when confirming the Assignment on the Xtras App, regardless of whether or not the Client sends the Temp away earlier or dismisses the Temp without good cause.
5.6 The Client shall pay AO’s invoices within 7 days of receipt or as otherwise agreed between AO and the Client.
5.7 Time for payment is of the essence. If the Client fails to pay on time, AO may suspend the supply of the Temp, and / or terminate this Agreement.
5.8 AO shall be entitled to charge the Client interest on any overdue amount at the rate of 4% per annum above the base rate of the Bank of England from time to time in force from the due date until the date of payment, and any such interest shall be payable on demand. If the Client fails to pay any of the amounts due under this Agreement then AO shall be entitled to suspend the Client's access to the Xtras App and/or terminate this Agreement forthwith.
5.9 All amounts payable under this Agreement are inclusive of value added tax and any other like taxes applicable, which shall be payable by the Client at the rate prevailing at the time.
5.10 AO shall be responsible for paying the Temp and deduction and payment of all tax, National Insurance contributions and other taxes and levies in respect of the Temp.
6.1 Once the Client has booked a Temp via the Xtras App the Client may cancel or amend (subject to Temp availability) the booking up to 24 hours prior to the original scheduled start time. If a cancellation or amendment is made within 24 hours of the original scheduled start time an automatic charge of the full number of hours booked at the agree rate.
7. Term and termination
7.1 This Agreement will become effective once the Client clicks “Accept” and shall remain in effect for the duration of the Client's use of the Xtras App. The Client shall in any event be deemed to have accepted the terms of this Agreement by virtue of using the Xtras App.
7.2 Unless otherwise agreed in writing either party may terminate this Agreement at its sole discretion at any time without reason upon written notice by email to email@example.com. Upon termination of this Agreement both the Client and AO shall continue to comply with their respective obligations under this Agreement in relation to any ongoing Assignment and the Client shall continue to be responsible for any payments in relation to such Assignment. Termination of this Agreement will automatically result in the Client no longer having access to the Xtras App save to the extent necessary to comply with any such ongoing obligations.
7.3 The Client acknowledges that if their access to the Xtras App is revoked or closed (including a period of suspension) then the Client shall no longer have access to any data, messages, files, payment information or other data stored on the Xtras App, and that such data may be deleted.
7.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
7.5 Termination of this Agreement 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 agreement which existed at or before the date of termination.
8.1 AO provides the Xtras App on an “as is” and “as available” basis with all faults. AO does not guarantee that the Client will be able to access or use the Xtras App at times or locations of the Client’s choosing.
8.2 To the maximum extent permitted by applicable law, AO expressly excludes all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity, including without limitation implied conditions and warranties that the Xtras App and its contents are of satisfactory quality, accurate, complete, current, not misleading, fit for a particular purpose or non-infringing.
8.3 The Client acknowledges that AO does not in any way supervise, direct or control any Temp nor is it responsible for setting hours, location of work or determining rates of pay. AO does not provide the Temp with any training or equipment and makes no representations or guarantees that the Temp will provide their services at all and/or in a timely manner nor does AO make any representations or guarantees about the quality of the services provided by the Temp or the accuracy of their stated experience or any other listings or information provided by them on the Xtras App, save that AO shall use reasonable endeavours to obtain confirmation that the Temp has valid and subsisting leave to enter and remain in the United Kingdom and is not subject to any conditions which may preclude the Temp from or have an adverse effect on them working for the Client.
8.4 AO shall not be liable for any loss or damage arising from the negligent, wrongful, dishonest or fraudulent acts or omissions or misrepresentations of any Temp. All Temps are engaged under the supervision, direction or control of the Client and the Client will be responsible for all acts, errors and omissions of the Temp, whether wilful, negligent or otherwise and shall ensure the Temp's compliance with all applicable laws, legal requirements, statutes, bylaws and codes of practice.
9.1 Nothing in this clause 9 shall limit or exclude the liability of AO for death or personal injury caused by AO’s own negligence or fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1, AO shall not be liable whether in contract, tort, negligence or otherwise for:
9.2.1 any indirect or consequential loss; or
9.2.2 any loss of profits, goodwill, turnover or business (direct or indirect).
9.3 Subject to clause 9.1 AO’s liability (whether in contract, tort, negligence or otherwise) in respect of any Temp shall be limited to AO’s commission received from the Client in respect of that Temp in the 3 months before written notification of the claim.
10.1 The Client shall indemnify and keep indemnified AO against any damages, costs, claims or losses incurred or suffered by AO:
10.1.1 arising out of any breach of this Agreement by the Client;
10.1.2 arising out of or relating to any employment related claims made by a Temp including (but not limited to) unfair dismissal, discrimination, whistleblowing, a claim under the AWR 2010, or any other claims concerning the termination of the Temp's employment or the Client's failure to comply with its payment obligations in respect of its engagement of the Temp; and
10.1.3 arising from a failure by the Client to comply with pension auto enrolment obligations.
11.1 The Client shall ensure that it has in place adequate insurance to insure against all risks to third parties arising out of any acts, omissions or defaults of the Temp during any Assignment and to indemnify AO against all claims, costs and damages arising out of the Assignment.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (except for information which is in or enters the public domain other than by breach of this clause), save as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.2 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under this Agreement.
13. Intellectual property rights
13.1 The Client acknowledges that all intellectual property rights in relation to the Xtras App are and shall remain vested in AO and that the Client shall acquire no rights in relation to the Xtras App other than to use it in accordance with the terms of this Agreement.
14. Data protection
14.1 To the extent that any data belonging to the Client is personal data within the meaning of the Data Protection Act 1998:
14.1.1 AO will process such data only for the purposes of this Agreement or in accordance with the Client's instructions;
14.1.2 AO will take such technical and organisational measures against unauthorised or unlawful processing of such data and information and against accidental loss or destruction of, or damage to, such data and information as are appropriate to the Client as data controller.
14.2 The Client consents to the transfer of such data outside the European Economic Area for the purposes connected with the performance of this Agreement.
15.1 Each party warrants that it has full capacity and authority to enter into and perform this Agreement.
15.2 The Client shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without AO’s prior written consent.
15.3 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
15.4 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.5 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
15.6 No one other than a party to this Agreement shall have any right to enforce any of its terms.
15.8 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
15.9 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).